Filed 11/16/07             NO. 4-06-0945

                        IN THE APPELLATE COURT

                             OF ILLINOIS

                           FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,    )    Appeal from
          Plaintiff-Appellee,           )    Circuit Court of
          v.                            )    Sangamon County
MALCOLM A. FARRELL,                     )    No. 06CF635
          Defendant-Appellant.          )
                                        )    Honorable
                                        )    Robert J. Eggers,
                                        )    Judge Presiding.
_________________________________________________________________

           JUSTICE COOK delivered the opinion of the court:

           In August 2006, a jury found defendant, Malcolm A.

Farrell, guilty of aggravated robbery.      In October 2006, the

trial court sentenced him to a 20-year prison term.      Defendant

appeals, arguing the trial court erred by allowing the State to

introduce evidence of defendant's 1988 theft conviction for

impeachment purposes.    We affirm.

                            I. BACKGROUND

           On June 15, 2006, the State charged defendant by

information with aggravated robbery.    720 ILCS 5/18-5(a) (West

2004).   The State alleged that on May 26, 2006, defendant took

Richard Desollar's wallet by threatening the imminent use of

force.   Defendant purportedly indicated to Desollar, during the

robbery in the restroom at the Springfield Amtrak station, that

he had a firearm.

           Prior to trial, the State filed a notice of intent to

impeach defendant with his prior convictions for armed violence

and armed robbery, both Class X felonies, and theft over $300, a
Class 3 felony.   Judgments of conviction for those offenses were

entered on June 6, 1988; defendant received a 25-year sentence

for each of the Class X felonies and a 5-year sentence for the

theft conviction, with all three sentences to run concurrently.

Defendant had been released on mandatory supervised release (MSR)

on September 18, 2001, but returned to prison in November 2002

for an MSR violation.   He was again released on October 17, 2003.

The trial court determined that the introduction of the armed-

robbery and armed-violence convictions would unfairly prejudice

defendant but ruled that the State could impeach defendant with

his theft conviction.

           At his August 2006 jury trial, defendant testified on

direct examination that he had been convicted of theft in 1988.

The State did not mention the conviction during cross-examina-

tion.   The jury found defendant guilty; and in October 2006, the

trial court sentenced defendant as stated.   This appeal followed.

                           II. ANALYSIS

           Defendant's sole contention on appeal is that the trial

court erred when it ruled that the State could impeach defendant

with his prior theft conviction.   He argues that the conviction

was outside the 10-year time limit prescribed by People v.

Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971), which adopted

the 1971 proposed draft of Federal Rule of Evidence 609.     People

v. Cox, 195 Ill. 2d 378, 383, 748 N.E.2d 166, 169 (2001).

           "Under this rule, evidence of a prior con-

           viction is admissible for impeachment purposes


                               - 2 -
          if (1) the witness' crime was punishable by

          death or imprisonment of more than one year,

          or the crime involved dishonesty or false

          statement regardless of the punishment;

          (2) the witness' conviction or release from

          confinement, whichever date is later, occurred

          less than 10 years from the date of trial;

          and (3) the danger of unfair prejudice does

          not substantially outweigh the probative value

          of the conviction."    Cox, 195 Ill. 2d at 383,

          748 N.E.2d at 169, citing Montgomery, 47 Ill.

          2d at 516, 268 N.E.2d at 698.

Rule 609 was ultimately enacted in a different form than that

proposed in 1971, and it has been amended several times since

then.   Nonetheless, the version adopted in Montgomery has re-

mained the framework for determining the admissibility of prior

convictions for impeachment purposes in Illinois state courts.

Cox, 195 Ill. 2d at 383 n.1, 748 N.E.2d at 169 n. 1.

          As noted previously, the trial court ruled that only

defendant's 1988 theft conviction would be admissible to impeach

defendant.   Defendant reasons that his "release from confinement"

on that charge would have been more than 10 years before the date

of his August 2006 trial because he only received a 5-year

sentence for the theft.   Defendant was not actually released from

prison after serving his 5-year sentence due to his concurrent

25-year sentences for armed violence and armed robbery.


