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People v. Sullivan, No. 2-97-0264 2nd Dist. 1/12/99 |
No. 2--97--0264
January 12, 1999
___________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
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OF ILLINOIS, Plaintiff-Appellee, v. COREY SULLIVAN, Defendant-Appellant. of Kane County. No. 96--CF--844 Honorable Thomas E. Hogan, Judge, Presiding. JUSTICE McLAREN delivered the opinion of the court: Following a jury trial, defendant, Corey Sullivan, was convicted of
theft from a coin-operated machine (720 ILCS 5/16--5(a) (West 1996)).
The State sought to have the offense elevated from a Class A
misdemeanor to a Class 4 felony based on defendant's previous
conviction of possession of a stolen motor vehicle (625 ILCS
5/4--103(a)(1) (West 1996)). Defendant filed a presentencing motion
and memorandum in which he asked to have the charge maintained as a
Class A misdemeanor because possession of a stolen motor vehicle is
not a proper enhancing offense. The court denied the motion and
sentenced defendant to three years' imprisonment. Defendant appeals,
arguing that his conviction was improperly enhanced. We affirm in
part, reverse in part, and remand. The statutory provision at issue is section 16--5(c) of the Criminal
Code of 1961 (720 ILCS 5/16--5(c) (West 1996)), which provides as
follows: The indictment charging defendant with theft from a coin-operated
machine stated that the offense was a Class 4 felony, based on
defendant's previous conviction of possession of a stolen motor
vehicle. Defendant argues that possession of a stolen motor vehicle is
not one of the enhancing offenses listed in section 16--5(c). The
enhancing offenses are "any type of theft, robbery, armed robbery,
burglary, residential burglary, possession of burglary tools or home
invasion." 720 ILCS 5/16--5(c) (West 1996). The parties agree that the
only possible one that would apply is "any type of theft." Defendant
argues that possession of a stolen motor vehicle is not a type of
theft, while the State argues that it is. We find instructive the supreme court's analysis in People v. McCarty,
94 Ill. 2d 28 (1983). In McCarty, the court considered whether robbery
was "any type of theft" for purposes of the recidivist provision of
the theft statute (Ill. Rev. Stat. 1977, ch. 38, par. 16--1(e)(1) (now
codified, as amended, at 720 ILCS 5/16--1(b)(2) (West 1996))). After
noting that "theft" is a term of art defined by statute, the court
relied on three factors in concluding that robbery was not a type of
theft. First, theft requires an intent to permanently deprive the
owner of the property, while robbery requires no such showing of
intent. McCarty, 94 Ill. 2d at 33. Second, the court noted that all
theft offenses are codified in article 16 of the Criminal Code of 1961
(Criminal Code) and robbery is codified in article 18. McCarty, 94
Ill. 2d at 33-34. Finally, the court noted that construing robbery as
a type of theft would violate the principle that ambiguities in penal
statutes, particularly enhancement provisions, must be resolved in the
defendant's favor. McCarty, 94 Ill. 2d at 34-35. Applying the McCarty analysis to this case leads to the same result.
Possession of a stolen motor vehicle is codified at section
4--103(a)(1) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS
5/4--103(a)(1) (West 1996)) rather than in article 16 of the Criminal
Code. The trial court noted that possession of a stolen motor vehicle
was included in article I of chapter 4 of the Vehicle Code, which is
entitled "ANTI-THEFT LAWS." However, just because the purpose of the
provisions in article I is to discourage theft does not mean that any
one of them actually describes the crime of theft. For instance,
several of the sections involve title and registration offenses. See
625 ILCS 5/4--104 through 4--105.1 (West 1996). Making possession of a
stolen motor vehicle a Class 2 felony can discourage theft without the
possession itself actually being a theft. Further, the possession of a stolen motor vehicle statute makes it a
crime for a person "not entitled to the possession of a vehicle or
essential part of a vehicle to receive, possess, conceal, sell,
dispose, or transfer it, knowing it to have been stolen or converted."
625 ILCS 5/4--103(a)(1) (West 1996). This is similar to the type of
theft described in section 16--1(a)(4) of the Criminal Code (720 ILCS
5/16--1(a)(4) (West 1996)), which occurs when a person "[o]btains
control over stolen property knowing the property to have been stolen
or under such circumstances as would reasonably induce him to believe
that the property was stolen." However, this also requires an intent
to permanently deprive the owner of the property. See 720 ILCS
5/16--1(a)(4)(A) through (C) (West 1996). This element is not required
for possession of a stolen motor vehicle. One could argue that
possession of a stolen motor vehicle is a lesser included offense of
theft. Nevertheless, the supreme court rejected this contention in
People v. Bryant, 128 Ill. 2d 448, 457 (1989), and held that
possession of a stolen motor vehicle is a separate and more serious
offense than theft rather than a lesser included offense of theft. At best, section 16--5(c) is ambiguous in whether it includes
possession of a stolen motor vehicle as a type of theft. As stated
previously, ambiguities in penal statutes, particularly enhancement
provisions, must be resolved in the defendant's favor. McCarty, 94
Ill. 2d at 34-35. It is difficult to tell what the State is arguing in its brief.
However, to the extent the State suggests the enhancement could be
considered proper based on defendant's other previous convictions of
theft, burglary, and theft from a coin-operated machine, we reject
this contention because defendant was not given notice. The statute
unambiguously requires the State to give defendant notice in the
indictment of any offenses it plans to use in enhancing the sentence.
It is not for us to speculate why the State did not use any of
defendant's convictions that were specifically listed as enhancing
offenses in the statute but rather chose a conviction that was not
listed in the statute. The State did not list these other convictions
in the indictment, and thus they are irrelevant for our purposes. Defendant's conviction of possession of a stolen motor vehicle is a
Class A misdemeanor rather than a Class 4 felony. Accordingly, we
reverse defendant's sentence and remand the matter to the trial court
so that it can resentence defendant for a Class A misdemeanor. The
judgment of the circuit court of Kane County is otherwise affirmed. Affirmed in part and reversed in part; cause remanded. BOWMAN, P.J., and INGLIS, J., concur.
THE PEOPLE OF THE STATE
Appeal from the Circuit Court
"A person convicted of theft from a coin-operated machine shall be guilty of a Class A
misdemeanor. A person who has been convicted of theft from a coin-operated machine and who
has been previously convicted of any type of theft, robbery, armed robbery, burglary, residential
burglary, possession of burglary tools or home invasion is guilty of a Class 4 felony. When a
person has any such prior conviction, the information or indictment charging that person shall state
such prior conviction so as to give notice of the State's intention to treat the charge as a felony. The
fact of such prior conviction is not an element of the offense and may not be disclosed to the jury
during trial unless otherwise permitted by issues properly raised during such trial."