408 Ill. App. 3d 887
Ill. App. Ct.2011Background
- Vega was convicted of criminal damage to government-supported property in excess of $500 (a Class 3 felony) for damage to a Loves Park police vehicle.
- Trial evidence showed an estimate of $501.93, with $32.85 listed as sales tax; there was no evidence about whether the tax was proper or paid.
- Over 30 days after trial, Vega’s counsel discovered the police department was exempt from paying sales tax, which would reduce the damage amount below $500.
- A late motion for a new trial based on this discovery was heard before sentencing; the State asserted the tax had been paid and there was no formal evidence, and the court treated the issue as forfeited for failure to object at trial.
- The trial court sentenced Vega to three years’ incarceration and restitution; on appeal, Vega argues ineffective assistance of counsel for not timely discovering the issue and that the error warrants a lesser offense or plain error considerations.
- The court reverses, finding ineffective assistance and remands for a new trial; it declines to apply plain error due to lack of sufficient record showing improper payment of the tax.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel's failure to timely discover and raise the sales tax issue was ineffective assistance. | Vega (counsel’s failure) | Vega’s counsel failed to timely discover/rebut tax inclusion | Yes, ineffective; remand for new trial. |
| Whether the issue warrants plain-error relief to reduce the offense. | State | Not clear record; not plain error | Not plain error; remand for new trial. |
Key Cases Cited
- People v. Carraro, 77 Ill.2d 75 (Illinois Supreme Court 1979) (cost of repairs as measure of damage to determine criminal liability)
- Strickland v. Washington, 466 U.S. 668 (U.S. Supreme Court 1984) (establishes two-prong standard for ineffective assistance)
- People v. Lemke, 384 Ill. App. 3d 437 (Ill. App. 2008) (test for ineffective assistance in Illinois criminal cases)
- People v. Evans, 186 Ill. 2d 83 (Ill. 1999) (strong presumption of reasonableness of counsel; strategic choices)
- Adams v. State, 529 N.E.2d 1264 (Ohio 1988) (sales tax not included in value for determining degree of theft)
- Tunnell v. State, 659 P.2d 899 (New Mexico 1983) (sales tax not included in determining value of stolen item)
- State v. Gilbert, 902 P.2d 182 (Wash. App. 1995) (sales tax properly paid as part of repair costs; applicability varies by context)