No. 3-00-0953

_________________________________________________________________

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

THE PEOPLE OF THE STATE OF	)	Appeal from the Circuit Court

ILLINOIS,					)	for the 13th Judicial Circuit,

						)	Bureau County, Illinois 

	Plaintiff-Appellee,		)

						)	No. 98-CF-62

	v.					)

						)

JAMES P. GRAVES,			)	Honorable Scott Madson

						)	Judge, Presiding

	Defendant-Appellant.	)

_________________________________________________________________

JUSTICE McDADE delivered the opinion of the court:

_________________________________________________________________

	James P. Graves (defendant) pled guilty to the unauthorized

theft of currency in excess of $10,000 but less than $100,000

(unauthorized theft) pursuant to sections 16--1(a)(1)(A), (b)(5)

of the Criminal Code of 1961 (Code) (720 ILCS 5/16--1(a)(1)(A),

(b)(5) (West 1998)).  The trial court sentenced defendant to 12

years' imprisonment and ordered him to pay $20,000 in

restitution.

FACTS

	Defendant was charged by indictment with unauthorized theft, a Class 2 felony.  The indictment did not provide notice to

defendant of his eligibility for an extended-term sentence.   

	Defendant was employed by Edward D. Jones (Jones) as a

broker.  In March of 1998, Wendall L. Hansen (Hansen) and Elsie

G. Tracy (Tracy) visited the Jones office in Princeton for the purposes of opening a joint annuity account.  The victims gave

defendant $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 Tracy

was 93.   								

	The following day, the State and defendant reached an

agreement whereby defendant would plead guilty to the

unauthorized theft charge in exchange for the dismissal of

another charge.  The State also submitted a factual basis for the

plea and requested that the trial judge take judicial notice of

the exhibits which had been introduced the day before, as well as

additional proof the State would have produced had the trial

continued.  Defendant stipulated to the testimony of the State's

potential witnesses and to the documentary evidence being

tendered by the State.  

	Before defendant entered his plea, the trial judge

admonished him of the rights he would forego by pleading guilty. 

The judge also explained the sentencing range for a Class 2

felony and informed defendant he was eligible for an extended

sentence due to the victims' ages.  Ordinarily, defendant would

have been sentenced according to the Class 2 felony sentencing

range of 3 to 7 years with the possibility of probation under

section 5--5--3(b)(1) of the Unified Code of Corrections (730

ILCS 5/5--5—3(b)(1) (West 1998)(the Unified Code)).  However, because of the ages of the victims, he was sentenced pursuant to

section 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 that

his plea was entered voluntarily and knowingly.  After defendant

entered his guilty plea, the court sentenced him to 12 years'

imprisonment and ordered him to pay $20,000 to the victims as

restitution for their lost investments. 

	Defendant now presents three issues on appeal: (1) that his

extended-term sentence was unconstitutional, (2) that the

statutory sentencing scheme used to formulate defendant's

sentence violated the proportionate penalties clause of the

Illinois Constitution, and (3) that his restitution order is

invalid.

ANALYSIS

I.	 Extended-Term Sentence

	Defendant contends that section 5--5--3.2(b)(4)(ii) of the

Unified Code (730 ILCS 5/5--5—3.2(b)(4)(ii) (West 1998)) is unconstitutional in its application in light of Apprendi v. New Jersey, 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 indictment

that, due to the age of the victims involved, he would be

eligible for an extended sentence. 

	We do not reach the merits of this argument.  Our supreme

court has recently held that a plea of guilty waives any argument

that a defendant may otherwise have had based on Apprendi.  People v. Jackson, 199 Ill. 2d 286, 769 N.E.2d 21 (2002).  The court has found that this waiver applies even to rights that had

not been recognized by the courts at the time defendant's plea

was entered.  Accordingly, we reject defendant's Apprendi argument.

II.	 Proportionate Penalties Clause

	Defendant also challenges the constitutionality of the

unauthorized theft statute under which he was convicted, claiming

that it violates the proportionate penalties clause of the

Illinois Constitution.  Specifically, defendant contends that

unauthorized theft, as defined in sections 16--1(a)(1)(A) and

(b)(5) of the Code, is substantively indistinguishable from theft

by deception (section 16--1(a)(2), and (b)(7) of the Code (720

ILCS 5/16--1(a)(2), (b)(7) (West 1998))), yet the two carry quite

different penalties.  He claims that the State doubled his

potential sentencing range by selecting the section of the

criminal statute that exposed him to an extended term of 14 years

for the very same crime for which he would otherwise be limited

to 7 years. 

