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People v. McCormick

July 17, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CLIFFORD PATRICK MCCORMICK, DEFENDANT-APPELLANT.



Appeal from Circuit Court of McLean County No. 00CF44 Honorable Donald D. Bernardi, Judge Presiding.

The opinion of the court was delivered by: Justice Appleton

Released for publication July 22, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CLIFFORD PATRICK MCCORMICK, DEFENDANT-APPELLANT.

Appeal from Circuit Court of McLean County No. 00CF44 Honorable Donald D. Bernardi, Judge Presiding.

The opinion of the court was delivered by: Justice Appleton

After a bench trial, the trial court found defendant, Clifford Patrick McCormick, guilty of violating section 1 of the Harassing and Obscene Communications Act (Communications Act) (720 ILCS 135/1 (West 2000)). The trial court sentenced him to three years' imprisonment and ordered him to pay restitution to the victim for parking tickets she had received. Afterward, the circuit clerk notified defendant that he also must pay a fine pursuant to section 10(c) of the Violent Crime Victims Assistance Act (Victims Assistance Act) (725 ILCS 240/10(c) (West 2000)). Defendant appeals, arguing that (1) section 2(b)(5) of the Communications Act violated his constitutional right to equal protection; (2) section 2(b)(5) violated the proportionate penalties clause (Ill. Const. 1970, art. I, §11); (3) the trial court had no statutory authority to order restitution for the parking tickets; and (4) only the court, not the circuit clerk, had authority to impose the fine. We affirm in part, vacate in part, and remand with directions.

I. BACKGROUND

In a two-count indictment, the State charged defendant with violating section 1 of the Communications Act, a Class 4 - 1 -felony, in that having been previously convicted of burglary, he made telephone calls to Crystal Chenoweth "with the intent to abuse, threaten[,] or harass any person at the called number." Count I alleged that he made a harassing call to her on January 6, 2000, and count II alleged that he made another harassing call to her on January 7, 2000.

Normally, if no aggravating circumstances are present and it is a first offense, harassment by telephone is a Class B misdemeanor, punishable by no more than six months' imprisonment. 720 ILCS 135/2(a) (West 2000); 730 ILCS 5/5-8-3(a)(2) (West 2000). However, under section 2(b)(5) of the Communications Act (720 ILCS 135/2(b)(5) (West 2000)), harassment by telephone becomes a Class 4 felony if, during the past 10 years, the offender was convicted of a "forcible felony" within the meaning of section 2-8 of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/2-8 (West 2000)). The nonextended term of imprisonment for a Class 4 felony is not less than one year and not more than three years. 730 ILCS 5/5-8-1(a)(7) (West 2000). Burglary is a forcible felony. 720 ILCS 5/2-8 (West 2000).

Defendant moved to dismiss the indictment on the grounds that section 2(b)(5) violated the proportionate penalties clause (Ill. Const. 1970, art. I, §11) as well as his right to due process and equal protection under the state and federal constitutions. The trial court denied the motion. In the trial court's view, the legislature could have reasonably believed that those who had "demonstrated their ability and willingness to commit forcible felonies" were "more likely to take the same action after the phone call."

On April 14, 2000, at the conclusion of the bench trial, the trial court adjudged defendant guilty of count II alone, harassment by telephone on January 7, 2000. The offense was a Class 4 felony because on February 6, 1999, defendant was convicted of burglary, a forcible felony. Defendant had burglarized a car. He represents that no one was in the car and that, in committing the burglary, he neither inflicted nor threatened bodily harm. On May 26, 2000, the trial court imposed the sentence of three years' imprisonment for telephone harassment, giving defendant credit for 141 days served and ordering that the term of imprisonment run concurrently with that in the burglary case.

The trial court also ordered him to pay $270 in restitution to Chenoweth. According to a "victim letter," Chenoweth was afraid to park in a public garage since defendant began harassing her. For safety, she began parking on the street right outside her apartment, and she continued doing so even after the police arrested defendant, because she was unsure of his whereabouts. She incurred $270 in parking tickets from the City of Bloomington.

Without order of the trial court, the circuit clerk assessed a fine of $20 against defendant pursuant to section 10(c) of the Victims Assistance Act (725 ILCS 240/10(c) (West 2000)).

Defendant filed a motion for a new trial, arguing, inter alia, that the trial court had erred in denying his motion to dismiss the indictment. In the proceedings below, defendant never challenged the order of ...


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