Before reaching the merits of defendant's appeal, it is necessary to address two preliminary matters. First, we note that after all of the briefs in this case were filed and the oral argument was heard, defendant pro se filed a document challenging the effectiveness of his appellate counsel for failure to raise a speedy trial issue. Defendant's counsel accordingly filed a motion to withdraw and for appointment of substitute counsel. We initially note that there is no obligation of appointed counsel to brief every conceivable issue on appeal, and it is not incompetence for counsel to refrain from raising those issues which, in his or her judgment, are without merit, unless the appraisal of the merits is patently wrong. (People v. Barnard (1984), 104 Ill. 2d 218, 230.) In any event, defendant does not have a right to representation both pro se and by counsel. (People v. Page (1987), 152 Ill. App. 3d 957, 959; People v. Guthrie (1978), 60 Ill. App. 3d 293, 297.) Accordingly, on the court's motion, defendant's pro se pleading is stricken from the record. Defendant's counsel's subsequent motion to withdraw as counsel on appeal and to appoint substitute appellate counsel is denied.
APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
530 N.E.2d 81, 175 Ill. App. 3d 700, 125 Ill. Dec. 163 1988.IL.1560
Appeal from the Circuit Court of Ogle County; the Hon. Alan W. Cargerman, Judge, presiding.
JUSTICE INGLIS delivered the opinion of the court. NASH, J., concurs. JUSTICE WOODWARD, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS
Defendant, Calvin Lighthall, was charged by an indictment with felony theft by deception. (Ill. Rev. Stat. 1985, ch. 38, par. 16-1(b)(1).) A jury found defendant guilty as charged, and the trial court sentenced him to serve an eight-year extended term of imprisonment. Defendant appeals, challenging the sufficiency of the evidence to sustain his conviction and the propriety of his extended-term sentence. We affirm.
The indictment charging defendant with felony theft by deception specifically alleged that between October 26, 1984, and May 5, 1985, he knowingly obtained by deception control over $11,954.80 belonging to the complainant, John W. Kennay, with the intent to deprive Kennay permanently of its use and benefit "in that he presented himself to John W. Kennay as an accountant or bookkeeper offering to keep the business records of the business operated by John W. Kennay and agreeing to pay bills and coordinate the finances of the business of John W. Kennay."
A jury trial was held on October 6 and 7, 1986. Kennay testified that in 1984, he was both a farmer and the owner of Duke's Health Club in Rochelle, Illinois. Sometime between August and October 1984, defendant came to the health club and offered to provide accounting services for the business. According to Kennay, defendant said that he was an accountant who went to various businesses and did their books on their premises. Kennay accepted the offer, and defendant began performing accounting services for him on or about October 1, 1984. It was agreed that defendant would keep records of all taxes owed by Kennay, balance his checkbook, and file tax returns at the end of the year.
After defendant had taken over as accountant, Kennay authorized Julie Johnson, the health club's manager, to draw checks on the health club account for the purposes of paying certain social security and unemployment taxes as well as State and Federal income taxes that were owed for the 1984 tax year on both Kennay's business and farm. Johnson wrote 11 checks on the health club account for the payment of these taxes. In addition, Kennay drew one check on his personal account, the memo portion of which identifies it as payment for 1982 Federal taxes. The checks totaled $11,954.80. Each of the checks was made out to defendant and included his professional fees as well as the tax liability. All were delivered to defendant by Johnson.
At some point in early 1985, Kennay received a notice from the Internal Revenue Service indicating that he was not making his quarterly tax payments. Kennay confronted defendant about the notice of overdue payments, and defendant stated that the taxing bodies apparently had failed to credit Kennay's account. Defendant said that he would take care of the problem.
Defendant worked for Kennay until May 1985, at which time defendant told Kennay that he "could not continue doing the books anymore." After May 1985, Kennay did not authorize any more checks to defendant. In February 1986, Kennay received a final notice from the Internal Revenue Service for delinquent Federal taxes from the period beginning in July 1984, and ending June 30, 1985. Kennay hired a certified public accountant, Tom Winebaugh, to refigure the taxes owed from spring 1984 until the closing of the health club in 1985. Winebaugh reported to Kennay that his Federal and State income taxes, Federal and State unemployment taxes, and social security taxes were overdue. Kennay subsequently paid unspecified amounts on the delinquent taxes.
