                         NO. 4-08-0762                Filed 2/17/10

                     IN THE APPELLATE COURT

                              OF ILLINOIS

                            FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Macon County
CHARLES E. LEE,                        )    No. 08CF33
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    Timothy J. Steadman,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE POPE delivered the opinion of the court:

          In April 2008, a jury convicted defendant, Charles E.

Lee, of burglary (720 ILCS 5/19-1(a) (West 2006)).   In May 2008,

the trial court sentenced defendant as a Class X offender

pursuant to section 5-5-3(c)(8) of the Unified Code of

Corrections (Unified Code) (730 ILCS 5/5-5-3(c)(8) (West 2006)

(as amended by Pub. Act 94-1035, §10, eff. July 1, 2007 (2006

Ill. Legis. Serv. 2668, 2668-74 (West)), Pub. Act 95-188, §5,

eff. August 16, 2007 (2007 Ill. Legis. Serv. 1681, 1688-94

(West)), Pub. Act 95-259, §10, eff. August 17, 2007 (2007 Ill.

Legis. Serv. 1994, 2001-07 (West)), and Pub. Act 95-331, §1070,

eff. August 21, 2007 (2007 Ill. Legis. Serv. 2941, 2961-67

(West)))) (hereinafter 730 ILCS 5/5-5-3(c)(8) (West 2006) for

ease of reference) to 13 years in the Illinois Department of

Corrections (IDOC) to be followed by a 3-year period of mandatory

supervised release (MSR).    Defendant appeals, arguing he should

have been sentenced strictly pursuant to section 5-8-1(a)(5) of

the Unified Code (730 ILCS 5/5-8-1(a)(5) (West 2006)) because
section 5-8-1(a)(5) and section 5-5-3(c)(8) of the Unified Code

conflict and due process requires application of the rule of

lenity.   Defendant also argues he should have been sentenced to a

two-year term of MSR instead of a three-year term because he was

only convicted of a Class 2 felony.    We affirm.

                           I. BACKGROUND

          In January 2008, the State charged defendant by

information with one count of burglary (720 ILCS 5/19-1(a) (West

2006)), relating to the December 2007 theft of a television from

the Belvedere Center Plaza in Decatur.     In April 2008, a jury

found defendant guilty of burglary.    In May 2008, the trial court

sentenced defendant as a Class X offender to 13 years'

imprisonment with 3 years of MSR because prior qualifying

convictions rendered him eligible for Class X sentencing.     This

appeal followed.

                           II. ANALYSIS

          We first address defendant's argument he should have

been sentenced within the sentencing range for Class 2 felonies

pursuant to the rule of lenity because section 5-8-1(a)(5) of the

Unified Code (730 ILCS 5/5-8-1(a)(5) (West 2006)) and section 5-

5-3(c)(8) of the Unified Code (730 ILCS 5/5-5-3(c)(8) (West

2006)) are conflicting.   Under section 5-5-3(c)(8) of the Unified

Code, defendants over the age of 21, who are convicted of a Class

1 or Class 2 felony, must be sentenced as a Class X offender if

they have prior convictions for two Class 2 or higher class

felonies arising out of different series of acts.


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          Section 5-5-3(a) of the Unified Code (730 ILCS 5/5-5-

3(a) (West 2006)) states "every person convicted of an offense

shall be sentenced as provided in this [s]ection."   On the other

hand, section 5-8-1(a) of the Unified Code states "[e]xcept as

otherwise provided in the statute defining the offense, a

sentence of imprisonment for a felony shall be a determinate

sentence set by the court under this [s]ection, according to the

following limitations."   730 ILCS 5/5-8-1(a) (West 2006).   Under

"this section," i.e., section 5-8-1(a) of the Unified Code, the

maximum term of imprisonment for a Class 2 felony is seven years.

730 ILCS 5/5-8-1(a)(5) (West 2006).

          Defendant contends section 5-8-1(a)(5) of the Unified

Code (730 ILCS 5/5-8-1(a)(5) (West 2006)) contains only one

exception, i.e., "except as otherwise provided in the statute

defining the offense."    Defendant's argument boils down to this:

a statute defining an offense, and only a statute defining an

offense, can provide for a sentence different from that provided

in section 5-8-1(a)(5) of the Unified Code (730 ILCS 5/5-8-

1(a)(5) (West 2006)).    Since section 5-5-3(c)(8) of the Unified

Code (730 ILCS 5/5-5-3(c)(8) (West 2006)) is not a statute

defining an offense, and because it provides for a different

sentence for qualifying defendants than is provided in section 5-

8-1(a)(5), the two sentencing provisions are in conflict.

