People v. Lee , 397 Ill. App. 3d 1067 ( 2010 )

NO. 4-08-0762 Filed 2/17/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
CHARLES E. LEE, ) No. 08CF33
Defendant-Appellant. )
) Honorable
) Timothy J. Steadman,
) Judge Presiding.
_________________________________________________________________
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.
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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
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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, 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, 891 N.E.2d 990, 992 (2008), citing People v. Owens, 240
Ill. App. 3d 168, 170-71, 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, 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, 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, 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, 473 N.E.2d at
1290. This is true even when the two statutes are in "apparent
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conflict," as long as this is reasonably possible. Maya, 105
Ill. 2d at 287, 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, 664 N.E.2d 76, 84 (1996), quoting People ex
rel. Carey v. Bentivenga, 83 Ill. 2d 537, 542, 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, 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, 891 N.E.2d at 993, quoting Almendarez-Torres v. United
States, 523 U.S. 224, 243, 140 L. Ed. 2d 350, 368, 118 S. Ct.
1219, 1230 (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, 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, 664 N.E.2d at
84.
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The First District recently tackled this very question.
See Fields, 383 Ill. App. 3d 920, 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, 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, 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, 891 N.E.2d
at 993, citing Thomas, 171 Ill. 2d at 222-23,
64 N.E.2d at 85.
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, 891 N.E.2d at 993, citing Morrow v.
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Dixon, 108 Ill. 2d 223, 226-27, 483 N.E.2d 876, 877 (1985);
People v. Levin, 157 Ill. 2d 138, 156, 623 N.E.2d 317, 326
(1993); People v. Jameson, 162 Ill. 2d 282, 287, 642 N.E.2d 1207,
1209-10 (1994); Thomas, 171 Ill. 2d at 222, 664 N.E.2d at 84.
If this burglary conviction had been defendant's first
criminal conviction, the sentencing range would have been not
less than three years and not more than seven years in prison.
730 ILCS 5/5-8-1(a)(5) (West 2006). However, defendant is a
recidivist. The General Assembly, in enacting section 5-5-
3(c)(8) of the Unified Code (730 ILCS 5/5-5-3(c)(8) (West 2006)),
intended to provide for Class X sentencing for recidivists like
defendant, even though the underlying offense, standing alone,
constituted only a Class 2 felony.
While in some situations, the expression of one thing
in a statute can be construed to mean the exclusion of things
unexpressed, this aid to the construction of a statute is
subordinate to the rule that legislative intent controls in
interpreting a statute. People v. Roberts, 214 Ill. 2d 106, 117,
824 N.E.2d 250, 256 (2005). As stated earlier, our supreme court
has made clear the intent of the legislature was to punish
recidivist criminals more harshly than first-time offenders.
Thomas, 171 Ill. 2d at 228, 664 N.E.2d at 87. As for defendant's
argument the rule of lenity requires this court to vacate
defendant's sentence and remand this case for the trial court to
sentence him to between three and seven years in prison, our
supreme court has stated it is well settled the rule of lenity
"does not require a court to construe a statute 'so rigidly ***
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as to defeat the intent of the legislature.'" In re Detention of
Powell, 217 Ill. 2d 123, 142, 839 N.E.2d 1008, 1019 (2005),
quoting People v. Washington, 343 Ill. App. 3d 889, 903, 800
N.E.2d 436, 447 (2003). Construing these two sections of the
Unified Code in the manner requested by defendant would defeat
the intent of the legislature.
The fallacy of defendant's argument is further
demonstrated when one considers the extended-term-sentencing
provisions found in section 5-8-2 of the Unified Code (730 ILCS
5/5-8-2 (West 2006)). Under that section, if aggravating factors
found in section 5-5-3.2(b) are present, then a defendant is
eligible for an extended term for a Class 2 felony up to double
the maximum sentence normally available, i.e., up to 14 years.
730 ILCS 5/5-8-2(a)(4) (West 2006). If this court accepts
defendant's argument that section 5-8-1 of the Unified Code sets
forth the maximum term available except where the statute
defining the offense sets forth a different term, then no
extended term of imprisonment could ever be imposed pursuant to
section 5-8-2 of the Unified Code because it is not a "statute
defining an offense." Certainly, no one could argue the
legislature did not intend to make extended-term sentencing
available to courts where defendants qualify for such sentencing.
Yet, this is the logical extension of defendant's rationale.