Kennay's testimony was corroborated by Johnson and Winebaugh. In addition, defendant's grand jury testimony was read to the trial jurors. Before the grand jury, defendant testified that when he was first hired, Kennay was a quarterly payment or two behind on the Social Security tax. Although this fact was disputed at trial, defendant told the grand jury that it was Kennay's idea that the checks be written out to defendant. At the time he was handling Kennay's accounts, defendant was also handling the accounts of National Building Services (National), a Rockford maintenance company. National was having financial problems, and between 1980 or 1981 and 1985, defendant periodically loaned National money from his personal account. Defendant believed there was nothing abnormal or out of the ordinary about loaning a client money. According to defendant, this relationship with National "disrupted" his checking account, and as a result, defendant began using National's checking account as if it were his own for purposes of his accounting business. Accordingly, Kennay's checks were deposited in National's account, from which defendant stated that he intended to issue checks to pay Kennay's taxes. Defendant testified that before the checks were issued, National went bankrupt and the court attached its checking account, thereby encumbering the money given by Kennay to defendant. Defendant stated that he obtained money with which to pay Kennay's taxes from another client to whom he had previously loaned $25,000; however, he subsequently deposited that money into National's account, and it was also encumbered.
Defendant did not testify or present any additional evidence at trial. On the basis of the foregoing, the jury found defendant guilty. Defendant, who had been previously convicted of felony theft in Winnebago County in 1985, was tentatively sentenced to serve an extended term of eight years' imprisonment for the instant offense. The court ordered the parties to ascertain whether an extended term could be given under the circumstances at bar. After a hearing on that issue, the court subsequently determined that an extended term was authorized and reiterated its prior sentencing order. Defendant brought this timely appeal.
We further note that defendant did not file a motion for a new trial following the jury's verdict. Generally, the failure to make such a motion results in waiver of the issues sought to be raised on appeal. (People v. Marron (1986), 145 Ill. App. 3d 975, 977.) Exceptions to the waiver rule have been recognized where the defendant seeks review of constitutional issues which have properly been raised at trial and which can be raised later in a post-conviction proceeding, where the challenge attacks the sufficiency of the evidence, or where there is plain error. (People v. Enoch (1988), 122 Ill. 2d 176, 190; Marron, 145 Ill. App. 3d at 977.) The first issue raised by defendant in the instant action challenges the sufficiency of the evidence to sustain his conviction and is therefore reviewable notwithstanding defendant's failure to raise that issue in a post-trial motion. (See Enoch, 122 Ill. 2d at 190; Marron, 145 Ill. App. 3d at 977.) We also elect to review the second issue raised by defendant challenging the propriety of his extended-term sentence under the doctrine of plain error pursuant to Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)). See People v. Baker (1983), 114 Ill. App. 3d 803, 809.
Defendant first contends that the jury verdict was not supported by the State's evidence. Defendant argues that the evidence fails to prove that defendant's ultimate failure to deliver the payments to Federal and State taxing agencies was due to his specific intent to defraud Kennay, that Kennay was deceived by him, or that defendant took money from Kennay with the intent to permanently deprive him of its use and benefit. We disagree.
The indictment charges defendant with theft by deception pursuant to section 16-1(b)(1) of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1985, ch. 38, par. 16-1(b)(1)). That section provides that a person commits theft when he knowingly obtains by deception control over the property of the owner with the intent to permanently deprive the owner of its use and benefit. (Ill. Rev. Stat. 1985, ch. 38, par. 16-1(b)(1).) In order to sustain a conviction for theft by deception, as is charged here, the State is required to prove beyond a reasonable doubt that (1) the owner of the money which is the subject of the charge was induced to part with it; (2) the transfer of the money was based on deception; and (3) the recipient intended to permanently deprive the original owner of the money. (People v. Jensen (1982), 103 Ill. App. 3d 451, 454.) In addition, the State must prove that the defendant acted with the specific intent to defraud the victim. (See People v. Rolston (1983), 113 Ill. App. 3d 727, 731.) Whether the specific intent to defraud exists is a question of fact and does not have to be proved by direct evidence. (113 Ill. App. 3d at 731; People v. Ballard (1978), 65 Ill. App. 3d 831, 836.) Since direct evidence of specific intent to defraud is so rarely available, circumstantial evidence may be sufficient to sustain a conviction. (Rolston, 113 Ill. App. 3d at 731.) Thus, intent to defraud may be inferred from the facts and circumstances surrounding the transaction. (People v. Varellas (1985), 138 Ill. App. 3d 820, 826.) Questions of ...