*1 (No. 64702.
THE ILLINOIS, PEOPLE OF THE STATE OF Appel-
lee, v. HICKS, TERRY Appellant. 30, 1987.
Oрinion December filed CLARK, C.J., SIMON, J., dissenting. *2 A. Kirwan, Defender, and Michelle
Daniel M. Deputy Defender, of the Office of the State Zalisko, Assistant Vernon, Defender, appellant. of Mount Appellate General, of Springfield Neil F. Hartigan, Attorney L. General, and Marcia (Roma Stewart, J. Solicitor General, of Chicago, of coun- Friedl, Attorney Assistant sel), for the People. of the court: opinion delivered
JUSTICE MORAN a in the circuit cоurt of Mont trial Following defendant, Hicks, was convicted County, Terry gomery and 1983, 38, 1) Stat. ch. (Ill. par. Rev. burglary 19 — 1) and sen par. theft Rev. ch. (Ill. Stat. 16 — on the years burglary terms of five tenced to concurrent IVz years theft Defend on the conviction. conviction of his theft was ant appealed alleging proof trial during phase evidentiary admitted improperly from misdemeanor theft to elevate the offense order his that evidence of theft. Defendant contended to felony considered only conviction should have been theft The court affirmed judgment in sentencing. appellate 242.) granted We (150 of the trial court. App. 315). leave Ill. 2d R. (107 to appeal consideration: issue for our present A single provision, an enhancement whether, under the terms of ais neces- theft сonviction of a defendant’s proof of the element offense of theft such that sary felony be proved must of trial. evidentiary phase provides statute question part:
“(e) Sentence. firearm,
(1) Theft other a not from property, than person and not is a A exceeding value Class $300 A misdemeanor. or a second offense after theft, theft, of any retail type including firearm, theft other than of a a fеlony.” is Class 38, par. 1(e)(1). Rev. Stat. ch. 16 — The statute thus theft is provides ordinarily misdemeanor offense and that in order to secure con viction for felony theft must State prove defendant a previous had theft Proof conviction. of this conviction, maintains, theft defendant not should have been trial introduced at it is since element concerns the se verity Moreover, the sentence to be defend imposed. ant asserts that he was prejudiced the admission at *3 by trial of his theft previous conviction since it could have led the that jury conclude it was more that he likely committed the instant offense. Defendant further argues that his position buttressed court’s by decision v. People 95, 87 Ill. Hayes (1981), 2d wherein the court a for suggested theft, trial retail of a proof prior retail theft сonviction need not to the presented in order to elevate the offense from a a misdemeanor to but felony need only be proved
The State argues that the theft conviction is element of the offense of necessary felony theft and therefore must be proved during evidentiary phase of trial. where, here, It argues prior convic- tion changes nature offense from a misde- meanor to a rather than enhance felony, merely the sen- tence, proof of must prior conviction be presented the jury. agree. view, We In our of this disposition case
32 on the pronouncement most recent is controlled our Palmer v. In People Ill. 2d 340. 104 (1984), subject holding, Palmer line of cases long the court reaffirmed scheme, in order to obtain statutоry under a similar use of of unlawful conviction and prove must allege the State both weapons of trial. See Peo the evidentiary phase conviction overruled v. ple 520, 529, Ostrand Ill. 35 2d (1966), People Bracey grounds, on other 51 Ill. part (1972), Peo 132; v. Owens People 131, 2d 514; (1967), 2d ex rel. 134, 138; v. Edwards ple 63 Ill. 2d 478, v. Pincham See also Carey 480. (1979), 76 606, v. Texas L. Ed. 2d Spencer 385 U.S. provide statutes which 648 (recidivist 87 S. Ct. dur proved introduced cоnviction be proof do not offend of trial or innocence phase ing guilt that because to say find it impossible due process. “[W]e the Texas collateral prejudice of some of the possibility the Due under unconstitutional is rendered procedure 564, 17 L. Ed. 2d 385 U.S. Process Clause.” 648, 654). 614, 87 S. Ct. Hayes the outcome controls argues
Defendant as Hayes a theft offense involved inasmuch this сase of weapons. use the unlawful involved while does and defendant However, perceive, we cannot cases should reason why suggest, any principled weapons use of unlawful than differently treated any cases in this instance. Where weapons use of offense of unlawful of the felony
element an element conviction be the prior then so too should As similar statutes. theft under offense of the felony *4 taken should be theft cases no reason such, why we view in Palmer. most recent pronouncement outside of our dismissed itself however, More importantly, Hayes conviction dicta the the prior in suggestion The Palmer court need be only proved stated: agree cannot with the defendant’s conclusion that
