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People v. Baumann

July 11, 2000

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
V.
RICHARD B. BAUMANN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 98--CF--1645 Honorable Michael J. Burke, Judge, Presiding.

The opinion of the court was delivered by: Justice Inglis

Defendant, Richard B. Baumann, pleaded guilty to the possession of a stolen motor vehicle, a Class 2 felony. See 625 ILCS 5/4--103(a)(1), (b) (West 1998). He previously had been convicted of attempted armed robbery (720 ILCS 5/8--4(a), 18--2(a) (West 1998)) and attempted residential burglary (720 ILCS 5/8--4(a), 19--3(a) (West 1998)). He filed a motion to declare himself ineligible for Class X (730 ILCS 5/5--5--3(c)(8) (West 1998)) or extended-term (730 ILCS 5/5--5--3.2(b)(1) (West 1998)) sentencing. The trial court denied the motion and sentenced defendant to eight years' imprisonment, one year more than the maximum Class 2 sentence. See 730 ILCS 5/5--8--1(a)(5) (West 1998). Defendant appeals, arguing that his sentence is void. We affirm.

A defendant who is more than 21 years old is eligible for Class X sentencing if he is convicted of a Class 2 felony after "having twice been convicted of any Class 2 or greater Class felonies." 730 ILCS 5/5--5--3(c)(8) (West 1998). Furthermore, a defendant is eligible for extended-term sentencing if he is convicted of any felony within 10 years after being convicted of "the same or similar class felony or greater class felony." 730 ILCS 5/5--5--3.2(b)(1) (West 1998). As defendant concedes, the sole issue in this case is whether the trial court properly treated his prior offenses, attempted armed robbery and attempted residential burglary, as Class 2 or greater class felonies. If so, defendant's sentence is valid as a Class X (730 ILCS 5/5--8--1(a)(3) (West 1998)) or an extended-term (730 ILCS 5/5--8--2(a)(4) (West 1998)) sentence. If not, defendant is eligible only for a Class 2 sentence, and his sentence is void. See People v. Arna, 168 Ill. 2d 107, 113 (1995) ("A sentence which does not conform to a statutory requirement is void"). Because this is a question of law, our review of the trial court's ruling is de novo. See People v. Ernst, 311 Ill. App. 3d 672, 675 (2000).

Defendant attempted to commit the Class X felony of armed robbery (720 ILCS 5/18--2(b) (West 1998)) and the Class 1 felony of residential burglary (720 ILCS 5/19--3(b) (West 1998)). Therefore, he was subject to the following provisions of section 8--4(c) of the Criminal Code of 1961:

"A person convicted of an attempt may be fined or imprisoned or both not to exceed the maximum provided for the offense attempted but ***

***

(2) the sentence for attempt to commit a Class X felony is the sentence for a Class 1 felony;

(3) the sentence for attempt to commit a Class 1 felony is the sentence for a Class 2 felony[.]" 720 ILCS 5/8--4(c)(2), (c)(3) (West 1998).

Defendant argues that, although these provisions classified the sentences for the offenses, they did not classify the crimes themselves. Therefore, according to defendant, the offenses were unclassified and subject to section 5--5--2(a) of the Unified Code of Corrections:

"The particular classification of each felony is specified in the law defining the felony. Any unclassified offense which is declared by law to be a felony or which provides a sentence to a term of imprisonment for one year or more shall be a Class 4 felony." 730 ILCS 5/5--5--2(a) (West 1998).

Defendant concludes that, for the purposes of determining his sentence in the current case, his attempted armed robbery and attempted residential burglary were Class 4 felonies. We disagree.

The essence of defendant's argument has been rejected several times. In People v. Calvert, 82 Ill. App. 3d 350 (1980), the defendant was convicted of attempted murder. The effective version of section 8--4(c) stated that "the sentence for attempt to commit murder shall not exceed the sentence for a Class 1 felony." Ill. Rev. Stat. 1975, ch. 38, par. 8--4(c)(1). The defendant was sentenced to 5 to 10 years' imprisonment, and he appealed. He argued that section 8--4(c) left attempted murder unclassified and that, under section 5--5--2(a), the offense was a Class 4 felony subject only to a sentence of one to three years. See Ill. Rev. Stat. 1975, ch. 38, par. 1005--8--1(b)(5). Rather summarily, the court rejected the argument and upheld the defendant's sentence. Calvert, 82 Ill. App. 3d at 352-53.

Likewise, in People v. Musial, 90 Ill. App. 3d 930 (1980), the defendant was convicted of attempted murder and sentenced to 8 to 15 years' imprisonment. Under the same version of section 8--4(c), the defendant argued that attempted murder was unclassified and subject only to a Class 4 sentence. Following Calvert, the court stated as follows:

"We think it would be anomalous for any court to hold that attempt murder should be downgraded by three categories with a commensurate reduction in the sentencing range simply because the prohibited act is not completed. Defendant's contention is, therefore, without support in law or logic." Musial, 90 Ill. App. 3d at 936. ...


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