No. 3--02--0627

_________________________________________________________________

					    IN THE

                   APPELLATE COURT OF ILLINOIS

                         THIRD DISTRICT

                           A.D., 2004

THE PEOPLE OF THE STATE         )  Appeal from the Circuit Court

OF ILLINOIS,                    )  of the 12th Judicial Circuit,

					       )  Will County, Illinois,

	Plaintiff-Appellee,	       )

                                )

	v.                         )  No. 00--CF--1986

						  )

PAUL F. RUNGE,                  )  Honorable

						  )  Gerald Kinney,

	Defendant-Appellant.       )  Judge Presiding.

_________________________________________________________________

	JUSTICE LYTTON delivered the opinion of the court:

_________________________________________________________________

	Defendant Paul F. Runge was charged in a multi-count

indictment with various offenses committed during an October 6,

2000, escape from the Department of Human Services (DHS). 

Defendant pleaded guilty to escape (720 ILCS 5/31--6(b-1) (West

2000)); and, following a bench trial, he was convicted of armed

robbery (720 ILCS 5/18--2(a)(1) (West 2000)), two counts of

aggravated battery (720 ILCS 5/12--4(b)(8) (West 2000)) and two

counts of possession of contraband in a penal institution (720

ILCS 5/31A--1.1(b) (West 2000)).  The trial court sentenced

defendant to an aggregate term of 90 years' imprisonment. 

Defendant appeals, arguing that (1) the State failed to prove him

guilty of armed robbery beyond a reasonable doubt; (2) his

convictions of armed robbery and escape violate one-act, one-

crime principles; (3) the offense of escape from the custody of DHS violates constitutional equal protection guarantees; (4) he was not proved guilty beyond a reasonable doubt of possession of

contraband based on possession of a cannister of pepper spray;

(5) the cause must be remanded for compliance with Supreme Court

Rules 605(b) and 604(d); and (6) the court was not authorized to

impose consecutive sentences for armed robbery and two counts of

possession of contraband.  We reverse in part and remand for

further proceedings.

	FACTS

	On May 28, 2002, defendant entered a plea of guilty to the

charge of escape.  The State's factual basis established that on

October 6, 2000, defendant resided in the DHS facility of

Sheridan Correctional Center (SCC) pursuant to the Sexually

Violent Persons Commitment Act (725 ILCS 207/1 et seq. (West 2000)).  Defendant and another resident, Gregory Conley, escaped

while they were being transported from the Sheridan facility to

Chicago for court proceedings.  Following admonishments, the

court accepted defendant's guilty plea.  Defendant then waived

his right to a jury trial on the remaining charges.

	At trial, DHS security aide Rick Schroeder testified that he

was assigned to drive three residents from SCC to Chicago for

court proceedings on October 6, 2000.  He described the DHS

treatment and detention facility as physically located in the

center of SCC.  To leave the facility, DHS residents had to pass

through a portion of the prison.  Schroeder said he and security

therapy aide Manessa Nelson loaded the three residents into the van 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 was

allowed to do so.  Schroeder said someone called his name when

they reached a stop light, and he turned his head to respond. 

Schroeder next felt his face being sprayed with pepper spray.  He

said his eyes "slammed" shut.  He managed to park the van and get

out.  After regaining sight out of one eye, Schroeder found

Nelson standing outside the van coughing.  Defendant and Conley

were gone, and the third resident, George Timmons, was coughing

with his head sticking out of a broken window.

	Schroeder also testified that DHS issued clothing for the

residents to wear when they went to court.  He identified

articles of clothing worn by defendant and Conley on the date of

the offenses as property of DHS.

	Naperville police officer Greg Bell testified that he

responded to a radio dispatch to be on the lookout for the

escapees around 8 a.m. on October 6, 2000.  He spotted a four-

door sedan bearing the license plate number broadcast in the

dispatch.  After Bell stopped the vehicle and placed its three

occupants under arrest, a gun in a case was removed from the

front floorboard of the car.

	State Police Special Agent Vic Markowski testified that he

interviewed defendant at the Naperville Police Department on the

evening of October 6, 2000.  Defendant stated that former DHS

employee Doris Harper and Amber Waller, a security therapist aide at the DHS facility, had given Conley and defendant a handcuff

key and two cannisters of "mace" to facilitate their escape.  The

plan was to have Conley feign illness en route to Chicago and ask

that the volume of the radio be turned up in the van so that

their DHS escorts would not hear the escapees removing their hand

and leg restraints.  Defendant admitted that he had a cannister

of "mace" and the handcuff key on his person when he boarded the

van.  However, he denied that he used the "mace" when he and

Conley escaped.

