October 4, 2001

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

JUSTICE SLATER delivered the opinion of the court: 

After a jury trial, the defendant, John Knippenberg, wasconvicted of six counts of theft (720 ILCS 5/16(a)(2)(a) (West1998)), dispersing charitable trust funds without authority andfor his personal benefit (225 ILCS 460/19 (West 1998), andfailure to register as a professional fund raiser (225 ILCS460/6(a) (West 1998)). He was sentenced to a six-year term ofimprisonment for one count of theft and six years for failing toregister as a professional fund raiser. Those two sentenceswere to be served consecutively to each other and concurrent toa 12-year term of imprisonment for his conviction for personaluse of charitable trust funds. He was sentenced to concurrentsix-year terms of imprisonment for the remaining counts oftheft. On appeal, the defendant argues: (1) the prosecution,conviction, and sentencing for each of the offenses he wasconvicted of are void and erroneous; (2) he wasunconstitutionally sentenced to consecutive terms ofimprisonment; and (3) he was denied the effective assistance ofcounsel. For the following reasons, we affirm.

The defendant did not appear for trial and was tried inabsentia. At trial it was established that the defendant onceworked for the Veterans Assistance Corporation (VAC), a fundraising division of the Veterans of Foreign Wars. He became theoffice manager in June 1997. When he became manager, he hiredthe people who had been working for the previous manger. He ranoffices in a three state area raising money by telephonesolicitation. The defendant's employees testified that theywould call each person on their telephone list four times a yearto solicit funds for the Veterans of Foreign Wars. One employeeexplained that after someone agreed to donate over thetelephone, she would go to that person's house to collect thefunds and then take the cash or check and give it to thedefendant.

In September 1998 the defendant had a disagreement with hisemployer at the VAC and he left. He kept his employees,however, and told them that they were no longer associated withthe VAC. He told them that he had an agreement with the localGarden Street Post of the Veterans of Foreign Wars to act as afund raising office for the post. He talked about opening up ahome for veterans and said that a certain percent of the moneyraised would go to the Garden Street post and a portion would goto open a home for veterans.

Melvin Jones, Sr., testified that he was a member of theGarden Street Post of the Veterans of Foreign Wars. FromSeptember 1998 to December 1998 Jones was the person whorecorded the minutes of the post's meetings. He had never heardof the defendant, nor had the post ever given him permission tosolicit funds on its behalf. He had also never heard of theVeterans Families Welfare. The defendant never gave the GardenStreet Post any funds.

Detective Meg Barnofsky testified that she interviewed thedefendant on December 10, 1998, after she executed a searchwarrant for the defendant's office. The defendant told her thatafter he left the VAC, he met Chase Ingersoll, who told him thathe could open up his organization using 610 West Richmond and behoused under the division of Reach Ministries. An agreement wasmade and the defendant signed a lease for that location for $600a month rent. The defendant also allegedly agreed to lease thesecond floor of 602 West Richmond to open a living center forhomeless veterans and their families. As part of the agreement,the defendant was to pay 10 percent of all funds donated toReach Ministries.

Barnofsky reviewed the ledgers found in the defendant'soffice. Payroll information was documented in the ledgers. Thedefendant was paid $1,231.25 for the first 25 days ofOctober 1998 and $1,145.99 for the last five days of October andthe month of November 1998.

Kirk Kimmel testified that in October 1998 the defendanttold him that he had incorporated as Veterans Family Welfare,that it was a viable business, and that they could "play off"the initials "VFW." Tina Jeremiah, one of the defendant'semployees, testified that he told her in October 1998 that shewas working for the Veterans Families Welfare and that she hadnew solicitation tickets printed up with that name.

Patricia Ford, a telephone solicitor, testified that aroundNovember of 1998 the defendant told her that he could not raisefunds for a local Veterans of Foreign Wars, so the solicitorswere no longer to use that name. After that, they used theletters "VFW" and did not say Veterans of Foreign Wars. Ifanyone asked if whether they were the Veterans of Foreign Wars,Ford told them that they were not. If a prospective donor asked what "VFW" stood for, she would explain that she was calling fora donation to the Veterans Families Welfare. Ford said that thesolicitors made the same presentation over and over. They had alist of past donors, called a tap sheet. They would begin thepresentation by saying, "thank you for your past support ofveterans and we're back in the area having another drive," andasking the prospective donor if he would be interested inhelping again. They did not change anything in the solicitationunless someone asked who they were. The tap sheets wereessentially receipts from old donations that came from theoffice that the defendant had opened up for the VAC. When heleft the VAC and moved to Richmond street, he took all the tapsheets which belonged to the VAC.

