APPEAL from the Circuit Court of Peoria County; the Hon.
CALVIN R. STONE, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 25, 1980.
Following a bench trial, defendant Willie R. Cole was convicted of escape (Ill. Rev. Stat. 1977, ch. 38, par. 31-6(a)), and sentenced to a 3-year term of imprisonment to run consecutively to a term he was already serving.
The evidence at trial established that defendant was serving a 2- to 10-year sentence for burglary at the Peoria Community Correctional Center. He received permission to leave the Center on a 4-day furlough beginning June 10, 1977. On the second day of the furlough a resident counselor of the Center found defendant and told him to telephone the Center. Upon doing so, defendant was informed that his furlough had been terminated, and that he should report back to the Center. Defendant never returned.
Defendant's first contention on appeal is that he was not proved guilty beyond a reasonable doubt. His argument in this regard has three parts. The statute under which he was convicted, section 31-6(a) of the Criminal Code of 1961, provides, "A person convicted 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).
1 Defendant contends the Peoria Community Correctional Center is not a "penal institution" within the meaning of the statute. Under Supreme Court Rule 341(e)(7), since this issue was raised for the first time in defendant's reply brief, it has been waived. Ill. Rev. Stat. 1977, ch. 110A, par. 341(e)(7).
In addition, defendant claims the State failed to prove that he "escaped" from a penal institution within the meaning of the statute, citing section 3-6-4(a) of the Unified Code of Corrections which provides, in part, "A committed person who escapes or attempts to escape from an institution or facility of the Adult Division * * * is guilty of a Class 2 felony. 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).) Defendant maintains that "escape" as used in section 3-6-4(a) does not include failing to return from furlough. Citing In re Estate of Kritsch (1978), 65 Ill. App.3d 404, 382 N.E.2d 50, for the proposition that statutes relating to the same subject matter should be considered together in ascertaining legislative intent, he contends that "escape" as used in section 31-6(a) of the Criminal Code should be construed as not to include failing to return from furlough. He maintains that such a construction is buttressed by the "commonly understood" meaning of "escape." As further support for his argument defendant says that failing to return from furlough poses less danger of violence than an "active" escape from a penal institution which would be resisted by the authorities, and that, therefore, the legislature chose to distinguish escape from failure to return from furlough and to punish the former more severely than the latter.
2 We find these arguments unpersuasive. In People v. Tomer (1973), 11 Ill. App.3d 157, 296 N.E.2d 370, the defendant was taken from the county jail to the home of his elderly parents by a deputy sheriff who gave him permission to make the visit. While the deputy sheriff waited in a car in front of the home, the defendant departed by the back door and fled the county. Defendant's conviction for escape under section 31-6(a) of the Criminal Code was affirmed. Although the defendant did not raise the issue of whether he "escaped" from the custody of the deputy sheriff within the meaning of the statute, the Tomer case lends support to the proposition that by failing to return to the penal institution or the employees thereof as required, the defendant "escaped" within the meaning of the statute. As the Tomer court stated, "A prisoner who is free from close confinement and walks away is guilty of escape." (11 Ill. App.3d 157, 161.) Furthermore, we do not think that such a construction of the term "escape" renders section 3-6-4(a) of the Unified Code of Corrections internally or externally inconsistent. By enacting provisions generally prohibiting escape and classifying it a Class 2 felony, and enacting another provision specifically prohibiting failure to return from furlough and classifying it a Class 3 felony, the legislature might well have intended to confer discretion on the prosecutor to charge failure to return from furlough under the provision most appropriate in a particular case. See People v. McCollough (1974), 57 Ill.2d 440, 313 N.E.2d 462.
3 Defendant also asserts that the State failed to prove he was in custody at the time of the escape. This argument is without merit because defendant was charged under section 31-6(a) with escaping "from [a] penal institution," not "from the custody of an employee of that institution," and therefore, the State was not required to prove that he was in custody.
Defendant's final contention is that even if his conduct was in violation of section 31-6(a), the prosecutor was required to charge him under section 3-6-4(a), which deals specifically with failing to return from furlough, because in section 3-13-4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1003-13-4(b)), the legislature indicated its intent that section 3-6-4(a) apply to the exclusion of section 31-6(a). We think reliance upon section 3-13-4(b) is misplaced.
4 Article 13 of the Criminal Code is entitled "Work and Day Release," and section 3-13-4 under that Article provides:
"(a) The Department shall establish rules governing release status * * *. * * *
(b) If a committed person violates any rule, the Department may impose sanctions appropriate to the violation. The Department shall provide sanctions for unauthorized absences which shall include prosecution for escape under Section 3-6-4."
Defendant insists that his failure to return from furlough was an "unauthorized absence" which section 3-13-4(b) requires the State to prosecute under section 3-6-4(a). However, section 3-13-4(b) clearly refers only to unauthorized absences in connection with work or day release, not those resulting from failure to return from furlough. The fact that defendant was on furlough from a work- and day-release facility is immaterial since section 3-13-4 is concerned with the regulation of "release status," not release facilities. Finally, we have found ...