APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
539 N.E.2d 1274, 183 Ill. App. 3d 1091, 132 Ill. Dec. 468 1989.IL.899
Appeal from the Circuit Court of Du Page County; the Hon. John J. Bowman, Judge, presiding.
PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court. REINHARD and LINDBERG, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT
On appeal, defendant raises three issues as grounds for reversal: (1) whether the classification of the offense of possession of a stolen or converted vehicle as a Class 2 felony when the more serious offense of theft over $300 is only a Class 3 felony violates the Illinois Constitution's assurances of due process and proportionate penalties; (2) whether classification of defendant's conduct, failure to return a rented vehicle where there was no written rental contract or written demand for return, as a Class 2 felony when similar conduct, failure to return rented property where there is a written rental contract and a written demand for return, is classified only as a Class 4 felony violates the Illinois Constitution's assurance of equal protection; and (3) whether defendant was proved guilty beyond a reasonable doubt where the State failed to establish the vehicle was stolen or converted.
At trial, Ronald Barton, owner of Ugly Duckling Rental Car in Naperville, Illinois, testified that defendant rented a 1979 Thunderbird from the agency on March 25, 1987. Defendant told Barton that he needed the car for three days. Defendant signed a rental agreement. The written agreement did not include a provision setting out the date or place for return of the vehicle. When defendant did not return the vehicle within three days, Barton tried unsuccessfully to contact him by telephone. Approximately one week later, defendant contacted Barton and told him that he still needed the car. He also said that he was waiting for a check to arrive and when it did he could pay for the rental. Barton told defendant to return the car; defendant failed to do so. Over the next two months, Barton made approximately 25 telephone calls to defendant and to members of defendant's family asking that defendant return the car. During this period, defendant telephoned Barton five or six times. Defendant told Barton each time that he would return the car and that he was expecting a check to arrive. He also indicated that he might want to buy the car from Barton. Defendant never paid any of the rental fee and never returned the vehicle to the rental agency.
On May 27, 1987, Barton contacted the Naperville police department and reported the car stolen. That same day police recovered the vehicle. When Barton viewed the car the next day, he observed that the bumper and the exhaust system were damaged.
Officer Truemper of the Naperville police department was the officer who received Barton's stolen car report on May 27. Later that same day, he observed the car stalled in an intersection in Naperville. Defendant, who had been pushing the car out of the intersection, told the officer that he had rented the car from Ugly Duckling. The officer advised defendant that the car had been reported stolen and placed defendant under arrest. Defendant told the officer that he had not returned the vehicle because he was waiting for a check to arrive by mail.
Defendant testified that when he rented the car from Barton he told him he would need it for three days. He said that he called Barton back a week later and told him that he needed the car awhile longer; Barton agreed. The last time defendant spoke with Barton was three days before the car was reported stolen. At that time, defendant told Barton that he was expecting a check at any time, and he would be in to pay for the vehicle. He also said he wanted to work out a deal to buy the car. Defendant said he never planned to keep the car, he never refused to pay for the car, and Barton never told him to bring the car back until their last conversation approximately three days before defendant was arrested. Defendant stated that when he got the car the bumper was rusted and was hanging down. He further stated that he was on his way to return the car when he was stopped by the police., Defendant was convicted of possession of a stolen or converted vehicle, and he now appeals that conviction.
Defendant first contends that section 4-103(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 4-103(b)) violates the constitutional assurance of due process because it classifies a first offense for possession of a stolen or converted motor vehicle as a Class 2 felony and as such is not reasonably designed to achieve the intended goal of eliminating organized auto theft and chop shops. Defendant also alleges that the statute violates the constitutional assurance of proportional penalties by punishing the lesser offense of possession more harshly than theft.
Initially we note that defendant failed to raise the issue of the constitutionality of section 4 -- 103 at trial. We decline to apply the waiver rule, however, because defendant has raised a substantial question of constitutionality which, if sustained, would make void the statute under which he was charged and then convicted. (See People v. Treece (1987), 159 Ill. App. 3d 397, 415.) A constitutional challenge to a statute can be raised at any time. People v. Zeisler (1988), 125 Ill. 2d 42, 46., Defendant was convicted under section 4 -- 103(a)(1). This section states in relevant part:
"(a) It is a violation of this Chapter for:
(1) A person not entitled to the possession of a vehicle or essential part of a vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have been stolen or converted . . . ." ...