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No. 3--02--0627

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

JUSTICE LYTTON delivered the opinion of the court:

On May 28, 2002, defendant entered a plea of guilty to thecharge of escape. The State's factual basis established that onOctober 6, 2000, defendant resided in the DHS facility ofSheridan Correctional Center (SCC) pursuant to the SexuallyViolent Persons Commitment Act (725 ILCS 207/1 et seq. (West2000)). Defendant and another resident, Gregory Conley, escapedwhile they were being transported from the Sheridan facility toChicago for court proceedings. Following admonishments, thecourt accepted defendant's guilty plea. Defendant then waivedhis right to a jury trial on the remaining charges.

At trial, DHS security aide Rick Schroeder testified that hewas assigned to drive three residents from SCC to Chicago forcourt proceedings on October 6, 2000. He described the DHStreatment and detention facility as physically located in thecenter of SCC. To leave the facility, DHS residents had to passthrough a portion of the prison. Schroeder said he and securitytherapy aide Manessa Nelson loaded the three residents into thevan and left SCC early in the morning.

When they reached Plainfield, Conley appeared to be sick. Conley asked permission to move to the front seat. He wasallowed to do so. Schroeder said someone called his name whenthey reached a stop light, and he turned his head to respond. Schroeder next felt his face being sprayed with pepper spray. Hesaid his eyes "slammed" shut. He managed to park the van and getout. After regaining sight out of one eye, Schroeder foundNelson standing outside the van coughing. Defendant and Conleywere gone, and the third resident, George Timmons, was coughingwith his head sticking out of a broken window.

Schroeder also testified that DHS issued clothing for theresidents to wear when they went to court. He identifiedarticles of clothing worn by defendant and Conley on the date ofthe offenses as property of DHS.

Naperville police officer Greg Bell testified that heresponded to a radio dispatch to be on the lookout for theescapees around 8 a.m. on October 6, 2000. He spotted a four-door sedan bearing the license plate number broadcast in thedispatch. After Bell stopped the vehicle and placed its threeoccupants under arrest, a gun in a case was removed from thefront floorboard of the car.

State Police Special Agent Vic Markowski testified that heinterviewed defendant at the Naperville Police Department on theevening of October 6, 2000. Defendant stated that former DHSemployee Doris Harper and Amber Waller, a security therapist aideat the DHS facility, had given Conley and defendant a handcuffkey and two cannisters of "mace" to facilitate their escape. Theplan was to have Conley feign illness en route to Chicago and askthat the volume of the radio be turned up in the van so thattheir DHS escorts would not hear the escapees removing their handand leg restraints. Defendant admitted that he had a cannisterof "mace" and the handcuff key on his person when he boarded thevan. However, he denied that he used the "mace" when he andConley escaped.

State trooper Glenn Strobel testified that he inventoriedthe contents of the getaway vehicle on October 6, 2000. Inaddition to the gun and case identified by Bell, Strobel found ashank, DHS clothing that had been issued to defendant and Conleythe morning of the offense, shackles, a handcuff key and acannister of Saber pepper spray.

Larry Olson, a crime scene investigator for the Statepolice, testified as an expert with regard to the cannister ofpepper spray. He stated that the pepper spray cannisterrecovered from the rented vehicle contained a non-lethal noxiousliquid gas commonly known as "mace." The item was the kind ofdevice generally available in retail stores for personalprotection and not the kind used by law enforcement officials.

Following closing arguments, the trial court found defendantguilty of robbery, armed robbery, two counts of aggravatedbattery and two counts of possession of contraband ("mace" and ahandcuff key) in a penal institution. The court subsequentlysentenced the 32-year-old defendant to consecutive prison termsof 60 years for armed robbery and 15 years for each convictionfor possession of contraband. The court also imposed concurrentsentences of seven years for escape and five years for eachaggravated battery--these sentences to be served concurrentlywith the armed robbery sentence. The court ruled that therobbery conviction merged with the armed robbery conviction. Consequently, the court did not impose sentence on the lesseroffense. Defendant filed a motion to reduce sentence, which wasdenied, and he appeals.

