People v. Ritchey

                                                                SIXTH DIVISION
                                                             February 14, 1997



 







No. 1-95-3311


THE PEOPLE OF THE STATE OF ILLINOIS,    )        Appeal from
                                        )     the Circuit Court
          Plaintiff-Appellee,           )      of Cook County.
                                        )
     v.                                 )      No. 94-CR-18617
                                        )
SAMUEL RITCHEY,                         )         Honorable
                                        )    Loretta C. Douglas,
          Defendant-Appellant.          )      Judge Presiding.



     JUSTICE THEIS delivered the opinion of the court:

     Following a jury trial, defendant was convicted of robbery and
escape.  Based upon his prior record, the court sentenced the
defendant to two 30-year terms.  The court determined that the
defendant should serve the sentences consecutively.  On appeal,
defendant contends that prosecutorial misconduct deprived him of a
fair trial and that the consecutive sentences were illegal.  We affirm
defendant's convictions, but remand for resentencing.
     On July 16, 1994, Symphony Lindsey drove into the Amoco service
station located at 6600 South Stony Island.  As she was putting air in
her tires, defendant grabbed Lindsey by the neck, threw her to the
ground and robbed her.  Lindsey ran after the defendant, but the
defendant turned and punched Lindsey before driving away.
     Lindsey immediately contacted the police, describing both her
assailant and his car.  After searching the area for the suspect, an
officer drove Lindsey to her home.  The officer was parked in front of
Lindsey's home when the defendant drove up behind him.  After the
officer determined that defendant matched the description of Lindsey's
assailant, he arrested defendant.  The defendant was taken to the
police station, where he attempted to escape.  The police apprehended
the defendant in a nearby yard.
     At trial, defendant denied any involvement in the crime.  He
explained that he fled the station because the police had beaten him
for one-half hour and he feared for his life.  Officers Cotton and
Danzl denied beating defendant and stated that defendant did not
appear injured in the station.  The prosecutor questioned defendant
about his use of aliases and whether defendant filed suit against the
officers that allegedly beat him.  At closing, the prosecutor further
told the jury that, to find defendant not guilty, they would have to
find that the victim lied.  
     The jury found defendant guilty of robbery and escape, Class 2
felonies.  Because defendant had two prior convictions, the trial
court was required to sentence defendant to Class X terms pursuant to
section 5-5-3 of the Criminal Code.  730 ILCS 5/5-5-3(8) (West 1994). 
The court sentenced defendant to 30 years for each conviction, to be
served consecutively.  Defendant appeals. 
     Defendant first contends that certain remarks by the prosecutor
denied him a fair trial.  Defendant claims that the prosecutor
improperly asked him about the use of aliases.  Defendant also points
to the prosecutor's closing remarks that the jury could only find the
defendant innocent if they found that the victim had lied.  Defendant
neither objected to these comments at trial, nor did he raise these
issues in a post-trial motion.  Therefore, we find these issues are
waived.  People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988).  
     Furthermore, finding that the claimed errors were not of such a
magnitude as to deprive defendant of a fair trial, we decline to
review these issues under the doctrine of plain error.  People v.
Young, 128 Ill. 2d 1, 538 N.E.2d 461 (1989).  The prosecutor did not
associate the defendant's use of an alias with a criminal background. 
See People v. Berlin, 75 Ill. 2d 266, 388 N.E.2d 412 (1979).  Rather,
this information was admissible as evidence of a prior inconsistent
statement, used to impeach defendant's credibility.  See People v.
Jones, 116 Ill. App. 3d 233, 451 N.E.2d 1358 (1983).  Additionally,
stating that either the victim or the defendant were not telling the
truth is allowable where there is a direct conflict in the testimony
at trial.  People v. Guajardo, 262 Ill. App. 3d 747, 636 N.E.2d 863
(1994).  Moreover, the court instructed the jury that statements made
in opening and closing arguments did not constitute evidence.   People
v. Thomas, 137 Ill. 2d 500, 561 N.E.2d 57 (1990).  Finding no
reversible error, we proceed to defendant's other arguments.     
     Defendant further argues that his 60-year sentence is void under
section 5-8-4(c)(2) of the Criminal Code.  Section 5-8-4(c)(2)
provides that "the aggregate of consecutive sentences shall not exceed
the sum of the maximum terms authorized under Section 5-8-2 for the 2
most serious felonies involved."  (Emphasis added.)  730 ILCS 5/5-8-
4(c)(2) (West 1994).  In the instant case, defendant was charged with
two Class 2 felonies.  However, the court was required to sentence
