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12/30/87 the People of the State of v. Terry Hicks

December 30, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

TERRY HICKS, APPELLANT



SUPREME COURT OF ILLINOIS

518 N.E.2d 148, 119 Ill. 2d 29, 115 Ill. Dec. 623 1987.IL.1952

Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Montgomery County, the Hon. Mark M. Joy, Judge, presiding.

APPELLATE Judges:

JUSTICE MORAN delivered the opinion of the court. CHIEF JUSTICE CLARK, Dissenting. JUSTICE SIMON joins in this Dissent. JUSTICE SIMON, also Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN

Following a jury trial in the circuit court of Montgomery County, defendant, Terry Hicks, was convicted of burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19-1) and theft (Ill. Rev. Stat. 1983, ch. 38, par. 16-1) and sentenced to concurrent terms of five years on the burglary conviction and 1 1/2 years on the theft conviction. Defendant appealed alleging that proof of his prior theft was improperly admitted during the evidentiary phase of trial in order to elevate the offense from misdemeanor theft to felony theft. Defendant contended that evidence of his prior theft conviction should have been considered only in sentencing. The appellate court affirmed the judgment of the trial court. (150 Ill. App. 3d 242.) We granted leave to appeal (107 Ill. 2d R. 315).

A single issue is present for our consideration: whether, under the terms of an enhancement provision, proof of a defendant's prior theft conviction is a necessary element of the offense of felony theft such that it must be proved during the evidentiary phase of trial.

The statute in question provides in part:

"(e) Sentence.

(1) Theft of property, other than a firearm, not from the person and not exceeding $300 in value is a Class A misdemeanor. A second or subsequent offense after a conviction of any type of theft, including retail theft, other than theft of a firearm, is a Class 4 felony." Ill. Rev. Stat. 1983, ch. 38, par. 16-1(e)(1).

The statute thus provides that a theft is ordinarily a misdemeanor offense and that in order to secure a conviction for felony theft the State must prove that the defendant had a previous theft conviction. Proof of this prior theft conviction, defendant maintains, should not have been introduced at trial since it is not an element of the offense of felony theft and only concerns the severity of the sentence to be imposed. Moreover, defendant asserts that he was prejudiced by the admission at trial of his previous theft conviction since it could have led the jury to conclude that it was more likely that he committed the instant offense. Defendant further argues that his position is buttressed by the court's decision in People v. Hayes (1981), 87 Ill. 2d 95, wherein the court suggested that in a trial for retail theft, proof of a prior retail theft conviction need not be presented to the jury in order to elevate the offense from a misdemeanor to a felony but need only be proved at sentencing.

The State argues that the prior theft conviction is a necessary element of the offense of felony theft and therefore must be proved during the evidentiary phase of trial. It argues that where, as here, the prior conviction changes the nature of the offense from a misdemeanor to a felony, rather than merely enhance the sentence, proof of the prior conviction must be presented to the jury. We agree. In our view, Disposition of this case is controlled by our most recent pronouncement on the subject in People v. Palmer (1984), 104 Ill. 2d 340. In Palmer the court reaffirmed a long line of cases holding, under a similar statutory scheme, that in order to obtain a conviction for the felony offense of unlawful use of weapons the State must both allege and prove the prior conviction during the evidentiary phase of trial. See People v. Ostrand (1966), 35 Ill. 2d 520, 529, overruled in part on other grounds, People v. Bracey (1972), 51 Ill. 2d 514; People v. Owens (1967), 37 Ill. 2d 131, 132; People v. Edwards (1976), 63 Ill. 2d 134, 138; People ex rel. Carey v. Pincham (1979), 76 Ill. 2d 478, 480. See also Spencer v. Texas (1967), 385 U.S. 554, 17 L. Ed. 2d 606, 87 S. Ct. 648 (recidivist statutes which provide that proof of prior conviction be introduced and proved during the guilt or innocence phase of trial do not offend due process. "e find it impossible to say that because of the possibility of some collateral prejudice the Texas procedure is rendered unconstitutional under the Due Process Clause." 385 U.S. 554, 564, 17 L. Ed. 2d 606, 614, 87 S. Ct. 648, 654).

Defendant argues that Hayes controls the outcome of this case inasmuch as Hayes involved a theft offense while Palmer involved the unlawful use of weapons. However, we cannot perceive, and defendant does not suggest, any principled reason why theft cases should be treated any differently than unlawful use of weapons cases in this instance. Where the prior conviction is an element of the felony offense of unlawful use of weapons then so too should the prior conviction be an element of the felony offense of theft under similar statutes. As such, we view no reason why theft cases should be taken outside of our most recent pronouncement in Palmer. More importantly, however, Palmer itself dismissed as dicta the suggestion in Hayes that the prior conviction need only be proved at sentencing. The Palmer court stated:

"e cannot agree with the defendant's Conclusion that under Hayes the prior felony need not be proved at trial. The aforesaid language of that opinion must be interpreted within the factual circumstances presented in that case. The defendant in Hayes was claiming prejudice as a result of the State's failure to include an allegation that the pending charge was a second or subsequent offense. She was not claiming that the allegation and proof of the prior conviction should have been excluded as prejudicial, as did the defendants in Ostrand and Owens. Therefore, the issue of whether prejudice results when the State alleges and proves the prior conviction was not presented in Hayes. Accordingly, any comment the court made regarding that issue is properly characterized as dicta, which is not binding authority within the rule of stare decisis. [Citation.] Thus Hayes holds only that, where a defendant has notice that she is being tried as a felon, a felony conviction ...


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