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02/14/97 PEOPLE STATE ILLINOIS v. SAMUEL RITCHEY

February 14, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
SAMUEL RITCHEY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 94-CR-18617. Honorable Loretta C. Douglas, Judge Presiding.

As Corrected February 25, 1997. Released for Publication March 31, 1997.

The Honorable Justice Theis delivered the opinion of the court. Greiman, P.j., and Zwick, J., concur.

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

Following a jury trial, defendant was convicted of robbery and escape. Based upon his prior record, the court sentenced the defendant to two 30-year terms. The court determined that the defendant should serve the sentences consecutively. On appeal, defendant contends that prosecutorial misconduct deprived him of a fair trial and that the consecutive sentences were illegal. We affirm defendant's convictions, but remand for resentencing.

On July 16, 1994, Symphony Lindsey drove into the Amoco service station located at 6600 South Stony Island. As she was putting air in her tires, defendant grabbed Lindsey by the neck, threw her to the ground and robbed her. Lindsey ran after the defendant, but the defendant turned and punched Lindsey before driving away.

Lindsey immediately contacted the police, describing both her assailant and his car. After searching the area for the suspect, an officer drove Lindsey to her home. The officer was parked in front of Lindsey's home when the defendant drove up behind him. After the officer determined that defendant matched the description of Lindsey's assailant, he arrested defendant. The defendant was taken to the police station, where he attempted to escape. The police apprehended the defendant in a nearby yard.

At trial, defendant denied any involvement in the crime. He explained that he fled the station because the police had beaten him for one-half hour and he feared for his life. Officers Cotton and Danzl denied beating defendant and stated that defendant did not appear injured in the station. The prosecutor questioned defendant about his use of aliases and whether defendant filed suit against the officers that allegedly beat him. At closing, the prosecutor further told the jury that, to find defendant not guilty, they would have to find that the victim lied.

The jury found defendant guilty of robbery and escape, Class 2 felonies. Because defendant had two prior convictions, the trial court was required to sentence defendant to Class X terms pursuant to section 5-5-3 of the Criminal Code. 730 ILCS 5/5-5-3(c)(8) (West 1994). The court sentenced defendant to 30 years for each conviction, to be served consecutively. Defendant appeals.

Defendant first contends that certain remarks by the prosecutor denied him a fair trial. Defendant claims that the prosecutor improperly asked him about the use of aliases. Defendant also points to the prosecutor's closing remarks that the jury could only find the defendant innocent if they found that the victim had lied. Defendant neither objected to these comments at trial, nor did he raise these issues in a post-trial motion. Therefore, we find these issues are waived. People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124, 119 Ill. Dec. 265 (1988).

Furthermore, finding that the claimed errors were not of such a magnitude as to deprive defendant of a fair trial, we decline to review these issues under the doctrine of plain error. People v. Young, 128 Ill. 2d 1, 538 N.E.2d 461 (1989). The prosecutor did not associate the defendant's use of an alias with a criminal background. See People v. Berlin, 75 Ill. 2d 266, 388 N.E.2d 412, 26 Ill. Dec. 697 (1979). Rather, this information was admissible as evidence of a prior inconsistent statement, used to impeach defendant's credibility. See People v. Jones, 116 Ill. App. 3d 233, 451 N.E.2d 1358, 72 Ill. Dec. 35 (1983). Additionally, stating that either the victim or the defendant were not telling the truth is allowable where there is a direct conflict in the testimony at trial. People v. Guajardo, 262 Ill. App. 3d 747, 636 N.E.2d 863, 201 Ill. Dec. 431 (1994). Moreover, the court instructed the jury that statements made in opening and closing arguments did not constitute evidence. People v. Thomas 137 Ill. 2d 500, 561 N.E.2d 57, 148 Ill. Dec. 751 (1990). Finding no reversible error, we proceed to defendant's other arguments.

Defendant further argues that his 60-year sentence is void under section 5-8-4(c)(2) of the Unified Code of Corrections. Section 5-8-4(c)(2) provides that "the aggregate of consecutive sentences shall not exceed the sum of the maximum terms authorized under Section 5-8-2 for the 2 most serious felonies involved. " (Emphasis added.) 730 ILCS 5/5-8-4(c)(2) (West 1994). In the instant case, defendant was charged with two Class 2 felonies. However, the court was required to sentence defendant as a Class X offender because of defendant's prior felonies. See 730 ILCS 5/5-5-3(c)(8) (West 1994). Therefore, in order to apply the formula in section 5-8-4(c)(2), we must determine whether the "2 most serious felonies involved" refer to the Class 2 felonies defendant was charged with, or the Class X felonies under which defendant was sentenced.

In interpreting this section, we look to the plain language of the statute. Section 5-8-4(c)(2) references section 5-8-2, which provides that:

"A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5-8-1 for the class of the most serious offense of which the offender ...


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