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No. 2--03--1384

JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

The defendant, Charles S. Arnhold, was charged by indictment in the circuit court of Du Page County with a single count each of aggravated battery (720 ILCS 5/12--4(b)(10) (West 2000)) and domestic battery (720 ILCS 5/12--3.2(a) (West 2000)). Following a bench trial, the defendant was found guilty of both charges, but the trial court entered judgment of conviction on only the aggravated battery count, finding that the domestic battery count merged into it. The trial court imposed an extended-term sentence of 10 years based on the defendant's criminal history. See 730 ILCS 5/5--5--3.2(b)(1), 5--8--2(a)(5) (West 2000). On appeal, the defendant argues that his conviction should be reduced to domestic battery. He alternatively argues that his extended-term sentence violates the proportionate penalties clause of our State constitution. We disagree with both arguments and we therefore affirm.

At trial, the defendant's wife, Nancy Arnhold, testified that she married the defendant in November 1998. On February 4, 2000, she and the defendant became involved in an argument during which the defendant grabbed her and threw her to the floor, causing severe bruising to her right arm and leg. She stood up and followed the defendant into the bedroom. There, he put her in a headlock, threw her onto the bed, and struck her jaw. She was 60 years of age at the time. The defendant, a Vietnam war veteran, unsuccessfully attempted to escape criminal responsibility by showing that the incident occurred while he was experiencing a dissociative episode related to post-traumatic stress disorder connected to his military service.

The defendant's presentence investigation report outlines an extensive criminal history, with an adult criminal record reaching back to 1971. Of particular relevance to this appeal, the report indicates that the defendant was convicted of aggravated battery in 1997. According to the report, the conviction arose from a 1996 incident in which the defendant punched a woman named Susie Fleming. The defendant received a 30-month prison term and was released in July 1998.

In June 1981, the defendant was found guilty of aggravated kidnapping (Ill. Rev. Stat. 1979, ch. 38, par. 10--2) and was sentenced to a 28-year prison term. The presentence investigation report does not indicate when the defendant was released, but the defendant's own remarks during the sentencing hearing help narrow down that date considerably. Speaking in allocution, the defendant stated, "I was in jail for 15 years, 30 year sentence." He further stated, "Seven months later I'm back in for another three years. Then I got out for four months and I marry Nancy." The defendant married the complaining witness four months after he was released from prison for the 1996 aggravated battery of Susie Fleming. Thus, the defendant's remarks establish that he was in custody for aggravated kidnapping until about seven months before the 1996 aggravated battery.

The trial court imposed sentence on July 28, 2002. On August 21, 2002, the defendant filed a pro se motion for reduction of his sentence. On August 28, 2002, the defendant's attorney filed a notice of appeal, but this court granted the defendant's motion to dismiss the appeal and remanded the case for a hearing on the motion for reduction of the defendant's sentence. The trial court denied the motion, and this appeal followed.

We first consider whether the defendant was properly convicted of aggravated battery instead of domestic battery. A summary of the pertinent statutes is a useful prelude to examination of the issue. Subsection (a) of section 12--4 of the Criminal Code of 1961 (Code) (720 ILCS 5/12--4(a) (West 2000)) enhances the offense of battery to aggravated battery when the offender "intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement." Subsection (b) (720 ILCS 5/12--4(b) (West 2000)) enumerates other factors elevating battery to aggravated battery. Here, the defendant was convicted under subsection (b)(10), which provides that one who commits a battery is guilty of aggravated battery if he or she "[k]nowingly and without legal justification and by any means causes bodily harm to an individual of 60 years of age or older." 720 ILCS 5/12--4(b)(10) (West 2000).

