People v. Keene
State: Illinois
Court: 4th District Appellate
Docket No: 4-97-0470
Case Date: 04/22/1998
NO. 4-97-0470
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
WILLIAM KEENE, ) No. 96CF154
Defendant-Appellant. )
) Honorable
) Charles E. Glennon,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
Defendant, William Keene, appeals his sentence of 10
years' imprisonment for aggravated battery (a Class 3 felony), a
violation of section 12-4(b)(6) of the Criminal Code of 1961
(Criminal Code) (720 ILCS 5/12-4(b)(6),(e) (West 1996)), and 30
years' imprisonment for unlawful possession of a weapon by a
person in the custody of a Department of Corrections (DOC) facil-
ity (a Class 1 felony), a violation of section 24-1.1(b) of the
Criminal Code (720 ILCS 5/24-1.1(b),(e) (West 1996)), with the
terms to run consecutively. We affirm in part and reverse in
part and remand with directions.
After a jury trial in Livingston County circuit court,
defendant was convicted of unlawful possession of a weapon by a
person in the custody of a DOC facility and aggravated battery
based on a battery to correctional officer Donald Schultheis. On
April 29, 1996, defendant was an inmate in the condemned unit at
Pontiac Correctional Center. During the regularly scheduled
"count" of the inmates at the beginning of the midnight shift,
Officer Schultheis and another correctional officer went to each
cell of the condemned unit to see if each inmate was present. At
that time inmates were allowed to hang blankets at the front of
the bars of their cells and when the officers got to defendant's
cell a blanket was hanging as a curtain over the front of the
cell.
Officer Schultheis called defendant's name twice. He
received no answer and pulled the blanket back. As he did so,
defendant, who was standing directly behind the blanket, jabbed
Schultheis with a piece of wood with a metal wire sticking out
the end. The blow struck Schultheis with such force he spun
around. Defendant moved to stab again, but Schultheis and the
other officer quickly withdrew.
Schultheis received a puncture wound at his lip and
pain shot up his face. As a result of the injury, his facial
muscles in that area still twitched and drooped and he continued
to feel pain at the time of the trial March 18 and 19, 1997.
The presentence report detailed defendant's numerous
prior convictions. All but the last conviction were from the
State of Wisconsin. In 1972 he was convicted of two counts of
theft; in 1973 of burglary; in 1974, three counts of burglary and
one of theft; in 1975, three counts of burglary and one of es-
cape; in 1976 of escape; in 1978 of disorderly conduct; in 1980
of burglary; in 1982 of robbery, burglary and party to robbery;
in 1983, two counts of robbery, burglary and injury conduct re-
gardless of life; in 1984 of escape; in 1992 of attempt (rob-
bery), burglary, party to robbery, robbery, injury conduct re-
gardless of life, and escape. Finally, he was convicted of three
counts of murder and of armed robbery and was sentenced to death
on October 15, 1993, in Stephenson County, Illinois.
Defendant's DOC disciplinary record showed 25 viola-
tions, 18 of which were major offenses. A number of the viola-
tions were assaults, while others included abuse of privileges,
aiding and abetting, health and safety, disobeying direct orders,
dangerous contraband, and possession of unauthorized property.
After reviewing the presentence report the trial court
stated:
"So the defendant is on the condemned unit
because of the murder convictions even set-
ting aside all the other convictions. Well,
he has convictions in Wisconsin, which under
Illinois law would make him eligible having--
a number of them having occurred since 1978,
he has three or more separate individually
charged Class 2 or higher felony convictions,
which for the unlawful possession of weapon
Class 1 felony makes him subject to mandatory
Class X sentencing. He is also eligible for
extended[-]term sentencing on the aggravated
battery. I would indicate for the record
that these are two separate offenses. Not in
the same course of conduct. That possession
of the weapon was a completed offense by him
in the condemned unit before he then made the
decision to use that weapon and commit an
aggravated battery upon a correctional offi-
cer. So these are--not these are subject to
two separate sentences. He is subject to
consecutive sentencing in this case because
they are not in the same course of conduct.
* * *
I am going to sentence him on Count I,
aggravated battery, bodily harm[,] to an
extended sentence of ten years in the Illi-
nois Department of Corrections for aggravated
battery, Class 3 felony.
I am going to sentence him to a consecu-
tive sentence of thirty years, which is a
maximum nonextended term in the Illinois
Department of Corrections[,] for the offense
of unlawful possession of weapon by person in
custody of Department of Corrections facili-
ty, which is, as I say, mandatory Class X."
Defendant now appeals his sentence.
