THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLIFFORD PATRICK McCORMICK, Defendant-Appellant.
Fourth District No. 4-00-0214
Appellate Court of Illinois, Fourth District
Opinion filed July 17, 2002.
332 Ill. App. 3d 491
Affirmed.
BRESLIN and HOMER, JJ., concur.
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLIFFORD PATRICK McCORMICK, Defendant-Appellant.
Fourth District No. 4-00-0214
Opinion filed July 17, 2002.
Charles G. Reynard, State‘s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrоse, all of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
JUSTICE APPLETON delivered the opinion of the court:
After a bench trial, the trial court found defendant, Clifford Patrick McCormick, guilty of violating section 1 of the Harassing and Obscene Communications Act (Communications Act) (
I. BACKGROUND
In a two-count indictment, the State charged defendant with violating section 1 of the Communications Act, a Class 4 felony, in that having been рreviously convicted of burglary, he made telephone calls to Crystal Chenoweth “with the intent to abuse, threaten[,] or harass any person at the called number.” Count I alleged that he made a harassing call to her on January 6, 2000, and count II alleged that he made another harassing call to her on January 7, 2000.
Normally, if no aggravating circumstances are present аnd it is a first offense, harassment by telephone is a Class B misdemeanor, punishable by no more than six months’ imprisonment.
Defendant moved to dismiss the indictment on the grounds that section 2(b)(5) violated the proportionate penalties clause (
On April 14, 2000, at the conclusion of the bench trial, the trial court adjudged defendant guilty of count II alone, harassment by telephone on Januаry 7, 2000. The offense was a Class 4 felony because on February 6, 1999, defendant was convicted of burglary, a forcible felony. Defendant had burglarized a car. He represents that no one was in the car and that, in committing the burglary, he neither inflicted nor threatened bodily harm. On May 26, 2000, the trial court imposed the sentence of three years’ imprisonment for telephone harassment, giving defendant credit for 141 days served and ordering that the term of imprisonment run concurrently with that in the burglary case.
The trial court also ordered him to pay $270 in restitution to Chenoweth. According to a “victim letter,” Chenoweth was afraid to park in a public garage since defendant began harassing her. For safety, she began parking on the street right outside her apartment, and she continued doing so even after the police arrested defendant, because she was unsure of his whereabouts. She incurred $270 in parking tickets from the City of Bloomington.
Without order of the trial court, the circuit clerk assessed a fine of $20 against defendant pursuant to section 10(c) of the Victims Assistance Act (
Defendant filed a motion for a new trial, arguing, inter alia, that the trial court had erred in denying his motion to dismiss the indictment. In the proceedings below, defendant never challenged the order of restitution. The trial court denied his motion for a new trial.
This appeal followed.
II. ANALYSIS
A. Equal Protection
Defendant argues that all of the forcible felonies listed in section 2-8 of the Criminal Code, except one, necessarily involve the use or
Defendant explains: “The enhanced sentencing scheme [in section 2(b)(5) of the Communications Act] аpparently is aimed at situations in which the potential for danger was heightened.” The legislature intended to “protect[] telephone harassment victims from offenders who are more likely to use force or violence or to inflict physical harm after making a threatening or harassing telephone call.” Defendant argues that section 2(b)(5), as applied to him, has no rational relationship to that purpose. Not all burglaries involve the use or threat of violence, and he had no intent of endangering anyone when he burglarized the unoccupied car.
We review de novo the constitutionality of a statute. Brown‘s Furniture, Inc. v. Wagner, 171 Ill. 2d 410, 420, 665 N.E.2d 795, 801 (1996). We presume that section 2(b)(5) of the Communications Act is constitutional, and defendant has the burden of clearly establishing its unconstitutionality. See People v. Shephard, 152 Ill. 2d 489, 499, 605 N.E.2d 518, 523 (1992). When assessing a claim that sоmeone has been denied the equal protection of the laws, we perform the same analysis, regardless of whether the claim arises under the state or federal constitution. Shephard, 152 Ill. 2d at 499, 605 N.E.2d at 523. Equal protection requires the government to deal with “similarly situated” persons in a similar manner. Shephard, 152 Ill. 2d at 499, 605 N.E.2d at 523. The government may not treat people unequally by putting them into different classes “for reasons wholly unrelated to the purpose of the legislation.” Shephard, 152 Ill. 2d at 499, 605 N.E.2d at 523.
