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People v. Bowden

Case Date: 05/22/2000
Court: 4th District Appellate
Docket No: 4-99-0081

People v. Bowden, No. 4-99-0081

4th District, 22 May 2000

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellant,

v.

WESLEY R. BOWDEN,

Defendant-Appellee.

Appeal from Circuit Court of Greene County

No. 98CF79

Honorable James W. Day, Judge Presiding.

JUSTICE KNECHT delivered the opinion of the court:

The State appeals the order of the circuit court of Greene County dismissing a felony charge of escape (720 ILCS 5/31-6(a)(West 1998)) it brought against defendant, Wesley R. Bowden. We affirm.

I. BACKGROUND

In 1998, the defendant was committed to the Greene County jail in lieu of posting bail to await trial on a pending felonycharge of obstruction of justice, a Class 4 felony (720 ILCS 5/31-4(a), (d)(1) (West 1998)). On November 17, 1998, the trialcourt modified the conditions of defendant's bail to authorize work release. Under the terms of defendant's bail, beginningNovember 18, 1998, defendant was to be released from the county jail at 7 a.m. and to return at 7 p.m. On November 18,1998, defendant was released as scheduled but thereafter failed to return.

On November 19, 1998, the State charged defendant with one count of escape in violation of section 31-6(a) of the CriminalCode of 1961 (Code) (720 ILCS 5/31-6(a) (West 1998)). On December 29, 1998, defendant filed a memorandum of law insupport of a motion to dismiss, contending he was not properly charged with escape under section 31-6(a) of the Code. OnJanuary 15, 1999, the trial court dismissed the charge of escape against defendant. The State appeals.

II. ANALYSIS

This appeal presents one issue for our review: whether a person charged with a felony who is released on work release froma penal institution as a condition of bail, but fails to return, may properly be prosecuted for the Class 2 felony of escape asdefined in section 31-6(a) of the Code (720 ILCS 5/31-6(a) (West 1998)).

The statutory provision in question provides as follows:

"Escape; failure to report to a penal institution or to report for periodic imprisonment.
(a) A person convicted of a felony or charged with the commission of a felony who intentionally escapes from anypenal institution or from the custody of an employee of that institution commits a Class 2 felony; however, a personconvicted of a felony who knowingly fails to report to a penal institution or to report for periodic imprisonment at anytime or knowingly fails to return from furlough or from work and day release or who knowingly fails to abide by theterms of home confinement is guilty of a Class 3 felony." (Emphasis added.) 720 ILCS 5/31-6(a) (West 1998).

Here, the Class 3 felony provision of section 31-6(a) is not at issue as the defendant, in the present case, was committed tothe county jail not as a convicted felon but, rather, in lieu of posting bail before trial. Accordingly, the State contendsdefendant is properly charged with escape under the Class 2 felony provision of section 31-6(a) of the Code (720 ILCS5/31-6(a) (West 1998)) as a person charged with the commission of a felony who intentionally escaped from a penalinstitution. In response, defendant argues his actions are not properly characterized as an "escape" under the Class 2 felonyprovision of section 31-6(a) but, rather, as a failure to return from a work release.

Hence, the question before us becomes whether the failure to return from work release, when ordered as a condition of bailfor a defendant charged with a felony, constitutes an "escape" from a penal institution in violation of the Class 2 felonyprovision of section 31-6(a) (720 ILCS 5/31-6(a) (West 1998)).

Because this case presents no questions of fact and our decision turns on the proper interpretation of the statute, we reviewthe trial court's ruling de novo. In re Application of the County Treasurer & ex officio County Collector, 307 Ill. App. 3d350, 353, 717 N.E.2d 530, 533 (1999). A fundamental canon of statutory interpretation and construction is to ascertain andgive effect to the intention of the legislature. McCann v. Presswood, 308 Ill. App. 3d 1068, 1071, 721 N.E.2d 811, 813(1999). This inquiry appropriately begins with the language of the statute itself (People v. Woodard, 175 Ill. 2d 435, 443,677 N.E.2d 935, 939 (1997)), as the language used by the legislature is the best indication of legislative intent (Nottage v.Jeka, 172 Ill. 2d 386, 392, 667 N.E.2d 91, 93 (1996)). In interpreting a statute, a court must give the legislative language itsplain and ordinary meaning. Staske v. City of Champaign, 183 Ill. App. 3d 1, 4, 539 N.E.2d 747, 749 (1989). Where astatute is ambiguous and the legislative intent cannot be ascertained from the plain and ordinary meaning of its language,then the court is guided by the rules of statutory construction. Village of Buffalo v. Illinois Commerce Comm'n, 180 Ill.App. 3d 591, 595, 536 N.E.2d 438, 441 (1989).