“[W]e Hayes prior felony under proved the need not trial. language opinion aforesaid of that must inter preted within the factual circumstances in that presented case. The defendant in Hayes claiming prejudice was as a result of the State’s an allegation include failure charge the pending was a second or offense. claiming She was not of allegation proof that the the prior convictiоn should been as prejudicial, have excluded Therefore, as did the defendants Ostrand and Owens. issue of whether results when the al prejudice State leges and was proves presented conviction Hayes. Accordingly, any comment the court made re garding dicta, properly issue is characterized as binding which is not authority within the rule of stare de that, Hayes only cisis. Thus holds where a [Citаtion.] felon, being defendant has notice that she is tried as a for theft retail can be sustained despite allege State’s failure the information that the charged offense was a second or subsequent offense of retail theft.” (Emphasis original.) (People v. Palmer 347-48.) Ill. 2d Thus, in Palmer the court inso- Hayes rejected explicitly far as Hayes be read as requiring theft conviction be heаr- proved during sentencing ing. v. Jack
We also find defendant’s reliance on Jackson, son 99 Ill. 2d misplaced. also de Palmer, cided before held that where value an item taken in a theft used elevate theft from a misdemeanor to a value is not an ele felony, essential Jack ment However, theft. the issue in son whether value element the offense determining whether purpose dеfendant should be afforded retroactive application of raising the value demarcation statutory *5 Jackson cannot
of stolen be Consequently, property. that a pre- read as fairly authority proposition felony theft is not an element of theft. vious conviction reasoning we adhere to sound of Accordingly, Palmer and our that, hold absent decisions and previous to the theft guidance contrary, prior where legislative elevates offense from a misdemeanor to a conviction is an element of of- theft conviction felony, must and proved fense theft which be felony alleged of fact of trial. to the trier during evidentiary phase we the Governor has recently note Finally, which (Public 691), Senate Bill 115 Act signed 85 — statute, January the current effective amends alleged conviction must be provide but the in the information or indictment element of fel not be considered an offense will to the theft and therefore not disclosed ony also that value is provides trial. Senate Bill 115 therefore an element of the of theft and must of trial. proved during evidentiary phase rule of construction elementary It is an statutory amend by addition of a new a statute provision “[t]he the absence of its or implied ment indication of Village Bank v. National (Western existence.” Kildeer 19 Ill. Absent substantial (1960), 354.) 2d amendatory change to the “an contrary, considerations language presumption in the a statute creates existed.” intended the law as it theretofore change it was (Pe v. Nunn ople 243, 248.) As 77 Ill. 2d as not such, statutory view current we herein, as evi holding еxpressed with the inconsistent statutory ele desire alter legislature’s dences the Moreover, amend statutory since ments of theft. otherwise, are, express language ments the absence not retrospective ordinarily given prospective (Stigler City Chicago 48 Ill. application 20), the defendant here is re- thus affected this cent amendment. court is af-
Accordingly, judgment appellate firmed.
Judgment affirmed. CLARK, CHIEF JUSTICE dissenting: consideration, The statute under inter- rationally preted, constitutes an to a difficult intelligent response *6 problem. however, Under interpretation, majority’s becomes a license for the to convict a defendant on jury of his prior basis record for similar crimes. This result contradicts the intent. It also legislative belies our traditional insistence that even a convicted de- criminal at serves trial to be a given the benefit of slate wiped clean his I prior misdeeds. dissent. respectfully The our enhancement theft statute provision pro vides that a second or theft of not property exceeding will value be a Class 4 felony $300 rather than a misdemeanor. (Ill. 1983, 38, Rev. Stat. ch. par. 1(e)(1).)This provision directed obviously towards 16 — who, habitual thief petty because he steals in only small can amounts, in criminal engage life activity a time without suffering any more severe punishment than a or a fine. year jail By that a of providing second fense will be treated as a the statute a felony, constitutes deterrent to salutary habitual crime.
