{ "id": 4293442, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES E. LEE, Defendant-Appellant", "name_abbreviation": "People v. Lee", "decision_date": "2010-02-17", "docket_number": "No. 4\u201408\u20140762", "first_page": "1067", "last_page": "1073", "citations": [ { "type": "official", "cite": "397 Ill. App. 3d 1067" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "901 N.E.2d 964", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2009, "pin_cites": [ { "page": "966" } ], "opinion_index": 0 }, { "cite": "387 Ill. App. 3d 764", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 4287776 ], "year": 2009, "pin_cites": [ { "page": "820" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/392/0809-01" ] } ], "analysis": { "cardinality": 734, "char_count": 16450, "ocr_confidence": 0.753, "pagerank": { "raw": 8.052296255447599e-08, "percentile": 0.4661754411164512 }, "sha256": "1b07eeecbf179ef7820c942756c62a7068eb5b1937adbede9066b93680533548", "simhash": "1:a83c30e08584ce26", "word_count": 2957 }, "last_updated": "2023-07-14T19:15:46.302641+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. CHARLES E. LEE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE POPE\ndelivered the opinion of the court:\nIn April 2008, a jury convicted defendant, Charles E. Lee, of burglary (720 ILCS 5/19\u20141(a) (West 2006)). In May 2008, the trial court sentenced defendant as a Class X offender pursuant to section 5\u20145\u20143(c)(8) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5\u20145\u20143(c)(8) (West 2006) (as amended by Pub. Act 94\u20141035, \u00a710, eff. July 1, 2007, Pub. Act 95\u2014188, \u00a75, eff. August 16, 2007, Pub. Act 95\u2014259, \u00a710, eff. August 17, 2007, and Pub. Act 95\u2014331, \u00a71070, eff. August 21, 2007 (2007))) (hereinafter 730 ILCS 5/5\u20145\u20143(c)(8) (West 2006) for ease of reference) to 13 years in the Illinois Department of Corrections (IDOC) to be followed by a 3-year period of mandatory supervised release (MSR). Defendant appeals, arguing he should have been sentenced strictly pursuant to section 5\u20148\u20141(a)(5) of the Unified Code (730 ILCS 5/5\u20148\u20141(a)(5) (West 2006)) because section 5\u20148\u20141(a)(5) and section 5\u20145\u20143(c)(8) of the Unified Code conflict and due process requires application of the rule of lenity. Defendant also argues he should have been sentenced to a two-year term of MSR instead of a three-year term because he was only convicted of a Class 2 felony. We affirm.\nI. BACKGROUND\nIn January 2008, the State charged defendant by information with one count of burglary (720 ILCS 5/19\u20141(a) (West 2006)), relating to the December 2007 theft of a television from the Belvedere Center Plaza in Decatur. In April 2008, a jury found defendant guilty of burglary. In May 2008, the trial court sentenced defendant as a Class X offender to 13 years\u2019 imprisonment with 3 years of MSR because prior qualifying convictions rendered him eligible for Class X sentencing. This appeal followed.\nII. ANALYSIS\nWe first address defendant\u2019s argument he should have been sentenced within the sentencing range for Class 2 felonies pursuant to the rule of lenity because section 5\u20148\u20141(a)(5) of the Unified Code (730 ILCS 5/5\u20148\u20141(a)(5) (West 2006)) and section 5\u20145\u20143(c)(8) of the Unified Code (730 ILCS 5/5\u20145\u20143(c)(8) (West 2006)) are conflicting. Under section 5\u20145\u20143(c)(8) of the Unified Code, defendants over the age of 21, who are convicted of a Class 1 or Class 2 felony, must be sentenced as a Class X offender if they have prior convictions for two Class 2 or higher class felonies arising out of different series of acts.\nSection 5\u20145\u20143(a) of the Unified Code (730 ILCS 5/5\u20145\u20143(a) (West 2006)) states \u201cevery person convicted of an offense shall be sentenced as provided in this [sjection.