{ "id": 1352900, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. COREY SULLIVAN, Defendant-Appellant", "name_abbreviation": "People v. Sullivan", "decision_date": "1999-01-12", "docket_number": "No. 2\u201497\u20140264", "first_page": "204", "last_page": "207", "citations": [ { "type": "official", "cite": "302 Ill. App. 3d 204" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "128 Ill. 2d 448", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3229022 ], "year": 1989, "pin_cites": [ { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0448-01" ] }, { "cite": "94 Ill. 2d 28", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3106404 ], "weight": 5, "year": 1983, "pin_cites": [ { "page": "33" }, { "page": "33-34" }, { "page": "34-35" }, { "page": "34-35" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/94/0028-01" ] } ], "analysis": { "cardinality": 385, "char_count": 7561, "ocr_confidence": 0.796, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.3458313592800198 }, "sha256": "43f0e321bc6a39512a015036b5bb3924d1f960111dd9d7bbdbd0ce5e9015138a", "simhash": "1:a6a11bdfc4c0ec12", "word_count": 1279 }, "last_updated": "2023-07-14T17:49:29.885307+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. COREY SULLIVAN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nFollowing a jury trial, defendant, Corey Sullivan, was convicted of theft from a coin-operated machine (720 ILCS 5/16\u20145(a) (West 1996)). The State sought to have the offense elevated from a Class A misdemeanor to a Class 4 felony based on defendant\u2019s previous conviction of possession of a stolen motor vehicle (625 ILCS 5/4\u2014103(a)(1) (West 1996)). Defendant filed a presentencing motion and memorandum in which he asked to have the charge maintained as a Class A misdemeanor because possession of a stolen motor vehicle is not a proper enhancing offense. The court denied the motion and sentenced defendant to three years\u2019 imprisonment. Defendant appeals, arguing that his conviction was improperly enhanced. We affirm in part, reverse in part, and remand.\nThe statutory provision at issue is section 16 \u2014 5(c) of the Criminal Code of 1961 (720 ILCS 5/16\u20145(c) (West 1996)), which provides as follows:\n\u201cA person convicted of theft from a coin-operated machine shall be guilty of a Class A misdemeanor. A person who has been convicted of theft from a coin-operated machine and who has been previously convicted of any type of theft, robbery, armed robbery, burglary, residential burglary, possession of burglary tools or home invasion is guilty of a Class 4 felony. When a person has any such prior conviction, the information or indictment charging that person shall state such prior conviction so as to give notice of the State\u2019s intention to treat the charge as a felony. The fact of such prior conviction is not an element of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial.\u201d\nThe indictment charging defendant with theft from a coin-operated machine stated that the offense was a Class 4 felony, based on defendant\u2019s previous conviction of possession of a stolen motor vehicle. Defendant argues that possession of a stolen motor vehicle is not one of the enhancing offenses listed in section 16 \u2014 5(c). The enhancing offenses are \u201cany type of theft, robbery, armed robbery, burglary, residential burglary, possession of burglary tools or home invasion.\u201d 720 ILCS 5/16\u20145(c) (West 1996). The parties agree that the only possible one that would apply is \u201cany type of theft.\u201d Defendant argues that possession of a stolen motor vehicle is not a type of theft, while the State argues that it is.\nWe find instructive the supreme court\u2019s analysis in People v. McCarty, 94 Ill. 2d 28 (1983). In McCarty, the court considered whether robbery was \u201cany type of theft\u201d for purposes of the recidivist provision of the theft statute (Ill. Rev. Stat. 1977, ch. 38, par. 16\u20141(e)(1) (now codified, as amended, at 720 ILCS 5/16\u20141(b)(2) (West 1996))). After noting that \u201ctheft\u201d is a term of art defined by statute, the court relied on three factors in concluding that robbery was not a type of theft. First, theft requires an intent to permanently deprive the owner of the property, while robbery requires no such showing of intent. McCarty, 94 Ill. 2d at 33. Second, the court noted that all theft offenses are codified in article 16 of the Criminal Code of 1961 (Criminal Code) and robbery is codified in article 18. McCarty, 94 Ill. 2d at 33-34. Finally, the court noted that construing robbery as a type of theft would violate the principle that ambiguities in penal statutes, particularly enhancement provisions, must be resolved in the defendant\u2019s favor. McCarty, 94 Ill. 2d at 34-35.