	State trooper Glenn Strobel testified that he inventoried

the contents of the getaway vehicle on October 6, 2000.  In

addition to the gun and case identified by Bell, Strobel found a

shank, DHS clothing that had been issued to defendant and Conley

the morning of the offense, shackles, a handcuff key and a

cannister of Saber pepper spray. 

	Larry Olson, a crime scene investigator for the State

police, testified as an expert with regard to the cannister of

pepper spray.  He stated that the pepper spray cannister

recovered from the rented vehicle contained a non-lethal noxious

liquid gas commonly known as "mace."  The item was the kind of

device generally available in retail stores for personal

protection and not the kind used by law enforcement officials.  

	Following closing arguments, the trial court found defendant

guilty of robbery, armed robbery, two counts of aggravated

battery and two counts of possession of contraband ("mace" and a

handcuff key) in a penal institution.  The court subsequently sentenced the 32-year-old defendant to consecutive prison terms

of 60 years for armed robbery and 15 years for each conviction

for possession of contraband.  The court also imposed concurrent

sentences of seven years for escape and five years for each

aggravated battery--these sentences to be served concurrently

with the armed robbery sentence.  The court ruled that the

robbery conviction merged with the armed robbery conviction. 

Consequently, the court did not impose sentence on the lesser

offense.  Defendant filed a motion to reduce sentence, which was

denied, and he appeals.

	ISSUES AND ANALYSIS

	1.  Armed Robbery

	Defendant was charged with robbery by taking the DHS-issued

clothing he was wearing from the presence of Schroeder and Nelson

by the use of force.  He was charged with armed robbery by taking

the clothing from Schroeder and Nelson by the use of force while

carrying a knife.  Defendant now challenges the sufficiency of

the State's proof that (a) force was used as a means of taking

the clothing from DHS, and (b) he or one of his accomplices

carried a knife.  He argues that his armed robbery conviction

must be reversed outright because there was no concurrence

between his use of force and his taking of the clothing.  In the

alternative, he argues that his conviction must be reduced to

simple robbery because the State failed to prove that he or

Conley 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 appeal

is whether, after reviewing all of the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt.  People v. Collins, 106 Ill. 2d 237, 478 N.E.2d 267 (1985).

	"A person commits robbery when he *** takes property ***

from the person or presence of another by the use of force or by

threatening the imminent use of force."  720 ILCS 5/18--1(a)

(West 2000).  Armed robbery is committed when the person commits

robbery and "carries on or about his *** person or is otherwise

armed with a dangerous weapon."  720 ILCS 5/18--2(a)(1) (West

2000).  Although the State need not show that force was exerted

for the purpose of taking the property, to sustain a conviction

of robbery there must be some concurrence between the defendant's

use of force and the taking.  People v. Lewis, 165 Ill. 2d 305, 651 N.E.2d 72 (1995).  Where acts constituting the taking and the

force are committed in a single series of continuous acts, a

conviction of robbery will be sustained.  Lewis, 165 Ill. 2d 305, 651 N.E.2d 72.  

	In this case, the evidence established that defendant was

issued DHS clothing for his court appearance on the morning of

October 6, 2000, before he boarded the van that was to transport

him from Sheridan to Chicago.  The evidence did not show that

defendant 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 force

used to escape were committed in a single series of continuous

acts.  Defendant wore the clothing from the time he left the

Sheridan facility until after he escaped from DHS custody and

joined 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 an

unrelated, separate offense of escape from DHS custody.

	The only use of force proved at trial was the use of pepper

spray on Schroeder and Manessa, a separate act of aggravated

battery for which defendant was accountable.  The pepper spray

did not overpower Schroeder and Manessa's will to retain the

clothing defendant was wearing, but overpowered their ability to

retain defendant's person.  In other words, the pepper spray was

not used as a means of acquiring DHS clothing, which defendant

already possessed, but as a means of facilitating his escape. 

