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People v. Marble

OPINION FILED APRIL 21, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

FREDERICK MARBLE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROGER J. KILEY, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Defendant Frederick Marble was indicted for escape in violation of section 31-6(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 31-6(a)) and "Enforcement of Discipline — Escape," in violation of section 3-6-4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1003-6-4(a)) for failing to return to the Chicago Work Release Center of the Cook County Department of Corrections. After a bench trial, defendant was found guilty of both counts. The trial judge merged the two convictions and sentenced defendant to a determinate sentence of three years' imprisonment. Defendant appealed.

On appeal, defendant argues (1) his conviction under section 3-6-4(a) was improper since at no time had he been sentenced to the custody of the Illinois Department of Corrections; thus, section 3-6-4(a) was inapplicable and (2) that he should not have been found guilty of escape pursuant to section 31-6(a) since he did not escape from confinement at a penal institution or from a penal employee.

We reverse.

The facts are not disputed. In July of 1978, defendant Frederick Marble was a participant in the work release program supervised by the Chicago Work Release Center of the Cook County Department of Corrections. On July 7, 1978, defendant left the work release center on an authorized absence, but failed to return at the end of his work day.

Subsequently, defendant was charged by a two-count indictment with the offense of escape in violation of section 31-6(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 31-6(a)) and section 3-6-4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1003-6-4(a)). After a bench trial, he was found guilty of both counts. The trial judge merged the two convictions and sentenced defendant to a determinate sentence of three years, the minimum sentence allowed for the Class 2 felony of escape under section 31-6(a). Defendant appealed.

• 1 Defendant first argues that it was improper for him to be convicted under section 3-6-4(a) since he was never sentenced to the custody of the Illinois Department of Corrections, but was merely under the supervision of the Cook County Department of Corrections, a separate and autonomous institution.

In its briefs, the State initially argued that the work release center, Cook County jail was an extension of the Illinois Department of Corrections through section 5-7-3(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005-7-3(c)) which authorizes the Director of the Department of Corrections to certify appropriate institutions to administer sentences of periodic imprisonment. The State concluded that in this case "the Chicago Work Release Center of Cook County Jail is merely a substitute for the State Department of Corrections."

In its petition for rehearing, however, the State now concedes that the work release center of the Cook County jail is not an institution certified by the Department of Corrections pursuant to section 5-7-3(c). The affidavit of Anthony M. Scilla, Deputy Director of Community Services for the Illinois Department of Corrections, states that neither the Cook County jail nor the Chicago work release center has been certified pursuant to section 5-7-3(c). In fact, there exists no such certified institution "in or around Cook County." The State now concedes that the Illinois Department of Corrections "had no interest in or authority over any aspect of the defendant's incarceration at the Chicago Work Release Center" yet argues that defendant's conviction under section 3-6-4(a) was proper since the work release program administered by the county serves the same purpose and is equivalent to similar programs administered by the State.

We find this new position contradictory and unconvincing. The State has admitted that it did not have any interest or jurisdiction over defendant's participation in the work release program of the Cook County jail. Yet the State attempts to punish defendant for his unauthorized absence from that program under section 3-6-4(a), a statute which pertains only to work release programs administered by the Illinois Department of Corrections. This position is obviously untenable. We therefore reverse defendant's conviction under section 3-6-4(a).

• 2 Defendant next argues that his conviction for escape under section 31-6(a) was improper since its express terms require that the escape actually be from a penal institution or a penal employee. Failure to return to a work release center is an entirely different situation and one not intended by the legislature to be governed by section 31-6(a).

We agree. Section 31-6(a) provides:

"A person convicted of a felony, or charged with the commission of a felony who intentionally escapes from any penal institution or from the custody of an employee of that institution commits a Class 2 felony." (Ill. Rev. Stat. 1977, ch. 38, par. 31-6(a).)

The Committee Comments note that the escape "must be from a penal institution or from an employee of a penal institution." (Ill. Ann. Stat., ch. 38, par. 31-6(a), Committee Comments, at 324 (Smith-Hurd 1977).) We believe the legislature's intent to be that an escape "from any penal institution" does not include failure to return from authorized absences. If section 31-6(a), which is a Class 2 felony, were applicable to the present situation, as the State contends, then it would have been unnecessary for the legislature to have drafted section 3-6-4(a), which expressly provides in part: "A committed person who fails to return from furlough or from work and day release is guilty of a Class 3 felony." (Ill. Rev. Stat. 1977, ch. 38, par. 1003-6-4(a).) These statutes were created to address two entirely different situations, which we believe is precisely why a different penalty is imposed under each. A ...


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