APPEAL from the Circuit Court of Williamson County; the Hon.
WILLIAM A. LEWIS, Judge, presiding.
MR. JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
Defendant, Gregory Don Starnes, of Creal Springs, Illinois, appeals from a conviction for theft of property over $150 in value (Ill. Rev. Stat. 1977, ch. 38, par. 16-1(e)(1)) in the circuit court of Williamson County. Trial was conducted on November 21 and 22, 1978, and judgment entered December 29, 1978, imposing a three-year term of imprisonment to be served consecutively upon the expiration of sentences ordered by the Williamson County Circuit Court in cases numbered 75-CF-230, 75-CF-231 and 76-CF-26. Appellant contends (1) that the proceedings below failed to prove him guilty beyond a reasonable doubt, (2) that improper aggravating factors were considered in sentencing, and (3) that it was erroneous for the court to impose a sentence which was to be served consecutive to an anticipated revocation of parole stemming from incarceration in connection with the above-mentioned cases. We affirm the judgment of the circuit court.
Theft of a Hodaka motorcycle from the porch of its owner's home was reported on August 17, 1978, and testimony indicated the taking occurred sometime during the late evening of the 16th or the early morning of the 17th of August. Defendant's neighbor, Roy Lambert, witnessed Starnes wheeling the vehicle toward a wooded area at the back of the Lambert home on the afternoon of August 18. A short time later the witness saw him walking back toward the Starnes home without the motorcycle. Lambert walked back into the area where he had seen Starnes headed and discovered the vehicle covered with brush collected from the surrounding area. Lambert testified that he phoned the Williamson County Sheriff's Department after noting its serial number and Deputy James Odom responded to the call. The defendant was identified as the party Lambert had seen, and largely based on this identification and subsequent photographic and in-court identification Starnes was found guilty.
• 1 Appellant contends that the evidence admitted by the State at trial was insufficient to demonstrate his guilt beyond a reasonable doubt. The State counters by arguing that the issue has been waived since in its estimation the matter was not brought to the court's attention in a post-trial motion. Generally, issues not preserved in a written post-trial motion are deemed to have been waived. (People v. Pickett (1973), 54 Ill.2d 280, 282, 296 N.E.2d 856.) However, the "failure to prove a material allegation of an indictment beyond a reasonable doubt is fatal to a judgment of conviction, and the question may be raised for the first time upon review. [Citations.]" (People v. Walker (1955), 7 Ill.2d 158, 160, 130 N.E.2d 182; see People v. Harrawood (1978), 66 Ill. App.3d 163, 168, 383 N.E.2d 707.) Such an insufficiency in the evidence presented may, at the discretion of the appellate court, be noticed under the exception for plain error necessary to mitigate the harshness of the waiver rule where justice so demands. Both Walker and Harrawood addressed the issue of variance between the evidence adduced at trial and the essential elements stated in the indictment charging the offense. Appellant's post-trial motion in the present cause expressly argues for an allegedly fatal variance with considerable specificity. We must agree with the prosecution, however, that appellant's brief makes contentions distinguishable from matters raised by post-trial motion. The bulk of the argument before us attacks the sufficiency of proof in respect to the credibility and veracity of the State's chief witness. Lambert's identification of the defendant is said to be questionable considering the conditions under which he observed Starnes so that his testimony cannot have been properly considered clear and convincing. Additionally, counsel suggests a self-serving motivation on the part of the witness in contacting the sheriff's department. None of these matters is addressed in even general terms by the post-trial motion.
• 2 Nor do we find in the present record evidence so closely balanced that the issue is properly reviewable in the absence of preservation below. (People v. Howell (1975), 60 Ill.2d 117, 120-21, 324 N.E.2d 403; People v. Richardson (1977), 49 Ill. App.3d 170, 172, 363 N.E.2d 924.) Thus, appellant's argument as to the sufficiency of the evidence is not properly before this court.
The remaining issues relate to the sentencing of the defendant. First, it is argued that the court below mistakenly construed section 5-5-3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005-5-3.2(a)(2)), a subsection of chapter V of the Unified Code of Corrections concerning factors in aggravation during the presentencing procedure. Specifically, the trial court lent a meaning to the word "compensation" which is disputed by the appellant. The germane portion of the statute reads:
"(a) The following factors shall be accorded weight in favor of imposing a term of imprisonment or may be considered by the court as reasons to impose a more severe sentence under Section 5-8-1:
(2) the defendant received compensation for committing the offense."
It is his position that the legislative intent of the words "compensation for committing the offense" could not have been based in the desire to penalize an offender for temporarily acquiring or retaining the fruits of a crime, such as, in the instant case of theft, the motorcycle which was taken. Rather, it was intended to respond to situations in which remuneration was provided by another as consideration for the accomplished or intended criminal act. Starnes persuasively argues that neither the plain meaning nor the grammatical construction of the phrase can logically be considered to convey the meaning found in the trial court's interpretation of "compensation."