	We review the construction of the challenged criminal

statute 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 define

conduct constituting a crime and to determine the nature and

extent of its punishment.  The constitutional provisions limit

these powers by mandating penalties that are proportionate to the offenses and requiring the legislature, in defining crimes and

their penalties, to consider the constitutional goal of

prescribing penalties according to the seriousness of the

offense.  People v. Lee, 167 Ill. 2d 140, 656 N.E.2d 1065 (1995).  	On appeal, the constitutionally required task of a reviewing

court is to examine a sentencing scheme and determine whether it

provides a proportionate penalty for the offense at issue. 

People v. Lewis, 175 Ill. 2d 412, 677 N.E.2d 830 (1996).  The general practice of comparing different offenses and their

respective penalties is an accepted part of a reviewing court's

proportionality review.  Lewis, 175 Ill. 2d at 420, 677 N.E.2d at 838.  Interference with legislative judgment is justified only

where the designated punishment is cruel, degrading, or so wholly

disproportionate to the offense committed as to shock the moral

sense of the community.  Lee, 167 Ill. 2d at 145, 656 N.E.2d at 1069.  Because courts recognize that the legislature is

institutionally more capable of determining the seriousness of

offenses, they are reluctant to invalidate penalties prescribed

by the legislature.  Lee, 167 Ill. 2d at 145, 656 N.E.2d at 1069.

	The Illinois Supreme Court in People v. Christy, 139 Ill. 2d 172, 564 N.E.2d 770 (1990), has provided useful insight into the

proportionate penalties question.  In Christy, the defendant was convicted of armed violence predicated on kidnaping (armed

violence).  The weapon involved was a knife with a blade in

excess of three inches.  Christy, 139 Ill. 2d at 173, 564 N.E.2d at 771.  Defendant argued that the penalties for armed violence and aggravated kidnaping were unconstitutionally disproportionate

because each offense required the same elements, yet armed

violence was punished more severely than aggravated kidnaping. 

Christy, 139 Ill. 2d at 174, 564 N.E.2d at 772.  Aggravated kidnaping (the commission of kidnaping while armed with a

dangerous weapon, including knives with blades of at least three

inches in length) required sentencing according to Class 1 felony

standards.  Christy, 139 Ill. 2d at 174, 564 N.E.2d at 772.  However, armed violence (the commission of ANY felony while armed

with a dangerous weapon, also including knives with blades in

excess of three inches) required sentencing according to the more

stringent Class X felony standards.  Hence, the commission of

kidnaping with a knife with a blade of at least three inches in

length also constituted a Class X felony.  Christy, 139 Ill. 2d at 174, 564 N.E.2d at 772.  The supreme court found that since

the elements for both aggravated kidnaping and armed violence

were identical, yet carried different penalties, the penalties

for 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 theft

by deception similarly violate the proportionate penalties clause

of the Illinois Constitution (Ill. Const. 1970, art. I, §§2, 11). 

Theft by deception is defined as the theft of property exceeding

$5,000 in value without an expressed ceiling (720 ILCS 5/16--1

(a)(2), (b)(7) (West 1998)), which would include the theft of

property with a value of $20,000.  The commission of theft by deception against a victim who is 60 years or older carries a

maximum sentence of seven years.  720 ILCS 5/16--1(a)(2), (b)(7)

(West 1998); 730 ILCS 5/5--8--1(a)(5) (West 1998).  However,

unauthorized theft, which is defined as the theft of property

between $10,000 and $100,000 in value (720 ILCS 5/16--1(1)(A),

(b)(5) (West 1998)), which would also include the theft of

property equaling $20,000, from a victim who is 60 years or older

carries a maximum extended sentence of 14 years.  730 ILCS 5/5--

5--3.2(b)(4)(ii), 5/5--8--2)(a)(4) (West 1998).  Since the two

offenses require the same elements (see People v. Fowler, 72 Ill. App. 3d 491, 494, 390 N.E.2d 1377, 1380 (1979)), yet carry

significantly different penalties, we find that the penalties are

unconstitutionally disproportionate.