Cindy McKeown testified that she had given to the Veteransof Foreign Wars about a dozen times over the years. She knewthe organization as the VFW. When she heard VFW she thought ofVeterans of Foreign Wars. In December 1998 she received atelephone call from man who said he was from the VFW. Shebelieved that to mean he was with the Veterans of Foreign Wars. He explained that the purpose for soliciting funds was forholiday food baskets. She agreed to make a donation and wrote acheck for $15 to the VFW. A woman came to her home to collectthe check but did not give her a receipt. The check cleared heraccount. Numerous other individuals testified to similar facts. Generally, they had all donated money to the Veterans of ForeignWars in the past, someone had telephoned them and identifiedthemself as from the VFW, and thanked them for donating in thepast. All the donors testified that they believed their moneywas going to the Veterans of Foreign Wars, not the VeteransFamilies Welfare.

Linda Young, a branch manager of the Citizens EquityFederal Credit Union (CEFCU), testified that she had seen thedefendant at CEFCU many times from September throughDecember 1998. He came in to the credit union to deposit avolume of checks, many of which were payable to the VFW.

Thomas Hafele, a loss prevention investigator for CEFCU,testified that he compiled CEFCU's records pertaining to thedefendant. He reviewed the account statements, deposits, checksand withdrawals for the period September 21, 1998 throughJanuary 4, 1999. One deposited item was made payable toVeterans of Foreign Wars and all the others were made to theVFW. None were made to Veterans Families Welfare. On the backof many of the checks was stamped "VFW" and the account number. For the period from September 21, 1998, through January 4, 1999,the total amount of deposits was $34,691.20, and the totalamount of withdrawals was $35,139.83.

After he was arrested, the defendant was released on a$75,000 bond. However, he later failed to appear for ascheduling conference and a warrant was issued for his arrest. The defendant was tried in absentia. The defendant appeared incourt after the trial was concluded. Defense counsel moved towithdraw and the public defender was appointed to represent him. At the sentencing hearing, the trial court noted that theoffenses were aggravated by the defendant's past criminalhistory, which included 30 or more burglaries dating back to1962. The court then sentenced the defendant.

On appeal, the defendant first argues that the prosecution, conviction and sentence for disbursing charitable trust fundswithout authority and for personal benefit (225 ILCS 460/19(West 1998)) is void for two reasons: (1) the state's attorneylacked standing to prosecute the offense; and (2) the evidencewas insufficient to prove that he committed the charged offense.

Section 9(a) of the Solicitation for Charity Act (Act)provides as follows:

"An action for violation of this Actmay be prosecuted by the Attorney General inthe name of the people of the State, and inany such action, the Attorney General shallexercise all the powers and perform all theduties which the State's Attorney wouldotherwise be authorized to exercise or toperform therein." (Emphasis added.) 225ILCS 460/9(a) (West 1998).

The Attorney General has exclusive authority to initiateand prosecute cases only when a statute so provides. People v.Buffalo Confectionary Co., 78 Ill. 2d 447, 401 N.E.2d 546(1980). A court may not alter the plain meaning of a statute byreading into it any limitations that do not exist. People v.Cochran, 167 Ill. App. 3d 830, 522 N.E.2d 261 (1988).

The defendant cites to City of Evanston v. Evanston FireFighters Association, 189 Ill. App. 3d 233, 545 N.E.2d 252(1989) to support his position that the state's attorney did nothave the power to prosecute him for this offense. In that case,the court held that the Attorney General was exclusivelyempowered to bring injunctive action on behalf of the State foran alleged violation of the Solicitation for Charity Act. Cityof Evanston v. Evanston Fire Fighters Association, 189 Ill. App.3d at 249, 545 N.E.2d at 262. The holding of that casepertained to injunctive relief only. Any other language in thecase referring to the authority of the Attorney General versusthe state's attorney to prosecute charges under the Act isdicta. Moreover, nothing in the plain language of the statuteindicates an intent to change the concurrent power of theAttorney General and the state's attorney to prosecute criminalviolations under the Act. The Act simply states that if theAttorney General chooses to prosecute an individual forviolation of the Act then the Attorney General has the power toperform all the duties which the state's attorney would normallyhave. The Attorney General did not elect to prosecute thiscase, and the state's attorney had the power to prosecute thedefendant under the Act.