Further, because of this alleged conflict in the sentencing

statutes, defendant contends the rule of lenity requires section

5-8-1(a)(5) to take precedence over the Class X sentencing


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mandate of section 5-5-3(c)(8).

           In criminal prosecutions, the rule of lenity requires

ambiguities in statutes to be resolved in a defendant's favor.

People v. Harper, 392 Ill. App. 3d 809, 820, 910 N.E.2d 691, 700-

01 (2009).   Particularly, where no legislative history exists to

aid the court in determining whether the legislature intended an

enhancement provision to apply to a given charge, the court can

apply the rule of lenity.    People v. Fields, 383 Ill. App. 3d

920, 922, 891 N.E.2d 990, 992 (2008), citing People v. Owens, 240

Ill. App. 3d 168, 170-71, 608 N.E.2d 159, 161 (1992).

           Because defendant contends these two statutes conflict,

thereby creating ambiguity, this presents an issue of statutory

interpretation, which we review de novo.     People v. Palmer, 218

Ill. 2d 148, 154, 843 N.E.2d 292, 296 (2006).    The primary rule

of statutory construction is to give effect to the legislature's

intent.   Palmer, 218 Ill. 2d at 156, 843 N.E.2d at 297.   Both of

the statutes at issue are part of the Unified Code and both

concern criminal sentencing.    Our supreme court has stated it

presumes statutes that concern the same subject are governed by a

single policy and one spirit, and the General Assembly intended

the statutes to be consistent and harmonious.     People v. Maya,

105 Ill. 2d 281, 286, 473 N.E.2d 1287, 1290 (1985).    Statutes on

the same subject should be considered with reference to one

another, not in isolation, in a manner allowing both sections to

have harmonious effect.     Maya, 105 Ill. 2d at 287, 473 N.E.2d at

1290.   This is true even when the two statutes are in "apparent


                                 - 4 -
conflict," as long as this is reasonably possible.   Maya, 105

Ill. 2d at 287, 473 N.E.2d at 1290.

          Our supreme court instructs us "'the legislature has

the authority to set the nature and extent of penalties.     Courts

will not interfere with such legislation unless the challenged

penalty is clearly in excess of the very broad and general

constitutional limitations applicable.'"   People v. Thomas, 171

Ill. 2d 207, 221, 664 N.E.2d 76, 84 (1996), quoting People ex

rel. Carey v. Bentivenga, 83 Ill. 2d 537, 542, 416 N.E.2d 259,

262 (1981).   In this case, it is reasonably possible to give both

of the sections of the Unified Code harmonious effect.     The

supreme court has stated the General Assembly's purpose in

enacting section 5-5-3(c)(8) of the Unified Code was to "punish

recidivists more severely" than first-time offenders.      Thomas,

171 Ill. 2d at 228, 664 N.E.2d at 87.   Recidivism "'is a

traditional, if not the most traditional, basis for ***

increasing an offender's sentence.'"    Fields, 383 Ill. App. 3d at

923, 891 N.E.2d at 993, quoting Almendarez-Torres v. United

States, 523 U.S. 224, 243, 140 L. Ed. 2d 350, 368, 118 S. Ct.

1219, 1230 (1998).   According to our supreme court, the

legislature intended with the passage of section 5-5-3(c)(8) of

the Unified Code to enhance the punishment for certain offenders

based on their record of criminal convictions.    Thomas, 171 Ill.

2d at 222, 664 N.E.2d at 84.   In addition, our supreme court has

held a trial court has no discretion in the application of

section 5-5-3(c)(8).   Thomas, 171 Ill. 2d at 222, 664 N.E.2d at

84.

                               - 5 -
           The First District recently tackled this very question.

See Fields, 383 Ill. App. 3d 920, 891 N.E.2d 990.     In Fields, the

defendant was convicted of delivery of a controlled substance, a

Class 2 felony, carrying a sentencing range of not less than

three nor more than seven years' imprisonment.      Fields, 383 Ill.

App. 3d at 922, 891 N.E.2d at 993.     However, because he qualified

for Class X sentencing pursuant to section 5-5-3(c)(8) of the

Unified Code due to his prior convictions, defendant was required

to be sentenced to at least 6 years and not more than 30 years'

imprisonment.   Fields, 383 Ill. App. 3d at 922-23, 891 N.E.2d at

993.   Declining to apply the rule of lenity, the First District

found, in affirming the defendant's Class X sentence:

           "[W]here it has been determined that the

           legislature's intent was to make section 5-5-

           3(c)(8) mandatory and a defendant's current

           and prior convictions fulfill the statutory

           requirements of that section, the defendant

           is properly sentenced as a Class X offender."

