The opinion of the court was delivered by: Justice Bowman
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT
Appeal from the Circuit Court Stephenson County.
Nos. 97--CM--644, 97--CM--645
Honorable David L. Jeffrey, Judge, Presiding.
Defendants, Michael A. Cline and Christopher J. Gens, were employed by Oakland Cemetery Association of Freeport, Inc., which operates Oakland Cemetery (Cemetery). On April 28, 1997, they removed the gravestone marking Hazel McLarnon's grave because Ms. McLarnon's family had failed to pay the Cemetery the costs associated with her burial. Based on their removal of the gravestone, defendants were arrested. After a bench trial, they were convicted of a violation of section 1 of the Cemetery Protection Act (Act) (765 ILCS 835/1 (West 1996)).
Defendants challenge their convictions on the following bases: (1) they did not violate section 1 of the Act because their removal of Ms. McLarnon's gravestone was permitted by the exception contained in section 1(c) (765 ILCS 835/1(c) (West 1996)); (2) the complaints charging them with a violation of the Act were insufficient because the statutory subsection cited in the complaints was incorrect; and (3) their trial counsel was ineffective. We reverse.
The relevant facts of this case are undisputed. On February 12, 1997, Hazel McLarnon was buried next to her husband in Oakland Cemetery. Her name was added to the headstone marking her husband's grave. This headstone had been purchased in 1971, when McLarnon's husband died, and had been in place since that time.
Around April 15, 1997, Janice Kunkle, McLarnon's granddaughter, received a bill from the Cemetery for the costs associated with her grandmother's burial. Kunkle did not pay the bill, and, on April 28, 1997, defendant Cline called Kunkle to ask why she had not yet paid the outstanding charges. She responded that she was not happy with the appearance of the gravesite because a mound of dirt remained on top of the grave. She told Cline that she would pay the outstanding charges as soon as the dirt looked as if it had been raked properly. Cline replied that, if she did not pay the bill by noon the next day, the Cemetery would remove the gravestone and would charge her $100 for the removal, plus another $100 to replace the gravestone.
The record does not indicate what Kunkle's response to Cline's statement was, but it is clear that Cline called her later that night to tell her that the Cemetery had removed the gravestone. Kunkle drove to the Cemetery that night and observed that the gravestone was in fact missing. She contacted the sheriff the following day.
On April 29, 1997, Richard Roodhouse, a deputy sheriff for Stephenson County, accompanied Kunkle to the Cemetery. Roodhouse observed that the McLarnons' gravestone was missing from their graves and saw it lying on the ground near the caretaker's house.
He spoke to defendants, who admitted that they had removed the gravestone from the McLarnons' graves the night before because of Kunkle's failure to pay the fees she owed the Cemetery. They explained that the gravestone could not be replaced until the Cemetery had received those fees plus $100 for the removal of the gravestone and another $100 for its replacement. Cline showed him a copy of the Cemetery rules and suggested that he call the Director of Cemeteries in Springfield. After Roodhouse arrested defendants, Cline stated that April Gens, the manager of the Cemetery, had directed defendants to remove the gravestone.
Defendants were both charged by complaint with the "[u]nlawful removal of [a] grave stone in violation of Ch. 765 ILCS, Sec. 835/1b2 [sic]." The complaint alleged that they, "without proper authority, knowingly removed the headstone from the grave site of Hazel McLarnon." As defendants note in their briefs, the reference to this section of the Act in the complaints was incorrect. Although prior to January 1, 1996, section 1(b)(2) prohibited the removal of a gravestone (see 765 ILCS 835/1(b)(2) (West 1994)), it now prohibits vandalism or desecration of a park designated to preserve the memory of a person or group of persons (see 765 ILCS 835/1(b)(2) (West 1996)). At the time defendants were charged, the removal of a gravestone was prohibited by section 1(b-5) of the Act, which provides:
"Any person who acts without proper legal authority and who willfully and knowingly defaces, vandalizes, injures, or removes a gravestone or other memorial, monument, or marker commemorating a deceased person or group of persons, whether located within or outside of a recognized cemetery, memorial park, or battlefield is guilty of a Class 4 felony for damaging at least one but no more than 4 gravestones *** and shall provide restitution to the cemetery authority or property owner for the amount of any damage caused." 765 ILCS 835/1(b-5) (West 1996).
The error in the complaints was not brought to the attention of the trial court. Defendants waived their right to a jury trial, and, after a bench trial, the trial court found them both guilty of the unlawful removal of a gravestone in violation of section 1(b)(2) of the Act. The trial court sentenced defendants each to one year of conditional discharge, 30 hours of public service, and a fine of $100, plus court costs. As the complaints, the sentence the trial court imposed appears to have been based on the older version of section 1, under which a first offense of removal of a gravestone was a Class A misdemeanor. See 765 ILCS 835/1(b)(2) (West 1994). The fact that defendants appear to have been charged and sentenced ...