	Although our research fails to disclose any precedent for

prosecuting a person for robbery of clothes the person is wearing

when he uses force to commit another offense, the circumstances

presented in People v. Johnson, 314 Ill. App. 3d 444, 732 N.E.2d 100 (2000), are analogous.  There, the defendant was convicted of

armed robbery of a car title and vehicular hijacking.  The

evidence at trial showed that no force was exerted when the car

owner handed the title to the defendant at the defendant's

request.  The defendant exited the vehicle, went into a house and then returned to the car.  On return, the defendant threatened

the owner with a gun and took his car.  On appeal from the

dismissal of the defendant's postconviction petition, the court

ruled that "the force that was used to take the vehicle occurred

after and separately from the receipt of title."  Johnson, 314 Ill. App. 3d at 450-51, 732 N.E.2d at 107.  Accordingly, the

necessary concurrence between the taking and the force was not

established, 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 theory

that the clothing remained in DHS' possession until defendant

escaped is not well-taken.  The clothing in this case, no less

than the car title in Johnson, was physically transferred to defendant's custody and control prior to and separately from any

use of force.  Because the State failed to prove some concurrence

between the use of force and the taking, defendant's conviction

for armed robbery must be reversed outright.  See Johnson, 314 Ill. App. 3d 444, 732 N.E.2d 100.

	2.  Possession of Contraband

	Next, defendant argues that his conviction for possession of

contraband ("mace") must be reversed because the cannister of

Saber pepper spray was not a "weapon" as defined by the

contraband statute.

	A person commits an offense under section 31A--1.1 of the

Code when he possesses a weapon while in a penal institution.  720 ILCS 5/31A--1.1(b),(c)(2)(v) (West 2000).  Weapons are

defined as

	"any knife, dagger, dirk, billy, razor, stiletto, broken

bottle, or other piece of glass which could be used as a

dangerous weapon.  Such term includes any of the devices or

implements designated in subsections (a)(1), (a)(3) and

(a)(6) of Section 24--1 of this Act, or any other dangerous

weapon 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, commonly

referred to as a switchblade knife, which has a blade that

opens automatically by hand pressure applied to a button,

spring or other device in the handle of the knife, or a

ballistic knife, which is a device that propels a knifelike

blade as a projectile by means of a coil spring, elastic

material or compressed gas; or

		***

		*** a tear gas gun projector or bomb or any object

containing noxious liquid gas or substance, other than an object containing a non-lethal noxious liquid gas or

substance designed solely for personal defense carried by a

person 18 years of age or older; or

* * *

		*** any device or attachment of any kind designed, used or intended for use in silencing the report of any firearm."

(Emphasis added.)  720 ILCS 5/24--1(a)(1),(3),(6) (West

2000).

	The cannister of Saber pepper spray underlying one of

defendant's contraband convictions in this case is expressly

excluded as a dangerous weapon under section 24--1(a)(3) and

cannot arguably be included as a "dangerous weapon or instrument"

similar to any of the other devices listed in the statute.  See

People 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. 

	3.  Supreme Court Rules 605(b) and 604(d)

	Next, we consider defendant's argument that he is entitled

to a remand to the trial court for admonishments pursuant to

Supreme Court Rule 605(b) (Official Reports Advance Sheet No. 21

(October 17, 2001), R. 605(b), eff. October 1, 2001) and

perfection of an appeal from his conviction of escape pursuant to

Rule 604(d) (188 Ill. 2d R. 604(d)).

	The record shows that prior to sentencing defendant filed a

motion to withdraw his plea of guilty to the escape charge.  On

July 25, 2002, the court imposed sentences on all offenses,

including a 7-year sentence for escape to run concurrently with

the 15-year sentence imposed for possession of contraband in a

penal institution.  Defendant then withdrew the motion to

withdraw his guilty plea.  The trial court gave no admonishments

pursuant to Rule 605(b) at that proceeding.  Defendant subsequently filed a motion to reconsider sentence.  His motion

took issue only with the imposition of extended-term and

consecutive sentences.  It did not seek a reduction of

defendant's seven-year sentence for escape.  The trial court

heard and denied the motion.  A notice of appeal was filed, but

trial counsel filed no certificate of compliance pursuant to Rule

604(d).

	Where a defendant enters a blind plea of guilty, the trial

court, upon imposing sentence, is required to give admonishments

pursuant to Supreme Court Rule 605(b).  Under the rule, the

defendant must be told, inter alia, that he must file a postplea motion in the trial court, and that any issue not raised in the

motion would be waived on appeal.  Official Reports Advance Sheet

No. 21 (October 17, 2001), R. 605(b)(2),(6), eff. October 1,

2001.