In the present case, the State maintains defendant was properly charged with a Class 2 felony under section 31-6(a), citingPeople v. Simmons, 88 Ill. 2d 270, 430 N.E.2d 1032 (1981). In Simmons, the Supreme Court of Illinois interpreted section31-6(a), which then provided only for a Class 2 felony, stating as follows:

"A person convicted of a felony, or charged with the commission of a felony who intentionally escapes from anypenal institution *** commits a Class 2 felony." Ill. Rev. Stat. 1977, ch. 38, par. 31-6(a).

Section 3-6-4(a) of the Unified Code of Corrections (Unified Code) (Ill. Rev. Stat. 1977, ch. 38, par. 1003-6-4(a))meanwhile provided as follows:

"A committed person who escapes or attempts to escape from an institution or facility of the Adult Division [of theDepartment of Corrections], or escapes or attempts to escape while in the custody of an employee of the AdultDivision, or holds or participates in the holding of any person as a hostage by force, threat or violence, whileparticipating in any disturbance, demonstration or riot, causes, directs[,] or participates in the destruction of anyproperty is guilty of a Class 2 felony. A committed person who fails to return from furlough or from work and dayrelease is guilty of a Class 3 felony."

In interpreting section 31-6(a) of the Code, our supreme court noted that the Unified Code "defines 'escape' as 'intentionaland unauthorized absence' of a committed person from the custody of the Department" (Simmons, 88 Ill. 2d at 270, 430N.E.2d at 1033) and found "no reason why conduct that is considered an escape under the [Unified Code and other statutoryprovisions] should not also be escape for purposes of the [Code]" (Simmons, 88 Ill. 2d at 273, 430 N.E.2d at 1034). In sodoing, the court found an unauthorized absence from a work-release program was properly prosecuted as an escape undersection 31-6(a) (Ill. Rev. Stat. 1977, ch. 38, par. 31-6(a)), reasoning as follows:

"[W]e think the proper interpretation of the provisions found in the [Code] and in the [Unified Code], read together, isthat escape is especially serious if it is either by a felon or from the facilities of the Adult Division, around which thelegislature chose to erect a special legal barrier to escape. To vindicate all the interests that must be protected, theState must be able to prosecute under either statute as it chooses. Even if the [Code] were invariably more severe thanthe corrections code, the co-existence of the two statutes could be justified on the ground that the legislature wantedto give prosecutors and juries a choice. [Citation.] We see no reason to depart from the general rule that whereconduct violates two criminal statutes possessing different elements or defenses (here commitment for a felony underone statute or to the Adult Division under the other) the State is free to prosecute under whichever carries the greaterpenalty. [Citation.]" (Emphasis in original.) Simmons, 88 Ill. 2d at 275-76, 430 N.E.2d at 1035.

The Simmons court further explained:

"The phenomenon of two escape statutes covering in some instances the same conduct did not originate with thecorrections code but with the [Code] itself. The [Code] took anti-escape prohibitions that formerly applied only tojails, workhouses, and houses of correction (Ill. Rev. Stat. 1959, ch. 38, par. 228b), and expanded them to cover allpenal institutions, specifically defined (Ill. Rev. Stat. 1977, ch. 38, par. 2-14) to include penitentiaries, state farms,and reformatories, while leaving intact the special escape provisions in statutes dealing with the penitentiary (Ill. Rev.Stat. 1961, ch. 108, par. 121), the state farm (Ill. Rev. Stat. 1961, ch. 118, par. 18), and the women's reformatory (Ill.Rev. Stat. 1961, ch. 23, par. 2807). To hold that the [Code] did not apply to escapes from those institutions that hadescape laws of their own would not only ignore the express definition of 'penal institution' but would almost wipe outthe change in the law the [Code] provision was designed to effect, namely expansion of the coverage to allinstitutions. Thus, before passage of the [Unified Code], an escapee could be prosecuted under either the [Code] orthe special statute dealing with the particular institution. As we have explained, we find nothing in the correctionscode definite enough to convince us that the legislature intended any change in that policy." Simmons, 88 Ill. 2d at277, 430 N.E.2d at 1036.

Thereafter, in People v. Marble, 91 Ill. 2d 242, 247, 437 N.E.2d 641, 643 (1982), the supreme court followed its decision inSimmons, again finding failure to return from temporary work release constitutes an escape within meaning of section 31-6(a) of the Code (Ill. Rev. Stat. 1977, ch. 38, par. 31-6(a)).

After the decisions in Simmons and Marble, the legislature amended section 31-6(a) (Pub. Act 83-248,