The State first argues defendant has waived all conten-
tions of error regarding his sentences by failing to file a
postsentencing motion challenging the appropriateness of his sen-
tence. Section 5-8-1(c) of the Unified Code of Corrections
(Code) provides:
"A defendant's challenge to the correctness
of a sentence or to any aspect of the sen-
tencing hearing shall be made by a written
motion filed within 30 days following the
imposition of sentence." 730 ILCS 5/5-8-1(c)
(West 1996).
The supreme court recently held the provisions of sec-
tion 5-8-1(c) must be complied with or the issues are waived on
appeal. People v. Reed, 177 Ill. 2d 389, 393, 686 N.E.2d 584,
586 (1997). However, the court in Reed noted the defendants in
that case did not argue their sentencing challenges amounted to
plain error. Reed, 177 Ill. 2d at 395, 686 N.E.2d at 587.
Therefore, the court left open an exception from the waiver doc-
trine under the rule of plain error found in Supreme Court Rule
615(a). 134 Ill. 2d R. 615(a). This rule states in pertinent
part: "[p]lain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of
the trial court." 134 Ill. 2d R. 615(a).
Our supreme court has explained the plain error rule
applies when the evidence is closely balanced or the alleged
error is of such magnitude the defendant is denied a fair and
impartial trial. People v. Walker, 109 Ill. 2d 484, 504, 488
N.E.2d 529, 538 (1985). Sentencing issues may be reviewed as
plain error where the issue is one of misapplication of the law,
because the right to be sentenced lawfully is substantial because
it affects a defendant's fundamental right to liberty. See Peo-
ple v. Martin, 119 Ill. 2d 453, 458, 519 N.E.2d 884, 886 (1988);
People v. Ritchey, 286 Ill. App. 3d 848, 852, 677 N.E.2d 973,
975-76 (1997); People v. Askew, 273 Ill. App. 3d 798, 806, 652
N.E.2d 1041, 1047 (1995).
In applying this standard to this case, we find no
error occurred in the trial court's imposition of an extended
term for defendant's conviction of aggravated battery. Section
5-8-2(a) of the Code states;
"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 unless the
factors in aggravation set forth in paragraph
(b) of Section 5-5-3.2 were found to be pres-
ent." 730 ILCS 5/5-8-2(a) (West 1996).
Our supreme court has interpreted this section to mean when a de-
fendant has been convicted of multiple offenses, generally an ex-
tended-term sentence may be imposed only for the conviction with-
in the most serious class (People v. Jordan, 103 Ill. 2d 192,
205-06, 469 N.E.2d 569, 575 (1984)), but extended-term sentences
may be imposed on differing class offenses that arise from unre-
lated courses of conduct. People v. Coleman, 166 Ill. 2d 247,
257, 652 N.E.2d 322, 327 (1995).
Defendant argues his possession of a weapon was related
to the use of the weapon to stab Schultheis. In support of his
argument he claims language used by this court in People v.
Strickland, 283 Ill. App. 3d 319, 668 N.E.2d 1201 (1996), created
a rule the possession of a weapon by an inmate and the use of
that weapon in a battery are deemed to be related offenses. In
Strickland, the defendant was charged with aggravated battery and
unlawful possession of a weapon by a person in the custody of
DOC. In Strickland, however, the defendant stabbed another in-
mate with a homemade knife and then, in a struggle to subdue him,
injured a correctional officer. He was charged with battery on
the correctional officer only. Strickland, 283 Ill. App. 3d at
321, 668 N.E.2d at 1201-02.
This court held the two offenses were the product of
two distinct courses of conduct and, hence, unrelated for pur-
poses of sentencing the defendant to an extended sentence on the
battery conviction. Strickland, 283 Ill. App. 3d at 325, 668
N.E.2d at 1204. In so holding we stated:
"Defendant acquired possession of the home-
made knife sometime prior to the incident.
After defendant stabbed the other inmate
with the knife, his goal of doing so, as well
as the purpose behind his acquisition of the
knife had been fulfilled. Defendant then
decided he would refuse to recognize the
authority of correctional officers at the
scene. His violent resistance to the correc-
tional officers was the obvious yet futile
manifestation of this choice. Although these
two courses of conduct were in close prox-
imity, they were distinct, and defendant's
conviction of the weapon possession charge
does not preclude the imposition of an ex-
tended-term sentence for aggravated battery
of Officer Harvey." (Emphasis added.)
Strickland, 283 Ill. App. 3d at 325, 668
N.E.2d at 1204.
