People v. Wishard ( 2009 )

Filed 12/15/09 NO. 4-08-0712
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
DWIGHT C. WISHARD, ) No. 08CF359
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
Defendant, Dwight C. Wishard, pleaded guilty to attempt
(residential burglary) (720 ILCS 5/8-4(a), 19-3(a) (West 2006)),
aggravated battery (720 ILCS 5/12-4(b)(18) (West 2006)), and
disarming a peace officer (720 ILCS 5/31-1a (West 2006)) and the
trial court sentenced him to a total of 14 years in prison. He
appeals, arguing section 31-1a of the Criminal Code of 1961
(Code) (720 ILCS 5/31-1a (West 2006)) impermissibly includes
conduct that constitutes both the inchoate and completed offense
of disarming a peace officer. He also contends his trial counsel
provided ineffective assistance for failing to raise that issue
with the trial court. We affirm.
On March 6, 2008, a grand jury indicted defendant for
the offenses of attempt (residential burglary) (720 ILCS 5/8-
4(a), 19-3(a) (West 2006)), aggravated battery (720 ILCS 5/12-
4(b)(18) (West 2006)), disarming a peace officer (720 ILCS 5/31-
1a (West 2006)), and obstructing justice (720 ILCS 5/31-4(a)
(West 2006)). Count IV, obstructing justice, was dismissed by
the State. On June 16, 2008, defendant made an open plea of
guilty to all but the obstructing-justice offense. According to
the State's factual basis, Virginia Dewar called police to her
residence in response to defendant repeatedly ringing her door-
bell and pounding on her door. Officers arrived on the scene and
discovered defendant crouched near a broken basement window at
the back of the residence. Defendant fled but was soon caught
and found with a crowbar in his possession.
While being taken into custody, defendant sustained
injuries that required medical treatment and was taken to a
hospital. At the hospital, he jumped off an examining table and
attacked Sergeant Robert Fitzgerald. Defendant also tried to
take Fitzgerald's handgun but Fitzgerald was able to push defen-
dant away. Defendant fled through the hospital's emergency room
but was tackled by a doctor. The trial court accepted defen-
dant's guilty pleas and set the matter for sentencing.
On August 1, 2008, the trial court sentenced defendant
to seven years' imprisonment for each offense. It ordered his
sentences for aggravated battery and disarming a peace officer to
run concurrently with each other but consecutively to his sen-
tence for attempt (residential burglary), for a total of 14 years
in prison. On August 18, 2008, defendant filed a motion to
reconsider his sentence, arguing only that his sentence was
excessive. On September 10, 2008, the court denied his motion.
This appeal followed.
On appeal, defendant argues section 31-1a of the Code
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impermissibly includes conduct that constitutes both the inchoate
and completed offense of disarming a peace officer. He contends
section 31-1a (1) abrogates the rule that no person shall be
convicted of both the inchoate and principal offense as set forth
in section 8-5 of the Code (720 ILCS 5/8-5 (West 2006)), (2)
raises unconstitutional disproportionate-penalty problems because
the same misconduct is classified as both a Class 2 and 3 felony,
and (3) violates the rule that penal statutes must be strictly
construed in the accused's favor. Defendant acknowledges he
failed to raise this issue with the trial court but contends it
may, nevertheless, be considered on appeal pursuant to the plain-
error doctrine.
"Under [Supreme Court] Rule 604(d) [(210 Ill. 2d R.
604(d))], any issue not raised in a motion to withdraw a guilty
plea or to reconsider a sentence after a guilty plea is for-
feited." People v. Thompson, 375 Ill. App. 3d 488, 492, 874
N.E.2d 572, 575-76 (2007). However, in some circumstances, the
plain-error doctrine may be applied as an exception to the
forfeiture rule. Thompson, 375 Ill. App. 3d at 492, 874 N.E.2d
at 576. Pursuant to the plain-error doctrine, a reviewing court
may consider unpreserved error where:
"'(1) a clear and obvious error occurred and
the evidence is so closely balanced that the
error alone threatened to tip the scales of
justice against the defendant, regardless of
the seriousness of the error, or (2) a clear
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or obvious error occurred and that error is
so serious that it affected the fairness of
the defendant's trial and challenged the
integrity of the judicial process, regardless
of the closeness of the evidence.'" People
v. Walker, 232 Ill. 2d 113, 124, 902 N.E.2d
691, 697 (2009), quoting People v.
Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d
403, 410-11 (2007).
"Under both prongs of the plain-error doctrine, the
burden of persuasion remains with defendant." Walker, 232 Ill.
2d at 124, 902 N.E.2d at 697. "The initial step in conducting
plain-error analysis is to determine whether error occurred at
all." Walker, 232 Ill. 2d at 124, 902 N.E.2d at 697. "This
requires *** a substantive review of the issue." Walker, 232
Ill. 2d at 125, 902 N.E.2d at 697.
"The fundamental rule of statutory construction is to
ascertain and give effect to the intent of the legislature."
People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 193, 909
N.E.2d 783, 791 (2009). "The best evidence of legislative intent
is the statutory language, given its plain and ordinary meaning."
