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No. 3-00-0953

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

JUSTICE McDADE delivered the opinion of the court:

FACTS

Defendant was charged by indictment with unauthorized theft,a Class 2 felony. The indictment did not provide notice todefendant of his eligibility for an extended-term sentence.

Defendant was employed by Edward D. Jones (Jones) as abroker. In March of 1998, Wendall L. Hansen (Hansen) and ElsieG. Tracy (Tracy) visited the Jones office in Princeton for thepurposes of opening a joint annuity account. The victims gavedefendant $20,000 to fund the account.

At trial, the State presented Hansen as its first witness. He testified that in March of 1998 he was 71 years old and Tracywas 93.

The following day, the State and defendant reached anagreement whereby defendant would plead guilty to theunauthorized theft charge in exchange for the dismissal ofanother charge. The State also submitted a factual basis for theplea and requested that the trial judge take judicial notice ofthe exhibits which had been introduced the day before, as well asadditional proof the State would have produced had the trialcontinued. Defendant stipulated to the testimony of the State'spotential witnesses and to the documentary evidence beingtendered by the State.

Before defendant entered his plea, the trial judgeadmonished him of the rights he would forego by pleading guilty. The judge also explained the sentencing range for a Class 2felony and informed defendant he was eligible for an extendedsentence due to the victims' ages. Ordinarily, defendant wouldhave been sentenced according to the Class 2 felony sentencingrange of 3 to 7 years with the possibility of probation undersection 5--5--3(b)(1) of the Unified Code of Corrections (730ILCS 5/5--5--3(b)(1) (West 1998)(the Unified Code)). However,because of the ages of the victims, he was sentenced pursuant tosection 5--5--3.2(b)(4)(ii) of the code (extended-term section),which carries a sentencing range of a mandatory 7 to 14 years,with no possibility of probation. 730 ILCS 5/5--5--3.2(b)(4)(ii)(West 1998). The judge then questioned defendant to ensure thathis plea was entered voluntarily and knowingly. After defendantentered his guilty plea, the court sentenced him to 12 years'imprisonment and ordered him to pay $20,000 to the victims asrestitution for their lost investments.

Defendant now presents three issues on appeal: (1) that hisextended-term sentence was unconstitutional, (2) that thestatutory sentencing scheme used to formulate defendant'ssentence violated the proportionate penalties clause of theIllinois Constitution, and (3) that his restitution order isinvalid.

ANALYSIS

I. Extended-Term Sentence

Defendant contends that section 5--5--3.2(b)(4)(ii) of theUnified Code (730 ILCS 5/5--5--3.2(b)(4)(ii) (West 1998)) isunconstitutional in its application in light of Apprendi v. NewJersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). He asserts that the State failed to inform him in its indictmentthat, due to the age of the victims involved, he would beeligible for an extended sentence.

We do not reach the merits of this argument. Our supremecourt has recently held that a plea of guilty waives any argumentthat a defendant may otherwise have had based on Apprendi. People v. Jackson, 199 Ill. 2d 286, 769 N.E.2d 21 (2002). Thecourt has found that this waiver applies even to rights that hadnot been recognized by the courts at the time defendant's pleawas entered. Accordingly, we reject defendant's Apprendiargument.

II. Proportionate Penalties Clause

Defendant also challenges the constitutionality of theunauthorized theft statute under which he was convicted, claimingthat it violates the proportionate penalties clause of theIllinois Constitution. Specifically, defendant contends thatunauthorized theft, as defined in sections 16--1(a)(1)(A) and(b)(5) of the Code, is substantively indistinguishable from theftby deception (section 16--1(a)(2), and (b)(7) of the Code (720ILCS 5/16--1(a)(2), (b)(7) (West 1998))), yet the two carry quitedifferent penalties. He claims that the State doubled hispotential sentencing range by selecting the section of thecriminal statute that exposed him to an extended term of 14 yearsfor the very same crime for which he would otherwise be limitedto 7 years.

We review the construction of the challenged criminalstatute de novo. Department of Public Aid v. Brewer ex rel.Davis, 183 Ill. 2d 540, 554, 702 N.E.2d 563, 577 (1998).

The legislature clearly has the power under article I,section 2, of the Illinois Constitution to declare and defineconduct constituting a crime and to determine the nature andextent of its punishment. The constitutional provisions limitthese powers by mandating penalties that are proportionate to theoffenses and requiring the legislature, in defining crimes andtheir penalties, to consider the constitutional goal ofprescribing penalties according to the seriousness of theoffense. People v. Lee, 167 Ill. 2d 140, 656 N.E.2d 1065 (1995). On appeal, the constitutionally required task of a reviewingcourt is to examine a sentencing scheme and determine whether itprovides a proportionate penalty for the offense at issue. People v. Lewis, 175 Ill. 2d 412, 677 N.E.2d 830 (1996). Thegeneral practice of comparing different offenses and theirrespective penalties is an accepted part of a reviewing court'sproportionality review. Lewis, 175 Ill. 2d at 420, 677 N.E.2d at838. Interference with legislative judgment is justified onlywhere the designated punishment is cruel, degrading, or so whollydisproportionate to the offense committed as to shock the moralsense of the community. Lee, 167 Ill. 2d at 145, 656 N.E.2d at1069. Because courts recognize that the legislature isinstitutionally more capable of determining the seriousness ofoffenses, they are reluctant to invalidate penalties prescribedby the legislature. Lee, 167 Ill. 2d at 145, 656 N.E.2d at 1069.

The Illinois Supreme Court in People v. Christy, 139 Ill. 2d172, 564 N.E.2d 770 (1990), has provided useful insight into theproportionate penalties question. In Christy, the defendant wasconvicted of armed violence predicated on kidnaping (armedviolence). The weapon involved was a knife with a blade inexcess of three inches. Christy, 139 Ill. 2d at 173, 564 N.E.2dat 771. Defendant argued that the penalties for armed violenceand aggravated kidnaping were unconstitutionally disproportionatebecause each offense required the same elements, yet armedviolence was punished more severely than aggravated kidnaping. Christy, 139 Ill. 2d at 174, 564 N.E.2d at 772. Aggravatedkidnaping (the commission of kidnaping while armed with adangerous weapon, including knives with blades of at least threeinches in length) required sentencing according to Class 1 felonystandards. Christy, 139 Ill. 2d at 174, 564 N.E.2d at 772. However, armed violence (the commission of ANY felony while armedwith a dangerous weapon, also including knives with blades inexcess of three inches) required sentencing according to the morestringent Class X felony standards. Hence, the commission ofkidnaping with a knife with a blade of at least three inches inlength also constituted a Class X felony. Christy, 139 Ill. 2dat 174, 564 N.E.2d at 772. The supreme court found that sincethe elements for both aggravated kidnaping and armed violencewere identical, yet carried different penalties, the penaltiesfor the two offenses were unconstitutionally disproportionate. Christy, 139 Ill. 2d at 174, 564 N.E.2d at 772.

We find that the penalties for unauthorized theft and theftby deception similarly violate the proportionate penalties clauseof the Illinois Constitution (Ill. Const. 1970, art. I,