The opinion of the court was delivered by: Presiding Justice Hoffman delivered the opinion of the court:
The defendant, Latif Abdul-Mutakabbir, was convicted of eight counts of false personation of a judicial official in violation of section 32-5 of the Criminal Code of 1961 (Code) (720 ILCS 5/32-5 (West 1996)). The defendant appeals the conviction contending that he was denied a fair trial when the court refused to instruct the jury as to the mental state necessary for a violation of section 32-5 of the Code. For the reasons which follow, we affirm in part, reverse in part, vacate the defendant's sentence, and remand the cause to the circuit court for further proceedings consistent with this opinion.
On November 11, 1993, the Illinois Supreme Court entered an order suspending the defendant from the practice of law for a period of three years. The mandate on the order issued on November 22, 1993, and a notice of the court's order and mandate was sent to the defendant on the same day. On December 14, 1993, the defendant filed a pro-se pleading with the clerk of the supreme court which was entitled "Petition For Rehearing Or To Stay Mandate On Certiorari To The United States Supreme Court" (hereinafter the "petition"). On that same day, the clerk of the supreme court sent a letter to the defendant informing him that his petition would be treated by the supreme court as a motion to reconsider and to recall its mandate. On January 11, 1994, the supreme court entered an order denying the defendant's motion, and the clerk of the supreme court sent a notice of the court's order to the defendant and the Attorney Registration and Disciplinary Commission (ARDC). On January 28, 1994, Jonathan Siner, an attorney employed by the ARDC, sent a letter to the defendant stating that the ARDC had been informed that, although the defendant was suspended from the practice of law on November 22, 1993, he was still holding himself out as an attorney. The letter stated that as of January 26, 1994, the defendant was still listed as an attorney on the directory in the lobby of his office building and a recorded message on the defendant's business phone identified him as an attorney. Siner's letter reminded the defendant of his duties as a disciplined attorney under Supreme Court Rule 764 (134 Ill. 2d R. 764), and requested that the defendant inform the ARDC in writing within 14 days as to the steps he had taken to comply.
The defendant forwarded a letter written on his law office stationary to Siner on February 14, 1994. The entire text of the defendant's letter states: "In response to your letter of January 28, 1994, I direct your attention to Illinois Supreme Court Rules 367 and 368. Should you require additional information, please let me know."
Sarie Weissman Montgomery, also an attorney employed by the ARDC, wrote a letter to the defendant on January 11, 1995. Montgomery's letter referenced the defendant's suspension and the fact that his motion to reconsider had been denied, and requested that he comply with the affidavit requirements of Supreme Court Rule 764(g) (134 Ill. 2d R. 764(g)). Montgomery sent the letter to the defendant via certified mail and received a return receipt signed by the defendant.
Ellyn Rosen, another attorney employed by the ARDC, commenced an investigation of the defendant after the ARDC received a communication from a Judge in the fall of 1994 indicating that the defendant was practicing law. On April 24, 1996, Rosen acted as the complainant in the eight count misdemeanor complaint charging the defendant with violations of section 32-5 of the Code which gave rise to this action (hereinafter the "complaint"). The complaint alleged that on eight specified occasions from January 7, 1994, through April 19, 1996, the defendant "falsely represented himself to be an attorney authorized to practice law." Prior to trial, the State moved for and was granted leave to amend each of the eight counts to allege that the defendant "knowingly and falsely represented himself to be an attorney authorized to practice law." (Emphasis added.) The amendment was made without objection from the defendant, and neither the State's right to amend nor the adequacy of the complaint as amended is an issue on appeal.
Upon the trial of the cause, the defendant stipulated that he represented himself to be an attorney authorized to practice law on the eight occasions alleged in the complaint. His defense centered around his belief that Supreme Court Rule 368 (134 Ill. 2d R. 368) applied to orders entered by the supreme court in disciplinary matters and, as a consequence, the filing of his petition acted to stay the order of suspension and the mandate issued thereon. The defendant also testified that since the supreme court ruled on his petition as a motion to reconsider its order of November 11, 1993, and not on his request for rehearing, the stay provided for in Rule 368(a) is still in effect. The defendant admitted that he received the notices of the order of suspension and mandate sent by the clerk of the supreme court on November 22, 1993, the notice of the supreme court's denial of his motion to reconsider and to recall its mandate sent by the clerk of the supreme court on January 11, 1994, Siner's letter on January 28, 1994, and Montgomery's letter of January 11, 1995.