III. 	Restitution Order

	Defendant contends that the trial court lacked authority to

order restitution because the judge failed to warn him of its

possible imposition before he entered his guilty plea.  Thus,

defendant argues, the restitution order exceeded the maximum

sentence of which he had been warned before pleading guilty and

the order should be vacated.

	The purpose of a motion to reconsider a sentence is to allow

the trial court an opportunity to review the appropriateness of

the sentence imposed and to correct any errors made.  People v. Wallace, 143 Ill. 2d 59, 61, 570 N.E.2d 334, 336 (1991).  Generally, issues not raised in a motion to reconsider the

sentence are waived on appeal.  People v. Carroll, 195 Ill. App. 3d 445, 552 N.E.2d 361 (1990).  

	The appellate court in People v. Bronson, 216 Ill. App. 3d 839, 576 N.E.2d 449 (1991), dealt with this very issue.  There,

the defendant requested on appeal that the trial court's

restitution order be vacated because the court had not admonished

him, prior to accepting his plea, that restitution was possible

along with a sentence of imprisonment.  Bronson, 216 Ill. App. 3d at 840, 576 N.E.2d at 450.  However, the appellate court denied

the request, finding that the defendant had waived the issue by

failing to contest the imposition of restitution in the trial

court in his two motions to reconsider the sentence.  Bronson, 216 Ill. App. 3d at 842, 576 N.E.2d at 451. 

	In this instance, defendant also failed to include the issue

of the propriety of the restitution order in either of the two

motions he filed seeking reconsideration of his sentence.  Thus,

defendant has waived the issue.

	Defendant also contends that the trial court should have

redirected the restitution order because defendant's employer had

already reimbursed the victims $20,000 for their lost

investments.  Not to do so, he claims, would constitute a

windfall for the plaintiffs.

	In support, defendant cites to People v. Bier, 210 Ill. App. 3d 1, 568 N.E.2d 443 (1991), where the appellate court ordered

that the defendant pay restitution to the defendant's insurance

carrier rather than the victim because the insurance company had

already reimbursed the victim.  In setting out support for its decision, the Bier court pointed to legislative revisions to section 5--5--6 of the Unified Code (restitution section) (730

ILCS 5/5--5--6(b) (West 1998)), which broadened the scope of the

restitution statute for the specific purpose of including

insurance carriers.  Bier, 210 Ill. App. 3d at 34, 568 N.E.2d at 445.   

	However, Bier is distinguishable because the Edward D. Jones company itself is not an insurance company as defined by the

statute and thus has not been designated by the statute as an

acceptable alternative recipient of restitution.  There is

presently nothing in the record to indicate whether the payment

from Jones was made by an insurer.  If, on remand, Jones can make

such a showing, the court may consider whether it is appropriate

to redirect defendant's restitution payments toward the insurer

of his former employer.  Otherwise, we affirm the trial court's

restitution order.

CONCLUSION

	In light of the foregoing analysis, we find that: (1) the trial court's extended term sentence is unconstitutional as

applied and is vacated; (2) the penalties for unauthorized theft

and theft by deception are unconstitutionally disproportionate;

but (3) the trial court's restitution order with the suggestion

that payment be re--directed is affirmed if appropriate.  We

remand for proper sentencing.

	Affirmed in part, vacated and remanded in part.

	HOLDRIDGE, J., concurring and SLATER, J., dissenting.

	No.  3--00--0953

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	THIRD DISTRICT

	A.D., 2002

THE PEOPLE OF THE STATE OF	)  Appeal from the Circuit Court

ILLINOIS,					)  of the 13th Judicial Circuit,

	                    	)  Bureau County, Illinois,

	Plaintiff-Appellee,		)

						)  No. 98--CF--62

	v.					)

						)

JAMES P. GRAVES,			)  Honorable

						)  Scott Madson,

	Defendant-Appellant.	)  Judge, Presiding.

_________________________________________________________________

	JUSTICE SLATER, dissenting:

_________________________________________________________________

	I disagree with the majority's conclusion that the penalties

for theft and theft by deception from a person over 60 violate

the proportionate penalties clause.  Theft of property valued

between $10,000 and $100,000 is a class 2 felony.  720 ILCS 5/16-

-1(b)(5) (West 1998).  In a case such as this, where the victims

are over 60 years of age, a defendant is eligible for an extended

term.  730 ILCS 5/5--5--3.2(b)(4)(ii) (West 1998).  Theft by

deception of property valued at $5,000 or more from a victim 60

or older is also a class 2 felony.  720 ILCS 5/16--1(b)(7) (West

1998).  A defendant would not, however, be subject to an extended

term on the basis of the victim's age because doing so would

constitute double enhancement.

