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06/28/89 the People of the State of v. Zernial Bogan

June 28, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ZERNIAL BOGAN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

540 N.E.2d 1135, 185 Ill. App. 3d 129, 133 Ill. Dec. 269 1989.IL.1024

Appeal from the Circuit Court of Champaign County; the Hon. Harold L. Jensen, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court. LUND and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Defendant was indicted January 21, 1988, on two counts, one count of burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19-1), a Class 2 felony, and one count charging theft (Ill. Rev. Stat. 1987, ch. 38, pars. 16-1(a)(1), (e)(1)), a Class A misdemeanor. Pursuant to the terms of a plea agreement, defendant pleaded guilty to the burglary count and the theft count was nol-prossed. On April 13, 1988, the defendant was sentenced to 24 months' intensive probation supervision . On November 2, 1988, a petition to revoke probation was filed, the probation was subsequently revoked, and the defendant was sentenced to four years' imprisonment with two days' credit for time spent in jail awaiting sentence, but no credit for any time served on probation.

Defendant appeals from the judgment of the circuit court of Champaign County, arguing (1) the burglary statute under which he was originally sentenced is unconstitutionally overbroad because it criminalizes any entry into an enclosed structure when the entry is committed with the intent to commit a felony or theft; (2) the trial court abused its discretion by failing to sentence him to an additional period of probation, conditioned on jail time and long-term residential drug treatment or, alternatively, by not imposing a three-year minimum sentence; and (3) the court erred by failing to award him at least partial credit for time served on probation prior to revocation.

The defendant did not appeal the original sentence of probation pursuant to the plea of guilty to burglary. On appeal after revocation, defendant for the first time argues the burglary statute is unconstitutionally overbroad because the conduct for which he was convicted could have been charged as lesser offenses. Defendant argues since the conduct which constituted the offense could have been charged as misdemeanor theft, misdemeanor retail theft, or felony burglary, the burglary statute is unconstitutionally overbroad in that it permits the prosecutor, in the exercise of his authority, to determine whether to charge a person with an enhanced offense.

The State contends defendant has waived any such challenge to the statute by not raising it in the trial court. Issues not raised in the trial court may generally be deemed waived, and this includes constitutional issues.

"'It is fundamental that the question of the constitutionality of a statute cannot be properly raised for the first time in a court of review, but must have been presented to the trial court and ruled upon by it, and the person challenging its validity must have preserved proper exceptions to such ruling. [Citations.]' People v. Brand, 415 Ill. 329, 337; see also People v. Luckey, 42 Ill. 2d 115, Van Meter v. Stout, 45 Ill. 2d 7." (People v. Amerman (1971), 50 Ill. 2d 196, 197, 279 N.E.2d 353, 354.)

(See also People v. Cregar (1988), 172 Ill. App. 3d 807, 826, 526 N.E.2d 1376, 1389 (and cases cited therein); People v. Myers (1989), 181 Ill. App. 3d 769, 771.) Generally, of course, an issue which goes to the underlying conviction should be raised by direct appeal from the conviction, in this case entered on April 13, 1988, rather than when sentencing after revocation, which occurred December 19, 1988. (See In re T.E. (1981), 85 Ill. 2d 326, 423 N.E.2d 910 (unless order is void).) And, where a conviction is entered on a guilty plea, the issue should be raised to the trial court's attention in a motion to withdraw the plea (107 Ill. 2d R. 604). See, e.g., People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218.

A clear exception to the waiver doctrine exists, however, where the statutory provision under which a defendant is convicted is found unconstitutional (see, e.g., People v. Bryant (1989), 128 Ill. 2d 448, 453, (and cases cited therein)), in which case the statute is void ab initio. (See, e.g., People v. James (1986), 148 Ill. App. 3d 536, 499 N.E.2d 1036.) In light of our ruling on the merits, we need not decide the waiver issue.

Illinois courts have upheld convictions for burglary based on unauthorized entry into buildings open to the public, where the entry was committed with the purpose to commit a theft. People v. Weaver (1968), 41 Ill. 2d 434, 243 N.E.2d 245, cert. denied (1969), 395 U.S. 959, 23 L. Ed. 2d 746, 89 S. Ct. 2100.

In People v. Drake (1988), 172 Ill. App. 3d 1026, 527 N.E.2d 519, this court upheld a defendant's conviction of burglary and forgery where he took a stolen check to an Eagle food store and tried to cash it. Defendant was convicted of burglary due to his unauthorized entry into the store with intent to commit a forgery. This court stated: "Defendant did not have authority to enter the grocery store to commit a ...


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