\u201d On the other hand, section 5\u20148\u20141(a) of the Unified Code states \u201c[ejxcept as otherwise provided in the statute defining the offense, a sentence of imprisonment for a felony shall be a determinate sentence set by the court under this [s]ection, according to the following limitations.\u201d 730 ILCS 5/5\u20148\u2014 1(a) (West 2006). Under \u201cthis section,\u201d i.e., section 5\u20148\u20141(a) of the Unified Code, the maximum term of imprisonment for a Class 2 felony is seven years. 730 ILCS 5/5\u20148\u20141(a)(5) (West 2006).\nDefendant contends section 5\u20148\u20141(a)(5) of the Unified Code (730 ILCS 5/5\u20148\u20141(a)(5) (West 2006)) contains only one exception, i.e., \u201cexcept as otherwise provided in the statute defining the offense.\u201d Defendant\u2019s argument boils down to this: a statute defining an offense, and only a statute defining an offense, can provide for a sentence different from that provided in section 5\u20148\u20141(a)(5) of the Unified Code (730 ILCS 5/5\u20148\u20141(a)(5) (West 2006)). Since section 5\u20145\u2014 3(c)(8) of the Unified Code (730 ILCS 5/5\u20145\u20143(c)(8) (West 2006)) is not a statute defining an offense, and because it provides for a different sentence for qualifying defendants than is provided in section 5\u20148\u20141(a)(5), the two sentencing provisions are in conflict. Further, because of this alleged conflict in the sentencing statutes, defendant contends the rule of lenity requires section 5\u20148\u20141(a)(5) to take precedence over the Class X sentencing mandate of section 5\u20145\u2014 3(c)(8).\nIn criminal prosecutions, the rule of lenity requires ambiguities in statutes to be resolved in a defendant\u2019s favor. People v. Harper, 392 Ill. App. 3d 809, 820, 910 N.E.2d 691, 700-01 (2009). Particularly, where no legislative history exists to aid the court in determining whether the legislature intended an enhancement provision to apply to a given charge, the court can apply the rule of lenity. People v. Fields, 383 Ill. App. 3d 920, 922, 891 N.E.2d 990, 992 (2008), citing People v. Owens, 240 Ill. App. 3d 168, 170-71, 608 N.E.2d 159, 161 (1992).\nBecause defendant contends these two statutes conflict, thereby creating ambiguity, this presents an issue of statutory interpretation, which we review de novo. People v. Palmer, 218 Ill. 2d 148, 154, 843 N.E.2d 292, 296 (2006). The primary rule of statutory construction is to give effect to the legislature\u2019s intent. Palmer, 218 Ill. 2d at 156, 843 N.E.2d at 297. Both of the statutes at issue are part of the Unified Code and both concern criminal sentencing. Our supreme court has stated it presumes statutes that concern the same subject are governed by a single policy and one spirit, and the General Assembly intended the statutes to be consistent and harmonious. People v. Maya, 105 Ill. 2d 281, 286, 473 N.E.2d 1287, 1290 (1985). Statutes on the same subject should be considered with reference to one another, not in isolation, in a manner allowing both sections to have harmonious effeet. Maya, 105 Ill. 2d at 287, 473 N.E.2d at 1290. This is true even when the two statutes are in \u201capparent conflict,\u201d as long as this is reasonably possible. Maya, 105 Ill. 2d at 287, 473 N.E.2d at 1290.\nOur supreme court instructs us \u201c \u2018the legislature has the authority to set the nature and extent of penalties. Courts will not interfere with such legislation unless the challenged penalty is clearly in excess of the very broad and general constitutional limitations applicable.