                                - 3 -
           As it exists today, Rule 609 provides that evidence of

a conviction "is not admissible if a period of more than ten

years has elapsed since the date of the conviction or of the

release of the witness from the confinement imposed for that

conviction, whichever is the later date."   (Emphasis added.)

Fed. R. Evid. 609(b) (28 U.S.C. app. Fed. R. Evid. 609(b)

(2000)).   The rule adopted in Montgomery, however, did not

specify that the starting date for the 10-year period began upon

release from confinement imposed for the conviction being used

for impeachment purposes; the Montgomery rule simply stated that

the 10-year period began upon "release from confinement."     Absent

words like "imposed for that conviction," we presume that the

Montgomery test means just what it says: the date of the wit-

ness's release from confinement, not the completion of his

sentence, begins the 10-year period.

           If the Illinois courts had wanted to adopt the amend-

ments to Rule 609, including the "release from confinement"

language, as the test for determining the admissibility of prior

convictions, they have had ample opportunity to do so.   Instead,

the courts have repeatedly endorsed the test as set forth in

Montgomery (see, e.g., People v. Naylor, 372 Ill. App. 3d 1, 6,

864 N.E.2d 718, 722 (2007)) and specifically rejected the newer

versions of Rule 609 (People v. Yost, 78 Ill. 2d 292, 295, 399

N.E.2d 1283, 1284 (1980)).   The Montgomery opinion concluded, "In

our opinion, the provisions of [proposed Rule 609] should be

followed in future cases."   Montgomery, 47 Ill. 2d at 519, 268


                               - 4 -
N.E.2d at 700.   Our supreme court later clarified that "[i]t was

not the court's intention that the standards for impeachment

announced in Montgomery would be changed from time to time to

correspond to whatever changes might subsequently be proposed for

Federal Rule 609."   Yost, 78 Ill. 2d at 295, 399 N.E.2d at 1284.

          Defendant argues that although he was not physically

released from confinement until 2001, he was discharged from his

concurrent sentence for the theft conviction in 1993.    Though a

court may more easily be able to determine the discharge date for

a sentence served concurrently with other longer sentences, it

may be harder to determine when an inmate has completed one of

multiple consecutive sentences.   To use a date other than a

defendant's physical date of release in the latter instance could

require the trial court to speculate about the proper date of

release, which our supreme court has rejected.   See Yost, 78 Ill.

2d at 297, 399 N.E.2d at 1285 ("[a] court should not presume

confinement or the date of release from confinement").    No

justification arises from Montgomery or elsewhere for a defendant

who served concurrent sentences being entitled to have a prior

conviction kept from the jury while a defendant who served

consecutive sentences is not, when both have been released from

prison within 10 years of their current offenses.

          Finally, the purpose behind the time period set forth

in the Montgomery test undermines defendant's argument.    The

reason Illinois courts allow the introduction of prior convic-

tions within 10 years from release from confinement rather than


                               - 5 -
only allowing prior convictions that are less than 10 years old

as calculated from the date of conviction appears to be related

to opportunity.    People who live freely in society establish

their trustworthiness, in part, by refraining from committing

criminal offenses despite the opportunities they have to commit

them.   In contrast, prisoners are presumably less able to commit

additional crimes while imprisoned; that inmates have not engaged

in further criminal activity during their confinement does not

establish that they are credible people.     Those with prior

convictions can rehabilitate their credibility by living a

substantial period of time outside prison or jail without commit-

ting further offenses.    Put another way, a defendant who is

convicted and serves a 10-year sentence and then is charged with

committing another crime soon after his release is not entitled

to the presumption that he has been a law-abiding citizen for the

last decade and, therefore, is not subject to impeachment.

                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.    As part of our judgment we grant the State's request

that defendant be assessed $75 as costs for this appeal.

            Affirmed.

            APPLETON and McCULLOUGH, JJ., concur.




                                - 6 -