           Fields, 383 Ill. App. 3d at 923, 891 N.E.2d

           at 993, citing Thomas, 171 Ill. 2d at 222-23,

           64 N.E.2d at 85.

           We agree with the reasoning in Fields.     A consistent,

long-standing body of authority recognizes the sentencing

provisions of section 5-5-3(c)(8) of the Unified Code (730 ILCS

5/5-5-3(c)(8) (West 2006)), when applicable, are mandatory and a

trial court is without discretion to ignore them.     See Fields,

383 Ill. App. 3d at 923, 891 N.E.2d at 993, citing Morrow v.

                               - 6 -
Dixon, 108 Ill. 2d 223, 226-27, 483 N.E.2d 876, 877 (1985);

People v. Levin, 157 Ill. 2d 138, 156, 623 N.E.2d 317, 326

(1993); People v. Jameson, 162 Ill. 2d 282, 287, 642 N.E.2d 1207,

1209-10 (1994); Thomas, 171 Ill. 2d at 222, 664 N.E.2d at 84.

          If this burglary conviction had been defendant's first

criminal conviction, the sentencing range would have been not

less than three years and not more than seven years in prison.

730 ILCS 5/5-8-1(a)(5) (West 2006).    However, defendant is a

recidivist.   The General Assembly, in enacting section 5-5-

3(c)(8) of the Unified Code (730 ILCS 5/5-5-3(c)(8) (West 2006)),

intended to provide for Class X sentencing for recidivists like

defendant, even though the underlying offense, standing alone,

constituted only a Class 2 felony.

          While in some situations, the expression of one thing

in a statute can be construed to mean the exclusion of things

unexpressed, this aid to the construction of a statute is

subordinate to the rule that legislative intent controls in

interpreting a statute.   People v. Roberts, 214 Ill. 2d 106, 117,

824 N.E.2d 250, 256 (2005).   As stated earlier, our supreme court

has made clear the intent of the legislature was to punish

recidivist criminals more harshly than first-time offenders.

Thomas, 171 Ill. 2d at 228, 664 N.E.2d at 87.    As for defendant's

argument the rule of lenity requires this court to vacate

defendant's sentence and remand this case for the trial court to

sentence him to between three and seven years in prison, our

supreme court has stated it is well settled the rule of lenity

"does not require a court to construe a statute 'so rigidly ***

                               - 7 -
as to defeat the intent of the legislature.'"      In re Detention of

Powell, 217 Ill. 2d 123, 142, 839 N.E.2d 1008, 1019 (2005),

quoting People v. Washington, 343 Ill. App. 3d 889, 903, 800

N.E.2d 436, 447 (2003).   Construing these two sections of the

Unified Code in the manner requested by defendant would defeat

the intent of the legislature.

          The fallacy of defendant's argument is further

demonstrated when one considers the extended-term-sentencing

provisions found in section 5-8-2 of the Unified Code (730 ILCS

5/5-8-2 (West 2006)).   Under that section, if aggravating factors

found in section 5-5-3.2(b) are present, then a defendant is

eligible for an extended term for a Class 2 felony up to double

the maximum sentence normally available, i.e., up to 14 years.

730 ILCS 5/5-8-2(a)(4) (West 2006).      If this court accepts

defendant's argument that section 5-8-1 of the Unified Code sets

forth the maximum term available except where the statute

defining the offense sets forth a different term, then no

extended term of imprisonment could ever be imposed pursuant to

section 5-8-2 of the Unified Code because it is not a "statute

defining an offense."   Certainly, no one could argue the

legislature did not intend to make extended-term sentencing

available to courts where defendants qualify for such sentencing.

Yet, this is the logical extension of defendant's rationale.

          Defendant next argues he should have only received a

two-year term of MSR because he was only convicted of a Class 2

felony.   This court has held that defendants subject to mandatory

Class X sentencing under section 5-5-3(c)(8) of the Unified Code

                                 - 8 -
based on prior convictions are required to serve a three-year MSR

term.   People v. Smart, 311 Ill. App. 3d 415, 417-18, 723 N.E.2d

1246, 1248 (2000).   Defendant asks this court to reconsider its

holding in Smart in light of our supreme court's decision in

People v. Pullen, 192 Ill. 2d 36, 733 N.E.2d 1235 (2000).    The

State argues Pullen does not affect this court's holding in Smart

because it is distinguishable.    We agree.