	The proportionate penalties clause of the Illinois

Constitution (Ill. Const. 1970, art. I, §11) prohibits the

application of disparate penalties to offenses that are

substantively identical.  See People v. Lewis, 175 Ill. 2d 412, 677 N.E.2d 830 (1996); People v. Christy, 139 Ill. 2d 172, 564 N.E.2d 770 (1990); see also People v. Davis, 177 Ill. 2d 495, 687 N.E.2d 24 (1997).  Where different offenses are at issue,

however, no constitutional violation exists unless: (1) the

penalty is cruel, degrading, or shocks the moral sense of the

community; or (2) a less serious offense is punished more harshly

than one that is more serious.  See Davis, 177 Ill. 2d 495, 687 N.E.2d 24.

	The majority's error is in finding that theft and theft by deception "require the same elements."  Slip op. at 7.  In People v. Fowler, 72 Ill. App. 3d 491, 494-95, 390 N.E.2d 1377, 1380 (1979), cited by the majority, the court stated that the various

subparagraphs of the theft statute "do not undertake to create a

series of separate offenses, but rather to create a single

offense of theft which may be performed in a number of ways." 

Fowler relied on People v. Marino, 44 Ill. 2d 562, 256 N.E.2d 770 (1971), where the defendants were charged with obtaining and

exerting unauthorized control over property under section 16--

1(a).  Ill. Rev. Stat. 1963, ch. 38, par. 16--1(a).  The

defendants claimed that they should have been charged under

section 16--1(d) (Ill. Rev. Stat. 1963, ch. 38, par. 16-1(d))

(obtaining control over stolen property) because the property had

been stolen six months earlier.  Our supreme court stated that

receiving stolen property under subsection (d) was "not a

separate offense" but was included within subsection (a). 

Marino, 44 Ill. 2d at 576, 256 N.E.2d at 778.

	Although under Marino and Fowler theft by obtaining or exerting unauthorized control over property may not be a separate offense from obtaining control by deception, the two are not identical.  "Deception" includes creating a false impression,

preventing another from acquiring information pertinent to a

transaction or falsely promising performance.  See 720 ILCS 5/15-

-4 (West 1998).  "Obtaining or exerting control" on the other

hand, "includes but is not limited to the taking, carrying away,

or the sale, conveyance, or transfer of title to, or interest in, or possession of property."  720 ILCS 5/15--8 (West 1998).  Thus,

properly understood, theft by deception is not a "separate

offense" but is a particular manner of obtaining unauthorized control.  One could argue whether the additional element of

deception should merit more, less or the same punishment as

simply taking or carrying away property, but the point is that

they are not the same.

	"The legislature, institutionally, is more aware than the

courts of the evils confronting our society and, therefore, is

more capable of gauging the seriousness of various offenses." 

People v. Steppan, 105 Ill. 2d 310, 319, 473 N.E.2d 1300, 1305 (1985).  Accordingly, courts will generally defer to a

legislative judgment that one particular offense is more serious

than another.  Davis, 177 Ill. 2d 495, 687 N.E.2d 24.  I would submit that similar deference is due when the legislature makes a

a judgment that the manner in which an offense is committed merits more or less punishment.  Such a legislative scheme is

certainly not unknown.  For example, the punishment for

aggravated assault is a class A misdemeanor when the person

assaulted is a teacher, peace officer or fireman (see 720 ILCS

5/12--2(a)(3), (6); (b) (West 2000)) but is a class 4 felony when

it involves a correctional officer or employee (720 ILCS 5/12--

2(a)(14), (15); (b) (West 2000)).

	Here the legislature singled out theft by deception from a

victim 60 years of age or older as warranting different

punishment from other types of theft.  The provision at issue is both more harsh and more lenient.  It is more harsh in that it

sets a lower threshold in terms of property value ($5,000 versus

$10,000) for a class 2 felony.  It is more lenient in the sense

that the victim's age cannot be the basis for imposing an

extended term sentence.  Although perhaps not a model of

consistency, I do not believe it violates the proportionate

penalties clause of the Illinois Constitution.  I would affirm

the defendant's sentence.