\nApplying the McCarty analysis to this case leads to the same result. Possession of a stolen motor vehicle is codified at section 4 \u2014 103(a)(1) of the Illinois .Vehicle Code (Vehicle Code) (625 ILCS 5/4\u2014103(a)(1) (West 1996)) rather than in article 16 of the Criminal Code. The trial court noted that possession of a stolen motor vehicle was included in article I of chapter 4 of the Vehicle Code, which is entitled \u201cANTI-THEFT LAWS.\u201d However, just because the purpose of the provisions in article I is to discourage theft does not mean that any one of them actually describes the crime of theft. For instance, several of the sections involve title and registration offenses. See 625 ILCS 5/4\u2014104 through 4\u2014105.1 (West 1996). Making possession of a stolen motor vehicle a Class 2 felony can discourage theft without the possession itself actually being a theft.\nFurther, the possession of a stolen motor vehicle statute makes it a crime for a person \u201cnot entitled to the possession of a vehicle or essential part of a vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have been stolen or converted.\u201d 625 ILCS 5/4\u2014103(a)(1) (West 1996). This is similar to the type of theft described in section 16 \u2014 1(a)(4) of the Criminal Code (720 ILCS 5/16\u20141(a)(4) (West 1996)), which occurs when a person \u201c[ojbtains control over stolen property knowing the property to have been stolen or under such circumstances as would reasonably induce him to believe that the property was stolen.\u201d However, this also requires an intent to permanently deprive the owner of the property. See 720 ILCS 5/16\u20141(a)(4)(A) through (a)(4)(C) (West 1996). This element is not required for possession of a stolen motor vehicle. One could argue that possession of a stolen motor vehicle is a lesser included offense of theft. Nevertheless, the supreme court rejected this contention in People v. Bryant, 128 Ill. 2d 448, 457 (1989), and held that possession of a stolen motor vehicle is separate from and a more serious offense than theft rather than a lesser included offense of theft.\nAt best, section 16 \u2014 5(c) is ambiguous in whether it includes possession of a stolen motor vehicle as a type of theft. As stated previously, ambiguities in penal statutes, particularly enhancement provisions, must be resolved in the defendant\u2019s favor. McCarty, 94 Ill. 2d at 34-35.\nIt is difficult to tell what the State is arguing in its brief. However, to the extent the State suggests the enhancement could be considered proper based on defendant\u2019s other previous convictions of theft, burglary, and theft from a coin-operated machine, we reject this contention because defendant was not given notice. The statute unambiguously requires the State to give defendant notice in the indictment of any offenses it plans to use in enhancing the sentence. It is not for us to speculate why the State did not use any of defendant\u2019s convictions that were specifically listed as enhancing offenses in the statute but rather chose a conviction that was not listed in the statute. The State did not list these other convictions in the indictment, and thus they are irrelevant for our purposes.\nDefendant\u2019s conviction of possession of a stolen motor vehicle is a Class A misdemeanor rather than a Class 4 felony. Accordingly, we reverse defendant\u2019s sentence and remand the matter to the trial court so that it can resentence defendant for a Class A misdemeanor. The judgment of the circuit court of Kane County is otherwise affirmed.\nAffirmed in part and reversed in part; cause remanded.\nBOWMAN, EJ., and INGLIS, J., concur.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "G. Joseph Weller, of State Appellate Defender\u2019s Office, of Elgin, and Susan K. Lucas, of Peoria, for appellant.", "David R. Akemann, State\u2019s Attorney, of St. Charles (Martin P. Moltz and Peggy F.J. Bradford, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. COREY SULLIVAN, Defendant-Appellant.\nSecond District\nNo. 2\u201497\u20140264\nOpinion filed January 12, 1999.\nG. Joseph Weller, of State Appellate Defender\u2019s Office, of Elgin, and Susan K. Lucas, of Peoria, for appellant.\nDavid R. Akemann, State\u2019s Attorney, of St. Charles (Martin P. Moltz and Peggy F.J. Bradford, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0204-01", "first_page_order": 222, "last_page_order": 225 }