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10/20/88 the People of the State of v. Lester Zeisler

October 20, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT

v.

LESTER ZEISLER, APPELLEE



SUPREME COURT OF ILLINOIS

531 N.E.2d 24, 125 Ill. 2d 42, 125 Ill. Dec. 845 1988.IL.1540

Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of McDonough County, the Hon. Charles Wilhelm, Judge, presiding.

APPELLATE Judges:

JUSTICE CUNNINGHAM delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CUNNINGHAM

Defendant, Lester Zeisler, filed a post-conviction petition on March 23, 1987, alleging that his 1981 conviction for aggravated arson (Ill. Rev. Stat. 1981, ch. 38, par. 20-1.1(a)(1)) should be reversed based on our decision in People v. Johnson (1986), 114 Ill. 2d 69, which held section 20-1.1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 20-1.1(a)(1)) unconstitutional. In affirming the circuit court of McDonough County, the appellate court held that defendant could not be convicted under the aggravated arson statute since an unconstitutional statute is void ab initio. (162 Ill. App. 3d 578.) We granted the People's petition for leave to appeal pursuant to Supreme Court Rules 315(b) and 612(a) (107 Ill. 2d Rules 315(b), 612(a)). We affirm the appellate court.

The record reveals the following sequence of events. On July 13, 1981, the People filed an information charging defendant with attempted murder and aggravated arson (Ill. Rev. Stat. 1981, ch. 38, pars. 8-4, 9-1, 20-1.1(a)(1)). After a jury trial, defendant was found guilty of aggravated arson, and not guilty of attempted murder. The circuit court subsequently sentenced defendant to a term of 30 years' imprisonment. On appeal, the appellate court affirmed the conviction and the sentence. (112 Ill. App. 3d 788.) We denied defendant's petition for leave to appeal (107 Ill. 2d R. 315). Defendant subsequently filed a petition in the United States Supreme Court. The Supreme Court granted certiorari, vacated the judgment, and remanded the cause to the appellate court (Zeisler v. Illinois (1984), 465 U.S. 1002, 79 L. Ed. 2d 225, 104 S. Ct. 990) to consider whether the warrantless search of defendant's apartment by a fire inspector violated defendant's fourth and fourteenth amendment rights in light of its decision in Michigan v. Clifford (1984), 464 U.S. 287, 78 L. Ed. 2d 477, 104 S. Ct. 641. On remand, the appellate court affirmed the order of the circuit court denying defendant's motion to suppress. People v. Zeisler (1984), 125 Ill. App. 3d 558, cert. denied (1985), 471 U.S. 1005, 85 L. Ed. 2d 163, 105 S. Ct. 1870.

Defendant then filed two post-conviction petitions pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq.). In one petition, he alleged that he was entitled to a reversal of his conviction because a People's witness, the victim, recanted her trial testimony. In the second petition, he alleged that he was entitled to a reversal of his conviction based on People v. Johnson (1986), 114 Ill. 2d 69. At the post-conviction hearing, the circuit court declared defendant's conviction of aggravated arson null and void and subject to attack at any time. Although the circuit court found that the evidence as to defendant's guilt was very strong, it held that defendant could not be convicted under the aggravated arson statute and subsequently vacated the conviction. The circuit court rejected the People's contention that arson was a lesser included offense of aggravated arson.

The People appealed, defendant cross-appealed, and the appellate court consolidated the appeals. The appellate court affirmed the decision of the circuit court without addressing defendant's cross-appeal regarding the recantation of the trial testimony of Betty Zeisler, a People's witness. 162 Ill. App. 3d 578.

The record reveals that when defendant was convicted of aggravated arson in 1981, the provisions of section 20 -- 1.1(a) at that time provided:

"Aggravated Arson. (a) A person commits aggravated arson when by means of fire or explosive he knowingly damages, partially or totally, any building or structure, including any adjacent building or structure, and (1) he knows or reasonably should know that one or more persons are present therein or (2) any person suffers great bodily harm, or permanent disability or disfigurement as a result of the fire or explosion or (3) a fireman or policeman who is present at the scene acting in the line of duty, is injured as a result of the fire or explosion." Ill. Rev. Stat. 1981, ch. 38, par. 20-1.1(a).

However, in People v. Wick (1985), 107 Ill. 2d 62, this court held subsection (3) of section 20-1.1(a) unconstitutional because of the General Assembly's failure to require culpable intent. This court held that since aggravated arson as defined by the statute does not require an unlawful purpose in setting a fire, the statute swept too broadly by punishing innocent as well as culpable conduct. In People v. Johnson, we deemed our reasoning in Wick controlling and held subsection (1) of section 20-1.1(a) (Ill. Rev. Stat. 1983, ch. 38, par. 20-1.1(a)(1)) unconstitutional.

No doubt the General Assembly, in enacting section 20 -- 1.1 intended to provide for an aggravated form of arson and intended the factors set out in subsections (1), (2) and (3) to enhance the offense of simple arson, a Class 2 felony, to aggravated arson, a Class X felony. However, in doing so it did not define the underlying offense of arson. After People v. Johnson, the General Assembly amended section 20 -- 1.1, effective December 9, 1985. The statute now provides:

"Aggravated Arson. (a) A person commits aggravated arson when in the course of committing arson he knowingly damages, partially or totally, any building or structure, including any adjacent building or structure . . .." ...


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