The defendant argues that the evidence was insufficient toestablish that he committed this offense. In order to provethat he disbursed charitable funds without authority and for hispersonal benefit (225 ILCS 460/19 (West 1998)) the State neededto prove that the defendant: (1) was a trustee or person; (2)that without lawful authority he intentionally dispersed orcaused the use of the charitable trust funds over which he was afiduciary to be used for his personal benefit; and (3) thatthose funds amounted to more than $1,000 in a three-year period. 225 ILCS 460/19 (West 1998). When presented with a challenge tothe sufficiency of the evidence, the relevant question on appealis whether, after viewing all the evidence in the light mostfavorable to the prosecution, any rational trier of fact couldhave found the essential elements of the crime beyond areasonable doubt. People v. Collins, 106 Ill. 2d 237, 478N.E.2d 267 (1985).

There was sufficient evidence to prove the defendant guiltyof this offense beyond a reasonable doubt. When the defendantleft the VAC and opened up his own operation, he took the tapsheets which contained the names and telephone numbers ofindividuals who had previously donated money to the Veterans ofForeign Wars. He told one of his employees that it was goodbusiness to play off the initials "VFW." Initially he told hisemployees that they were soliciting funds for the Garden StreetVFW Post. The defendant never turned over charitablecontributions to that post. Later he told his employees that hehad formed "Veterans Families Welfare." After the Veterans ofForeign Wars told him to cease and desist using "VFW" in hissolicitations, he continued to tell donors that they were beingsolicited on behalf of the "VFW." The defendant set up achecking account at a credit union in September 1998. In total,$34,691.20 was deposited from September 21, 1998 untilJanuary 4, 1999. During that period, $35,139.93 was withdrawn.None of it was ever disbursed to a charity. Instead, largeamounts, in excess of $1,000, were withdrawn by the defendant.Reviewing this evidence in the light most favorable to theprosecution, it amply supports the jury's conclusion that thedefendant withdrew the profits and used them for his ownpersonal benefit.

The defendant argues that the prosecution, conviction, andsentence for failure to register as a professional fund raiser(225 ILCS 460/6(a) (West 1998)) is void and erroneous for threereasons: (1) the state's attorney did not have standing toprosecute the offense; (2) the evidence was insufficient toestablish the commission of the offense; and (3) his consecutivesentences were unconstitutional.

We have already determined that the state's attorney hadstanding to prosecute the offenses under the Solicitation forCharity Act (225 ILCS 460/9(a) (West 1998)). Therefore, we willnot revisit this issue.

The defendant argues that the State did not prove that hewas a professional fund raiser because the State: (1) presentedno evidence that he was compensated for managing thesolicitation drive or campaign; and (2) failed to establish thathis salary was computed on a percentage basis as required underthe Act. 225 ILCS 460/1(d) (West 1998). The Act defines aprofessional fund raiser as follows:

"Any person who for compensation orother consideration, conducts, manages, orcarries on any solicitation drive orcampaign in this State *** for the purposeof soliciting contributions for or on behalfof any charitable organization or any otherperson, or who engages in the business of,or holds himself out to persons in thisState as independently engaged in thebusiness of soliciting contributions forsuch purposes. A bona fide director,officer, employee or unpaid volunteer of acharitable organization shall not be deemeda professional fund raiser unless the personis in a management position and the majorityof the individual's salary or othercompensation is computed on a percentagebasis of funds to be raised, or actuallyraised." 225 ILCS 460/1(d) (West 1998).

First, the State presented sufficient evidence that thedefendant was compensated for managing his operation. The Stateintroduced evidence from the ledgers that the defendant was paid$1,231.25 for the first 25 days of October and $1,145.99 for thelast five days of October and the month of November. None ofthis money was given to charity and it was not accounted for. As the trial judge noted, a rational jury could have concludedthat the defendant took it all. Second, we reject thedefendant's contention that the State failed to prove that hissalary was computed on a percentage basis as required under theAct. We agree with the trial court that the defendant tookeverything that was left after paying expenses. None of thismoney went to charity. It is a fair inference from the recordthat all the profits went to the defendant.

The defendant also argues that he was unconstitutionallysentenced to a consecutive sentence for this offense. He claimsthat a consecutive sentence was not available in this casebecause section 5/5-8-4(b) of the Code of Corrections permittingsuch sentences is unconstitutional under the recent case ofApprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed. 2d 435 (2000); 730 ILCS 5/5-8-4(b) (West 1998). Thedefendant contends that Apprendi requires that any fact thatincreases the penalty for an offense beyond the statutorymaximum must be submitted to the trier of fact and proven beyonda reasonable doubt. Therefore, he claims that the statutorysection in question denied him due process because the jury didnot find the defendant's crimes were part of a single course ofconduct.