The language cited in Strickland did not create a rule
whereby an inmate's possession of a weapon and the first battery
offense committed as a result of such possession are related
offenses. Rather, we find, as did the trial court, the offense
of possession of a weapon by an inmate of DOC is a separate of-
fense in this case from any battery committed by the inmate using
such a weapon. The elements giving rise to the offense of pos-
session of a weapon by an inmate do not require use of the weapon
or proof of the inmate's intent. Section 24-1.1 of the Criminal
Code only requires that the inmate possess the weapon. The in-
tent with which he possesses it is to be disregarded. 720 ILCS
5/24-1.1(b) (West 1996). Therefore, defendant was guilty of this
offense the moment he came into possession of the weapon. His
use of the weapon later in the aggravated battery perpetrated on
Schultheis was a separate unrelated offense.
Accordingly, the trial court properly determined the
two acts to be separate and distinct and properly sentenced de-
fendant to an extended-term sentence for aggravated battery.
As to defendant's second argument, that enhancement of
his Class 1 felony conviction for possession of a weapon in a DOC
facility to a Class X for sentencing purposes was erroneous, we
find plain error to have been committed by the trial court and,
thus, an exception to the waiver rule under Rule 615(a).
Section 5-5-3(c)(8) of the Code provides:
"When a defendant, over the age of 21
years, is convicted of a Class 1 or Class 2
felony, after having twice been convicted of
any Class 2 or greater Class felonies in
Illinois, and such charges are separately
brought and tried and arise out of different
series of acts, such defendant shall be sen-
tenced as a Class X offender. This paragraph
shall not apply unless (1) the first felony
was committed after the effective date of
this amendatory Act of 1977; and (2) the
second felony was committed after conviction
on the first; and (3) the third felony was
committed after conviction on the second."
(Emphasis added.) 730 ILCS 5/5-5-3(c)(8)
(West 1996).
According to defendant's presentence report, he had
numerous convictions in Wisconsin but only one prior conviction
in Illinois. Despite language in section 5-5-3(c)(8) providing
for enhancement of a Class 1 or 2 felony for sentencing purposes
upon prior convictions "in Illinois" of two or more Class 2 or
greater felonies, the trial court found convictions in Wisconsin
that were the equivalent of Class 2 or higher felonies in Illi-
nois met the requirements of this section.
There is no case law interpreting the language of sec-
tion 5-5-3(c)(8) and whether it includes convictions outside
Illinois. Thus, we will interpret the statue applying the well-
established principles of statutory construction.
The primary rule of statutory construction, to which
all other rules are subordinate, is to ascertain and give effect
to the true intent of the legislature. In determining the legis-
lative intent, a court should first consider the statutory lan-
guage. Where the statutory language is clear, it will be given
effect without resort to other aids for construction. People ex
rel. Baker v. Cowlin, 154 Ill. 2d 193, 197, 607 N.E.2d 1251, 1253
(1992).
In this case, the language could not be more clear. It
specifically states a defendant shall be sentenced as a Class X
offender "after having twice been convicted of any Class 2 or
greater Class felonies in Illinois." (Emphasis added.) (730
ILCS 5/5-5-3(c)(8) (West 1996). If the legislature had intended
to include convictions outside Illinois it could easily have said
so. In fact, the legislature has demonstrated in other sections
of the Code, as well as the Criminal Code, a policy to include
convictions outside Illinois when it was deemed appropriate.
For example, section 5-5-3(c)(7) of the Code prescribes
a term of natural life imprisonment for a defendant adjudged to
be a habitual criminal under article 33B of the Criminal Code.
730 ILCS 5/5-5-3(c)(7) (West 1996). Section 33B-1(a) of the
Criminal Code defines "habitual criminal" as follows:
"Every person who has been twice con-
victed in any state or federal court of an
offense that contains the same elements as an
offense now classified in Illinois as a Class
X felony, criminal sexual assault, aggravated
kidnapping or first degree murder, and is
thereafter convicted of a Class X felony,
criminal sexual assault or first degree mur-
der, committed after the 2 prior convictions,
shall be adjudged an habitual criminal."
(Emphasis added.) 720 ILCS 5/33B-1(a) (West
1996).
Another example of the legislature's wording is found
in section 5-5-3(c)(2)(F) of the Code:
"A period of probation, a term of peri-
odic imprisonment or conditional discharge
shall not be imposed for the following of-
fenses. The court shall sentence the offend-
er to not less than the minimum term of im-
prisonment set forth in this Code for the
following offenses ***:
(F)A Class 2 or greater felony
if the offender had been convicted
of a Class 2 or greater felony
within 10 years of the date on
which he committed the offense for
which he is being sentenced." 730
ILCS 5/5-5-3(c)(2)(F) (West 1996).
