People v. Niemeyer

612 N.E.2d 975, 243 Ill. App. 3d 875, 184 Ill. Dec. 99
Appellate Court of Illinois·Decided April 26, 1993·No. 5-92-0389·Published·Cited by 5 cases

Opinion

612 N.E.2d 975 (1993)
243 Ill. App.3d 875
184 Ill.Dec. 99

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Michael A. NIEMEYER, Defendant-Appellant.

No. 5-92-0389.

Appellate Court of Illinois, Fifth District.

April 26, 1993.

*976 Daniel M. Kirwan, Deputy Defender, Michelle A. Zalisko, Asst. Defender, Office of State Appellate Defender, Fifth Judicial Dist., Mt. Vernon, for defendant-appellant.

Kevin Parker, State's Atty., Effingham, Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Kendra S. Mitchell, Staff Atty., Office of State's Atty. Appellate Prosecutor, Mt. Vernon, for plaintiff-appellee.

Justice MAAG delivered the opinion of the court:

The defendant, Michael A. Niemeyer, was convicted by a jury of driving under the influence of alcohol (Ill.Rev.Stat.1991, ch. 95½, par. 11-501(c)) and driving while license revoked (Ill.Rev.Stat.1991, ch. 95½, par. 6-303(a)). Both offenses were charged and tried as Class 4 felonies because the defendant had previously been convicted of driving under the influence of alcohol and driving while license revoked. The trial court sentenced defendant to extended-term sentences of six years' imprisonment on each conviction with the sentences to run concurrently. (See Ill.Rev. Stat.1991, ch. 38, par. 1005-5-3.2(b)(1).) On appeal, defendant contends that the trial court was not authorized to impose extended-term sentences on him because the offenses of which he was convicted are ordinarily misdemeanors but were enhanced to *977 felonies because of prior convictions for the same offenses.

Defendant was convicted of violating sections 11-501 and 6-303 of the Illinois Vehicle Code. Generally, these offenses are Class A misdemeanors (see Ill. Rev.Stat.1991, ch. 95½, par. 6-303(a) and 11-501(c)) which carry a term of imprisonment of less than one year. (Ill.Rev.Stat. 1991, ch. 38, par. 1005-8-3(a)(1).) In the instant case, however, these offenses were enhanced to Class 4 felonies because defendant had previously been convicted of driving under the influence of alcohol and driving while license revoked. (See Ill.Rev. Stat.1991, ch. 95½, pars. 6-303(d), 11-501(d).) The sentence for a Class 4 felony is imprisonment for not less than 1 year and not more than three years. (Ill.Rev. Stat.1991, ch. 38, par. 1005-8-1(a)(7).) The defendant had previously been convicted of burglary, a Class 2 felony, within the 10 years prior to defendant's instant convictions, excluding the time he spent in custody on the burglary conviction. Using the felony conviction in conjunction with defendant's Class 4 felonies in this case, the trial court found defendant to be eligible for extended-term sentences pursuant to section 5-5-3.2(b)(1) of the Unified Code of Corrections (Unified Code), which provides in pertinent part:

"(b) The following factors may be considered by the court as reasons to impose an extended term sentence * * *:
(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, when such conviction has occurred within 10 years after the previous conviction, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts." (Ill.Rev.Stat.1989, ch. 38, par. 1005-5-3.2(b)(1).)

As previously noted, the trial court found defendant to be eligible for extended-term sentences based upon defendant's 1989 burglary conviction. It is undisputed that this conviction was obtained within 10 years prior to defendant's instant convictions. It is also undisputed that burglary is a Class 2 felony. (See Ill.Rev.Stat.1991, ch. 38, par. 19-1(b).) Finally, there is no dispute that the instant conviction and the 1989 burglary conviction stem from completely separate incidents and were tried separately. All of the requirements for imposition of an extended-term sentence under 5-5-3.2(b)(1) were satisfied in this case. Nonetheless, defendant challenges the application of this provision on the grounds that it resulted in an impermissible double enhancement of his sentence. See People v. Gonzalez (1992), 151 Ill.2d 79, 175 Ill.Dec. 731, 600 N.E.2d 1189.

The defendant relies upon decisions in four of the five judicial districts in Illinois to support his position. Defendant claims that these districts have held that the imposition of an extended-term sentence under similar circumstances was erroneous. (People v. Hurd (5th Dist.1989), 190 Ill. App.3d 800, 138 Ill.Dec. 41, 546 N.E.2d 1096; People v. Nally (2d Dist.1985), 134 Ill.App.3d 865, 89 Ill.Dec. 630, 480 N.E.2d 1373; People v. Grayson (1st Dist.1983), 119 Ill.App.3d 252, 74 Ill.Dec. 943, 456 N.E.2d 664; People v. Spearman (3d Dist. 1982), 108 Ill.App.3d 237, 64 Ill.Dec. 1, 438 N.E.2d 1320 (overruled by People v. Martin (3d Dist.1992), 240 Ill.App.3d 260, 180 Ill.Dec. 188, 606 N.E.2d 1265).) Defendant also relies on People v. Hobbs (1981), 86 Ill.2d 242, 56 Ill.Dec. 363, 427 N.E.2d 558. In Hobbs, the defendant's misdemeanor theft conviction was enhanced to a felony by reason of a prior felorty theft conviction. The same prior felony theft conviction was then used to impose an extended-term sentence under section 5-5-3.2(1) of the Unified Code. In vacating the sentence, the supreme court stated:

"The crux of this issue is that defendant's conduct in taking the liquor, standing alone, was not a felony under Illinois law for the value of the liquor was less than $150. It became a felony only because defendant had a prior conviction for the same offense. Since the 1979 conduct itself was not a felony it does not appear to fit within the legislative intent manifested by section 5-5-3.2(b). We consider that an extended term could have been imposed if the 1979 *978 offense, exclusive of any other, had constituted a felony, and the earlier conviction had been of a felony at least as egregious. An extended term would have been permissible here, if, for example, the value of the liquor taken in 1979 had exceeded $150 so as to make its taking a felony. But it did not, and its taking became a felony under section 16-1(e) solely by reason of the 1978 felony conviction. To again use that 1978 felony conviction to trigger the court's authority to impose an extended term pursuant to section 5-5-3.2(b) is, in our judgment, incompatible with that section's requirement that the charges must be `separately brought and tried and arise out of different series of acts.' The logical interpretation of that language indicates an intent to severely punish a recidivist convicted of separate felonies within 10 years where the latest offense consisted of conduct which itself constituted a felony. Here, the 1979 conduct was a simple misdemeanor until the earlier conviction was added by allegation and proof, and these circumstances, in our judgment, are simply not those at which section 5-5-3.2(b) is aimed." (Emphasis in original.) Hobbs,

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People v. Niemeyer, 612 N.E.2d 975, 243 Ill. App. 3d 875, 184 Ill. Dec. 99 (Ill. Ct. App. 1993).

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