Defendant was charged with robbery by taking the DHS-issuedclothing he was wearing from the presence of Schroeder and Nelsonby the use of force. He was charged with armed robbery by takingthe clothing from Schroeder and Nelson by the use of force whilecarrying a knife. Defendant now challenges the sufficiency ofthe State's proof that (a) force was used as a means of takingthe clothing from DHS, and (b) he or one of his accomplicescarried a knife. He argues that his armed robbery convictionmust be reversed outright because there was no concurrencebetween his use of force and his taking of the clothing. In thealternative, he argues that his conviction must be reduced tosimple robbery because the State failed to prove that he orConley was armed with a knife.

Once a defendant has been found guilty of the charged crime,the fact finder's role is preserved. People v. O'Neill, 272 Ill.App. 3d 178, 651 N.E.2d 702 (1995). The proper inquiry on appealis whether, after reviewing all of the evidence in the light mostfavorable to the prosecution, any rational trier of fact couldhave found the essential elements of the crime beyond areasonable doubt. People v. Collins, 106 Ill. 2d 237, 478 N.E.2d267 (1985).

"A person commits robbery when he *** takes property ***from the person or presence of another by the use of force or bythreatening the imminent use of force." 720 ILCS 5/18--1(a)(West 2000). Armed robbery is committed when the person commitsrobbery and "carries on or about his *** person or is otherwisearmed with a dangerous weapon." 720 ILCS 5/18--2(a)(1) (West2000). Although the State need not show that force was exertedfor the purpose of taking the property, to sustain a convictionof robbery there must be some concurrence between the defendant'suse of force and the taking. People v. Lewis, 165 Ill. 2d 305,651 N.E.2d 72 (1995). Where acts constituting the taking and theforce are committed in a single series of continuous acts, aconviction of robbery will be sustained. Lewis, 165 Ill. 2d 305,651 N.E.2d 72.

In this case, the evidence established that defendant wasissued DHS clothing for his court appearance on the morning ofOctober 6, 2000, before he boarded the van that was to transporthim from Sheridan to Chicago. The evidence did not show thatdefendant used any force or threat of force at the time DHS transferred the clothing to him.

Nor can we say that the taking of the clothing and the forceused to escape were committed in a single series of continuousacts. Defendant wore the clothing from the time he left theSheridan facility until after he escaped from DHS custody andjoined codefendant Harper in the getaway car in Plainfield. During the interval between the "taking" and the use of force,defendant boarded the van and put into action a plan to commit anunrelated, separate offense of escape from DHS custody.

The only use of force proved at trial was the use of pepperspray on Schroeder and Manessa, a separate act of aggravatedbattery for which defendant was accountable. The pepper spraydid not overpower Schroeder and Manessa's will to retain theclothing defendant was wearing, but overpowered their ability toretain defendant's person. In other words, the pepper spray wasnot used as a means of acquiring DHS clothing, which defendantalready possessed, but as a means of facilitating his escape.

Although our research fails to disclose any precedent forprosecuting a person for robbery of clothes the person is wearingwhen he uses force to commit another offense, the circumstancespresented in People v. Johnson, 314 Ill. App. 3d 444, 732 N.E.2d100 (2000), are analogous. There, the defendant was convicted ofarmed robbery of a car title and vehicular hijacking. Theevidence at trial showed that no force was exerted when the carowner handed the title to the defendant at the defendant'srequest. The defendant exited the vehicle, went into a house andthen returned to the car. On return, the defendant threatenedthe owner with a gun and took his car. On appeal from thedismissal of the defendant's postconviction petition, the courtruled that "the force that was used to take the vehicle occurredafter and separately from the receipt of title." Johnson, 314Ill. App. 3d at 450-51, 732 N.E.2d at 107. Accordingly, thenecessary concurrence between the taking and the force was notestablished, and the court reversed the armed robbery conviction. Here, as in Johnson, the only force used was to commit separate offenses (in this case, aggravated battery and escape)after the "taking" was achieved peaceably. The State's theorythat the clothing remained in DHS' possession until defendantescaped is not well-taken. The clothing in this case, no lessthan the car title in Johnson, was physically transferred todefendant's custody and control prior to and separately from anyuse of force. Because the State failed to prove some concurrencebetween the use of force and the taking, defendant's convictionfor armed robbery must be reversed outright. See Johnson, 314Ill. App. 3d 444, 732 N.E.2d 100.

Next, defendant argues that his conviction for possession ofcontraband ("mace") must be reversed because the cannister ofSaber pepper spray was not a "weapon" as defined by thecontraband statute.