When called upon to determine whether the provisions of section
5-5-3(c)(2)(F) applied to prior convictions outside Illinois,
this court specifically looked at the provision in section 5-5-
3(c)(8), noting its use of the phrase "in Illinois." The court
then found the legislature's restriction of convictions to those
in Illinois in one section of the Code did not imply the same
restriction in other sections of the Code when it was silent and
held the silence in section 5-5-3(c)(2)(F) allowed for the use of
convictions in other states when they were for offenses that
would be classified as Class 2 or greater in Illinois. People v.
Daniels, 194 Ill. App. 3d 648, 650-52, 551 N.E.2d 297, 299-300
(1990).
The legislature purposely included the phrase "convict-
ed in any state or federal court of an offense that contains the
same elements as an offense now classified in Illinois" in sec-
tion 33B-1(a) of the Criminal Code while specifically including
only "in Illinois" in section 5-5-3(c)(8) of the Code. 720 ILCS
5/33B-1(a); 730 ILCS 5/5-5-3(c)(8) (West 1996). Following the
well-established principle of statutory construction, expressio
unius est exclusio alterius (the expression of one thing implies
the exclusion of the other) (see Condell Hospital v. Illinois
Health Facilities Planning Board, 124 Ill. 2d 341, 366, 530
N.E.2d 217, 229 (1988)), the expression of "in Illinois" in sec-
tion 5-5-3(c)(8) excludes the implication that out-of-state con-
victions are to be used to classify a conviction as Class X for
sentencing purposes.
The record does not indicate defendant had two prior
Class 2 or greater felony convictions in Illinois. We conclude
he was inappropriately sentenced as a Class X felon on his con-
viction for possession of a weapon by a person in the custody of
DOC. This was plain error.
For the foregoing reasons, defendant's sentence of 10
years for aggravated battery is affirmed and his sentence of 30
years for possession of a weapon by a person in custody of DOC is
reversed and the cause is remanded for resentencing.
Affirmed in part and reversed in part; cause remanded
with directions.
GREEN, J., concurs.
COOK, J., specially concurs. JUSTICE COOK, specially concurring:
The question has been asked in other contexts whether
offenses "arise from unrelated courses of conduct." Coleman, 166
Ill. 2d at 257, 652 N.E.2d at 327. Perhaps the test that finds
the most offenses to be related is the "independent motivation
test." Under that test, a prisoner who stole a motor vehicle on
prison grounds as part of his plan of escape could not be sen-
tenced to consecutive terms for the escape charge and the theft
charge, because the theft was not independently motivated or
otherwise separable from the conduct that constituted the offense
of escape. People v. Whittington, 46 Ill. 2d 405, 409-10, 265
N.E.2d 679, 681-82 (1970); see also 730 ILCS 5/5-8-4(a) (West
1996) (court shall not impose consecutive sentences for offenses
that were committed as part of a single course of conduct during
which there was no substantial change in the nature of the crimi-
nal objective). At the other end of the spectrum is the "multi-
ple acts test," which allows concurrent sentences whenever two
offenses are supported by more than one physical act, unless one
offense is a lesser included offense of the other. Under the
multiple acts test a defendant can be sentenced to concurrent
sentences where he enters a dwelling with the motivation to com-
mit a rape. People v. King, 66 Ill. 2d 551, 559-60, 363 N.E.2d
838, 841 (1977). (Since 1988, however, consecutive sentences are
mandatory where one of the offenses is aggravated criminal sexual
assault. See 730 ILCS 5/5-8-4(a) (West 1996).)
It is not clear whether the majority adopts the inde-
pendent motivation test, the multiple acts test, or some third
test. Strickland may have employed the independent motivation
test. The majority states that possession of the weapon here was
a separate offense from any battery committed with the weapon
because (1) the elements of possession of a weapon do not require
use of the weapon, and (2) defendant committed the offense of
possession of a weapon before he committed the offense of battery
with the weapon. Slip op. at 8. It may be that the majority has
chosen to apply the "abstract elements test" once used to deter-
mine whether one offense is a lesser included offense of another.
See People v. Hamilton, 179 Ill. 2d 319, 327, 688 N.E.2d 1166,
1171 (1997).
I conclude that the proper test to determine whether
offenses arise from unrelated courses of conduct for purposes of
extended-term sentencing is the least restrictive test, the mul-
tiple acts test. Here the court could have found that there were
separate acts in that defendant possessed the weapon at a time
separate from the time when he used the weapon to commit the
battery. Possession of a weapon and battery with a weapon are
not lesser included offenses of each other, at least where they
occur at different times. Accordingly, the trial court properly
sentenced defendant to an extended-term sentence for aggravated
battery.
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