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People v. Bingham

Court of Appeals of Illinois, First District

February 10, 2017

JEROME BINGHAM, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County, No. 14-CR-11336; the Hon. Bridget Jane Hughes, Judge, presiding.

          Michael J. Pelletier and Deborah Nall, of State Appellate Defender's Office, of Chicago, for appellant.

          Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Mary L. Boland, and Haley Peck, Assistant State's Attorneys, of counsel), for the People.

          JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Presiding Justice Hoffman and Justice Cunningham concurred in the judgment and opinion.



         ¶ 1 Following a bench trial in September 2014, the trial court convicted defendant, Jerome Bingham, of theft, which was elevated to a Class 4 felony due to a previous retail theft conviction, and sentenced him to three years' imprisonment. Defendant had a prior conviction in 1983 for attempted criminal sexual assault for which he had not been required to register as a sex offender because the conviction occurred prior to enactment of the Sex Offender Registration Act (Act) (730 ILCS 150/1 et seq. (West 2012)) in 1986. Under section 3(c)(2.1) of the Act (730 ILCS 150/3(c)(2.1) (West 2012)), as amended in 2011, defendant's 2014 felony theft conviction in this case required him to register as a sex offender for the 1983 attempted criminal sexual assault. On appeal, defendant contends (1) the Act is unconstitutional as applied to him; (2) the Act violates the ex post facto clauses of the United States and Illinois Constitutions; (3) his theft conviction was improperly elevated from a Class A misdemeanor to a Class 4 felony, and the trial court improperly imposed an enhanced three-year sentence for the Class 4 felony conviction; and (4) the trial court erroneously imposed a DNA analysis fee and failed to apply the $5 per day credit for presentence incarceration to several charges that qualify as fines. We affirm defendant's conviction, three-year sentence, and the requirement that he register as a sex offender. We vacate his DNA analysis fee, credit him with $65 as against his fines, and direct the clerk of the circuit court to modify the fines and fees order accordingly.

         ¶ 2 I. Defendant's Theft Conviction

         Defendant was charged with theft after a surveillance camera recorded him taking several pallets from the unfenced yard of a Kmart in Norridge, Illinois, at approximately 6:30 p.m. on May 3, 2014. The indictment alleged that defendant committed theft "in that he, knowingly obtained or exerted unauthorized control over property, to wit: pallets, of a value less than five hundred dollars, the property of Kmart, intending to deprive Kmart, permanently of the use or benefit of said property, and the defendant has been previously convicted of the offense [of] retail theft under case number 00125524901, in violation of Chapter 720 Act 5 section 16-1(a)(1) of the Illinois Compiled Statutes 1992 as amended."

         ¶ 3 The cause proceeded to a one-day trial on September 11, 2014. At trial, Ali Sahtout testified he works as a security guard at the Kmart at 4201 North Harlem Avenue in Norridge. At approximately 6:30 p.m. on May 3, 2014, Mr. Sahtout was in the Kmart security office monitoring the video cameras when he saw defendant drive his truck to the receiving area in the back of the store where storage units and pallets belonging to Kmart are located. Defendant exited his truck, grabbed a total of six pallets (two pallets at a time), and put them on the back of his truck. Then he drove away. The pallets were valued at $12 each. Defendant was never given permission to take the pallets.

         ¶ 4 Mr. Sahtout contacted the Norridge police department. About five minutes later, the police called him back and asked him to come to a location a half block from the receiving area of the store. Mr. Sahtout went there and saw that the officers had pulled defendant over and placed him in a squad car.

         ¶ 5 Mr. Sahtout identified People's exhibit No. 1 as the video depicting defendant taking the pallets and putting them in the back of his truck. Mr. Sahtout identified People's exhibits Nos. 2 through 5 as photographs truly depicting how defendant's truck appeared on May 3, 2014.

         ¶ 6 Officer Peter Giannakopoulos of the Norridge police department testified that at approximately 6:30 p.m. on May 3, 2014, he was patrolling the 4200 block of Harlem Avenue. He was dispatched to the Kmart store a half block away because there was a report that an African-American man in a black pickup truck with registration plate 1129940 B had taken some pallets from the rear of the property.

         ¶ 7 Officer Giannakopoulos arrived at the Kmart receiving area about two minutes later, and he saw a black pickup truck with registration plate 1129940 B leaving the area. Defendant was the driver. The officer curbed the truck and saw several pallets on the truck's open bed.

         ¶ 8 Officer Giannakopoulos asked Mr. Sahtout to come to his location to make an identification. Mr. Sahtout came and identified defendant as the person who had taken the pallets from the rear of the Kmart. Defendant was placed under arrest.

         ¶ 9 Following the testimony of Officer Giannakopoulos, the parties stipulated that defendant had a previous conviction for retail theft in case No. 00125524901. The State entered its exhibits into evidence, and the trial court viewed the video depicting ...

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