A person commits an offense under section 31A--1.1 of theCode when he possesses a weapon while in a penal institution. 720 ILCS 5/31A--1.1(b),(c)(2)(v) (West 2000). Weapons aredefined as

"any knife, dagger, dirk, billy, razor, stiletto, brokenbottle, or other piece of glass which could be used as adangerous weapon. Such term includes any of the devices orimplements designated in subsections (a)(1), (a)(3) and(a)(6) of Section 24--1 of this Act, or any other dangerousweapon or instrument of like character." 720 ILCS 5/31A--1.1(c)(2)(v) (West 2000).

Section 24--1 weapons include:

"any bludgeon, black-jack, slung-shot, sand-club, sand-bag,metal knuckles, throwing star, or any knife, commonlyreferred to as a switchblade knife, which has a blade thatopens automatically by hand pressure applied to a button,spring or other device in the handle of the knife, or aballistic knife, which is a device that propels a knifelikeblade as a projectile by means of a coil spring, elasticmaterial or compressed gas; or

***

*** a tear gas gun projector or bomb or any objectcontaining noxious liquid gas or substance, other than anobject containing a non-lethal noxious liquid gas orsubstance designed solely for personal defense carried by aperson 18 years of age or older; or

* * *

*** any device or attachment of any kind designed, usedor intended for use in silencing the report of any firearm."(Emphasis added.) 720 ILCS 5/24--1(a)(1),(3),(6) (West2000).

The cannister of Saber pepper spray underlying one ofdefendant's contraband convictions in this case is expresslyexcluded as a dangerous weapon under section 24--1(a)(3) andcannot arguably be included as a "dangerous weapon or instrument"similar to any of the other devices listed in the statute. SeePeople v. Dressler, 317 Ill. App. 3d 379, 739 N.E.2d 630 (2000). Accordingly, defendant's conviction for possession of contraband("mace") in a penal institution must be reversed.

Next, we consider defendant's argument that he is entitledto a remand to the trial court for admonishments pursuant toSupreme Court Rule 605(b) (Official Reports Advance Sheet No. 21(October 17, 2001), R. 605(b), eff. October 1, 2001) andperfection of an appeal from his conviction of escape pursuant toRule 604(d) (188 Ill. 2d R. 604(d)).

The record shows that prior to sentencing defendant filed amotion to withdraw his plea of guilty to the escape charge. OnJuly 25, 2002, the court imposed sentences on all offenses,including a 7-year sentence for escape to run concurrently withthe 15-year sentence imposed for possession of contraband in apenal institution. Defendant then withdrew the motion towithdraw his guilty plea. The trial court gave no admonishmentspursuant to Rule 605(b) at that proceeding. Defendantsubsequently filed a motion to reconsider sentence. His motiontook issue only with the imposition of extended-term andconsecutive sentences. It did not seek a reduction ofdefendant's seven-year sentence for escape. The trial courtheard and denied the motion. A notice of appeal was filed, buttrial counsel filed no certificate of compliance pursuant to Rule604(d).

Where a defendant enters a blind plea of guilty, the trialcourt, upon imposing sentence, is required to give admonishmentspursuant to Supreme Court Rule 605(b). Under the rule, thedefendant must be told, inter alia, that he must file a postpleamotion in the trial court, and that any issue not raised in themotion would be waived on appeal. Official Reports Advance SheetNo. 21 (October 17, 2001), R. 605(b)(2),(6), eff. October 1,2001.

Strict compliance with the Rule 605(b) is required, becausefailure to give the admonishments can result in the loss of theright to appeal. People v. Jamison, 181 Ill. 2d 24, 690 N.E.2d995 (1998); People v. Lloyd, 338 Ill. App. 3d 379, 788 N.E.2d1169 (2003). The State argues that a remand is not required inthis case because defense counsel filed posttrial motions raisingmany of the issues raised in this appeal.

Although it is true defendant filed both a motion to reducesentence and a motion to withdraw his guilty plea, neither motionpreserved for review issues relating to defendant's convictionand sentence for escape. Without a showing that defendant wastold of his appeal rights, it cannot be assumed that he was awarethat any arguable issues relating to his guilty plea could bewaived on review when he withdrew his motion to withdraw hisguilty plea. Accordingly, we remand the cause to the trial courtwith directions to admonish defendant pursuant to Rule 605(b) andto allow him an opportunity to file a postplea motion and perfecthis appeal from his conviction and/or sentence for escapepursuant to Supreme Court Rule 604(d). See People v. Foster, 171Ill. 2d 469, 665 N.E.2d 823 (1996).