• 3 The State cites People v. Conover (1980), 83 Ill. App.3d 87, 403 N.E.2d 708, as direct authority favoring the trial court's application of this meaning. It is beyond dispute that the majority in that case so interpreted the statutory language. However, we find it necessary to agree with the dissenting opinion of Justice Stouder in Conover. Unlike the majority, we would attribute a meaning to the phrase which is identical to that found present in section 9-1(b)(5) of the Criminal Code of 1961 (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 9-1(b)(5)), which contemplates aggravating factors pointing toward the imposition of the death penalty for murder. There the statutory language expressly refers to "a contract, agreement or understanding by which [the offender] was to receive * * * anything of value in return for committing the murder * * *." We believe that section 5-5-3.2(a)(2) is not inconsistent with but a more concise statement of the same principle enacted in regard to murder for hire. If such were not the case, every accomplished act of theft, burglary, robbery, or other crime, the immediate fruits of which temporarily or permanently enrich the perpetrator, would fall into the category of an offense committed for compensation. Such a factor in aggravation would amount to twice punishing the culprit for the same material element of a given crime by means of enhancing an otherwise less severe sentence. Put another way, such a construction confuses the elements of the crime itself with the context of its commission.
• 4 Although we find the trial court's interpretation and application of section 5-5-3.2(a)(2) erroneous, we do not believe that the sentence imposed would have been different had the matter not been considered. Since the defendant's perceived attitude and demeanor during the proceedings coupled with his prior criminal record were the chief factors leading to the determination of sentence, we find that the consideration of the issue of compensation was harmless error. See, e.g., People v. Jones (1977), 56 Ill. App.3d 600, 606, 371 N.E.2d 1150.
Appellant next argues that the trial court improperly enhanced the sentence imposed in the belief that Starnes perjured himself in presenting his defense. Pertinent excerpts of the court's commentary in passing sentence are set forth below:
"Now the jury heard all the testimony and decided that you were not telling the truth. They didn't believe you. They believed Mr. Lambert and the circumstances surrounding the offense — the motorcycle was back of Mr. Lambert's house and in close proximity to your house — and they heard your alibi which I might say I thought was pretty far-fetched myself — and I think the jury obviously felt such. * * * So at any rate, I think it was pretty clear that the jury didn't buy your story. * * * Now the Supreme Court of the United States has recently ruled that the Court can consider the fact that a person has not told the truth when he testified in his defense. * * * I believe that I can consider and will consider is [sic] that if a person feels remorse for the crime he committed then he is half way to being rehabilitated. If an individual realizes that he's done wrong and says `I committed the crime — I'm sorry — go ahead and pass sentence — I won't do it again' — then you sort of have a feeling in experience with people that that individual realizes that he does have a problem and he's sorry for what he's done and I think the Court should grant some mercy, as opposed to an individual who says `I didn't do it', and takes the witness stand and tells some outlandish story and then is found guilty by a jury. * * * Here it was a situation where the jury either believed you or believed the State's case. Obviously they believed the State's case which leads me to think that after observing you in the trial and all that you're not remorseful — you're not sad — and from your past record it appears that you really don't care. The property was there — it was easy to take — so you took it. I believe that somewhere or other you've lost the morality that most of us have * * *. I have to some way fashion a sentence now which — try to take into consideration protection of society and at the same time because of your young age think that maybe you will change. Everybody makes mistakes. I've made a million of them myself and I make them every day so you can change if you want to. At any rate the State wants ten years and you want probation. One to three didn't do you any good last time. So I'm going to take into consideration the fact that it didn't and I'm going to sentence you to the Department of Corrections for a term of imprisonment of three years."
The Supreme Court opinion referred to is United States v. Grayson (1978), 438 U.S. 41, 57 L.Ed.2d 582, 98 S.Ct. 2610, which involved the Federal criminal prosecution of an inmate for prison escape under 18 U.S.C. § 751(a)(1976). The court was requested to rule upon the issue of whether it is improper for a sentencing judge to give consideration to a defendant's false testimony observed during trial. The defendant argued that to do so would constitute punishment for the crime of perjury where there had been no indictment, trial or conviction, a violation of due process of law. He also contended that it would effectively "chill" the exercise of a defendant's right to testify in his own behalf. The focus of the Grayson majority in reaching its determination was on the various purposes of incarceration, paramount among which it considered the relatively modern concept of rehabilitation. (United States v. Grayson (1978), 438 U.S. 41, 46, 57 L.Ed.2d 582, 587, 98 S.Ct. 2610, 2613-14; see also Ill. Rev. Stat. 1977, ch. 38, par. 1001-1-2(a).) Especially significant in this regard is the concern of the sentencing judge in predicting rehabilitative potential through the use of ...