People v. Risch-Defina

No. 2--94--1210

________________________________________________________________

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 Lake County.
)
Plaintiff-Appellee, )
) No. 94--CF--746
v. )
)
JASON RISCH-DEFINA, ) Honorable
) Henry C. Tonigan III,
Defendant-Appellant. ) Judge, Presiding.
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JUSTICE INGLIS delivered the opinion of the court:
Defendant, Jason Risch-Defina, appeals the trial court's order
enhancing his conviction of theft of a firearm (720 ILCS 5/16--
1(a)(4)(A) (West 1994)) to a Class 3 felony. The issue on appeal
is whether the trial court erred in considering evidence of a prior
theft of a firearm for which defendant was not convicted as a
factor to enhance the offense to a Class 3 felony. We vacate the
sentence and remand.
On April 22, 1994, defendant was charged by information with
theft. The information alleged that, between March 26 and April
18, 1994, defendant knowingly obtained control over a firearm
belonging to Dan Christenson, knowing that the firearm had been
stolen and intending to deprive Christenson permanently of the use
of the firearm. The information further alleged that the offense
was a Class 3 felony.
On July 19, 1994, defendant agreed to plead guilty to the
theft charge in exchange for a sentence of probation if, after a
presentence investigation, the probation department found defendant
to be an acceptable candidate for probation or intensive probation.
On August 22, 1994, the Lake County Adult Court Services Department
filed an intensive probation supervision evaluation concluding that
defendant would not be an appropriate candidate for probation or
intensive probation. On August 25, 1994, the trial court sentenced
defendant to three years' imprisonment. On October 18, 1994, the
trial court denied defendant's motion to reconsider the sentence.
Defendant filed a timely notice of appeal.
On appeal, defendant argues that the trial court erred in
considering evidence of a prior theft of a firearm for which
defendant was not convicted as a factor to enhance the offense to
a Class 3 felony. Initially, we note that defendant's trial
attorney did not raise this alleged error in his motion to
reconsider the sentence. However, defendant urges that we should
consider the alleged error either under the plain error doctrine
and Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)), or because
the failure to include the alleged error in the motion to
reconsider the sentence amounted to ineffective assistance of
counsel (See Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)). The State does not respond to
defendant's request. We conclude that the failure to include the
argument in the motion to reconsider the sentence and the
classification of the offense, if error, would amount to plain
error or to constitutionally ineffective assistance of counsel.
Therefore, we will consider the alleged error.
Section 16--1(b)(3) of the Criminal Code of 1961 (Code)
states:
"(3) Theft of a firearm not from the person regardless of
value is a Class 4 felony. A second or subsequent such
offense is a Class 3 felony." 720 ILCS 5/16--1(b)(3) (West
1994).
Defendant argues that, for the present offense to be treated as a
Class 3 felony, he must have been convicted of a second or
subsequent offense.
The State argues that it need not prove a prior conviction and
that it is sufficient that there is evidence that the offense was
committed, citing the reasoning of People v. Sheehan, 168 Ill. 2d 298 (1995). In Sheehan, our supreme court explained that the
legislature has distinguished between the meaning of the words
"convicted" and "committed" and that the DUI statute only requires
that a prior offense have been "committed." Sheehan, 168 Ill. 2d
at 306-07.
We decline to adopt Sheehan's reasoning for this case because
Sheehan involved an enhancement statute different from the one at
issue here. See Sheehan, 168 Ill. 2d at 307. Moreover, in the
present case, the legislature did not use either the word
"conviction" or the word "committed." The statute speaks only in
terms of an offense.
Other sections of the Code providing for the enhancement of
penalties for subsequent offenses do not specifically refer to
convictions but rather speak, as does the section here, in terms of
subsequent offenses. For example, section 11--20(d) of the Code
(720 ILCS 5/11--20(d) (West 1994)) provides that obscenity is a
Class A misdemeanor and a subsequent offense is a Class 4 felony.
In People v. Carlock, 102 Ill. App. 3d 1100, 1103 (1981), we held
that section 11--20(d) requires a prior conviction before the
penalty for obscenity may be enhanced.
In Carlock, we also compared the obscenity statute with the
statute in the present case. Carlock, 102 Ill. App. 3d at 1101-02.
We noted that section 16--1(e)(1) (Ill. Rev. Stat. 1979, ch. 38,
pars. 16(e)(1)), which is now section 16--1(b)(2) (720 ILCS 5/16--
1(b)(2) (West 1994)), in dealing with the enhancement of the
offense of theft of property to a Class 4 felony, speaks in terms
of a second or subsequent offense after a conviction of any type of
theft, while the very next subsection (e)(2), which is now section
16--1(b)(3), which provides for the enhancement of theft of a
firearm, speaks only in terms of a second or subsequent offense
without any reference to a prior conviction. Carlock, 102 Ill.
App. 3d at 1101-02. We found it inconceivable that the legislature
could have intended to require two different conditions for penalty
enhancement for these two categories of theft. We concluded that
the legislature did not intend to depart from the requirement that
the offense on which the subsequent enhancement is predicated must
first be reduced to a conviction. Carlock, 102 Ill. App. 3d at
1102.
While the language in Carlock regarding section 16--1 of the
Code was dicta, we are persuaded by its reasoning. We therefore
hold that the penalty for a second or subsequent offense of theft
of a firearm cannot be enhanced under section 16--1(b)(3) unless
defendant has a prior conviction of theft of a firearm. See
Carlock, 102 Ill. App. 3d at 1102-03.
We vacate the trial court's order treating the offense as a
Class 3 felony and remand the cause to the trial court for a new
sentencing hearing consistent with the views expressed herein.
Sentence vacated; cause remanded.
McLAREN, P.J., and THOMAS, J., concur.