The of this efficacy deterrent does not depend, in any crucial respect, upon whether the State proves at or trial at Given the likeli- sentencing. strong hood a will find a jury defendant guilty charged offense because his conviction for the offense, it to seems me more reasonable that legisla- ture intended at offense be introduced Nor would de- sentencing. allowing proof sentencing prive defendant of his a trial. right to Proof jury 36 certified docu- depends upon conviction ordinarily and should not re-
ments, evidence which the cannot jury eval- ject, judge and which will equally competent hand, the fact uate at On the other convicted of a similar previously defendant has been well the defendant prejudge crime lead of the crime charged. guilty relies on chiefly conclusion majority’s contrary similar, of a somewhat (1)
two our construction points: People v. Palmer identical, statute although recent 340, (2) the theft statute which explicitly provides sentencing. Closer theft offense can proven are these both arguments examination reveals two inconsistent mistaken. mutually Ill. 2d the court In that a dealing provided person was with statute which misdemeanor, rather than felony, could be convicted if the offense was weapons weapons unlawful use оf committed within five convic any prior years Stat. ch. pars. 24—1(a)(10), tion. Rev. (See 24—1 case, As in this the enhancement ( ).) provision b “Sentence.” included the subsection titled originally *7 While Palmer similar, I believe for is thus superficially Palmer is several reasons the court’s reliance on misplaced. matter,
First, recognized it should general Palmer in- is the statute here the statute not stare decisis volved. Palmer therefore, for this not, is the unlawful-use-of- that enacted case. The legislature not the same legis- was enhancement provision weapons intent this legislative that enacted provision. lature fact, recently the In we have is same. necessarily not the on two legislature sepa- that even where recognized identical with virtually rate occasions enacts statutes between intention may vary wording, legislature’s the first enactment and second. (People Upton 114 Ill. thus 374.) We should proceed with caution before too much into reading Palmer.
Second, the fails to majority recognize crucial dis- tinction between the enhancement of the provision statute and this statute. For some reason the believes majority meaningful distinction any bе- tween the two must relate the crime charged. Deciding, is logically enough, that there no rational dis- tinction between enhancement of a theft en- charge and hancement of an unlawful-use-of-weapons charge, concludes we must majority follow our interpreta- tion in Palmer.
But the has overlooked the majority truly crucial dis- tinction between the two statutes. With is- respect sue of whether jury should to a exposed defendant’s record, prior crucial truly variable not the nature offense, the charged but the relationship between the charged offense offense. prior Where the charged offense and the offense are sim- extremely ilar, a to conclude likely from the prior offense that the defendant has a propensity committing аcts, and to underlying find the defendant on that guilty basis. the charged Where offense and offense are similar, this sort of effect is prejudicial much less likely. Palmer,
In was “any felony,” the charged offense was unlawful use of These weapons. two offenses are not so similar that a defendant usually unduly prejudiced would be admission offense, at least the vast of cases. It majority therefore perfectly for the Palmer court to con- proper clude that the legislature intended the prior offense be at trial rather proven than at
Here, however, we deal identical crimes. with Under these circumstances, we should not to the conclu- leap
38 the intended such legislature gravely prejudi- sion used at trial. cial evidence be Palmer would fact,
In the court’s оwn reasoning Palmer, that the did not so intend. In suggest legislature in People v. the court relied on decisions partially prior Edwards 134, (holding Ill. 2d 138 in an unlaw 63 to instruct the case that it error ful-use-of-weapons a to consider defendant’s convic only prior felony rel. Ca ex as on his bearing credibility) tion 76 in an rey Pincham (holding Ill. 2d 480 to hold case that was error unlawful-use-of-weapons informed of the trial, bеing with the jury only bifurcated The second prior phase). the legislature the fact heavily emphasized court provision had deleted the enhancement subsequently unlawful-weapons separate statute substituted Felons.” offense entitled “Unlawful Use Weapons by Stat., Ill. Rev. 1983 (Palmer, citing 2d new 1.1.) ch. Under Supp., par. provision, 24 — the inclusion of the enhance created by ambiguity re heading ment undеr “Sentence” was provision moved, the offender a and the requirement all containing in the section felon was now included this informa summarizing elements of the offense. After Palmer court concluded: tion, the “Although applica legis this bar, case we find ble of this court’s legislature’s approval lation evidences the at 349. construction.” 104 judicial from this reason- A would conclude рerson rational took the opposite think, if the I ing, legislature is, if it amended a course of action —that subsequently as make clear that such way similar statute at sentencing— to be considered offense was result, and hold that then reach opposite we would amendment, should statute, even before this similar interpreted providing proof *9 would, however, at That mis person taken. For the in this case uses such a majority recent to statute, the theft Bill Senate 115 (Public 691) Act to conclude in this case that un 85— amended statute must at trial. After contemplate proof that the new statute noting explicitly that “the provides prior conviction will not considered an element of the offense of and therefore not be dis closed to the jury (119 trial” at 34), 2d on majority goes “view current amend statutory ment as not inconsistent with the holding expressed herein, as it evidences the legislature’s desire to alter elements of statutory felony theft” Ill. 2d (119 34).