	Strict compliance with the Rule 605(b) is required, because

failure to give the admonishments can result in the loss of the

right to appeal.  People v. Jamison, 181 Ill. 2d 24, 690 N.E.2d 995 (1998); People v. Lloyd, 338 Ill. App. 3d 379, 788 N.E.2d 1169 (2003).  The State argues that a remand is not required in

this case because defense counsel filed posttrial motions raising

many of the issues raised in this appeal.  

	Although it is true defendant filed both a motion to reduce

sentence and a motion to withdraw his guilty plea, neither motion

preserved for review issues relating to defendant's conviction

and sentence for escape.  Without a showing that defendant was told of his appeal rights, it cannot be assumed that he was aware

that any arguable issues relating to his guilty plea could be

waived on review when he withdrew his motion to withdraw his

guilty plea.  Accordingly, we remand the cause to the trial court

with directions to admonish defendant pursuant to Rule 605(b) and

to allow him an opportunity to file a postplea motion and perfect

his appeal from his conviction and/or sentence for escape

pursuant to Supreme Court Rule 604(d).  See People v. Foster, 171 Ill. 2d 469, 665 N.E.2d 823 (1996).

	4.  Escape

	Finally, although defendant failed to perfect an appeal from

his escape conviction, we choose to reach defendant's

constitutional challenge to the escape statute.  Defendant argues

that subsection 31--6(b-1) of the Criminal Code of 1961 (Code)

(720 ILCS 5/31--6(b-1) (West 2000)) violates constitutional equal

protection guarantees.  Specifically, he contends that the

statute unfairly criminalizes escape by persons committed to DHS

under the Sexually Violent Persons Act and not persons committed

to DHS for other reasons. 

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

		"A person committed to the Department of Human Services

under the provisions of the Sexually Violent Persons

Commitment Act or in detention with the Department of Human

Services awaiting such a commitment who intentionally

escapes from any secure residential facility or from the

custody of an employee of that facility commits a Class 2 felony."  720 ILCS 5/31--6(b-1) (West 2000).

	The constitutional right to equal protection of the law

guarantees that the State must treat similarly situated persons

in a similar manner.  People v. Kimbrough, 163 Ill. 2d 231, 644 N.E.2d 1137 (1994).  The State nonetheless retains the power to

classify and draw lines that treat different classes of persons

differently.  If a statutory classification neither impinges on a

fundamental right nor is based on a "suspect" class, a court will

use the "rational basis" test to review the statute's validity.   Kimbrough, 163 Ill. 2d 231, 644 N.E.2d 1137.  Under this test, a statutory classification will be upheld if it bears a rational

basis to a legitimate state interest.  Kimbrough, 163 Ill. 2d 231, 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 be

found to pass constitutional muster if there is any rational

basis for differentiating between persons committed to DHS under

the Act and those committed to DHS for other reasons.

	A person committed to DHS or awaiting commitment under the

Sexually Violent Persons Act has been previously convicted of a

sexually violent offense or found not guilty of such offense by

reason of insanity.  725 ILCS 207/15(b) (West 2000).  In this

respect, such persons are not similarly situated to persons

committed under the Sexually Dangerous Persons Act (725 ILCS

205/1.01 et seq. (West 2000)), who have been charged but not convicted, or to other residents of DHS, whose involuntary commitment does not follow a criminal conviction for a sexually

violent offense.  See In re Ottinger, 333 Ill. App. 3d 114, 775 N.E.2d 203 (2002); People v. Hancock, 329 Ill. App. 3d 367, 771 N.E.2d 459 (2002); In re Detention of Bailey, 317 Ill. App. 3d 1072, 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, 800 N.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 the

class of persons whose sexually violent offenses had been

established beyond a reasonable doubt in prior criminal

proceedings posed a potentially greater menace to society if they

escaped DHS custody than escapees who had been committed to DHS

pursuant to other civil proceedings.  The heightened need to

protect the public from sexually violent escapees is a legitimate

state interest justifying the imposition of criminal liability

when 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. 

		CONCLUSION

	Our disposition of the foregoing issues renders moot

defendant's one-act, one-crime and consecutive sentencing issues. 

Therefore, without addressing those issues, we reverse

defendant's convictions for armed robbery and possession of

contraband ("mace") in a penal institution and vacate the

sentences imposed for those offenses.  With respect to defendant's conviction for escape, we remand the cause to the

Will County circuit court for further proceedings pursuant to

Supreme Court Rules 605(b) and 604(d).

	Reversed in part and remanded with directions. 

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