\u2019 \u201d People v. Thomas, 171 Ill. 2d 207, 221, 664 N.E.2d 76, 84 (1996), quoting People ex rel. Carey v. Bentivenga, 83 Ill. 2d 537, 542, 416 N.E.2d 259, 262 (1981). In this case, it is reasonably possible to give both of the sections of the Unified Code harmonious effect. The supreme court has stated the General Assembly\u2019s purpose in enacting section 5\u20145\u20143(c)(8) of the Unified Code was to \u201cpunish recidivists more severely\u201d than first-time offenders. Thomas, 171 Ill. 2d at 228, 664 N.E.2d at 87. Recidivism \u201c \u2018is a traditional, if not the most traditional, basis for *** increasing an offender\u2019s sentence.\u2019 \u201d Fields, 383 Ill. App. 3d at 923, 891 N.E.2d at 993, quoting Almendarez-Torres v. United States, 523 U.S. 224, 243, 140 L. Ed. 2d 350, 368, 118 S. Ct. 1219, 1230 (1998). According to our supreme court, the legislature intended with the passage of section 5\u20145\u20143(c)(8) of the Unified Code to enhance the punishment for certain offenders based on their record of criminal convictions. Thomas, 171 Ill. 2d at 222, 664 N.E.2d at 84. In addition, our supreme court has held a trial court has no discretion in the application of section 5\u20145\u20143(c)(8). Thomas, 171 Ill. 2d at 222, 664 N.E.2d at 84.\nThe First District recently tackled this very question. See Fields, 383 Ill. App. 3d 920, 891 N.E.2d 990. In Fields, the defendant was convicted of delivery of a controlled substance, a Class 2 felony, carxying a sentencing range of not less than three nor more than seven years\u2019 imprisonment. Fields, 383 Ill. App. 3d at 922, 891 N.E.2d at 993. However, because he qualified for Class X sentencing pursuant to section 5\u20145\u20143(c)(8) of the Unified Code due to his prior convictions, defendant was required to be sentenced to at least 6 years and not more than 30 years\u2019 imprisonment. Fields, 383 Ill. App. 3d at 922-23, 891 N.E.2d at 993. Declining to apply the rule of lenity, the First District found, in affirming the defendant\u2019s Class X sentence:\n\u201c[W]here it has been determined that the legislature\u2019s intent was to make section 5\u20145\u20143(c)(8) mandatory and a defendant\u2019s current and prior convictions fulfill the statutory requirements of that section, the defendant is properly sentenced as a Class X offender.\u201d Fields, 383 Ill. App. 3d at 923, 891 N.E.2d at 993, citing Thomas, 171 Ill. 2d at 222-23, 64 N.E.2d at 85.\nWe agree with the reasoning in Fields. A consistent, longstanding body of authority recognizes the sentencing provisions of section 5\u20145\u20143(c)(8) of the Unified Code (730 ILCS 5/5\u20145\u20143(c)(8) (West 2006)), when applicable, are mandatory and a trial court is without discretion to ignore them. See Fields, 383 Ill. App. 3d at 923, 891 N.E.2d at 993, citing Morrow v. Dixon, 108 Ill. 2d 223, 226-27, 483 N.E.2d 876, 877 (1985); People v. Levin, 157 Ill. 2d 138, 156, 623 N.E.2d 317, 326 (1993); People v. Jameson, 162 Ill. 2d 282, 287, 642 N.E.2d 1207, 1209-10 (1994); Thomas, 171 Ill. 2d at 222, 664 N.E.2d at 84.\nIf this burglary conviction had been defendant\u2019s first criminal conviction, the sentencing range would have been not less than three years and not more than seven years in prison. 730 ILCS 5/5\u20148\u2014 1(a)(5) (West 2006). However, defendant is a recidivist. The General Assembly, in enacting section 5\u20145\u20143(c)(8) of the Unified Code (730 ILCS 5/5\u20145\u20143(c)(8) (West 2006)), intended to provide for Class X sentencing for recidivists like defendant, even though the underlying offense, standing alone, constituted only a Class 2 felony.