                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Hodges, 2011 IL App (2d) 110165




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JASON B. HODGES, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-11-0165


Filed                      December 12, 2011


Held                       The trial court properly denied defendant’s motion to withdraw his guilty
(Note: This syllabus       plea to identity theft under section 16G-15(a)(4) of the Criminal Code,
constitutes no part of     notwithstanding defendant’s contention that section 16G-15(a)(4) did not
the opinion of the court   require a culpable mental state and potentially punished wholly innocent
but has been prepared      conduct, since the obiter dictum in the Illinois Supreme Court’s decision
by the Reporter of         in Madrigal that section 16G-15(a)(4) requires general knowledge and a
Decisions for the          criminal purpose is binding.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Du Page County, No. 08-CF-1636; the
Review                     Hon. Robert G. Kleeman, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Thomas A. Lilien and Mark G. Levine, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.

                           Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman,
                           Assistant State’s Attorney, Lawrence M. Bauer and Victoria E. Jozef,
                           both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for
                           the People.


Panel                      JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
                           Justice Burke concurred in the judgment and opinion.
                           Justice McLaren dissented, with opinion.




                                             OPINION

¶1          Defendant, Jason B. Hodges, pleaded guilty to one count of identity theft under section
        16G-15(a)(4) of the Criminal Code of 1961 (Code) (720 ILCS 5/16G-15(a)(4) (West 2008))
        and was sentenced to seven years’ imprisonment. Defendant filed a motion to withdraw his
        guilty plea, arguing that the trial court’s judgment was void because section 16G-15(a)(4)
        lacks a culpable mental state and thus is facially unconstitutional. The trial court denied
        defendant’s motion, and defendant brought this timely appeal.
¶2          On appeal, defendant argues that the trial court erred in denying his motion to withdraw
        his guilty plea, because section 16G-15(a)(4) of the Code is facially unconstitutional, as it
        does not require a culpable mental state and potentially punishes wholly innocent conduct.
        Section 16G-15(a)(4) of the Code provides that a person commits identity theft when he or
        she knowingly “uses, obtains, records, possesses, sells, transfers, purchases, or manufactures
        any personal identification information or personal identification document of another
        knowing that such personal identification information or personal identification documents
        were stolen or produced without lawful authority.” 720 ILCS 5/16G-15(a)(4) (West 2008).
        Whatever the merits of defendant’s argument on appeal, we must affirm the trial court’s
        judgment because of the supreme court’s statement in People v. Madrigal, 241 Ill. 2d 463
        (2011).
¶3          In Madrigal, the defendant challenged section 16G-15(a)(7) of the Code (720 ILCS
        5/16G-15(a)(7) (West 2008)), which provides that a person commits identity theft when he
        or she knowingly “uses any personal identification information or personal identification
        document of another for the purpose of gaining access to any record of the actions taken,
        communications made or received, or other activities or transactions of that person, without
        the prior express permission of that person.” The defendant argued that section 16G-15(a)(7)
        lacked a culpable mental state and potentially punished wholly innocent conduct. Madrigal,