We regard with strict scrutiny any “suspect” classification, such as one based on race, as well as any classification that impinges upon a fundamental constitutional right. Shephard, 152 Ill. 2d at 499, 605 N.E.2d at 523. Defendant agrees that section 2(b)(5) creates no suspect classification and impinges upon no fundamental right and that the issue, therefore, is whether the law has a rational basis. See Shephard, 152 Ill. 2d at 500, 605 N.E.2d at 524.
Under the rational-basis test, our review of the legislative classification is limited and deferential. Shephard, 152 Ill. 2d at 502, 605 N.E.2d at 525. “[I]f any state of facts can reasonably be conceived to justify the enactment, it must be upheld.” Shephard, 152 Ill. 2d at 502, 605 N.E.2d at 525. “[T]here must be a reasonable basis for distinguishing the class to which the [statute] applies from the class to which the statute is inapрlicable.” People v. Coleman, 111 Ill. 2d 87, 95, 488 N.E.2d 1009, 1013 (1986). If the reasonableness of the statute is “fairly debatable,” we will defer to the legislative judgment and uphold the statute. Thillens, Inc. v. Morey, 11 Ill. 2d 579, 591, 144 N.E.2d 735, 742 (1957).
When devising the penalties for telephonic harassment, did the legislature have a rational basis for treating those convicted of a nonviolent burglary differently from those convicted of a felony other than a forcible felony? Defendant argues that because his offense of burglary involved neither violence nor the threat of violence, the legislature could not rationally treat him differently from someone who had been convicted of a nonviolent felony. He considers himself similarly situated to people convicted of felonies other than forcible felonies.
As defendant acknowlеdges, hostile telephone calls can escalate into face-to-face encounters. He admits that “the potential for danger is heightened” (or the legislature could reasonably consider it so) if the caller has, in the recent past, demonstrated a willingness to violate others’ bodily autonomy—if the caller has been convicted of kidnapping or aggravated battery, for example. Because harassing calls from such persons pose a greater threat of potential harm than harassing calls from other persons, the law should more strongly deter them.
By similar logic, one could detect heightened danger in a harassing call from someone convicted of burglary (although the danger might not be as palpable as when the caller is a convicted murderer). Defendant agrees that residential burglary belongs among the forcible felonies because there “is a considerably greater chance of injury and danger to persons in the home context.” People v. Bales, 108 Ill. 2d 182, 193, 483 N.E.2d 517, 522 (1985). Just because residential burglary is more dangerous than other burglaries, it does not follow that other burglaries are safe. Once one concedes that residential burglary belongs in the list of forcible felonies, it is difficult to argue that the legislature could not reasonably include burglary in the list as well. Nowadays, motor vehicles are adjuncts of the home. People v. Anderson, 272 Ill. App. 3d 537, 540, 650 N.E.2d 648, 650 (1995). The difference in danger between residential burglary and nonresidential burglary is merely a matter of location, and once one grants that аn offense is dangerous to some degree, it is a quintessentially legislative decision whether the danger is great enough to qualify it as a forcible felony.
Burglary of a nonresidence can pose a threat of injury for the same reasons as burglary of a residence, sometimes a greater threat.
All burglars have shown a willingness to intrude into others’ рrivate space for the purpose of doing wrong. One study found the rate of recidivism for burglary to be 31.9%. Note, A. Bedarf, Examining Sex Offender Community Notification Laws, 83 Cal. L. Rev. 885, 896 (1995), citing A. Beck & B. Shipley, U.S. Department of Justice, Recidivism of Prisoners Released in 1983, at 6, table 9 (1989). The harassing call might lead to a physical intrusion, or so the legislature could believe. Harassing calls from a certain class of felons are potentially more harmful than harassing calls in general, and therefore a greater deterrent is required. The question is debatable either way. Because a reasonable argument can be made in favor of the legislative classification, we will uphold it.