           In Pullen, the defendant committed five counts of

burglary, a Class 2 offense (720 ILCS 5/19-1(b) (West 1994)), and

the issue was the maximum length of consecutive sentences a court

could impose under section 5-8-4(c)(2) of the Unified Code (730

ILCS 5/5-8-4(c)(2) (West 1994)).     Pullen, 192 Ill. 2d at 40, 733

N.E.2d at 1237.   The defendant's prior convictions subjected him

to sentencing as a Class X offender under section 5-5-3(c)(8) of

the Unified Code (730 ILCS 5/5-5-3(c)(8) (West 1994)).     Pullen,

192 Ill. 2d at 41, 733 N.E.2d at 1238.    At the time the defendant

committed the offenses, section 5-8-4(c)(2) of the Unified Code

provided, in pertinent part, the following:    "'[T]he aggregate of

consecutive sentences shall not exceed the sum of the maximum

terms authorized under [s]ection 5-8-2 [of the Unified Code (730

ILCS 5/5-8-2 (West 1994))] for the [two] most serious felonies

involved.'"   Pullen, 192 Ill. 2d at 40, 733 N.E.2d at 1237,

quoting 730 ILCS 5/5-8-4(c)(2) (West 1994).    The issue was then

"whether the maximum permissible sentence was 120 years--the sum

of the maximum permissible extended-term sentences for two Class

X offenses (730 ILCS 5/5-8-2(a)(2) (West 1994))--or 28 years--the

sum of the maximum permissible extended-term sentences for two

                                 - 9 -
Class 2 offenses (730 ILCS 5/5-8-2(a)(4) (West 1994))."    Pullen,

192 Ill. 2d at 42, 733 N.E.2d at 1238.

            The Pullen court noted the only felonies involved were

burglaries, and burglary is explicitly defined as a Class 2

felony (720 ILCS 5/19-1(b) (West 1994)).    Pullen, 192 Ill. 2d at

42-43, 733 N.E.2d at 1238.   Under section 5-8-2(a)(4) of the

Unified Code (730 ILCS 5/5-8-2(a)(4) (West 1994)), the maximum

sentence for a Class 2 felony was 14 years, and thus the maximum

aggregate sentence was 28 years.    Pullen, 192 Ill. 2d at 43, 733

N.E.2d at 1238.   The court specifically noted the character and

classification of the defendant's felony convictions remain

unchanged, notwithstanding he or she is subject to the sentence

enhancement in section 5-5-3(c)(8) of the Unified Code.    Pullen,

192 Ill. 2d at 46, 733 N.E.2d at 1240.

            We agree with the State that Pullen does not undermine

our decision in Smart, which involved section 5-8-1(d) of the

Unified Code and not sections 5-8-4(c)(2) and 5-8-2 of the

Unified Code.   If a defendant satisfies the provisions of section

5-5-3(c)(8) of the Unified Code (730 ILCS 5/5-5-3(c)(8) (West

2006)), that section provides "such defendant shall be sentenced

as a Class X offender."   Section 5-8-1(d) of the Unified Code

(730 ILCS 5/5-8-1(d) (West 2006)) states, "every sentence shall

include as though written therein a term in addition to the term

of imprisonment."   As noted in Smart, 311 Ill. App. 3d at 417-18,

723 N.E.2d at 1248, that provision makes the MSR term part of the

sentence.   Thus, since the MSR term is part of the sentence under

section 5-8-1(d) of the Unified Code and the sentence must be a

                               - 10 -
Class X sentence under section 5-5-3(c)(8) of the Unified Code, a

reading of the two provisions together requires a Class X MSR

term, i.e., a three-year term under section 5-8-1(d)(1) of the

Unified Code.    Thus, the three-year MSR term imposed by the trial

court is not void.

            Lastly, we note our decision in Smart, reaffirmed here,

is in accord with decisions of the First and Third Appellate

Districts.    See People v. Anderson, 272 Ill. App. 3d 537, 541-42,

650 N.E.2d 648, 651 (1995); People v. Watkins, 387 Ill. App. 3d

764, 766-67, 901 N.E.2d 964, 966 (2009).

                        III. CONCLUSION

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

judgment.    As part of our judgment, we award the State its $50

statutory assessment against defendant as costs of this appeal.

            Affirmed.

            KNECHT and STEIGMANN, JJ., concur.




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