Defendant next argues he should have only received a
two-year term of MSR because he was only convicted of a Class 2
felony. This court has held that defendants subject to mandatory
Class X sentencing under section 5-5-3(c)(8) of the Unified Code
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based on prior convictions are required to serve a three-year MSR
term. People v. Smart, 311 Ill. App. 3d 415, 417-18, 723 N.E.2d
1246, 1248 (2000). Defendant asks this court to reconsider its
holding in Smart in light of our supreme court's decision in
People v. Pullen, 192 Ill. 2d 36, 733 N.E.2d 1235 (2000). The
State argues Pullen does not affect this court's holding in Smart
because it is distinguishable. We agree.
In Pullen, the defendant committed five counts of
burglary, a Class 2 offense (720 ILCS 5/19-1(b) (West 1994)), and
the issue was the maximum length of consecutive sentences a court
could impose under section 5-8-4(c)(2) of the Unified Code (730
ILCS 5/5-8-4(c)(2) (West 1994)). Pullen, 192 Ill. 2d at 40, 733
N.E.2d at 1237. The defendant's prior convictions subjected him
to sentencing as a Class X offender under section 5-5-3(c)(8) of
the Unified Code (730 ILCS 5/5-5-3(c)(8) (West 1994)). Pullen,
192 Ill. 2d at 41, 733 N.E.2d at 1238. At the time the defendant
committed the offenses, section 5-8-4(c)(2) of the Unified Code
provided, in pertinent part, the following: "'[T]he aggregate of
consecutive sentences shall not exceed the sum of the maximum
terms authorized under [s]ection 5-8-2 [of the Unified Code (730
ILCS 5/5-8-2 (West 1994))] for the [two] most serious felonies
involved.'" Pullen, 192 Ill. 2d at 40, 733 N.E.2d at 1237,
quoting 730 ILCS 5/5-8-4(c)(2) (West 1994). The issue was then
"whether the maximum permissible sentence was 120 years--the sum
of the maximum permissible extended-term sentences for two Class
X offenses (730 ILCS 5/5-8-2(a)(2) (West 1994))--or 28 years--the
sum of the maximum permissible extended-term sentences for two
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Class 2 offenses (730 ILCS 5/5-8-2(a)(4) (West 1994))." Pullen,
192 Ill. 2d at 42, 733 N.E.2d at 1238.
The Pullen court noted the only felonies involved were
burglaries, and burglary is explicitly defined as a Class 2
felony (720 ILCS 5/19-1(b) (West 1994)). Pullen, 192 Ill. 2d at
42-43, 733 N.E.2d at 1238. Under section 5-8-2(a)(4) of the
Unified Code (730 ILCS 5/5-8-2(a)(4) (West 1994)), the maximum
sentence for a Class 2 felony was 14 years, and thus the maximum
aggregate sentence was 28 years. Pullen, 192 Ill. 2d at 43, 733
N.E.2d at 1238. The court specifically noted the character and
classification of the defendant's felony convictions remain
unchanged, notwithstanding he or she is subject to the sentence
enhancement in section 5-5-3(c)(8) of the Unified Code. Pullen,
192 Ill. 2d at 46, 733 N.E.2d at 1240.
We agree with the State that Pullen does not undermine
our decision in Smart, which involved section 5-8-1(d) of the
Unified Code and not sections 5-8-4(c)(2) and 5-8-2 of the
Unified Code. If a defendant satisfies the provisions of section
5-5-3(c)(8) of the Unified Code (730 ILCS 5/5-5-3(c)(8) (West
2006)), that section provides "such defendant shall be sentenced
as a Class X offender." Section 5-8-1(d) of the Unified Code
(730 ILCS 5/5-8-1(d) (West 2006)) states, "every sentence shall
include as though written therein a term in addition to the term
of imprisonment." As noted in Smart, 311 Ill. App. 3d at 417-18,
723 N.E.2d at 1248, that provision makes the MSR term part of the
sentence. Thus, since the MSR term is part of the sentence under
section 5-8-1(d) of the Unified Code and the sentence must be a
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Class X sentence under section 5-5-3(c)(8) of the Unified Code, a
reading of the two provisions together requires a Class X MSR
term, i.e., a three-year term under section 5-8-1(d)(1) of the
Unified Code. Thus, the three-year MSR term imposed by the trial
court is not void.
Lastly, we note our decision in Smart, reaffirmed here,
is in accord with decisions of the First and Third Appellate
Districts. See People v. Anderson, 272 Ill. App. 3d 537, 541-42,
650 N.E.2d 648, 651 (1995); People v. Watkins, 387 Ill. App. 3d
764, 766-67, 901 N.E.2d 964, 966 (2009).
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we award the State its $50
statutory assessment against defendant as costs of this appeal.
Affirmed.
KNECHT and STEIGMANN, JJ., concur.
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