People v. Hicks , 119 Ill. 2d 29 ( 1987 )

JUSTICE MORAN

delivered the opinion of the court:

Following a jury trial in the circuit court of Montgomery County, defendant, Terry Hicks, was convicted of burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19—1) and theft (Ill. Rev. Stat. 1983, ch. 38, par. 16—1) and sentenced to concurrent terms of five years on the burglary conviction and IVz years on the theft conviction. Defendant appealed alleging that proof of his prior theft was improperly admitted during the evidentiary phase of trial in order to elevate the offense from misdemeanor theft to felony theft. Defendant contended that evidence of his prior theft conviction should have been considered only in sentencing. The appellate court affirmed the judgment of the trial court. (150 Ill. App. 3d 242.) We granted leave to appeal (107 Ill. 2d R. 315).

A single issue is present for our consideration: whether, under the terms of an enhancement provision, proof of a defendant’s prior theft conviction is a necessary element of the offense of felony theft such that it must be proved during the evidentiary phase of trial.

The statute in question provides in part:

“(e) Sentence.

(1) Theft of property, other than a firearm, not from the person and not exceeding $300 in value is a Class A misdemeanor. A second or subsequent offense after a conviction of any type of theft, including retail theft, other than theft of a firearm, is a Class 4 felony.” Ill. Rev. Stat. 1983, ch. 38, par. 16—1(e)(1).

The statute thus provides that a theft is ordinarily a misdemeanor offense and that in order to secure a conviction for felony theft the State must prove that the defendant had a previous theft conviction. Proof of this prior theft conviction, defendant maintains, should not have been introduced at trial since it is not an element of the offense of felony theft and only concerns the severity of the sentence to be imposed. Moreover, defendant asserts that he was prejudiced by the admission at trial of his previous theft conviction since it could have led the jury to conclude that it was more likely that he committed the instant offense. Defendant further argues that his position is buttressed by the court’s decision in People v. Hayes (1981), 87 Ill. 2d 95, wherein the court suggested that in a trial for retail theft, proof of a prior retail theft conviction need not be presented to the jury in order to elevate the offense from a misdemeanor to a felony but need only be proved at sentencing.

The State argues that the prior theft conviction is a necessary element of the offense of felony theft and therefore must be proved during the evidentiary phase of trial. It argues that where, as here, the prior conviction changes the nature of the offense from a misdemeanor to a felony, rather than merely enhance the sentence, proof of the prior conviction must be presented to the jury. We agree. In our view, disposition of this case is controlled by our most recent pronouncement on the subject in People v. Palmer (1984), 104 Ill. 2d 340. In Palmer the court reaffirmed a long line of cases holding, under a similar statutory scheme, that in order to obtain a conviction for the felony offense of unlawful use of weapons the State must both allege and prove the prior conviction during the evidentiary phase of trial. See People v. Ostrand (1966), 35 Ill. 2d 520, 529, overruled in part on other grounds, People v. Bracey (1972), 51 Ill. 2d 514; People v. Owens (1967), 37 Ill. 2d 131, 132; People v. Edwards (1976), 63 Ill. 2d 134, 138; People ex rel. Carey v. Pincham (1979), 76 Ill. 2d 478, 480. See also Spencer v. Texas (1967), 385 U.S. 554, 17 L. Ed. 2d 606, 87 S. Ct. 648 (recidivist statutes which provide that proof of prior conviction be introduced and proved during the guilt or innocence phase of trial do not offend due process. “[W]e find it impossible to say that because of the possibility of some collateral prejudice the Texas procedure is rendered unconstitutional under the Due Process Clause.” 385 U.S. 554, 564, 17 L. Ed. 2d 606, 614, 87 S. Ct. 648, 654).

Defendant argues that Hayes controls the outcome of this case inasmuch as Hayes involved a theft offense while Palmer involved the unlawful use of weapons. However, we cannot perceive, and defendant does not suggest, any principled reason why theft cases should be treated any differently than unlawful use of weapons cases in this instance. Where the prior conviction is an element of the felony offense of unlawful use of weapons then so too should the prior conviction be an element of the felony offense of theft under similar statutes. As such, we view no reason why theft cases should be taken outside of our most recent pronouncement in Palmer. More importantly, however, Palmer itself dismissed as dicta the suggestion in Hayes that the prior conviction need only be proved at sentencing. The Palmer court stated:

“[W]e cannot agree with the defendant’s conclusion that under Hayes the prior felony need not be proved at trial. The aforesaid language of that opinion must be interpreted within the factual circumstances presented in that case. The defendant in Hayes was claiming prejudice as a result of the State’s failure to include an allegation that the pending charge was a second or subsequent offense. She was not claiming that the allegation and proof of the prior conviction should have been excluded as prejudicial, as did the defendants in Ostrand and Owens. Therefore, the issue of whether prejudice results when the State alleges and proves the prior conviction was not presented in Hayes. Accordingly, any comment the court made regarding that issue is properly characterized as dicta, which is not binding authority within the rule of stare decisis. [Citation.] Thus Hayes holds only that, where a defendant has notice that she is being tried as a felon, a felony conviction for retail theft can be sustained despite the State’s failure to allege in the information that the offense charged was a second or subsequent offense of retail theft.” (Emphasis in original.) (People v. Palmer (1984), 104 Ill. 2d 340, 347-48.)

Thus, in Palmer the court explicitly rejected Hayes insofar as Hayes may be read as requiring that the prior theft conviction be proved during the sentencing hearing.

We also find defendant’s reliance on People v. Jackson (1984), 99 Ill. 2d 476, misplaced. Jackson, also decided before Palmer, held that where the value of an item taken in a theft is used to elevate the theft from a misdemeanor to a felony, value is not an essential element of the offense of theft. However, the issue in Jackson was only whether value is an element of the offense of theft for the purpose of determining whether the defendant should be afforded the retroactive application of a statutory amendment raising the value demarcation of stolen property. Consequently, Jackson cannot be fairly read as authority for the proposition that a previous theft conviction is not an element of felony theft. Accordingly, we adhere to the sound reasoning of Palmer and our previous decisions and hold that, absent legislative guidance to the contrary, where a prior theft conviction elevates the offense from a misdemeanor to a felony, that prior theft conviction is an element of the offense of felony theft which must be alleged and proved to the trier of fact during the evidentiary phase of trial.

Finally, we note that the Governor has recently signed Senate Bill 115 (Public Act 85—691), which amends the current theft statute, effective January 1, 1988, to provide that a prior conviction must be alleged in the information or indictment but the prior conviction will not be considered an element of the offense of felony theft and therefore may not be disclosed to the jury during trial. Senate Bill 115 also provides that value is an element of the offense of theft and must therefore be proved during the evidentiary phase of trial.

It is an elementary rule of statutory construction that “[t]he addition of a new provision in a statute by amendment is an indication of the absence of its implied or prior existence.” (Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 354.) Absent substantial considerations to the contrary, “an amendatory change in the language of a statute creates a presumption that it was intended to change the law as it theretofore existed.” (People v. Nunn (1979), 77 Ill. 2d 243, 248.) As such, we view the current statutory amendment as not inconsistent with the holding expressed herein, as it evidences the legislature’s desire to alter the statutory elements of felony theft. Moreover, since statutory amendments are, in the absence of express language otherwise, ordinarily given only prospective and not retrospective application (Stigler v. City of Chicago (1971), 48 Ill. 2d 20), the defendant here is thus not affected by this recent amendment.

Accordingly, the judgment of the appellate court is affirmed.

Judgment affirmed.