People v. Levan

No. 3--95--0607

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1996

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 94--CF--287
)
MICHAEL J. LEVAN, ) Honorable
) Robert Manning
Defendant-Appellant. ) Judge, Presiding
_________________________________________________________________

JUSTICE SLATER delivered the opinion of the court:
_________________________________________________________________

The defendant, Michael Levan, was charged with theft. 720
ILCS 5/16--1 (West 1994). He moved to dismiss on the ground of
double jeopardy. The trial court denied the motion, and the
defendant was later convicted. On appeal, the defendant argues
that the charge should have been dismissed. We reverse.
The record shows that on March 18, 1994, the defendant was
charged in Illinois with theft. The Illinois charge alleged that
on March 4, 1994, the defendant unlawfully obtained control over
some Tiffany lamps in Peoria County.
On March 24, 1994, the defendant was charged with theft in
Arizona. The Arizona charge alleged that from March 14 to March
17, 1994, the defendant unlawfully controlled two Tiffany lamps
while in Maricopa County, Arizona. On November 22, 1994, the
defendant pled guilty in Arizona to attempted theft of the lamps
and was sentenced to 3« years of imprisonment.
On March 22, 1995, the defendant was arraigned on the Illi-
nois charge in the Peoria County circuit court. On July 13,
1995, defense counsel moved to dismiss the charge on double
jeopardy grounds. Following a hearing on the motion, the court
found that the Illinois prosecution did not violate the double
jeopardy prohibition.
The cause proceeded to a stipulated bench trial. The
evidence showed that on March 8, 1994, two Tiffany lamps were
discovered missing from the Pettengrill-Morron House in Peoria.
The defendant was a volunteer for the Peoria Historical Society
and at one time had a key to the House and knew the security
code.
On March 5, 1994, the defendant sold the lamps to Robert
Ogorek in Michigan. Ogorek later stopped payment on the checks
and returned the lamps to the defendant. On March 14, 1994, the
defendant sold one of the lamps to David Adler in Scottsdale,
Arizona. On March 16, Adler agreed to purchase the second lamp
and gave the defendant partial payment. The following day, Adler
paid the defendant the balance due. The defendant was then
arrested at a bank in Arizona.
Following presentation of the stipulated testimony, the
defendant was convicted of theft. He was later sentenced to
seven years of imprisonment.
On appeal, the defendant argues that the motion to dismiss
should have been granted. The defendant contends that the
prosecution was barred by section 8--5 of the Criminal Code of
1961 (Code), which prohibits convictions for both the inchoate
and the principal offense. 720 ILCS 5/8--5 (West 1994). The
State contends that the defendant waived this argument by not
making it at trial.
Issues not raised at trial are ordinarily deemed waived on
review. People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124
(1988). However, issues concerning substantial rights may be
considered by a reviewing court even if not properly preserved in
the trial court. 134 Ill. 2d R. 615(a). The double jeopardy
prohibition is a substantial right. See People v. Brown, 227
Ill. App. 3d 795, 592 N.E.2d 342 (1992). Since the issue on
appeal is essentially a double jeopardy argument, we will consid-
er it.
Section 8--5 of the Code states, "No person shall be con-
victed of both the inchoate and the principal offense." 720 ILCS
5/8--5 (West 1994). Section 8--6 of the Code states that for
purposes of section 8--5, "offense" includes conduct which, if
performed in another State, would be an offense in that State and
which, if performed in Illinois, would be an offense in Illinois.
720 ILCS 5/8--6 (West 1994).
We find that the Illinois prosecution was barred by the
Arizona conviction. Both prosecutions involved the same conduct:
the unlawful possession of the Tiffany lamps. See People v.
Poliak, 124 Ill. App. 3d 550, 464 N.E.2d 304 (1984) (holding that
for purposes of theft, obtaining and exerting control are essen-
tially the same). Since the Arizona conviction was the inchoate
form of the offense, the defendant could not be convicted in
Illinois for the principal offense. The motion to dismiss should
have been granted.
The State contends that the defendant's motion could have
been properly dismissed as untimely. The State cites section
114--1 of the Code of Criminal Procedure of 1963, which states
that a court shall require a motion to dismiss to be filed within
a reasonable time after arraignment. 725 ILCS 5/114--1(b) (West
1994).
The State's argument is unavailing. Even if the motion was
untimely, the defendant would still be entitled to a reversal
because of ineffective assistance of counsel. Counsel is inef-
fective where her performance is unreasonably deficient and the
deficiency prejudiced the defendant. People v. Albanese, 125 Ill. 2d 100, 531 N.E.2d 17 (1988). In this case, a reasonably
competent lawyer would have identified the section 8--5 argument
and presented it to the trial court in a timely manner. See
Murphy v. Puckett, 893 F.2d 94 (5th Cir. 1990). The failure to
do so would have prejudiced the defendant because he was entitled
to a dismissal of the charge on that ground.
Based on the foregoing, we reverse the judgment of the
circuit court of Peoria County.
Reversed.
LYTTON and MICHELA, J.J., concur.