APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
520 N.E.2d 890, 165 Ill. App. 3d 996, 117 Ill. Dec. 539 1988.IL.49
Date Filed: January 20, 1988; As Amended July 26, 1988.
Appeal from the Circuit Court of Cook County; the Hon. William Cousins, Judge, presiding.
JUSTICE FREEMAN delivered the opinion of the court. WHITE, P.J., and McNAMARA, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
After a bench trial in the circuit court of Cook County, defendant, Johnny Bryant, and his codefendant, Randall Williams, were convicted of possession of a stolen motor vehicle, a Class 2 felony. (Ill. Rev. Stat. 1985, ch. 95 1/2, pars. 4-103(a)(1), (b).) The trial court sentenced Williams to two years' probation and defendant to 3 1/2 years' imprisonment.
In view of our Disposition of this appeal, we will not restate the facts of the case other than to note that this was defendant's first conviction for possession of a stolen motor vehicle and that there was no evidence at trial that defendant was involved in organized vehicle theft as a profession. Moreover, as we find the first issue defendant raises to be dispositive, we need not address the remaining issues.
Defendant contends section 4-103(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 4-103(b)), under which he was convicted, violates the Illinois Constitution's guarantees of due process and proportionate penalties (Ill. Const. 1970, art. I, §§ 2, 11). Defendant's argument follows. The legislative history of the recent amendments to the Illinois Motor Vehicle Code in Public Act 83-1473 (1984 Ill. Laws 3636-88), effective January 1, 1985, evidences that the evils the legislature intended to eliminate thereby were organized motor vehicle theft and "chop shop" operations. These amendments reflect a legislative determination that organized motor vehicle theft and trafficking in stolen motor vehicle parts are more serious offenses than a first-time conviction for possession of a stolen motor vehicle and that persons involved in those activities should be treated more severely than those who, although charged with possession of a stolen motor vehicle, are not involved in organized criminality.
His argument continues. Prior to these amendments, a first-time conviction for possession of a stolen motor vehicle had been classified a Class 4 and Class 3 felony, while subsequent convictions were classified as Class 3 and Class 2 felonies. (Compare Ill. Rev. Stat. 1981, ch. 95 1/2, par. 4-103(b) with Ill. Rev. Stat. 1983, ch. 95 1/2, par. 4-103(b).) The amendment in Public Act 83-1473 reclassifying any conviction for possession of a stolen motor vehicle as a Class 2 felony is not reasonably designed to achieve the legislative end intended. This is because it unconstitutionally inflicts a greater penalty, i.e., that of a Class 2 felony, on an offense, i.e., possession of a stolen motor vehicle, which is less serious than that sought to be eliminated, i.e., organized motor vehicle theft, which is punishable as theft, a Class 3 felony if the value of the property stolen exceeds $300, under section 16-1(e)(3) of the Criminal Code of 1961. (Ill. Rev. Stat. 1985, ch. 38, par. 16-1(e)(3).) Finally, the legislative goal of penalizing the professional car thief and "chop shop" operator was more effectively accomplished before the 1985 amendments because the statutory scheme of increasing the punishment for a second conviction was more reasonably designed to assure that the more severe sentence was imposed on a defendant most likely to be engaged in the possession of stolen motor vehicles as a business.
Initially, we must address whether, as the State contends, defendant waived the issue of the constitutionality of section 4 -- 103(b) by failing to raise it in the trial court. On this issue, Illinois courts follow two divergent views. (Compare People v. Luckey (1969), 42 Ill. 2d 115, 245 N.E.2d 769, cert. denied (1970), 397 U.S. 942, 25 L. Ed. 2d 122, 90 S. Ct. 955 (issue of constitutionality of a statute is properly preserved for review only when raised in and passed upon by the trial court), with People v. Wagner (1982), 89 Ill. 2d 308, 433 N.E.2d 267 (conviction under an unconstitutional statute is void and can be attacked at any time without necessity to preserve error by post-trial motion).) As such, we deem it in the interests of Justice to consider this issue despite defendant's failure to preserve it below.
Our resolution of this issue is guided by two cases in which our supreme court has considered similar challenges to penal statutes. In considering whether the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1100 et seq.) violated the due process clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 2), the court in People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029, stated:
"It is the general rule that the legislature, under the State's police power, has wide discretion to prescribe penalties for defined offenses. [Citation.] The legislature's power to fix penalties is, however, subject to the constitutional proscription which prohibits the deprivation of liberty without due process of law. [Citations.]
'We have consistently stated that the standard of a proper exercise of the police power is whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the ...