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     241 Ill. 2d at 465. The supreme court agreed with the defendant and upheld the trial court’s
     finding that section 16G-15(a)(7) was facially unconstitutional. Madrigal, 241 Ill. 2d at 472-
     73. However, the supreme court made the following statements regarding the other
     subparagraphs of section 16G-15(a):
         “All seven of the subparagraphs in section 16G-15(a) require at least a mental state of
         mere knowledge, as introductory paragraph (a) makes clear ***. [Citation.] The first five
         offenses listed in subparagraphs (a)(1) through (a)(5), however, also require the
         additional element of criminal intent or knowledge. In other words, they require a
         criminal purpose in addition to the general knowledge that one is committing the actions
         specified. Subparagraphs (a)(1) through (a)(5) are not at issue in this case and clearly do
         not fall within the parameters of the line of cases that deal with statutes that potentially
         punish innocent conduct.” Madrigal, 241 Ill. 2d at 470.
¶4       This statement by the supreme court–that subparagraphs (a)(1) through (a)(5) require a
     criminal purpose in addition to general knowledge and do not fall within the line of cases that
     deal with statutes that potentially punish innocent conduct–precludes any challenge to the
     constitutionality of subparagraph (a)(4) on the ground that it lacks a culpable mental state and
     potentially punishes innocent conduct. Although subparagraph (a)(4) was not at issue in
     Madrigal and the court’s statement appears to be obiter dictum, “ ‘[e]ven obiter dictum of
     a court of last resort can be tantamount to a decision and therefore binding in the absence of
     a contrary decision of that court.’ ” Nudell v. Forest Preserve District, 207 Ill. 2d 409, 416
     (2003) (quoting Cates v. Cates 156 Ill. 2d 76, 80 (1993)). No exception to this rule appears
     in existing case law, and there is no decision contrary to Madrigal. Accordingly, we are
     bound by the statement in Madrigal and must affirm the trial court’s denial of defendant’s
     motion to withdraw his guilty plea.
¶5       The judgment of the circuit court of Du Page County is affirmed.

¶6       Affirmed.

¶7       JUSTICE McLAREN, dissenting.
¶8       I respectfully dissent because I believe that a close reading of Madrigal shows the
     inconsistency between the dicta and the holding in Madrigal. Madrigal compared, through
     dicta, subparagraphs (a)(1) through (a)(6) with subparagraph (a)(7), which was in contention.
     The dicta declared that subparagraphs (a)(1) through (a)(5) contained an additional element
     of criminal intent or knowledge beyond that of mere knowledge but that subparagraph (a)(6)
     did “not appear” to do so.1 Madrigal, 241 Ill. 2d at 470-71. The dicta were required for
     neither the logical analysis of the merits of the appeal (ratio decidendi) nor the holding




             1
               Because subparagraph (a)(6) was “not at issue,” the court made “no ruling with respect to
     its constitutionality.” Madrigal, 241 Ill. 2d at 471 n.1.

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       (decisis) and, thus, are obiter dicta.2 The constitutionality of subparagraph (a)(7) did not rest
       on the validity of any or all of the other six subparagraphs.
¶9         In analyzing Madrigal, the First District Appellate Court related:
           “[T]he Illinois Supreme Court rejected the State’s request to read a mental state into a
           statute criminalizing innocent conduct under the rubric of identity theft. The supreme
           court applied the rule that a statute violates the due process clauses of both the Illinois
           and United States Constitutions if it potentially subjects wholly innocent conduct to
           criminal penalty without requiring a culpable mental state beyond mere knowledge.
           Madrigal, 241 Ill. 2d at 467. The identity theft statute at issue specified a mental state of
           mere knowledge, not criminal intent or knowledge. Madrigal, 241 Ill. 2d at 470. Thus,
           the supreme court could not substitute a culpable mental state for mere knowledge. In
           contrast, where a statute does not specify a mental state in the first instance, the court
           may read a culpable mental state into the statute. See Madrigal, 241 Ill. 2d at 474-75
           (discussing People v. Wright, 194 Ill. 2d 1 (2000), and People v. Tolliver, 147 Ill. 2d 397
           (1992)).” People v. Farmer, 2011 IL App (1st) 083185, ¶ 22.
¶ 10       The Madrigal court stated:
           “All seven of the subparagraphs in section 16G-15(a) require at least a mental state of
           mere knowledge, as introductory paragraph (a) makes clear: ‘A person commits the
           offense of identity theft when he or she knowingly’ does anything proscribed by the
           different offenses in subparagraphs (a)(1) through (a)(7). (Emphasis added.) 720 ILCS
           5/16G-15(a) (West 2008). The first five offenses listed in subparagraphs (a)(1) through
           (a)(5), however, also require the additional element of criminal intent or knowledge. In
           other words, they require a criminal purpose in addition to the general knowledge that
           one is committing the actions specified. Subparagraphs (a)(1) through (a)(5) are not at
           issue in this case and clearly do not fall within the parameters of the line of cases that
           deal with statutes that potentially punish innocent conduct. Unlike the offenses described
           in subparagraphs (a)(1) through (a)(5), however, subparagraph (a)(7) clearly does not
           require criminal intent, criminal knowledge, or a criminal purpose in order to subject one
           to a felony conviction and punishment.” Madrigal, 241 Ill. 2d at 470.
       The supreme court saw references to criminality in subparagraphs (a)(1) through (a)(5).
       However, the court’s analysis did not directly relate how the language in subparagraph (a)(4)
       made the proscribed actions criminal. The criminality contained in subparagraph (a)(4)
       relates to the theft or production of information without lawful authority:
                “(4) uses, obtains, records, possesses, sells, transfers, purchases, or manufactures any
           personal identification information or personal identification document of another
           knowing that such personal identification information or personal identification
           documents were stolen or produced without lawful authority[.]” (Emphasis added.) 720


