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09/20/95 PEOPLE STATE ILLINOIS v. HENRY THOMPSON

September 20, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
HENRY THOMPSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Loretta Morgan, Judge Presiding.

Petition for Leave to Appeal Denied January 31, 1996.

The Honorable Justice Cerda delivered the opinion of the court: Greiman, P.j., And Rizzi, J., Concur.

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

After a bench trial, defendant, Henry Thompson was convicted of two counts of aggravated home repair fraud (815 ILCS 515/3; 515/5 (West 1992)) and one count of theft (720 ILCS 5/16-1(A)(1)(A) (West 1992)). He was sentenced on ore count of aggravated home repair fraud to 10 years' imprisonment as a Class X offender based on a previous Class 2 felony conviction. On appeal, defendant asserts that (1) the Home Repair Fraud Act (815 ILCS 515/1 et. seq. (West 1992))(Act) violates State and Federal due process of law in that it does not require a culpable mental state; (2) the Act's penalty provisions violate State and Federal due process of law and equal protection because the class of penalty is increased on the basis of the contract's amount instead of the value of the actual loss or harm caused; and (3) his sentence violates due process of law and the constitutional assurances of proportionate penalties. For the reasons that follow, we affirm.

The following testimony was heard at trial. Florence Korpalski, 77 years old, testified by stipulation that she was contacted by Steven Ferrand, who identified himself as Doug Keller, on January 20, 1992. Keller, a Ventura employee, came to Korpalski's home, checked her boiler, and told her that she needed a new boiler. Korpalski gaveKeller a $200 down payment on the installation of a new boiler. The next day, a new boiler was installed under the supervision of Joseph Harput, the owner of Ventura, and Korpalski paid Harput the $3,200 balance due.

When Keller called Korpalski on January 22, 1992, she said that one of her radiators was not working. Two days later, Keller and defendant inspected the boiler and told Korpalski that the pipelines needed cleaning. Korpalski paid defendant $700 as a downpayment and arrangements were made for the cleaning to be done. On January 28, 1992, defendant came to Korpalski's home and spent an hour in the basement before Keller arrived. The two men told Korpalski that she needed a new $3,795 chimney liner or her new boiler could be damaged. Korpalski paid defendant $2,000 in cash after Keller drove her to the bank to withdraw the money.

The next day, Carey Farrell of A & C Heating Company (A & C) replaced Korpalski's chimney liner. Becoming suspicious, Korpalski called Harput and the police. She went to the police station to fill out a report, then returned home to find a message from defendant on her answering machine asking for the balance owed in cash. Korpalski called the police, then called defendant to arrange a time for him to get the money. When defendant arrived at Korpalski's home, Detective Dombrowski arrested him.

Joseph Harput, owner of Ventura, testified that Keller had been a Ventura subcontractor or salesman for five days in January 1992. Ventura received the assignment to install Korpalski's new boiler from Keller, who earned a commission for the sale. After Harput received Korpalski's call on January 30, 1992, he was unable to reach Keller.

According to Harput, the installed boiler was a deluxe model that would not be affected by a defective chimney liner because it would shut down when its special sensors detected the loss of draft. In older models, which did not have safety features, there can be serious problems created by a defective chimney. Even though Harput did not inspect Korpalski's old boiler or chimney liner, he did not think that Korpalski needed a new chimney liner. When Harput was asked whether Korpalski's boiler needed its pipes cleaned, Harput stated that he had no concept of what that meant.

Carey Farrell, an installer with A & C, testified that he had 15 years experience installing heating and air conditioning systems and chimney liners. On January 29, 1992, Farrell received a legitimate job from defendant to install a chimney liner at Korpalski's home. The job took two hours. As a subcontractor on the job, he charged defendant between $600 and $650. According to Farrell, he would havecharged Korpalski $800 to $900 for the job if he had been the contractor. It was possible that he would charge up to $1,800 for that type of job.

At the close of the State's evidence, it was stipulated that defendant had been permanently enjoined in a September 17, 1979, agreed order from selling, repairing, servicing, replacing, and/or installing heating systems or any part on those systems in Illinois.

Steven Ferrand, who used the name Doug Keller when he worked for Ventura in January 1992, arranged for the installation of Korpalski's new boiler. After learning that Korpalski had other heating problems, he inspected the system and determined that the water system for the hydraulic heating was clogged and that the chimney was bent and collapsed. Because the liner was bent, there was an obstruction for the venting of gases. Ferrand claimed that the defective line could have affected the new boiler, which he did not know had sensors.

According to Ferrand, he and defendant went to Korpalski's home and reached an agreement with her to clear the old piping of obstructions and to open up the chimney. Ferrand and defendant cleaned the pipe corrosion with chemicals, but were unable to replace the pipes and radiator, so they subcontracted with A & C to repair the chimney liner.

After closing arguments, the trial court found that defendant's presence at Korpalski's home to take an order for home repair was fraudulent because he was enjoined from conducting any home repair business and Korpalski had a reasonable expectation to believe that he was allowed to do such work. Furthermore, the trial court found that Ferrand's testimony was not credible and concluded that even if the pipes had been clogged, defendant victimized Korpalski because he falsely told her that her new boiler would not work right unless she had additional work done. The trial court then found defendant guilty of aggravated home repair fraud by deception, aggravated home repair fraud by misrepresentation, and theft.

After defendant's motion for a new trial was denied, he was sentenced as a Class X offender on one count of aggravated home repair fraud to 10 years' imprisonment.

On appeal, defendant challenges the Act's constitutionality on its face. The first issue is whether the Act violates due process of law under the Illinois and Federal Constitutions in that it does not require a culpable mental state for a finding of guilty. Although the Act requires knowing conduct, defendant maintains that it does not require a criminal purpose such as an intent to defraud, thus failing to bear a reasonable relationship to the legitimate ...


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