Domestic battery is defined in section 12--3.2(a) of the Code (720 ILCS 5/12--3.2(a) (West 2000)). The definition is identical to the statutory definition of simple battery (see 720 ILCS 5/12--3(a) (West 2000)) except that domestic battery embraces only those cases where the victim is a family or household member of the offender. Section 12--3.3(a) of the Code (720 ILCS 5/12--3.3(a) (West 2000)) provides that "[a] person who, in committing a domestic battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated domestic battery." However, the definition of the offense does not enumerate any additional aggravating factors corresponding to those included in the definition of aggravated battery. Hence, the age of the victim is irrelevant. Here, the defendant did not commit aggravated domestic battery, because the victim suffered bodily harm but not "great" bodily harm or permanent disability or disfigurement.

Both battery and domestic battery are Class A misdemeanors for first offenders, but the domestic battery statute includes recidivism penalties that do not apply to simple battery. Compare 720 ILCS 5/12--3(b) (West 2000) with 720 ILCS 5/12--3.2(b) (West 2000). Aggravated domestic battery--a Class 2 felony--is a more serious offense than aggravated battery, which is generally a Class 3 felony. See 720 ILCS 5/12--3.3(b), 12--4(e) (West 2000).

The defendant argues that "[b]y enacting both domestic battery offenses and battery offenses, it is clear that the legislature intended to treat spouses *** different [sic] from other individuals who commit batteries," and that it was the General Assembly's intent that those who batter spouses should be prosecuted only under the domestic battery laws. We note that although the defendant raised this point in connection with his motion for reduction of his sentence, he did not raise the issue in his posttrial motion. Ordinarily the failure to raise an issue in a posttrial motion results in waiver. People v. Enoch, 122 Ill. 2d 176, 186 (1988). However, the defendant's argument--that his conduct simply does not constitute the offense of which he was convicted--implicates substantial rights and is therefore reviewable under the plain error rule. See 134 Ill. 2d R. 615(a).

Inasmuch as the question before the court is one of statutory interpretation, the defendant's focus on legislative intent is obviously proper. The cardinal rule of statutory construction is that the court must ascertain and give effect to the intent of the legislature. In re Marriage of King, 208 Ill. 2d 332, 340 (2003). In doing so, the court should look first to the language of the statute, giving the terms their plain and ordinary meaning. King, 208 Ill. 2d at 340. In determining the legislature's intent, the court should consider, in addition to the statutory language, the reason for the law, the problems to be remedied, and the objects and purposes sought. People v. Smith, 345 Ill. App. 3d 179, 185 (2004).

The defendant's argument is not premised on any express statutory terms. There is no language in the definition of aggravated battery that excludes cases where the victim and offender are members of the same family or household. Nor is there any language in the domestic battery statutes declaring that they provide the exclusive means for prosecuting conduct within their purview. By their terms, the definitions of aggravated battery and domestic battery are both applicable to the defendant's conduct. The defendant argues that the laws are thus in conflict, and that because the domestic battery statute is more specific it controls. It is generally true that "specific statutory provisions control over general provisions on the same subject." People ex rel. Director of Corrections v. Booth, 215 Ill. 2d 416, 424 (2005). However, the defendant's argument goes against the grain of cases holding that "[a] prosecutor has the authority to choose among potential crimes with overlapping penalties and different sentences." People v. Knippenberg, 325 Ill. App. 3d 251, 260 (2001). In Knippenberg, the court rejected the defendant's argument that he was improperly prosecuted and convicted of theft by deception, a felony, rather than violating a criminal provision of the Solicitation for Charity Act (225 ILCS 460/0.01 et seq. (West 1998)). InPeople v. Cornille, 136 Ill. App. 3d 1011, 1017 (1985), the court relied on prosecutorial discretion as a basis for rejecting the defendant's argument that the prosecution was improper because he was charged with official misconduct under the Code rather than with other more specific offenses in other statutes.

The defendant's application, in this setting, of the principle that specific statutes control over general ones is not entirely without support, however. For instance, in People v. Caryl, 54 Ill. App. 3d 537 (1977), this court held that where the Cannabis Control Act's conspiracy provision (Ill. Rev. Stat. 1975, ch. 56