\nWhile in some situations, the expression of one thing in a statute can be construed to mean the exclusion of things unexpressed, this aid to the construction of a statute is subordinate to the rule that legislative intent controls in interpreting a statute. People v. Roberts, 214 Ill. 2d 106, 117, 824 N.E.2d 250, 256 (2005). As stated earlier, our supreme court has made clear the intent of the legislature was to punish recidivist criminals more harshly than first-time offenders. Thomas, 171 Ill. 2d at 228, 664 N.E.2d at 87. As for defendant\u2019s argument the rule of lenity requires this court to vacate defendant\u2019s sentence and remand this case for the trial court to sentence him to between three and seven years in prison, our supreme court has stated it is well settled the rule of lenity \u201cdoes not require a court to construe a statute \u2018so rigidly *** as to defeat the intent of the legislature.\u2019 \u201d In re Detention of Powell, 217 Ill. 2d 123, 142, 839 N.E.2d 1008, 1019 (2005), quoting People v. Washington, 343 Ill. App. 3d 889, 903, 800 N.E.2d 436, 447 (2003). Construing these two sections of the Unified Code in the manner requested by defendant would defeat the intent of the legislature.\nThe fallacy of defendant\u2019s argument is further demonstrated when one considers the extended-term-sentencing provisions found in section 5\u20148\u20142 of the Unified Code (730 ILCS 5/5\u20148\u20142 (West 2006)). Under that section, if aggravating factors found in section 5\u20145\u2014 3.2(b) are present, then a defendant is eligible for an extended term for a Class 2 felony up to double the maximum sentence normally available, i.e., up to 14 years. 730 ILCS 5/5\u20148\u20142(a)(4) (West 2006). If this court accepts defendant\u2019s argument that section 5\u20148\u20141 of the Unified Code sets forth the maximum term available except where the statute defining the offense sets forth a different term, then no extended term of imprisonment could ever be imposed pursuant to section 5\u20148\u20142 of the Unified Code because it is not a \u201cstatute defining an offense.\u201d Certainly, no one could argue the legislature did not intend to make extended-term sentencing available to courts where defendants qualify for such sentencing. Yet, this is the logical extension of defendant\u2019s rationale.\nDefendant next argues he should have only received a two-year term of MSR because he was only convicted of a Class 2 felony. This court has held that defendants subject to mandatory Class X sentencing under section 5\u20145\u20143(c)(8) of the Unified Code based on prior convictions are required to serve a three-year MSR term. People v. Smart, 311 Ill. App. 3d 415, 417-18, 723 N.E.2d 1246, 1248 (2000). Defendant asks this court to reconsider its holding in Smart in light of our supreme court\u2019s decision in People v. Pullen, 192 Ill. 2d 36, 733 N.E.2d 1235 (2000). The State argues Pullen does not affect this court\u2019s holding in Smart because it is distinguishable. We agree.\nIn Pullen, the defendant committed five counts of burglary, a Class 2 offense (720 ILCS 5/19\u20141(b) (West 1994)), and the issue was the maximum length of consecutive sentences a court could impose under section 5\u20148\u20144(c)(2) of the Unified Code (730 ILCS 5/5\u20148\u20144(c)(2) (West 1994)). Pullen, 192 Ill. 2d at 40, 733 N.E.2d at 1237. The defendant\u2019s prior convictions subjected him to sentencing as a Class X offender under section 5\u20145\u20143(c)(8) of the Unified Code (730 ILCS 5/5\u20145\u20143(c)(8) (West 1994)). Pullen, 192 Ill. 2d at 41, 733 N.E.2d at 1238. At the time the defendant committed the offenses, section 5\u20148\u2014 4(c)(2) of the Unified Code provided, in pertinent part, the following: \u201c \u2018[T]he aggregate of consecutive sentences shall not exceed the sum of the maximum terms authorized under [s]ection 5\u20148\u20142 [of the Unified Code (730 ILCS 5/5\u20148\u20142 (West 1994))] for the [two] most serious felonies involved.