During the jury instruction conference, defense counsel requested that the word "knowledge" be inserted into the instructions for false personation of a judicial official. The State argued that the offense is an absolute liability offense and does not require a mental state. The trial Judge agreed with the State and instructed the jury that to sustain the charge the State must prove beyond a reasonable doubt that "the defendant falsely represented himself to be an attorney authorized to practice law." The jury found the defendant guilty of all eight counts as charged. Subsequently, the trial court denied the defendant's motion for a new trial and sentenced the defendant to two years' probation, 60 days' incarceration, and 30 days of community service. The defendant now appeals, contending that the trial court erred when it refused to instruct the jury that knowledge was an element of the offense of false personation of a judicial official.
The first step in our analysis requires us to determine what, if any, mental state is necessary for a violation of section 32-5 of the Code.
Section 32-5 provides in pertinent part that " person who falsely represents himself to be an attorney authorized to practice law *** commits a Class B misdemeanor." 720 ILCS 5/32-5 (West 1996). Although the statute does not contain express language describing a mental state as an element of the offense, it is not, as the State contends, an absolute liability offense.
Section 4-9 of the Code which governs absolute liability offenses provides that " person may be guilty of an offense without having, as to each element thereof, one of the mental states described in Sections 4-4 through 4-7 if the offense is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500, or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described." (Emphasis added.) 720 ILCS 5/4-9 (West 1996). Although a violation of section 32-5 is a misdemeanor, it carries a potential penalty of up to six months' incarceration. 730 ILCS 5/5-8-3(a)(2) (West 1996). Further, there is nothing in the language of section 32-5 which clearly indicates a legislative purpose to impose absolute liability. See People v. Anderson, 148 Ill. 2d 15, 23-24, 591 N.E.2d 461 (1992); People v. Cully, 286 Ill. App. 3d 155, 675 N.E.2d 1017 (1997).
Given our Conclusion that section 32-5 is not an absolute liability offense, we must next determine which mental state applies to "each element described by the statute defining the offense." 720 ILCS 5/4- 3(a) (West 1996). When, as in this case, a statute neither prescribes a particular mental state nor creates an absolute liability offense, then the mental state applicable to each element is either intent, knowledge, or recklessness. People v. Gean, 143 Ill. 2d 281, 288, 573 N.E.2d 818 (1991); see also 720 ILCS 5/4-3(b), 4-4, 4-5, 4-6 (West 1996).
The defendant argues, and we agree, that knowledge is the appropriate mental state applicable to the falsity element of the offense set forth in section 32-5 of the Code. To state that a person commits an offense by falsely representing a fact to be true without requiring that the person know of the falsity of the representation is the equivalent of absolute liability. Consequently, we hold that in order to convict an individual of an offense under section 32-5 of the Code for falsely representing himself to be an attorney authorized to practice law, the State is required to prove beyond a reasonable doubt that such a person knew that his representation was false when made.
The fact that a mental state is implied in an offense does not necessarily require, however, that a court instruct the jury as to the requisite mental state. When a mental state implied in an offense by reason of section 4-3 of the Code necessarily accompanies the acts prohibited by the statute creating the offense, the court is not required to instruct the jury as to the mental state. People v. Burton, 201 Ill. App. 3d 116, 558 N.E.2d 1369 (1990). However, "some mental states involved in offenses, although not specifically mentioned in the statute defining the offense, may be implied in the offense and be specific enough to require instruction to the jury." Burton, 201 Ill. App. 3d at 122. We believe that the mental state of knowledge implied with respect to the falsity element of an offense under section 32-5 of the Code is specific enough to require an instruction. In cases where a person is charged with falsely representing himself to be an attorney authorized to practice law, there will rarely be a question as to whether the representation was false, but there may well be a question as to whether the person knew that the representation was false, especially in the case of a recently suspended attorney. Accordingly, the trial court erred in refusing the defendant's request that the word "knowledge" be inserted into the instruction setting forth the elements of the offense charged in this case. See Cully, 286 Ill. App. 3d at 166.
The fact that we have determined that an instructional error occurred in this case does not end our analysis. "Even though error may have been committed in giving or refusing instructions it will not always justify reversal when the evidence of the defendant's guilt is so clear and convincing that the jury could not reasonably have found him not guilty." People v. Ward, 32 Ill. 2d 253, 256, 204 N.E.2d 741 (1965); see also People v. Jones, 81 Ill. 2d 1, 9, 405 N.E.2d 343 (1979); Cully, 286 Ill. App. 3d at 166. In this case, the State argues that any error in failing to instruct the jury with respect to the requisite mental ...