
                              No. 2--94--1210



________________________________________________________________

                                     

                                  IN THE



                        APPELLATE COURT OF ILLINOIS



                              SECOND DISTRICT

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THE PEOPLE OF THE STATE              )  Appeal from the Circuit Court

OF ILLINOIS,                         )  of Lake County.

                                     )

     Plaintiff-Appellee,             )

                                     )  No. 94--CF--746

v.                                   )

                                     )

JASON RISCH-DEFINA,                  )  Honorable

                                     )  Henry C. Tonigan III,

     Defendant-Appellant.            )  Judge, Presiding.

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     JUSTICE INGLIS delivered the opinion of the court:

     Defendant, Jason Risch-Defina, appeals the trial court's order

enhancing his conviction of theft of a firearm (720 ILCS 5/16--

1(a)(4)(A) (West 1994)) to a Class 3 felony.  The issue on appeal

is whether the trial court erred in considering evidence of a prior

theft of a firearm for which defendant was not convicted as a

factor to enhance the offense to a Class 3 felony.  We vacate the

sentence and remand.

     On April 22, 1994, defendant was charged by information with

theft.  The information alleged that, between March 26 and April

18, 1994, defendant knowingly obtained control over a firearm

belonging to Dan Christenson, knowing that the firearm had been

stolen and intending to deprive Christenson permanently of the use

of the firearm.  The information further alleged that the offense

was a Class 3 felony.  

     On July 19, 1994, defendant agreed to plead guilty to the

theft charge in exchange for a sentence of probation if, after a

presentence investigation, the probation department found defendant

to be an acceptable candidate for probation or intensive probation.

On August 22, 1994, the Lake County Adult Court Services Department

filed an intensive probation supervision evaluation concluding that

defendant would not be an appropriate candidate for probation or

intensive probation.  On August 25, 1994, the trial court sentenced

defendant to three years' imprisonment.  On October 18, 1994, the

trial court denied defendant's motion to reconsider the sentence. 

Defendant filed a timely notice of appeal.

     On appeal, defendant argues that the trial court erred in

considering evidence of a prior theft of a firearm for which

defendant was not convicted as a factor to enhance the offense to

a Class 3 felony.  Initially, we note that defendant's trial

attorney did not raise this alleged error in his motion to

reconsider the sentence.  However, defendant urges that we should

consider the alleged error either under the plain error doctrine

and Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)), or because

the failure to include the alleged error in the motion to

reconsider the sentence amounted to ineffective assistance of

counsel (See Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d

674, 104 S. Ct. 2052 (1984)).  The State does not respond to

defendant's request.  We conclude that the failure to include the

argument in the motion to reconsider the sentence and the

classification of the offense, if error, would amount to plain

error or to constitutionally ineffective assistance of counsel. 

Therefore, we will consider the alleged error.

     Section 16--1(b)(3) of the Criminal Code of 1961 (Code)

states: 

          "(3) Theft of a firearm not from the person regardless of

     value is a Class 4 felony.  A second or subsequent such

     offense is a Class 3 felony."  720 ILCS 5/16--1(b)(3) (West

     1994).

Defendant argues that, for the present offense to be treated as a

Class 3 felony, he must have been convicted of a second or

subsequent offense.  

     The State argues that it need not prove a prior conviction and

that it is sufficient that there is evidence that the offense was

committed, citing the reasoning of People v. Sheehan, 168 Ill. 2d

298 (1995).  In Sheehan, our supreme court explained that the

legislature has distinguished between the meaning of the words

"convicted" and "committed" and that the DUI statute only requires

that a prior offense have been "committed."  Sheehan, 168 Ill. 2d

at 306-07.

     We decline to adopt Sheehan's reasoning for this case because

Sheehan involved an enhancement statute different from the one at

issue here.  See Sheehan, 168 Ill. 2d at 307.  Moreover, in the

present case, the legislature did not use either the word

"conviction" or the word "committed."  The statute speaks only in

terms of an offense.  

     Other sections of the Code providing for the enhancement of

penalties for subsequent offenses do not specifically refer to

convictions but rather speak, as does the section here, in terms of

subsequent offenses.  For example, section 11--20(d) of the Code

(720 ILCS 5/11--20(d) (West 1994)) provides that obscenity is a

Class A misdemeanor and a subsequent offense is a Class 4 felony. 

In People v. Carlock, 102 Ill. App. 3d 1100, 1103 (1981), we held

that section 11--20(d) requires a prior conviction before the

penalty for obscenity may be enhanced.  

     In Carlock, we also compared the obscenity statute with the

statute in the present case.  Carlock, 102 Ill. App. 3d at 1101-02. 

We noted that section 16--1(e)(1) (Ill. Rev. Stat. 1979, ch. 38,

pars. 16(e)(1)), which is now section 16--1(b)(2) (720 ILCS 5/16--

1(b)(2) (West 1994)), in dealing with the enhancement of the

offense of theft of property to a Class 4 felony, speaks in terms

of a second or subsequent offense after a conviction of any type of

theft, while the very next subsection (e)(2), which is now section

16--1(b)(3), which provides for the enhancement of theft of a

firearm, speaks only in terms of a second or subsequent offense

without any reference to a prior conviction.  Carlock, 102 Ill.

App. 3d at 1101-02.  We found it inconceivable that the legislature

could have intended to require two different conditions for penalty

enhancement for these two categories of theft.  We concluded that

the legislature did not intend to depart from the requirement that

the offense on which the subsequent enhancement is predicated must

first be reduced to a conviction.  Carlock, 102 Ill. App. 3d at

1102.  

     While the language in Carlock regarding section 16--1 of the

Code was dicta, we are persuaded by its reasoning.  We therefore

hold that the penalty for a second or subsequent offense of theft

of a firearm cannot be enhanced under section 16--1(b)(3) unless

defendant has a prior conviction of theft of a firearm.  See

Carlock, 102 Ill. App. 3d at 1102-03.  

     We vacate the trial court's order treating the offense as a

Class 3 felony and remand the cause to the trial court for a new

sentencing hearing consistent with the views expressed herein.

     Sentence vacated; cause remanded.

     McLAREN, P.J., and THOMAS, J., concur.



