The People Of The State Of Ill. v. Lee

• Decision Date: 17 February 2010
• Docket Number: No. 4-08-0762.,4-08-0762.
• Citation: 339 Ill.Dec. 170,397 Ill.App.3d 1067,926 N.E.2d 402
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Charles E. LEE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

397 Ill.App.3d 1067

926 N.E.2d 402

339 Ill.Dec. 170

The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Charles E. LEE, Defendant-Appellant.

No. 4-08-0762.

Appellate Court of Illinois,

Fourth District.

Feb. 17, 2010.

Michael J. Pelletier, Gary R. Peterson, and Susan M. Wilham, all of State Appellate Defender's Office, of Springfield, for appellant.

Jack Ahola, State's Attorney, of Decatur (Patrick Delfino, Robert J. Biderman, and Anastacia R. Brooks, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

Justice POPE delivered the opinion of the court:

In April 2008, a jury convicted defendant, Charles E. Lee, of burglary (720 ILCS 5/19-1(a) (West 2006)). In May 2008, the trial court sentenced defendant as a Class X offender pursuant to section 5-5-3(c)(8) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-5-3(c)(8) (West 2006) (as amended by Pub. Act 94-1035, § 10, eff. July 1, 2007 (2006 Ill. Legis. Serv. 2668, 2668-74 (West)), Pub. Act 95-188, § 5, eff. August 16, 2007 (2007 Ill. Legis. Serv. 1681, 1688-94 (West)), Pub. Act 95-259, § 10, eff. August 17, 2007 (2007 Ill. Legis. Serv. 1994, 2001-07 (West)), and Pub. Act 95-331, § 1070, eff. August 21, 2007 (2007 Ill. Legis. Serv. 2941, 2961-67 (West)))) (hereinafter 730 ILCS 5/5-5-3(c)(8) (West 2006) for ease of reference) to 13 years in the Illinois Department of Corrections (IDOC) to be followed by a 3-year period of mandatory supervised release (MSR). Defendant appeals, arguing he should have been sentenced strictly pursuant to section 5-8-1(a)(5) of the Unified Code (730 ILCS 5/5-8-1(a)(5) (West 2006)) because section 5-8-1(a)(5) and section 5-5-3(c)(8) of the Unified Code conflict and due process requires application of the rule of lenity. Defendant also argues he should have been sentenced to a two-year term of MSR instead of a three-year term because he was only convicted of a Class 2 felony. We affirm.

I. BACKGROUND

In January 2008, the State charged defendant by information with one count of burglary (720 ILCS 5/19-1(a) (West 2006)), relating to the December 2007 theft of a television from the Belvedere Center Plaza in Decatur. In April 2008, a jury found defendant guilty of burglary. In May 2008, the trial court sentenced defendant as a Class X offender to 13 years' imprisonment with 3 years of MSR because prior qualifying convictions rendered him eligible for Class X sentencing. This appeal followed.

II. ANALYSIS

We first address defendant's argument he should have been sentenced within the sentencing range for Class 2 felonies pursuant to the rule of lenity because section 5-8-1(a)(5) of the Unified Code (730 ILCS 5/5-8-1(a)(5) (West 2006)) and section 5-5-3(c)(8) of the Unified Code (730 ILCS 5/5-5-3(c)(8) (West 2006)) are conflicting. Under section 5-5-3(c)(8) of the Unified Code, defendants over the age of 21, who are convicted of a Class 1 or Class 2 felony, must be sentenced as a Class X offender if they have prior convictions for two Class 2 or higher class felonies arising out of different series of acts.

Section 5-5-3(a) of the Unified Code (730 ILCS 5/5-5-3(a) (West 2006)) states “every person convicted of an offense shall be sentenced as provided in this [s]ection.” On the other hand, section 5-8-1(a) of the Unified Code states “[e]xcept as otherwise provided in the statute defining the offense, a sentence of imprisonment for a felony shall be a determinate sentence set by the court under this [s]ection, according to the following limitations.” 730 ILCS 5/5-8-1(a) (West 2006). Under “this section,” i.e., section 5-8-1(a) of the Unified Code, the maximum term of imprisonment for a Class 2 felony is seven years. 730 ILCS 5/5-8-1(a)(5) (West 2006).

Defendant contends section 5-8-1(a)(5) of the Unified Code (730 ILCS 5/5-8-1(a)(5) (West 2006)) contains only one exception i.e., “except as otherwise provided in the statute defining the offense.” Defendant's argument boils down to this: a statute defining an offense, and only a statute defining an offense, can provide for a sentence different from that provided in section 5-8-1(a)(5) of the Unified Code (730 ILCS 5/5-8-1(a)(5) (West 2006)). Since section 5-5-3(c)(8) of the Unified Code (730 ILCS 5/5-5-3(c)(8) (West 2006)) is not a statute defining an offense, and because it provides for a different sentence for qualifying defendants than is provided in section 5-8-1(a)(5), the two sentencing provisions are in conflict. Further, because of this alleged conflict in the sentencing statutes, defendant contends the rule of lenity requires section 5-8-1(a)(5) to take precedence over the Class X sentencing mandate of section 5-5-3(c)(8).

In criminal prosecutions, the rule of lenity requires ambiguities in statutes to be resolved in a defendant's favor. People v. Harper, 392 Ill.App.3d 809, 820, 331 Ill.Dec. 282, 910 N.E.2d 691, 700-01 (2009). Particularly, where no legislative history exists to aid the court in determining whether the legislature intended an enhancement provision to apply to a given charge, the court can apply the rule of lenity. People v. Fields, 383 Ill.App.3d 920, 922, 322 Ill.Dec. 699, 891 N.E.2d 990, 992 (2008), citing People v. Owens, 240 Ill.App.3d 168, 170-71, 181 Ill.Dec. 86, 608 N.E.2d 159, 161 (1992).