               2
                 “Obiter dicta are comments in a judicial opinion that are unnecessary to the disposition of
       the case. People v. Williams, 204 Ill. 2d 191, 206 (2003). Such an expression or opinion as a general
       rule is not binding as authority or precedent within the stare decisis rule. Cates v. Cates, 156 Ill. 2d
       76, 80 (1993).” People v. Lacy, 2011 App (5th) 100347, ¶ 18 (subject to revision or withdrawal).

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           ILCS 5/16G-15(a)(4) (West 2008).
¶ 11       However, the acts proscribed are not theft or production, whether by the person charged
       under subparagraph (a)(4) or someone else (subparagraph (a)(4) does not require that the
       defendant steal or produce the information or documents); rather, the defendant “uses,
       obtains, records, possesses, sells, transfers, purchases, or manufactures” while knowing that
       the information or documents were stolen or produced without lawful authority. Not all of
       these acts, particularly possession, are necessarily criminal behavior that ought to be
       punished. Thus, I believe that the dicta in Madrigal, relating to the facts and the charge in
       this case, conflict with the holding in Madrigal, and this court should address the merits of
       the claim rather than foreclose such an analysis on the basis of the obiter dicta.
¶ 12       The obiter dicta claim that subparagraphs (a)(1) through (a)(5), but not specifically
       subparagraph (a)(4), contain “the additional element of criminal intent or knowledge” such
       that they require “a criminal purpose in addition to the general knowledge that one is
       committing the actions specified.” Madrigal, 241 Ill. 2d at 470. Criminal knowledge
       requires, for example, that the offender “possess *** for a criminal purpose as opposed to
       possessing *** for an innocent reason.” In re S.M., 347 Ill. App. 3d 620, 626 (2004)
       (implying a mental state of criminal knowledge to satisfy the mens rea element of unlawful
       possession of firearms (720 ILCS 5/24-3.1 (West 2000))).
¶ 13       In Madrigal, the supreme court did not specifically address what additional criminal
       intent, knowledge, or purpose is required by subparagraph (a)(4), and I cannot discern such
       a requirement. Knowledge that information or documents were “stolen or produced without
       lawful authority” is not criminal knowledge. A mother who confiscates her son’s fake
       driver’s license but does not immediately destroy it would probably be surprised to learn that
       she had “criminal intent or knowledge” such that she would be guilty of a Class 3 felony. The
       only criminal intent referred to in subparagraph (a)(4) is “knowingly”; thus, the obiter dicta
       are factually incorrect as to subparagraph (a)(4) and are also in conflict with Madrigal’s
       analysis of subparagraph (a)(7) and its holding. “This court has repeatedly held that a statute
       violates the due process clauses of both the Illinois and United States Constitutions if it
       potentially subjects wholly innocent conduct to criminal penalty without requiring a culpable
       mental state beyond mere knowledge.” Madrigal, 241 Ill. 2d at 467.
¶ 14       I submit that the obiter dicta in Madrigal should not control the analysis in this appeal.
       Rather, the rationale and the holding in Madrigal should apply to this opinion. Thus, I
       dissent.




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