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12/31/87 the People of the State of v. Philip Burke

December 31, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

PHILIP BURKE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

517 N.E.2d 1191, 164 Ill. App. 3d 468, 115 Ill. Dec. 505 1987.IL.1996

Appeal from the Circuit Court of Lake County; the Hon. John L. Hughes, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. LINDBERG, P.J., and WOODWARD, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

The defendant, Philip Burke, was charged by information with six counts of deceptive practice. (Ill. Rev. Stat. 1985, ch. 38, par. 17-1(d).) After a jury trial, the defendant was convicted on all counts and sentenced to concurrent three-year terms of imprisonment. The office of the State Appellate Defender was appointed to represent defendant on appeal and raised the following issues: (1) whether the prosecutor's reference to defendant's prearrest and post-arrest silence denied him a fair trial; (2) whether the trial Judge prejudiciously injected his personal knowledge into the sentencing determination; and (3) whether the defendant was properly convicted of six counts of felony deceptive practice.

After defendant filed his reply brief, but prior to the scheduled date for oral argument, we allowed defendant's motion to substitute counsel. Thereafter, we granted substitute counsel leave to file a supplemental brief, set a supplemental briefing schedule, and rescheduled oral argument. Defendant's motion for leave to file late his supplemental reply brief, which was taken with the case, is granted. In his supplemental brief, defendant argues the insufficiency of the proof at trial and the insufficiency of the indictment precluded defendant from being convicted of felony deceptive practices. At oral argument, defendant waived consideration of the second and third issues raised by the appellate defender except as they related to the arguments raised in his supplemental brief. We agree with defendant that the second argument raised by the appellate defender is without merit. We therefore shall confine our Discussion to the first issue raised by the appellate defender and the defendant's challenges to his six felony convictions.

Defendant's convictions stemmed from his delivery of six checks between March 1 and March 26, 1985. The total amount of the checks was $329.94. None of the checks exceeded $150. Five of the checks were delivered to a Piggly Wiggly grocery store between March 1 and 5; the sixth check was delivered to an auto parts store on March 26. The checks were written upon defendant's business account at the Citizens Bank.

Defendant first argues the prosecutor's references to his prearrest and post-arrest silence denied him a fair trial. In support of his argument, defendant relies exclusively on two recent cases that decided issues concerning prearrest and post-arrest silence on the basis of Illinois evidentiary rules. (People v. Nolan (1987), 152 Ill. App. 3d 260; People v. McMullin (1985), 138 Ill. App. 3d 872.) The failure to invoke a rule of evidence by timely objection waives consideration of the issue on appeal. (People v. Neidhofer (1986), 150 Ill. App. 3d 518, 521-22.) Defendant did not object at trial or in his post-trial motion to the testimony and comment he now claims were prejudicial. Therefore, this issue is waived. We decline to accept defendant's invitation to address his claims under the plain error rule because we do not believe the evidence was closely balanced. (Compare McMullin, 138 Ill. App. 3d at 876.) Furthermore, our review reveals that the error, if any, was harmless.

We proceed to the central focus of defendant's appeal. In essence, defendant contends he was improperly convicted and sentenced on six counts of felony deceptive practice. The appellate defender argued only one felony conviction and sentence should have been entered. Substitute counsel argues defendant's felony convictions cannot stand and requests this court to either remand the case for the imposition of sentence on a misdemeanor basis or for a new trial on a felony basis.

Section 17 -- 1(d) of the Criminal Code of 1961 provides in pertinent part:

"A person commits a deceptive practice when, with intent to defraud:

(d) With intent to obtain control over property or to pay for property, labor or services of another, . . . he issues or delivers a check or other order upon a real or fictitious depository for the payment of ...


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