B. Proportionate Penalties Clause
Defendant next argues that section 2(b)(5) of the Communications Act violates the proрortionate penalties clause of the Illinois Constitution (
The definition of “forcible felony” is not limited to the felonies listеd in section 2-8 but, as section 2-8 says, includes “‘any other felony which involves the use or threat of physical force or violence against any individual.‘” People v. Banks, 287 Ill. App. 3d 273, 283, 678 N.E.2d 348, 355 (1997), quoting
Defendant also compares burglary of a motor vehicle with vehicular invasion, arguing that the former offense should not be a Class 2 felony if the latter offense is a Class 1 felony. If defendant means to challenge the sentence imposed upon him for burglary, he should do so in the burglary case. We express no opinion on whether his sentence for burglary violates the proportionate penalties clause, because that issue is not properly before us.
C. Restitution
Citing People v. Hasprey, 194 Ill. 2d 84, 86, 740 N.E.2d 780, 781 (2000), defendant argues that the order of restitution is void because section 5-5-6 of the Unified Code of Corrections (
The supreme court decided Hasprey under section 5-5-6 as it existed prior to the enactment of Public Act 91-420 (Pub. Act 91-420, eff. January 1, 2000) (1999 Ill. Laws 5278, 5278) (amending
“In all convictions for offenses in violation of the Criminal Code of 1961 in which the person received any injury to their person or damage to their real or personal property as a result of the criminal act of the defendant, the court shall order restitution as provided in this [s]ection. In all other cases, except cases in which restitution is required under this [s]ection, the court must at the sentence hearing determine whether restitution is an appropriate sentence to be imposed on each defendant convicted of an offense. If the court determines that an order directing the offender to make restitution is appropriate, the offender may be sentenced to make restitution.” (Emphasis added.)
730 ILCS 5/5-5-6 (West 2000).
Thus, “[i]n all other cases“—that is, in all cases other than violations of the Criminal Code in which the victim sustained personal injury or property damage—the court “may” (as opposed to “shall“) sentence the offender to restitution. By the plain terms of the statute, as amended by Public Act 91-420, restitution is now available for all criminal offenses, not merely those in the Criminal Code.
In his postsentence motion, defendant did not object to thе order of restitution. To preserve a sentencing issue for appellate review, the defendant must raise the issue in a postsentencing motion. People v. Fouts, 319 Ill. App. 3d 550, 552, 745 N.E.2d 1284, 1286 (2001), appeal denied, 195 Ill. 2d 561, 754 N.E.2d 1288 (2001). Supreme Court Rule 615(a) provides, however, that we may review “[p]lain errors or defects affecting substantial rights,” even though the defendant did not object to such errors in a posttrial motion. 134 Ill. 2d R. 615(a). We may invoke the plain-error rule to review misapplications of law during sentencing. People v. Keene, 296 Ill. App. 3d 183, 186, 693 N.E.2d 1273, 1275 (1998).
Defendant argues that ordering him “to reimburse Ms. Chenoweth for her own illegal activity violates public policy.” We agree. Violating a municipal parking ordinance is illegal. The triviality of the offense does not make it any the less illegal. The fines were the penalty for the offense. Courts will not award damages growing оut of the claimant‘s own illegal act or assist parties in relieving themselves of the consequences of their illegal activities. Newton v. Illinois Oil Co., 316 Ill. 416, 422, 147 N.E. 465, 467 (1925). If a person “suffer[s]
D. Fine Imposed by Circuit Clerk
The State concedes that we should vacate the $20 fine that the circuit clerk imposed pursuant to section 10(c) of the Victims Assistance Act (
III. CONCLUSION
For the reasons stated, we affirm defendant‘s sentence, except that we vacate the portion of the sentence ordering him to pay restitution in the amount of $270. We also vacate the circuit clerk‘s order that defendant pay a finе of $20 and remand for proper imposition by the trial court and for issuance of a modified written judgment of sentence as stated.
Affirmed in part and vacated in part; cause remanded with directions.
McCULLOUGH, P.J., concurs.
JUSTICE TURNER, specially concurring in part and dissenting in part:
I concur with the majority in all respects except for its vacatur of the trial court‘s restitution order. Defendant failed to preserve the restitution issue for appellate review by failing to file a postsentencing motion. Fouts, 319 Ill. App. 3d at 552, 745 N.E.2d at 1286. The issue is, therefore, forfeited.