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01/26/95 PEOPLE STATE ILLINOIS v. TAZELL HICKS

January 26, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
TAZELL HICKS, APPELLANT.



The Honorable Justice McMORROW delivered the opinion of the court:

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

In this appeal we are asked to resolve a conflict among the districts of our appellate court with respect to whether the trial court may impose an extended-term sentence for a felony conviction, where that felony conviction was enhanced from a misdemeanor because of the accused's previous criminal convictions.

I

In February 1992, defendant, Tazell Hicks, attempted to leave a Unique Thrift Store with retail merchandise for which he had not paid. His efforts were thwarted by a security guard who apprehended defendant as he reached the exit to the store. The property taken by defendant was worth less than $150. Although retail theft of property valued at less than $150 is usually a misdemeanor, the offense is enhanced to a felony when the accused has a previous conviction for theft. (720 ILCS 5/16A-10(2) (West 1992).) Because defendant had a 1984 conviction for retail theft, his acts at the Unique Thrift Store in 1992 were charged and prosecuted as felony retail theft, which is a Class 4 felony. Following a jury trial, defendant was found guilty and convicted as charged.

At defendant's sentencing hearing, the trial court noted that the defendant had a previous felony retail theft conviction. On this basis, the trial court determined that defendant should be sentenced to an extended six-year term of imprisonment. The appellate court affirmed defendant's sentence. (No. 1-92-1940 (unpublished order under Supreme Court Rule 23).) We allowed defendant's petition for leave to appeal (145 Ill. 2d R. 315(a)) to resolve a split of decisions among the appellate court districts with respect to whether extended-term sentencing applies to felonies that have been enhanced from misdemeanors because of previous felony convictions.

II

Under the Criminal Code of 1961, a person commits the offense of retail theft when he knowingly carries away merchandise offered for sale in a retail store without payment for the merchandise. (720 ILCS 5/16A-3(a) (West 1992).) Retail theft of property valued at less than $150 is a Class A misdemeanor. (720 ILCS 5/16A-10(1) (West 1992).) However, this Class A misdemeanoris enhanced to a Class 4 felony when the defendant has been previously convicted of any type of theft. (720 ILCS 5/16A-10(2) (West 1992).) Because defendant had a previous retail theft conviction in 1984, he was charged with and prosecuted for Class 4 felony retail theft. Upon review, defendant does not dispute that he was properly convicted of a Class 4 felony because of his 1984 conviction of retail theft.

Defendant's appeal challenges his extended-term sentence of six years' imprisonment. Defendant argues that, where acts amounting to misdemeanor retail theft are charged as a felony because of the accused's prior conviction of retail theft, the prosecution may not seek to further enhance the offender's sentence to an extended term based on a second retail theft conviction.

The State contends that the defendant's sentence is appropriate because of section 5-5-3.2(b)(1) of our Unified Code of Corrections (730 ILCS 5/5-3.2(b)(1) (West 1992) (hereinafter referred to as the extended-term sentencing provision)). The extended-term sentencing provision of our Code states that an extended-term sentence may be imposed when the defendant "is convicted of any felony, after having been previously convicted in Illinois *** of the same or similar class felony or greater class felony." (730 ILCS 5/5-5-3.2(b)(1) (West 1992).) The section requires that the previous felony conviction must have occurred within 10 years, excluding time spent in custody, must have been separately brought and tried, and must have arisen out of a different series of acts. 730 ILCS 5/5-5-3.2(b)(1) (West 1992).

It is undisputed that the defendant's past criminal record satisfied the enumerated criteria of the extended-term sentencing provision, i.e., that his 1985 felony retail theft conviction occurred within 10 years, that it was separately brought and tried, and that it arose from a different set of acts.

Defendant contends that his commission of the retail theft from the Unique Thrift Store does not amount to a "felony" under the extended-term sentencing provision. Defendant claims that the phrase "any felony" in the extended-term sentencing provision does not encompass a misdemeanor that has been enhanced to a felony because of a prior retail theft conviction. Defendant argues that the term "any felony" in the extended-term sentencing provision is ambiguous and should be interpreted liberally in his favor.