Finally, although defendant failed to perfect an appeal fromhis escape conviction, we choose to reach defendant'sconstitutional challenge to the escape statute. Defendant arguesthat subsection 31--6(b-1) of the Criminal Code of 1961 (Code)(720 ILCS 5/31--6(b-1) (West 2000)) violates constitutional equalprotection guarantees. Specifically, he contends that thestatute unfairly criminalizes escape by persons committed to DHSunder the Sexually Violent Persons Act and not persons committedto DHS for other reasons.

Subsection 31--6(b-1) provides as follows:

"A person committed to the Department of Human Servicesunder the provisions of the Sexually Violent PersonsCommitment Act or in detention with the Department of HumanServices awaiting such a commitment who intentionallyescapes from any secure residential facility or from thecustody of an employee of that facility commits a Class 2felony." 720 ILCS 5/31--6(b-1) (West 2000).

The constitutional right to equal protection of the lawguarantees that the State must treat similarly situated personsin a similar manner. People v. Kimbrough, 163 Ill. 2d 231, 644N.E.2d 1137 (1994). The State nonetheless retains the power toclassify and draw lines that treat different classes of personsdifferently. If a statutory classification neither impinges on afundamental right nor is based on a "suspect" class, a court willuse the "rational basis" test to review the statute's validity. Kimbrough, 163 Ill. 2d 231, 644 N.E.2d 1137. Under this test, astatutory classification will be upheld if it bears a rationalbasis to a legitimate state interest. Kimbrough, 163 Ill. 2d231, 644 N.E.2d 1137.

Defendant does not claim that he is a member of a "suspect"class. Therefore, the statutory provision here at issue will befound to pass constitutional muster if there is any rationalbasis for differentiating between persons committed to DHS underthe Act and those committed to DHS for other reasons.

A person committed to DHS or awaiting commitment under theSexually Violent Persons Act has been previously convicted of asexually violent offense or found not guilty of such offense byreason of insanity. 725 ILCS 207/15(b) (West 2000). In thisrespect, such persons are not similarly situated to personscommitted under the Sexually Dangerous Persons Act (725 ILCS205/1.01 et seq. (West 2000)), who have been charged but notconvicted, or to other residents of DHS, whose involuntarycommitment does not follow a criminal conviction for a sexuallyviolent offense. See In re Ottinger, 333 Ill. App. 3d 114, 775N.E.2d 203 (2002); People v. Hancock, 329 Ill. App. 3d 367, 771N.E.2d 459 (2002); In re Detention of Bailey, 317 Ill. App. 3d1072, 740 N.E.2d 1146 (2000); In re Detention of Varner, 315 Ill.App. 3d 626, 734 N.E.2d 226 (2000), aff'd, 207 Ill. 2d 425, 800N.E.2d 794 (2003); People v. Winterhalter, 313 Ill. App. 3d 972,730 N.E.2d 1158 (2000).

The legislature could have rationally determined that theclass of persons whose sexually violent offenses had beenestablished beyond a reasonable doubt in prior criminalproceedings posed a potentially greater menace to society if theyescaped DHS custody than escapees who had been committed to DHSpursuant to other civil proceedings. The heightened need toprotect the public from sexually violent escapees is a legitimatestate interest justifying the imposition of criminal liabilitywhen they escape. Accordingly, we conclude that subsection 31--6(b-1) of the Code does not violate equal protection guarantees. See Winterhalter, 313 Ill. App. 3d 972, 730 N.E.2d 1158.

Our disposition of the foregoing issues renders mootdefendant's one-act, one-crime and consecutive sentencing issues. Therefore, without addressing those issues, we reversedefendant's convictions for armed robbery and possession ofcontraband ("mace") in a penal institution and vacate thesentences imposed for those offenses. With respect todefendant's conviction for escape, we remand the cause to theWill County circuit court for further proceedings pursuant toSupreme Court Rules 605(b) and 604(d).

Reversed in part and remanded with directions.

HOLDRIDGE, PJ., and SCHMIDT, J., concurring.