People v. Dycus

No. 2--95--0424

___________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, ) No. 94--CF--2250
)
v. )
)
WILLIAM G. DYCUS, ) Honorable
) Ronald B. Mehling,
Defendant-Appellant. ) Judge, Presiding.
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JUSTICE INGLIS delivered the opinion of the court:

After a bench trial, defendant, William Dycus, was convicted
of burglary (720 ILCS 5/19--1(a)(West 1994)), a Class 2 felony (720
ILCS 5/19--1(b)(West 1994)), and sentenced to seven years'
imprisonment, the maximum nonextended term (see 730 ILCS 5/5--
8--1(a)(5)(West 1994)). On appeal, defendant argues that he is
entitled to a new sentencing hearing because the trial judge
erroneously assumed that his felony record made him eligible for an
extended sentence of 7 to 14 years. We affirm.
Defendant failed to raise this argument at the sentencing
hearing or in his post-sentencing motion. Generally, sentencing
issues not raised at the trial level are waived on appeal. See
People v. Gilliam, 172 Ill. 2d 484, 517-18 (1996). Invocation of
the waiver rule is especially appropriate here because defendant's
failure to raise the issue at the trial level has deprived us of a
satisfactory record from which to determine whether the court did
indeed err. Defendant's argument hinges on the assumption that his
prior felony convictions in another jurisdiction are not of the
same or a higher class as the Class 2 felony here. However, on
this limited record, we cannot say whether this assumption is
correct. Defendant himself admits that the record is inadequate to
demonstrate that the trial court erred insofar as it considered
these prior felonies adequate to trigger the extended-term statute.
However, even disregarding waiver, we believe defendant's
argument is flawed and meritless. We conclude the trial court
correctly assumed that defendant was eligible for an extended
sentence under section 5--5--3.2(b)(1) of the Unified Code of
Corrections (730 ILCS 5/5--5--3.2(b)(1) (West 1994)). This
provision allows an extended sentence "[w]hen a defendant is
convicted of any felony, after having been previously convicted in
Illinois or any other jurisdiction of the same or similar class
felony or greater class felony, when such conviction has occurred
within 10 years after the previous conviction." 730 ILCS 5/5--5--
3.2(b)(1)(West 1994).
Defendant concedes that, fewer than 10 years before his
conviction here, he was convicted in Tennessee of armed robbery, a
felony of a similar or greater class than the burglary conviction
here. However, he argues that basing an extended sentence on this
conviction would amount to an improper double enhancement because
the same conviction was already used under section 5--5--3(c)(2)(F)
of the Unified Code of Corrections (730 ILCS 5/5--5--
3(c)(2)(F)(West 1994)) to bar a sentence of probation. Section 5--
5--3(c)(2)(F) requires the court to impose at least the minimum
prison term for a Class 2 or greater felony if the defendant has
been convicted of a Class 2 or greater felony within 10 years of
the date he committed the offense for which he is being sentenced.
730 ILCS 5/5--5--3(c)(2)(F)(West 1994).
The State replies in part that there is no double enhancement
because defendant's armed robbery conviction is not the sole prior
conviction that satisfies either section 5--5--3(c)(2)(F) or
section 5--5--3.2(b)(1). At the least, the State maintains,
defendant has shown no error, as the seriousness of defendant's
felony convictions in other jurisdictions is not evident from the
record. Thus, according to the State, we may assume that the trial
court properly used the armed robbery conviction to enhance the
sentence under one provision and used a separate felony conviction
of Class 2 or higher to trigger the other provision. Defendant
concedes that it would be proper to use a distinct Class 2 or
higher felony conviction to trigger each statutory enhancement.
However, he disputes the State's assertion that he has more than
one prior felony conviction that occurred within 10 years of the
burglary conviction here and is of a similar or greater class.
We need not determine which party is correct about the trial
court's scorekeeping. Even if defendant's armed robbery conviction
was the only conviction to satisfy both sections 5--5--3.2(b)(1)
and 5--5--3(c)(2)(F), the court did not err in assuming this one
conviction could be used both to bar probation and to impose an
extended sentence. This would be a permissible double enhancement.
Controlling is Fitzsimmons v. Norgle, 104 Ill. 2d 369 (1984),
a case neither party cites. In Fitzsimmons, the supreme court
considered whether the trial court could use a criminal defendant's
prior conviction both to transfer the defendant's case from
juvenile court to adult court (see Ill. Rev. Stat. 1981, ch. 37,
par. 702--7(3)) and to trigger section 5--5--3(c)(2)(F). Assuming
arguendo that the juvenile transfer provision was an enhancing
statute, the court rejected any claim that the use of the same
conviction to trigger both enhancements was improper. Observing
that a penalty may be the result of a double enhancement if such
was the legislature's intent, the court concluded that section 5--
5--3(c)(2)(F) requires trial courts to deny probation to a
defendant who has within 10 years been convicted of the same or a
greater class felony. Thus, the trial court had to apply section
5--5--3(c)(2)(F) even if the resultant penalty was the product of
a double enhancement. Fitzsimmons, 104 Ill. 2d at 373-74.
We believe that, under Fitzsimmons, the possibility of a
double enhancement is no bar to applying section 5--5--3(c)(2)(F)
where the defendant's record calls for it. The legislature
intended that a prior conviction could be used both to deny
probation and to allow an extended sentence. Where the legislature
has clearly called for this possibility, we are not at liberty to
use rules of construction to revise the statute in the direction of
greater lenity. People v. Rissley, 165 Ill. 2d 364, 390-91 (1995).
Moreover, defendant's invocation of the rule against double
enhancements is not a plausible reading of the legislature's
intent. Defendant insists that the fact that his recent conviction
of a Class 2 or greater felony makes him ineligible for probation
means that this felony conviction cannot also make him eligible for
an extended term. Section 5--5--3(c)(2)(F) and section 5--5--
3.2(b)(1) have essentially similar preconditions; the former is
specific to sentencing for a Class 2 felony, while the latter
embodies the same principle more generally. Where section 5--5--
3(c)(2)(F) applies, section 5--5--3.2(b)(1) will also apply.
Surely, the legislature was aware of this fact; yet it nonetheless
chose to state unequivocally that a single conviction may make a
defendant eligible for an extended term. Defendant in effect asks
us to revise the extended-term statute by making it require two
prior felony convictions of the same or greater class as the one
for which the defendant is presently being sentenced. Neither the
plain language of the statutes nor a plausible view of legislative
intent supports the contention that the legislature envisioned such
leniency in sentencing repeat felony offenders. That conclusion is
particularly evident under the facts of this case, where
defendant's extremely lengthy record made the denial of probation
all but a foregone conclusion even absent section 5--5--3(c)(2)(F).
The judgment of the circuit court of Du Page County is
affirmed.
Affirmed.
McLAREN and HUTCHINSON, JJ., concur.