288 Ill. App. 3d 414 | Ill. App. Ct. | 1997
No. 3--96--0726
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 13th Judicial Circuit,
) Grundy County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 95--CF--82
)
STANLEY E. OLIVO, ) Honorable
) Paul E. Root
Defendant-Appellant. ) Judge, Presiding
_________________________________________________________________
JUSTICE MICHELA DELIVERED THE OPINION OF THE COURT:
_________________________________________________________________
The defendant, Stanley E. Olivo, pled guilty to unlawful
possession of a stolen vehicle and reckless homicide. 625 ILCS
5/4--103(a)(1) (West 1994); 720 ILCS 5/9--3(a) (West 1994). He
was subsequently sentenced to a 40-year term of imprisonment for
unlawful possession of a stolen vehicle and a concurrent five-
year term of imprisonment for reckless homicide. On appeal, he
argues that the trial court erred in imposing a Class X extended
term of imprisonment for unlawful possession of a stolen vehicle.
We affirm.
The pre-sentence investigation report indicated that the
defendant had five prior Class 2 felony convictions which all
arose out of different acts. At the sentencing hearing, the
court used two of the defendant's prior offenses to enhance his
sentence for possession of a stolen vehicle, a Class 2 felony, to
a Class X sentence. See 730 ILCS 5/5--5--3(c)(8) (West 1994).
The trial court then found the defendant eligible for an extended
sentence based on his third Class 2 felony. See 730 ILCS 5/5--5-
-3.2(b)(1) (West 1994). The court then imposed an extended Class
X sentence of 40 years of imprisonment. See 730 ILCS 5/5--8--
2(a)(2) (West 1994).
On appeal, the defendant argues that the trial court erred
in imposing an extended Class X sentence for unlawful possession
of a stolen vehicle. He contends that although his sentence was
properly enhanced to Class X status, he was not eligible for a
Class X extended term because he had never been previously
convicted of a Class X felony.
When a defendant is convicted of a Class 2 felony after
having two prior convictions of any Class 2 or greater felonies
in Illinois, and such charges arise out of different series of
acts, the defendant shall be sentenced as a Class X offender.
See 730 ILCS 5/5--5--3(c)(8) (West 1994). When a defendant's
sentence is increased under these circumstances, the classifica-
tion of the charged offense remains the same. People v. Thomas,
171 Ill. 2d 207, 664 N.E.2d 76 (1996). Further, a defendant may
receive an extended term sentence when he is convicted of any
felony after having been previously convicted in Illinois of the
same or greater class felony within 10 years, and the felonies
arise out of different acts. See 730 ILCS 5/5--5--3.2(b)(1)
(West 1994).
We find that the trial court properly imposed an extended
Class X sentence. A defendant is eligible for an extended sen-
tence if he has a prior conviction of the same or greater class
as his current conviction, not his current sentence. See 730
ILCS 5/5--5--3.2(b)(1) (West 1994). Here, the defendant's
current conviction was a Class 2 felony and his prior offenses
were all Class 2 felonies. Therefore, he was eligible for an
extended sentence. Additionally, as the defendant concedes, he
was to be sentenced as a Class X offender. The only logical
extension of a Class X sentence is a Class X extended term.
Accordingly, we find that the trial court did not err in imposing
a Class X extended sentence.
The judgment of the circuit court of Grundy County is
affirmed.
Affirmed.
HOLDRIDGE, J., concurs; HOMER, J. dissents.
JUSTICE HOMER, dissenting:
Because the defendant has never been convicted of a Class X
felony, I believe that the trial court lacked statutory authority
to impose a Class X extended-term sentence.
Unlawful possession of a stolen vehicle is classified in the
Illinois Vehicle Code as a Class 2 felony. 625 ILCS 5/4--
103(a)(1)(West 1994). Due to the defendant's prior Class 2
felony convictions, the court was required to sentence him as a
Class X offender for the current offense. 730 ILCS 5/5--5--
3(c)(8)(West 1994); see People v. Thomas, 171 Ill. 2d 207, 221-
22, 664 N.E.2d 76, 84 (1996). The sentencing range for a Class X
felony is six to thirty years. 730 ILCS 5/5--8--1(a)(3)(West
1994). An extended term sentence may be given: "[w]hen a
defendant is convicted of any felony, after having been previous-
ly convicted in Illinois or any other jurisdiction of the same or
similar class felony or greater class felony, when such convic-
tion has occurred within 10 years after the previous conviction
***." (Emphasis added) 730 ILCS 5/5--5--3.2(b)(1)(West 1994).
Citing Thomas, the majority correctly notes that the clas-
sification of the defendant's charged offense remained a Class 2
felony, even though he had to be sentenced as a Class X felon.
Since neither the defendant's present nor prior convictions
involved Class X felonies, section 5--5--3.2(b)(1) is inap-
plicable.
Under the rationale adopted by the majority the defendant
would, by necessity, have received a lesser sentence had he
actually committed a Class X felony. In that event, since it
could not be said that the defendant had previously been con-
victed "of the same or similar class felony or greater class
felony," section 5--5--3.2(b)(1) would not apply, and the
defendant, therefore, would not have been eligible for a Class X
extended-term sentence.
The legislature could not possibly have intended such an
anomalous result, for if it did, such a disproportionate punish-
ment scheme would surely fail constitutional scrutiny. See
People v. Wisslead, 94 Ill. 2d 190, 446 N.E.2d 512 (1983).
Doubts in statutory construction must be resolved in favor of the
statute's constitutionality. People v. Williams, 263 Ill. App.
3d 1098, 1102, 638 N.E.2d 207, 211 (1994); People v. Kimbrough,
163 Ill. 2d 231, 237, 644 N.E.2d 1137, 1141 (1994). Thus, both a
current and prior Class X felony conviction are required for
eligibility for a Class X extended-term sentence under section 5-
-5--3.2(b)(1).
Accordingly, I would vacate the defendant's 40-year sentence
for unlawful possession of a stolen vehicle and remand for re-
sentencing on that conviction.