defendant as a Class X offender because of defendant's prior felonies. 
See 730 ILCS 5/5-5-3(8) (West 1994).  Therefore, in order to apply the
formula in section 5-8-4(c)(2), we must determine whether the "2 most
serious felonies involved" refer to the Class 2 felonies defendant was
charged with, or the Class X felonies under which defendant was
sentenced.
     In interpreting this section, we look to the plain language of
the statute.  Section 5-8-4(c)(2) references section 5-8-2, which
provides that:
               "A judge shall not sentence an offender to a
          term of imprisonment in excess of the maximum
          sentence authorized by Section 5-8-1 for the class
          of the most serious offense of which the offender
          was convicted ***."  730 ILCS 5/5-8-2(a) (West
          1994).
Reading these two sections of the Criminal Code together, we find that
the "most serious felonies involved" constitute "the most serious
offense of which the offender was convicted."  
     In the instant case, defendant was convicted of two Class 2
felonies.  The Illinois Supreme Court recently held that while a
defendant's prior convictions may require a court to sentence a
defendant as a Class X felony under section 5-5-3(c)(8), this "does
not elevate the class of a crime, but merely sets forth criteria under
which a defendant shall be sentenced."  People v. Thomas, 171 Ill. 2d 207, 224, 664 N.E.2d 76, 85 (1996).  The court stated that section 5-
5-3(c)(8) does not alter the nature of the charged offenses. 
Accordingly, we find that the "2 most serious felonies involved" were
Class 2 felonies, each carrying an extended sentence of up to 14
years.  730 ILCS 5/5-8-2(a)(4) (West 1994).
     Applying the formula found in section 5-8-4(c)(2), we find that
the aggregate of defendant's consecutive sentences could not exceed 28
years.  Therefore, the court's imposition of two 30-year sentences to
be served consecutively was improper.  The State notes, however, that
the trial court could have properly imposed two concurrent sentences
of 30 years each.  The State claims that the legislature could not
have intended for the concurrent sentence to exceed the aggregate of
consecutive sentences, as the Criminal Code indicates that consecutive
sentences are reserved for more dangerous criminals.  The State
contends that we must ignore the plain language of the statute to
avoid this anomaly under People v. Bole, 155 Ill. 2d 188, 613 N.E.2d 740 (1993).
     We find that the Illinois Supreme Court's decision in Bole only
serves to highlight the weakness in the State's position.  The Bole
court was confronted with the dilemma that while section 5-8-4(a)
required consecutive sentencing for certain acts committed in a single
course of conduct, section 5-8-4 provided that consecutive sentencing
was merely permissible where the defendant committed multiple offenses
in separate courses of conduct.  The court acknowledged that less
serious punishments could result for what the court deemed the more
egregious conduct.  The court concluded that "[a]lthough this might
simply have been an oversight by the legislature, it is not one that
we are able to correct under the guise of statutory interpretation." 
Bole, 155 Ill. 2d 188, 198-99, 613 N.E.2d 740, 745.  Rather, the court
gave affect to the plain language of the statute. 
     Similarly, we recognize that the legislature may not have
anticipated that an offender would receive a less severe penalty under
the consecutive sentencing guidelines.  However, we find that our
inquiry ends at the plain language of the statute, which places a
clear ceiling on consecutive sentences. 
     The State further claims that defendant has waived this argument
by failing to file a post-sentencing motion challenging the
appropriateness of his sentence.  The recently amended section 5-8-
1(c) provides that:
          "A defendant's challenge to the correctness of a
          sentence or to any aspect of the sentencing hearing
          shall be made by a written motion filed within 30
          days following the imposition of sentence."  730
          ILCS 5-8-1(c) (West 1994).  
The State asks us to hold that compliance with section 5-8-1(c) is a
precondition to seeking appellate review of sentencing issues.  
     We find that noncompliance with section 5-8-1(c) does not 
automatically deprive defendant of the right to obtain appellate
review of his sentence.  See People v. McCleary, 278 Ill. App. 3d 498,
663 N.E.2d 22 (1996).  Rather, the right to be lawfully sentenced is
substantive, as it affects a prisoner's "fundamental right to
liberty".  See People v. Askew, 273 Ill. App. 3d 798, 806, 652 N.E.2d 1041, 1047 (1995).  Accordingly, challenges to erroneous sentences may
be excepted from the waiver doctrine under the rule of plain error. 
See 134 Ill. 2d R. 615(a).  Because we find that the trial court
impermissibly sentenced defendant to consecutive sentences in excess
of the aggregate allowed under section 5-8-4(c)(2), we find that it
committed plain error. 
     Affirmed and remanded for resentencing.   
     GREIMAN, P.J., and ZWICK, J., concur.