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People v. Pizano

March 04, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS PLAINTIFF-APPELLEE,
v.
CESAR PIZANO, DEFENDANT-APPELLEE.



[6] Appeal from the Circuit Court of Cook County. No. 00 CR 1178 Honorable Marcus R. Salone, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Theis

[8]  Following a bench trial, defendant Cesar Pizano was convicted of knowingly possessing a fraudulent identification card and sentenced to 18 months' probation and 7 days in the Sheriff"s Work Alternative Program (SWAP). On appeal, he raises the following contentions: (1) his sentence violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11); (2) section 14B(b)(1) of the Illinois Identification Card Act (the Act) (15 ILCS 335/14B(b)(1) (West 1998)) is unconstitutionally overbroad and violates his right to substantive due process; and (3) trial counsel was ineffective by eliciting prejudicial testimony from defendant. For the following reasons, we affirm defendant's conviction, vacate his sentence, and remand for resentencing.

[9]  BACKGROUND

[10]   On December 14, 1999, defendant was arrested for retail theft while at a department store at 4620 South Damen Street in Chicago. Officer Joseph Elfaher testified that he retrieved two resident alien identification cards from defendant's wallet. One of the cards displayed defendant's real name and the other card displayed the name "Cesar Ruiz." Defendant admitted that the card with the name of Cesar Ruiz was fake and that he had purchased it from a nearby store. The parties then stipulated that if called to testify, Joe Ferra of the Department of Immigration and Naturalization Services would testify that, after analyzing the alien identification card with the name Cesar Ruiz on it, he determined that the card was fraudulent.

[11]   Defendant testified that he had lived in the United States for 19 years. He had two resident alien identification cards, one of which he was authorized to carry and one of which he was not authorized to carry. He stated that six months prior to his arrest his wallet was stolen and he purchased a fraudulent identification card to "get into clubs and that." Defendant was over the age 21 at the time. He subsequently applied for and received an official replacement identification card, but continued to keep the fraudulent card in his wallet. He stated that he forgot he had the fraudulent card in his wallet, but when asked by the court how often he used the card to go to clubs, he replied, "two or three times in a month." The trial court found defendant guilty of knowingly possessing a fraudulent identification card under section 14B(b)(1) of the Act. 15 ILCS 335/14B(b)(1) (West 1998).

[12]   ANALYSIS

[13]   Defendant initially contends that the sentence imposed for possessing a fraudulent identification card pursuant to section 14B(c)(1) (15 ILCS 335/14B(c)(1) (West 1998)) violates the proportionate penalties clause when compared to the sentence imposed for various other subsections of the fraudulent identification card statute (15 ILCS 335/14B(c)(2), (c)(3) (West 1998)) and when compared to the sentence imposed for possessing a fictitious or unlawfully altered driver's license or permit pursuant to section 6-301.1(c)(1) of the Illinois Vehicle Code (the Vehicle Code) (625 ILCS 5/6-301.1(c)(1) (West 1998)). A statute is presumed to be constitutional, and the party challenging a statute bears the burden of establishing its invalidity. People v. Graves, 207 Ill. 2d 478, 482, 800 N.E.2d 790, 792 (2003). This court has an obligation to construe a statute in such a manner as to uphold its constitutionality if it is reasonable to do so. Whether the statute is constitutional will be reviewed de novo. Graves, 207 Ill. 2d at 482, 800 N.E.2d at 792.

[14]   Article I, section 11 of the Illinois Constitution, commonly referred to as the proportionate penalties clause, provides in pertinent part that "[a]ll penalties shall be determined * * * according to the seriousness of the offense * * *." Ill. Const. 1970, art. I, § 11. Our supreme court has held that the proportionate penalties clause can be violated in one of three instances, namely, where (1) the penalty for an offense is cruel, degrading, or so completely disproportionate to the offense for which it is imposed as to shock the moral sense of the community; (2) similar offenses are compared and conduct that creates a less serious threat to public health and safety is punished more severely; and (3) the penalties imposed for identical offenses differ. People v. Moss, 206 Ill. 2d 503, 522, 795 N.E.2d 208, 220 (2003).

[15]   In the present case, defendant asserts a violation of the second type. He initially argues that the penalty for the offense for which he was convicted, knowing possession of a fraudulent identification card, is more severe than the penalty imposed for the offenses delineated in various other subsections of the statute, which defendant maintains are similar but more serious offenses. When a defendant raises a challenge of this type, the court must apply a two-step cross-comparison analysis of the various subsections of the statute. See People v. Hill, 199 Ill. 2d 440, 455, 771 N.E.2d 374, 383 (2002). First, the court must compare the purposes of the specific provisions contained in the same statute and determine whether they are sufficiently distinct such that proportionality review is inappropriate. If the offenses do not have common or related purposes, a comparative proportionality review is inappropriate; when legislation defining criminal offenses is enacted for different purposes, we will presume that the legislature considered different factors in determining the appropriate penalties for the offenses and will defer to its judgment in this regard. If, however, the purposes of the two offenses are related, the court must then determine whether the offense with the harsher penalty is more serious than the offense with the lesser penalty. Moss, 206 Ill. 2d at 523, 795 N.E.2d at 221; Hill, 199 Ill. 2d at 454, 771 N.E.2d at 383.

[16]   Accordingly, we must first determine whether the legislature had a common or related purpose when enacting the various subsections of the fraudulent identification card statute.

[17]   Section 14B provides as follows:

[18]   "(b) It is a violation of this Section for any person:

[19]   1. To knowingly possess, display, or cause to be displayed any fraudulent identification card;

[20]   2. To knowingly possess, display, or cause to be displayed any fraudulent identification card for the purpose of obtaining any account, credit, credit card or debit card from a bank, financial institution or retail mercantile establishment;

[21]   3. To knowingly possess any fraudulent identification card with the intent to commit a theft, deception or credit or debit card fraud in violation of any law of this State or any law of any other jurisdiction;

[22]   4. To knowingly possess any fraudulent identification card with the intent to commit any other violation of any law of this State or any law of any other jurisdiction for which a sentence to a term of imprisonment in a penitentiary for one year or more is provided;

[23]   5. To knowingly possess any fraudulent identification card while in unauthorized possession of any document, instrument or device capable of defrauding another;

[24]   6. To knowingly possess any fraudulent identification card with the intent to use the identification card to acquire any other identification document;

[25]   7. To knowingly possess without authority any license-making implement;

[26]   8. To knowingly possess any stolen identification card making implement;

[27]   9. To knowingly duplicate, manufacture, sell or transfer any fraudulent identification card;

[28]   10. To advertise or distribute any information or materials that promote the selling, giving, or furnishing of ...


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