from Circuit Court of Macon County No. 14CF1263 Honorable
Timothy J. Steadman, Judge Presiding.
JUSTICE TURNER delivered the judgment of the court, with
opinion. Justices Knecht and DeArmond concurred in the
judgment and opinion.
1 In October 2014, the State charged defendant, Tyler R.
Burlington, with one count of burglary (720 ILCS 5/19-1(a)
(West 2014)). After a February 2015 trial, a jury found
defendant guilty of burglary. Defendant filed a posttrial
motion. At a joint April 2015 hearing, the Macon County
circuit court denied defendant's posttrial motion and
sentenced him to seven years' imprisonment. Defendant
filed a motion to reconsider his sentence, which the court
granted. After a second sentencing hearing in July 2015, the
court sentenced defendant to six years' imprisonment.
Defendant appeals, asserting (1) the State failed to prove
beyond a reasonable doubt he entered a Menards store without
authority, (2) the court erred by allowing his prior burglary
convictions to be used as impeachment evidence, (3) he is
entitled to two additional days of sentencing credit, and (4)
this court should vacate his fines imposed by the circuit
clerk and the electronic citation fee. We affirm in part as
modified, vacate in part, and remand the cause with
2 I. BACKGROUND
3 The State's information alleged that, on October 10,
2014, defendant committed burglary, in that he, without
authority, knowingly entered the building of Menards in
Forsyth, Illinois. Burglary is a Class 2 felony. 720 ILCS
5/19-1(b) (West 2014). However, based on defendant's
criminal history, the parties and the circuit court believed
defendant was subject to Class X sentencing. See 730 ILCS
5/5-4.5-95(b) (West 2014).
4 In February 2015, the circuit court commenced
defendant's jury trial on the burglary charge. The State
presented the testimony of Donald Langlois, Menards assistant
general manager, and Eric Dowdy, deputy sheriff. It also
presented footage from the Menards surveillance cameras.
Defendant testified on his own behalf. The evidence relevant
to the issues on appeal is set forth below.
5 At around 8 p.m. on October 10, 2014, Langlois was working
at Menards. One of his duties was loss prevention, and he was
responsible for observing the footage from the 42
surveillance cameras inside Menards. Defendant entered the
store, went directly to a digital camera recording system,
removed the system from the shelf, walked through the cash
register area, and attempted to leave the store. After being
stopped by a cashier, defendant attempted to return the item
at the service desk for cash. Langlois was watching the
attempted return in real time and could hear the conversation
between defendant and the employee at the service desk
through the microphone located on the service desk. Defendant
denied stealing the item. While at the service counter,
defendant purchased a screwdriver. While Langlois was on the
stand, the State played a video from the Menards surveillance
cameras. The video did not have any audio. Langlois
identified defendant on the video as the man wearing a
Superman sweatshirt. He also identified defendant in court as
the man he saw on the video.
6 Deputy Dowdy testified he was on duty the night of October
10, 2014, and responded to a call at Menards around 8:47 p.m.
Upon arrival, he made contact with defendant, who was wearing
a black and teal Superman hoodie, jeans, and a blue stocking
cap. Defendant waived his rights under Miranda v.
Arizona, 384 U.S. 436 (1966), and Deputy Dowdy
interviewed defendant in the loss prevention room. Defendant
told Deputy Dowdy he had entered the store to take an item
and return it for United States currency because he owed a
man named Tony money for drugs. If he did not pay Tony, he
would be physically harmed. Defendant also indicated he had
bought a screwdriver while in Menards but that was not the
reason why he went there.
7 Before defendant testified, defense counsel made a motion
to exclude defendant's prior convictions for burglary
(People v. Burlington, No. 09-CF-731 (Cir. Ct. Macon County))
and retail theft (People v. Burlington, No. 12-CF-1536 (Cir.
Ct. Macon County)). Counsel did not challenge the admission
of defendant's prior conviction for residential burglary
(People v. Burlington, No. 09-CF-1912 (Cir. Ct. Macon
County)) and aggravated driving under the influence (DUI)
(People v. Burlington, No. 09-CF-865 (Cir. Ct. Macon
County)). After hearing the parties' arguments, the court
barred the use of defendant's aggravated DUI conviction
for impeachment purposes but allowed the admission of the
other three convictions.