Because defendant contends these two statutes conflict, thereby creating ambiguity, this presents an issue of statutory interpretation, which we review de novo. People v. Palmer, 218 Ill.2d 148, 154, 300 Ill.Dec. 34, 843 N.E.2d 292, 296 (2006). The primary rule of statutory construction is to give effect to the legislature's intent. Palmer, 218 Ill.2d at 156, 300 Ill.Dec. 34, 843 N.E.2d at 297. Both of the statutes at issue are part of the Unified Code and both concern criminal sentencing. Our supreme court has stated it presumes statutes that concern the same subject are governed by a single policy and one spirit, and the General Assembly intended the statutes to be consistent and harmonious. People v. Maya, 105 Ill.2d 281, 286, 85 Ill.Dec. 482, 473 N.E.2d 1287, 1290 (1985). Statutes on the same subject should be considered with reference to one another, not in isolation, in a manner allowing both sections to have harmonious effect. Maya, 105 Ill.2d at 287, 85 Ill.Dec. 482, 473 N.E.2d at 1290. This is true even when the two statutes are in “apparent conflict,” as long as this is reasonably possible. Maya, 105 Ill.2d at 287, 85 Ill.Dec. 482, 473 N.E.2d at 1290.

Our supreme court instructs us “ ‘the legislature has the authority to set the nature and extent of penalties. Courts will not interfere with such legislation unless the challenged penalty is clearly in excess of the very broad and general constitutional limitations applicable.’ ” People v. Thomas, 171 Ill.2d 207, 221, 215 Ill.Dec. 679, 664 N.E.2d 76, 84 (1996), quoting People ex rel. Carey v. Bentivenga, 83 Ill.2d 537, 542, 48 Ill.Dec. 228, 416 N.E.2d 259, 262 (1981). In this case, it is reasonably possible to give both of the sections of the Unified Code harmonious effect. The supreme court has stated the General Assembly's purpose in enacting section 5-5-3(c)(8) of the Unified Code was to “punish recidivists more severely” than first-time offenders. Thomas, 171 Ill.2d at 228, 215 Ill.Dec. 679, 664 N.E.2d at 87. Recidivism “ ‘is a traditional, if not the most traditional, basis for * * * increasing an offender's sentence.’ ” Fields, 383 Ill.App.3d at 923, 322 Ill.Dec. 699, 891 N.E.2d at 993, quoting Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S.Ct. 1219, 1230, 140 L.Ed.2d 350, 368 (1998). According to our supreme court, the legislature intended with the passage of section 5-5-3(c)(8) of the Unified Code to enhance the punishment for certain offenders based on their record of criminal convictions. Thomas, 171 Ill.2d at 222, 215 Ill.Dec. 679, 664 N.E.2d at 84. In addition, our supreme court has held a trial court has no discretion in the application of section 5-5-3(c)(8). Thomas, 171 Ill.2d at 222, 215 Ill.Dec. 679, 664 N.E.2d at 84.

The First District recently tackled this very question. See Fields, 383 Ill.App.3d 920, 322 Ill.Dec. 699, 891 N.E.2d 990. In Fields, the defendant was convicted of delivery of a controlled substance, a Class 2 felony, carrying a sentencing range of not less than three nor more than seven years' imprisonment. Fields, 383 Ill.App.3d at 922, 322 Ill.Dec. 699, 891 N.E.2d at 993. However, because he qualified for Class X sentencing pursuant to section 5-5-3(c)(8) of the Unified Code due to his prior convictions, defendant was required to be sentenced to at least 6 years and not more than 30 years' imprisonment. Fields, 383 Ill.App.3d at 922-23, 322 Ill.Dec. 699, 891 N.E.2d at 993. Declining to apply the rule of lenity, the First District found, in affirming the defendant's Class X sentence:

“[W]here it has been determined that the legislature's intent was to make section 5-5-3(c)(8) mandatory and a defendant's current and prior convictions fulfill the statutory requirements of that section, the defendant is properly sentenced as a Class X offender.” Fields, 383 Ill.App.3d at 923, 322 Ill.Dec. 699, 891 N.E.2d at 993, citing Thomas, 171 Ill.2d at 222-23, 215 Ill.Dec. 679, 664 N.E.2d 76.

We agree with the reasoning in Fields. A consistent, long-standing body of authority recognizes the sentencing provisions of section 5-5-3(c)(8) of the Unified Code (730 ILCS 5/5-5-3(c)(8) (West 2006)) when applicable, are mandatory and a trial court is without discretion to ignore them. See Fields, 383 Ill.App.3d at 923, 322 Ill.Dec. 699, 891 N.E.2d at 993, citing Morrow v. Dixon, 108 Ill.2d 223, 226-27, 91 Ill.Dec. 390, 483 N.E.2d 876, 877 (1985); People v. Levin, 157 Ill.2d 138, 156, 191 Ill.Dec. 72, 623 N.E.2d 317, 326 (1993); People v. Jameson, 162 Ill.2d 282, 287, 205 Ill.Dec. 90, 642 N.E.2d 1207, 1209-10 (1994); Thomas, 171 Ill.2d at 222, 215 Ill.Dec. 679, 664 N.E.2d at 84.

If this burglary conviction had been defendant's first...