Well-established rules of statutory interpretation assist our resolution of the issue presented in this appeal. It is the preeminent role of statutory construction to give effect to the language and intent of the legislature. ( People v. Bole (1993), 155 Ill. 2d 188, 195, 184 Ill. Dec. 423, 613 N.E.2d 740.) To accomplish this goal, words used in the statutory provision should be given their plain and ordinary meaning. ( People v. Zaremba (1994), 158 Ill. 2d 36, 40, 196 Ill. Dec. 632, 630 N.E.2d 797.) Where the words themselves are unambiguous, there is no need to resort to external aids of interpretation in order to glean the legislature's purpose. ( Zaremba, 158 Ill. 2d at 40.) When the language used is susceptible to more than one equally reasonable interpretation, however, the court may look to additional sources to determine the legislature's intent. ( People v. Jameson (1994), 162 Ill. 2d 282, 288; People v. Lowe (1992), 153 Ill. 2d 195, 203, 180 Ill. Dec. 90, 606 N.E.2d 1167.) It has been often recited that penal statutes, where ambiguous, should be construed to afford lenity to the accused. (See, e.g., People v. Alejos (1983), 97 Ill. 2d 502, 512, 74 Ill. Dec. 18, 455 N.E.2d 48; People v. McCarty (1983), 94 Ill. 2d 28, 34-35, 67 Ill. Dec. 818, 445 N.E.2d 298. ) However, this rule does not justify the failure to apply a criminal statute where the legislature clearly intended its application. Liparota v. United States (1985), 471 U.S. 419, 427, 85 L. Ed. 2d 434, 441, 105 S. Ct. 2084, 2089; Faheem-El v. Klincar (1988), 123 Ill. 2d 291, 298, 122 Ill. Dec. 809, 527 N.E.2d 307; People v. Haywood (1987), 118 Ill. 2d 263, 271, 113 Ill. Dec. 236, 515 N.E.2d 45.

We find no ambiguity in the term "any felony" in the extended-term sentencing provision as applied to the facts of the case presently before us. A statute is not rendered ambiguous merely because the defendant believes the legislation should be interpreted so that it would not apply to him. The plain language of the extended-term sentencing provision explicitly states that it applies to "any felony." The statutory provision makes no exception for misdemeanors, such as retail theft, that have been enhanced to a felony in accordance with the legislature's direction. (See 720 ILCS 5/16A-3 (West 1992).) We believe that the words "any felony" are broad in scope and apply to the defendant's enhanced felony conviction for retail theft in the present cause.

Defendant offers several arguments in support of his claim of ambiguity with respect to the words "any felony" in the extended-term sentencing provision. First, defendant contends that the phrase "any felony" is ambiguous because there has been a divurgence in the rulings of our appellate court with respect to whether extended-term sentencing may be imposed, where the defendant was tried and convicted of a crime that was upgraded from a misdemeanor to a felony because of a prior conviction. However, the majority of the panels of our appellate court has rejected the view suggested by defendant in the present cause. ( People v. Smith (1993), 257 Ill. App. 3d 252, 195 Ill. Dec. 496, 628 N.E.2d 960, overruling People v. Grayson (1983), 119 Ill. App. 3d 252, 74 Ill. Dec. 943, 456 N.E.2d 664; People v. Niemeyer (1993), 243 Ill. App. 3d 875, 184 Ill. Dec. 99, 612 N.E.2d 975, overruling People v. Hurd (1989), 190 Ill. App. 3d 800, 138 Ill. Dec. 41, 546 N.E.2d 1096; People v. Martin (1992), 240 Ill. App. 3d 260, 180 Ill. Dec. 188, 606 N.E.2d 1265, overruling People v. Spearman (1982), 108 Ill. App. 3d 237, 64 Ill. Dec. 1, 438 N.E.2d 1320; People v. Anderson (1991), 211 Ill. App. 3d 140, 155 Ill. Dec. 567, 569 N.E.2d 1178; People v. Crosby (1990), 204 Ill. App. 3d 548, 149 Ill. Dec. 525, 561 N.E.2d 1221; People v. Roby (1988), 172 Ill. App. 3d 1060, 123 Ill. Dec. 160, 527 N.E.2d 623.) We do not believe that the appellate court rulings to which defendant adverts are a sufficient basis to find the extended-termsentencing provision ambiguous in its application to the defendant.

Defendant also relies upon People v. Drakeford (1990), 139 Ill. 2d 206, 151 Ill. Dec. 337, 564 N.E.2d 792, and People v. Alejos (1983), 97 Ill. 2d 502, 74 Ill. Dec. 18, 455 N.E.2d 48, in which this court found that the crimes of voluntary manslaughter and second degree murder did not amount to a "felony" under the armed violence statute. In so ruling, this court reasoned that the armed violence statute was designed to punish intentional murders, rather than those such as voluntary manslaughter or second ...


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