Our supreme court has recently addressed this issue in People v. Wagener, 196 Ill. 2d 269, ___ N.E.2d ___ (2001). InWagener, the court held that Apprendi concerns are not triggeredby consecutive sentencing. It explained that Apprendi onlyconcerned facts which increased the maximum penalty for a crime. Wagener, 196 Ill. 2d at ___, ____ N.E.2d at ___. Wagener notedthat, in Illinois, consecutive sentences remain discretesentences and none of the penalties for any individual crime isincreased when a defendant receives a consecutive sentence. Wagener, 196 Ill. 2d at ___, ____ N.E.2d at ___. Therefore, wefind that the defendant was not unconstitutionally sentenced toconsecutive sentences.

The defendant argues that he was improperly prosecuted andconvicted of six counts of theft by deception. 720 ILCS5/16-1(a)(2)(A) (West 1998). Those offenses were charged asClass 4 felonies because of the defendant's prior convictions. 720 ILCS 5/16-1(b)(2). Instead, he claims that he should havebeen charged with a criminal provision of the Solicitation forCharity Act. See 225 ILCS 460/11(d) (West 1998). A violationof that offense is a Class A misdemeanor. 225 ILCS 460/11(e)(West 1998).

A prosecutor has the authority to choose among potentialcrimes with overlapping penalties and different sentences. People v. Jamison, No. 80967 (April 19, 2001). The State choseto prosecute the defendant for theft instead of a criminalprovision of the Solicitation for Charity Act, most likelybecause theft in this case was a felony based on the defendant'scriminal history. It could properly do so. The defendant doesnot argue that the State failed to prove any elements of thosecharged offenses. Therefore, this issue is without merit.

Finally, the defendant argues that he received ineffectiveassistance of counsel at trial and at post-trial proceedings. He claims that his trial counsel was ineffective in three ways: (1) counsel failed to seek dismissal of the charges on thegrounds that the prosecutor did not have standing to prosecute violations of the Solicitation for Charity Act (225 ILCS460/9(a) (West 1998)); (2) he failed to review documentsproduced by the State relating to the finances of VeteransFamily Welfare, failed to conduct any examination or cross-examination of the expenditures of that organization, and failedto use information given to him by the defendant as to hisfinancial condition; and (3) he failed to include ChaseIngersoll as a potential witness. The defendant also claims thepublic defender who represented him at post-trial proceedingswas ineffective in three ways: (1) he, too, failed to raise thestanding issue; (2) he failed to make any argument as to thesufficiency of the evidence; and (3) he failed to challenge thepropriety of the sentence.

Ineffective assistance of counsel is proven when:

(1) counsel's representation falls below an objective standardof reasonableness such that the trial results were unreliable;and (2) the defendant is prejudiced by the unprofessionalconduct. People v. Albanese, 125 Ill. 2d 100, 106, 531 N.E.2d17, 19 (1988). If the court can determine that the defendantsuffered no prejudice, then it need not determine that counsel'srepresentation was deficient. Strickland v. Washington, 466U.S. 668, 697, 80 L. Ed. 2d 674, 699, 104 S. Ct. 2052, 2069(1984).

We shall first address the ineffective claims made againsttrial counsel. As previously noted, the State had standing toprosecute violations of the Act in this case. Therefore,counsel was not ineffective for failing to seek dismissal of thecharges on that ground. Next, the defendant has failed toidentify what documents trial counsel failed to find andintroduce at trial and what the relevance of those documentswould have been. Our review of the record indicates that trialcounsel represented the defendant as competently as possiblewithout the defendant's assistance after the defendant failed toappear for trial and was tried in absentia. Therefore, we findno error on this point. Finally, trial counsel was notineffective for failing to include Chase Ingersoll as a witness. The defendant claims that he would have called Ingersoll totestify about the defendant's finances and about VeteransFamilies Welfare. However, nothing in the record indicates thatIngersoll had any such information. A claim of ineffectiveassistance of counsel involving matters not in the record arenot appropriately reviewed on direct appeal. People v. Gilbert,224 Ill. App. 3d 624, 586 N.E.2d 1308 (1992).

For the reasons already stated, the public defender whorepresented counsel at the post-trial stage was not ineffectivefor failing to raise the standing issue. Counsel did attack thesufficiency of the evidence in his post-trial motion. After hewithdrew, the public defender added to this motion. Thoseissues were presented to the trial court and rejected. Finally,post-trial counsel was not ineffective for failing to challengethe propriety of the sentence. First, Apprendi was not decideduntil after the defendant was sentenced, so counsel could nothave anticipated a change in the law. People v. Apprendi, 530U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Second, aswe have previously held, the defendant was properly sentenced toconsecutive terms of imprisonment in this case. Accordingly,the defendant did not suffer ineffective assistance of trial orpost-trial counsel.

The judgment of the circuit court of Peoria County isaffirmed.

Affirmed.

HOLDRIDGE and LYTTON, J.J., concur.