8 Defendant testified he had prior convictions for burglary,
residential burglary, and retail theft. When he went to
Menards on the night in question, his intent was to buy a
screwdriver, and he did so. Defendant denied entering the
store with an intent to steal. According to defendant, he
walked into the store and asked the guy next to the service
desk where the screwdrivers were. He then went to the
screwdrivers. Thereafter, he began walking around the store
to see what else he wanted. Defendant did not find anything
else. Eventually, he picked up the camera and thought he
might "take it." Defendant then decided to pay for
one item and then act like he was going to walk out.
Moreover, he was the one that stopped the woman and asked her
where the service desk was. He walked all the way around the
store and then went to the service desk. Defendant purchased
the screwdriver and talked to them about returning the
camera. The service desk never gave him money or a gift card,
and he never left the store with a stolen item. Defendant
further testified he told Deputy Dowdy he owed someone $200
and decided to take the item to pay his debt when he was
already in the store. Defendant testified he made up the
story about owing someone money to get out of trouble.
Additionally, defendant testified a 20-minute gap existed
between the first and the second clip. During that period is
when he talked to the man next to the service desk, obtained
the screwdriver, and walked around the store.
9 One of the jury instructions the circuit court gave the
jury was Illinois Pattern Jury Instructions, Criminal, No.
3.13 (approved Oct. 17, 2014) (hereinafter IPI Criminal No.
3.13), which states the following: "Evidence of a
defendant's previous conviction of an offense may be
considered by you only as it may affect his believability as
a witness and must not be considered by you as evidence of
his guilt of the offense with which he is charged."
10 At the conclusion of the trial on February 24, 2015, the
jury found defendant guilty of burglary. On April 7, 2015,
defendant filed a motion for a new trial or for a judgment
notwithstanding the verdict, asserting the State failed to
prove him guilty beyond a reasonable doubt. At a joint April
10, 2015, hearing, the circuit court denied defendant's
posttrial motion and sentenced him as a Class X offender to
seven years' imprisonment for burglary. In the written
sentencing judgment, the court gave defendant sentencing
credit for the period of October 12, 2014, to April 9, 2015.
The court did not impose any fines. On April 23, 2015,
defendant filed a notice of appeal, and this court dismissed
the appeal at defendant's request (People v.
Burlington, No. 4-15-0296 (July 1, 2015) (unpublished
order dismissing the appeal)).
11 On May 8, 2015, defendant filed a motion to reconsider his
sentence, contending he should not have been sentenced as a
Class X offender. The State did not object, and the circuit
court allowed the motion. On July 24, 2015, the court held a
new sentencing hearing, at which defendant was sentenced on
the Class 2 felony. The court sentenced defendant to six
years' imprisonment and gave defendant sentencing credit
for the period of October 12, 2014, to July 23, 2015. The
court again did not impose any fines.
12 On August 5, 2015, defendant filed a timely notice of
appeal in sufficient compliance with Illinois Supreme Court
Rule 606 (eff. Dec. 11, 2014), but the notice indicated the
appealed judgment was only his sentence. On August 19, 2015,
defendant filed a timely amended notice of appeal under
Illinois Supreme Court Rules 606(d) (eff. Dec. 11, 2014) and
303(b)(5) (eff. Jan. 1, 2015), appealing both his conviction
and sentence. Thus, this court has jurisdiction of
defendant's appeal under Illinois Supreme Court Rule 603
(eff. Feb. 6, 2013).
13 II. ANALYSIS
14 A. Reasonable Doubt
15 Defendant first asserts the State failed to prove beyond a
reasonable doubt he entered Menards without authority,
contending the term is ambiguous and this court should take
into consideration the same factors considered by our supreme
court in People v. Bradford, 2016 IL 118674, 50
N.E.3d 1112. The State disagrees. Here, defendant's
challenge to his guilty finding is a legal one of statutory
construction and not a factual one of ...