\u2019 \u201d Pullen, 192 Ill. 2d at 40, 733 N.E.2d at 1237, quoting 730 ILCS 5/5\u20148\u20144(c)(2) (West 1994). The issue was then \u201cwhether the maximum permissible sentence was 120 years\u2014the sum of the maximum permissible extended-term sentences for two Class X offenses (730 ILCS 5/5\u20148\u20142(a)(2) (West 1994))\u2014or 28 years\u2014 the sum of the maximum permissible extended-term sentences for two Class 2 offenses (730 ILCS 5/5\u20148\u20142(a)(4) (West 1994)).\u201d Pullen, 192 Ill. 2d at 42, 733 N.E.2d at 1238.\nThe Pullen court noted the only felonies involved were burglaries, and burglary is explicitly defined as a Class 2 felony (720 ILCS 5/19\u2014 1(b) (West 1994)). Pullen, 192 Ill. 2d at 42-43, 733 N.E.2d at 1238. Under section 5\u20148\u20142(a)(4) of the Unified Code (730 ILCS 5/5\u20148\u2014 2(a)(4) (West 1994)), the maximum sentence for a Class 2 felony was 14 years, and thus the maximum aggregate sentence was 28 years. Pullen, 192 Ill. 2d at 43, 733 N.E.2d at 1238. The court specifically noted the character and classification of the defendant\u2019s felony convictions remain unchanged, notwithstanding he or she is subject to the sentence enhancement in section 5\u20145\u20143(c)(8) of the Unified Code. Pullen, 192 Ill. 2d at 46, 733 N.E.2d at 1240.\nWe agree with the State that Pullen does not undermine our decision in Smart, which involved section 5\u20148\u20141(d) of the Unified Code and not sections 5\u20148\u20144(c)(2) and 5\u20148\u20142 of the Unified Code. If a defendant satisfies the provisions of section 5\u20145\u20143(c)(8) of the Unified Code (730 ILCS 5/5\u20145\u20143(c)(8) (West 2006)), that section provides \u201csuch defendant shall be sentenced as a Class X offender.\u201d Section 5\u20148\u20141(d) of the Unified Code (730 ILCS 5/5\u20148\u20141(d) (West 2006)) states, \u201cevery sentence shall include as though written therein a term in addition to the term of imprisonment.\u201d As noted in Smart, 311 Ill. App. 3d at 417-18, 723 N.E.2d at 1248, that provision makes the MSR term part of the sentence. Thus, since the MSR term is part of the sentence under section 5\u20148\u20141(d) of the Unified Code and the sentence must be a Class X sentence under section 5\u20145\u20143(c)(8) of the Unified Code, a reading of the two provisions together requires a Class X MSR term, i.e., a three-year term under section 5\u20148\u20141(d)(1) of the Unified Code. Thus, the three-year MSR term imposed by the trial court is not void.\nLastly, we note our decision in Smart, reaffirmed here, is in accord with decisions of the First and Third Appellate Districts. See People v. Anderson, 272 Ill. App. 3d 537, 541-42, 650 N.E.2d 648, 651 (1995); People v. Watkins, 387 Ill. App. 3d 764, 766-67, 901 N.E.2d 964, 966 (2009).\nIII. CONCLUSION\nFor the reasons stated, we affirm the trial court\u2019s judgment. As part of our judgment, we award the State its $50 statutory assessment against defendant as costs of this appeal.\nAffirmed.\nKNECHT and STEIGMANN, JJ., concur.", "type": "majority", "author": "JUSTICE POPE" } ], "attorneys": [ "Michael J. Pelletier, Gary R. Peterson, and Susan M. Wilham, all of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Jack Ahola, State\u2019s Attorney, of Decatur (Patrick Delfino, Robert J. Biderman, and Anastacia R. Brooks, all 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. CHARLES E. LEE, Defendant-Appellant.\nFourth District\nNo. 4\u201408\u20140762\nOpinion filed February 17, 2010.\nMichael J. Pelletier, Gary R. Peterson, and Susan M. Wilham, all of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJack Ahola, State\u2019s Attorney, of Decatur (Patrick Delfino, Robert J. Biderman, and Anastacia R. Brooks, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1067-01", "first_page_order": 1083, "last_page_order": 1089 }