Birkett, 233 Ill. 2d at 193, 909 N.E.2d at 791. Questions of
statutory construction are subject to de novo review. Birkett,
233 Ill. 2d at 193, 909 N.E.2d at 791.
"It is generally held that subsequent laws on the same
subject are regarded as supplementary or complimentary to the
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earlier enactments." Zears v. Davison, 154 Ill. App. 3d 408,
411, 506 N.E.2d 1041, 1043 (1987). Further, "'[i]t is a funda-
mental rule of statutory construction that where there exists a
general statutory provision and a specific statutory provision,
either in the same or another act, which both relate to the same
subject, the specific provision controls and should be applied."
People v. Villarreal, 152 Ill. 2d 368, 379, 604 N.E.2d 923, 928
(1992).
The Code contains a general attempt statute that
provides as follows: "[a] person commits an attempt when, with
intent to commit a specific offense, he does any act which
constitutes a substantial step toward the commission of that
offense." 720 ILCS 5/8-4(a) (West 2006). "The general attempt
statute applies to all offenses, unless there is manifest a
legislative intent to exclude it from the statute." People v.
Patten, 230 Ill. App. 3d 922, 930, 595 N.E.2d 1141, 1147 (1992),
citing People v. Wallace, 57 Ill. 2d 285, 291-92, 312 N.E.2d 263,
266-67 (1974).
Section 31.1a of the Code (720 ILCS 5/31-1a (West
2006)) details the elements of the offense of disarming a peace
officer. That section provides as follows:
"A person who, without the consent of a
peace officer ***, takes or attempts to take
a weapon from a person known to him or her to
be a peace officer ***, while the peace offi-
cer *** is engaged in the performance of his
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or her official duties or from an area within
the peace officer's *** immediate presence is
guilty of a Class 2 felony." (Emphasis
added.) 720 ILCS 5/31-1a (West 2006).
In Patten, 230 Ill. App. 3d at 930-31, 595 N.E.2d at
1147, the First District found evidence of a manifest legislative
intent in the child-abduction statute before it to exclude
application of the general attempt statute. The relevant child-
abduction statute provided "that a person commits child abduction
when he or she '[i]ntentionally lures or attempts to lure a child
under the age of 16 into a motor vehicle *** without the consent
of the parent or lawful custodian of the child for other than a
lawful purpose.' [Citation]." Patten, 230 Ill. App. 3d at
926-27, 595 N.E.2d at 1144. The court found "[t]he intent of the
legislature to increase punishment in specific child[-]abduction
cases was within its prerogative, and its decision to exclude the
general attempt statute in such cases eliminated any proportion
problem." Patten, 230 Ill. App. 3d at 931, 595 N.E.2d at 1147.
Here, section 31-1a contains a manifest legislative
intent to exclude application of the general attempt statute.
The plain language of section 31-1a includes both attempts to
disarm a peace officer as well as the completed act of disarming
a peace officer. As the more specific statute, section 31-1a
controls over the general attempt statute. As the First District
found in Patten, it was within the legislature's prerogative to
increase the punishment for this specific offense.
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Also, contrary to defendant's contention, no
disproportionate-penalties problem exists. The legislature,
through its inclusion of the attempts-to-take language in section
31-1a, excluded application of the general attempt statute to
situations involving attempts to disarm a peace officer.
To support his position, defendant cites Wallace, 57
Ill. 2d at 287, 312 N.E.2d at 264, wherein the defendants prof-
fered money to two police officers in return for their release
but the officers rejected the offer. The defendants were con-
victed of attempted bribery. Wallace, 57 Ill. 2d at 287, 312
N.E.2d at 264. They appealed, arguing the offense of attempted
bribery did not exist and facts showing the refusal of an offer
of money constituted the completed act of bribery. Wallace, 57
Ill. 2d at 287, 312 N.E.2d at 264. The supreme court concluded
the general attempt provision of the Code could be applied to
cases involving a consummated offense. Wallace, 57 Ill. 2d at
289, 312 N.E.2d at 266. Further, it stated "[i]n the absence of
manifest legislative intent to exclude bribery from the purview
of the general attempt provision of the *** Code, *** the indict-
ment [in the case before it] was valid." Wallace, 57 Ill. 2d at
292, 312 N.E.2d at 267.
In his brief, defendant argues as follows:
"The lesson to take from Wallace is that
even if a statute merges both the inchoate
and the completed offense into a single sub-
stantive offense, *** this does not negate
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application of the general attempt statute to
those facts, as there was nothing in that
merger to evince a clear legislative intent
to prevent application of the general attempt
statute."
Wallace, however, is factually distinguishable from the case at
bar. Section 31-1a clearly applies when someone takes or
attempts to take a weapon. As stated, this language is suffi-
cient to show a manifest legislative intent to exclude applica-
tion of the general attempt provision of the Code. The statute
in Wallace did not contain similar language regarding attempts at
bribery.
A substantive review of the issue presented reveals no
error occurred. The plain-error doctrine is not applicable nor
is a reversal of defendant's conviction warranted. Additionally,
we note, because defendant's claim that section 31-1a
impermissibly included conduct constituting both the inchoate and
completed offense of disarming a peace officer is without merit,
his claim that his attorney provided ineffective assistance for
failing to raise the issue with the trial court is also without
merit.
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we grant the State its
statutory assessment of $50 against defendant as costs of this
appeal.
Affirmed.
KNECHT and POPE, JJ., concur.
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