SUPREME COURT OF ILLINOIS
539 N.E.2d 1221, 128 Ill. 2d 448, 132 Ill. Dec. 415 1989.IL.744
Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. William Cousins, Judge, presiding.
CHIEF JUSTICE MORAN delivered the opinion of the court.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN
Defendant, Johnny Bryant, was charged by information in the circuit court of Cook County with one count of possession of a stolen motor vehicle in violation of section 4-103(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 4-103(a)(1)). Defendant waived a jury trial, and the circuit court found him guilty of possession of a stolen motor vehicle, a Class 2 felony (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 4-103(b)). The circuit court sentenced defendant to 3 1/2 years in prison. Defendant appealed his conviction, claiming that section 4-103(b) of the Vehicle Code violates the due process and proportionate penalty clauses of the Illinois Constitution (Ill. Const. 1970, art. I, §§ 2, 11).
On appeal, the appellate court vacated defendant's conviction, finding section 4 -- 103(b) of the Vehicle Code unconstitutional. (165 Ill. App. 3d 996.) The appellate court held that section 4 -- 103(b) of the Vehicle Code violates the due process and proportionate penalties clauses of the Illinois Constitution: first, because the legislature intended to increase the penalty for possession of a stolen motor vehicle in order to deter organized motor vehicle theft, but instead created an unconstitutional statutory scheme which punishes possessors of stolen motor vehicles more severely than organized motor vehicle thieves (165 Ill. App. 3d at 1001, 1004); and, second, because possession of a stolen motor vehicle is a lesser included offense of theft and, thus, the lesser included offense is punished more severely than the greater offense. (165 Ill. App. 3d at 1002.) This court granted the State's petition for appeal as a matter of right (107 Ill. 2d R. 317).
There are three issues presented for review: (1) whether defendant waived the issue regarding the constitutionality of section 4 -- 103(b) of the Vehicle Code by failing to raise it in the circuit court; (2) if not, whether section 4 -- 103(b) of the Vehicle Code is constitutional; and (3) whether defendant was denied effective assistance of counsel in the circuit court.
On September 26, 1985, at approximately 3:30 a.m., two officers of the Chicago police department watched as defendant and his companion, Williams, pushed a 1974 Yamaha motorcycle into a closed service station. The police officers pulled into the service station and stepped out of their squad car. Williams began to walk away saying, "I got nothing to do with this." The police officers stopped Williams and asked him who owned the motorcycle. Williams told them that friends had given him and defendant the motorcycle. When the police officers asked Williams why he and defendant were pushing the motorcycle, he told them that the motorcycle would not start because of mechanical difficulties. The police officers posed the same questions to defendant. Defendant told them that the motorcycle was his and that they had to push it because he lost the key.
The police officers checked the license plate and vehicle identification number by means of mobile computer and learned that a Fred Miller owned the motorcycle. The police officers contacted Miller and he told them that he held title to a 1974 Yamaha motorcycle, VIN 3711285382. He also told the police officers that he did not give defendant or Williams permission to take, use or have possession of the motorcycle. Miller further stated that he was in the process of selling the motorcycle to a Richard Rice, who had possession of the motorcycle.
The police officers contacted Rice who told them that he was in the process of purchasing the motorcycle from Miller, but that he had not obtained title to the motorcycle. Rice further stated that he had possession of the motorcycle and had not given defendant or Williams permission to take, use or have possession of the motorcycle.
After contacting both Miller and Rice, the police officers determined that the motorcycle had been stolen. The police officers then placed both defendant and Williams under arrest and advised them of their rights. Shortly after being advised of his rights, defendant told the police officers, "We saw it sitting there, so we took it."
Defendant, who was represented at trial by the public defender, was found guilty of possession of a stolen motor vehicle. Following the trial, defendant obtained private counsel and filed a motion for a new trial. One of the bases for defendant's motion was that he had been denied effective assistance of counsel at trial. Defendant argued that he and Williams were effectively under arrest when the police officer stopped Williams from walking away from the service station. Thus, defendant maintains that he was denied effective assistance of counsel at trial because the public defender failed to file motions to quash the arrest and to suppress statements including his admission to the police officers. The public defender explained that she made a strategic decision not to file motions to quash the arrest and to suppress statements, because defendant and Williams assured her that they did not make statements to the police officers. The circuit court denied defendant's motion for a new trial. Defendant appealed, the appellate court reversed and the instant appeal ensued.
The first issue presented for review is whether defendant waived the constitutional challenge to section 4 -- 103(b) of the Vehicle Code by failing to raise it in the circuit court. Prior to 1973, this court followed the rule that the constitutionality of a statute is properly preserved for review only when it is raised in and addressed by the circuit court. (People v. Amerman (1971), 50 Ill. 2d 196, 197; People v. Luckey (1969), 42 Ill. 2d 115, 117.) However, in 1973, this court handed down its decision in People v. Frey, which overruled both Amerman and Luckey. (People v. Frey (1973), 54 Ill. 2d 28, 29-33.) Now, a constitutional challenge to a statute can be raised at any time. (People v. Zeisler (1988), 125 Ill. ...