The inconsistency between the in reasoning and the illustrates, believe, here I reasoning a grave problem inherent in our usual approach towards statu- tory times, It is interpretation. enough, difficult out figure what one legislature “intended” a particu- by lar all, statute or After our provision. General Assembly is not an feels, actual person reasons, who intends, and acts as a unit. Instead it a collective made entity, up 118 who, flesh-and-blood individuals in the privacy of their minds, own may mean by any particular provision anything or nothing. The collective nature of a legisla- tive body impels us to seek “intent” the objectivе statutes, words its as informed our own judgment sense, common rather than the inevitably subjec- tive thoughts individual members.
This task is complicated enough. We it still complicate further when we seek to infer what one in- legislature tended from the action of a subsequent legislature, later composed of different members perhaps working to- wards different purposes. Subsequent legislation may revise, or clarify, expand, modify, change prior legisla- tion. There is no toway determine with certainty which
of these were fact intended. Without per- operations define the we cannot psychoanalysis collective forming in- one let alone two. The legislature, subjective intent in this case the court’s consistency reasoning between and in Palmer makes this abundantly clear.
Howеver, the use of assuming even has not in majority legislative legitimate, action was it is true fact all While pertinent principles. cited of a statute language amendatory change “an change it was intended creates a presumption Nunn (People law it theretofore existed” “the circum true that 248), equally also be con surrounding the amendment should stances *10 intended legislature If thе sidered. indicate they of an act, the the interpret original presumption to an law rebutted. change Usually, intention to of statute indicates unambiguous pur no is indicated change law, purpose to but such pose v. People of an ambiguous provision.” the amendment see also O’Connor Youngbey 556, 563; 82 Ill. 2d (1980), v. P A & Enterprises 271-72; 1A 81 Ill. 2d A. Construction Sutherland, Statutory Statutes §22.30, at 266-67,(1986). statute, like unlawful-use-of- felony-thеft to whether statute, ambiguous
weapons charged as an element of the offense was to be treated above, strong I are logical As there argued offense. have legislature reasons for believing practical element, at to be an provable intended the offense felony of not of trial, of unlawful use but weapons felony actions with respect theft. If the legislature’s they to prove anything, prove the two different statutes case the correct, the one this interpretation clarify the statute legislature amended of of unlawful use trial should be proved has legislature case whereas this weapons, amended statute make clear proved only I therefore dissent. respectfully JUSTICE joins SIMON this dissent. SIMON,
JUSTICE
also dissenting:
I have
Chief
joined
Justice Clаrk’s dissent
I
because
agree with
his
both
of
insightful analysis
futility
attempting
discover legislative intent from the enact
ments
a subsequent
legislature and his well-reasoned
arguments
distinguishing
this case from
People
104 Ill. 2d
I
340.
how
separately,
dissent
ever,
I
because
continue to believe that Palmer was
decided
wrongly
for the reasons set forth in Justice
Goldenhersh’s dissent
Palmer,
thereto.
(No. 63542. PAGE,
WILLIAM F. v. GENE Appellant, HIBBARD et al. (The Illinois Department Law Enforcement for the use Illinois, the State Appel- lee).
Opinion Rehearing November filed 1987. 2, 1988. February denied