People v. Olivo ( 1997 )

                             No. 3--96--0726

_________________________________________________________________

                             IN THE

                             APPELLATE COURT OF ILLINOIS

                             THIRD DISTRICT

                             A.D., 1997

THE PEOPLE OF THE STATE         )  Appeal from the Circuit Court

OF ILLINOIS,                    )  of the 13th Judicial Circuit,

                               )  Grundy County, Illinois

    Plaintiff-Appellee,        )  

                               )

    v.                         )  No. 95--CF--82

                               )  

STANLEY E. OLIVO,               )  Honorable

                               )  Paul E. Root

    Defendant-Appellant.       )  Judge, Presiding

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JUSTICE MICHELA DELIVERED THE OPINION OF THE COURT:

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    The defendant, Stanley E. Olivo, pled guilty to unlawful

possession of a stolen vehicle and reckless homicide.  625 ILCS

5/4--103(a)(1) (West 1994); 720 ILCS 5/9--3(a) (West 1994).  He

was subsequently sentenced to a 40-year term of imprisonment for

unlawful possession of a stolen vehicle and a concurrent five-

year term of imprisonment for reckless homicide.  On appeal, he

argues that the trial court erred in imposing a Class X extended

term of imprisonment for unlawful possession of a stolen vehicle.

We affirm.

    The pre-sentence investigation report indicated that the

defendant had five prior Class 2 felony convictions which all

arose out of different acts.  At the sentencing hearing, the

court used two of the defendant's prior offenses to enhance his

sentence for possession of a stolen vehicle, a Class 2 felony, to

a Class X sentence.  See 730 ILCS 5/5--5--3(c)(8) (West 1994).

The trial court then found the defendant eligible for an extended

sentence based on his third Class 2 felony.  See 730 ILCS 5/5--5-

-3.2(b)(1) (West 1994).  The court then imposed an extended Class

X sentence of 40 years of imprisonment.  See 730 ILCS 5/5--8--

2(a)(2) (West 1994).  

    On appeal, the defendant argues that the trial court erred

in imposing an extended Class X sentence for unlawful possession

of a stolen vehicle.  He contends that although his sentence was

properly enhanced to Class X status, he was not eligible for a

Class X extended term because he had never been previously

convicted of a Class X felony.  

    When a defendant is convicted of a Class 2 felony after

having two prior convictions of any Class 2 or greater felonies

in Illinois, and such charges arise out of different series of

acts, the defendant shall be sentenced as a Class X offender.

See 730 ILCS 5/5--5--3(c)(8) (West 1994).  When a defendant's

sentence is increased under these circumstances, the classifica-

tion of the charged offense remains the same.  People v. Thomas,

171 Ill. 2d 207, 664 N.E.2d 76 (1996).  Further, a defendant may

receive an extended term sentence when he is convicted of any

felony after having been previously convicted in Illinois of the

same or greater class felony within 10 years, and the felonies

arise out of different acts.  See 730 ILCS 5/5--5--3.2(b)(1)

(West 1994).  

    We find that the trial court properly imposed an extended

Class X sentence.  A defendant is eligible for an extended sen-

tence if he has a prior conviction of the same or greater class

as his current conviction, not his current sentence.  See 730

ILCS 5/5--5--3.2(b)(1) (West 1994).  Here, the defendant's

current conviction was a Class 2 felony and his prior offenses

were all Class 2 felonies.  Therefore, he was eligible for an

extended sentence.  Additionally, as the defendant concedes, he

was to be sentenced as a Class X offender.  The only logical

extension of a Class X sentence is a Class X extended term.

Accordingly, we find that the trial court did not err in imposing

a Class X extended sentence.  

    The judgment of the circuit court of Grundy County is

affirmed.

    Affirmed.

    HOLDRIDGE, J., concurs;  HOMER, J. dissents.

    JUSTICE HOMER, dissenting:

    Because the defendant has never been convicted of a Class X

felony, I believe that the trial court lacked statutory authority

to impose a Class X extended-term sentence.

    Unlawful possession of a stolen vehicle is classified in the

Illinois Vehicle Code as a Class 2 felony.  625 ILCS 5/4--

103(a)(1)(West 1994).  Due to the defendant's prior Class 2

felony convictions, the court was required to sentence him as a

Class X offender for the current offense.  730 ILCS 5/5--5--

3(c)(8)(West 1994); see People v. Thomas, 171 Ill. 2d 207, 221-

22, 664 N.E.2d 76, 84 (1996).  The sentencing range for a Class X

felony is six to thirty years.  730 ILCS 5/5--8--1(a)(3)(West

1994).  An extended term sentence may be given:  "[w]hen a

defendant is convicted of any felony, after having been previous-

ly convicted in Illinois or any other jurisdiction of the same or

similar class felony or greater class felony, when such convic-

tion has occurred within 10 years after the previous conviction

***." (Emphasis added) 730 ILCS 5/5--5--3.2(b)(1)(West 1994).  

    Citing Thomas, the majority correctly notes that the clas-

sification of the defendant's charged offense remained a Class 2

felony, even though he had to be sentenced as a Class X felon.

Since neither the defendant's present nor prior convictions

involved Class X felonies, section 5--5--3.2(b)(1) is inap-

plicable.

    Under the rationale adopted by the majority the defendant

would, by necessity, have received a lesser sentence had he

actually committed a Class X felony.  In that event, since it

could not be said that the defendant had previously been con-

victed "of the same or similar class felony or greater class

felony," section 5--5--3.2(b)(1) would not apply, and the

defendant, therefore, would not have been eligible for a Class X

extended-term sentence.

    The legislature could not possibly have intended such an

anomalous result, for if it did, such a disproportionate punish-

ment scheme would surely fail constitutional scrutiny.  See

People v. Wisslead, 94 Ill. 2d 190, 446 N.E.2d 512 (1983).

Doubts in statutory construction must be resolved in favor of the

statute's constitutionality.  People v. Williams, 263 Ill. App.

3d 1098, 1102, 638 N.E.2d 207, 211 (1994); People v. Kimbrough,

163 Ill. 2d 231, 237, 644 N.E.2d 1137, 1141 (1994).  Thus, both a

current and prior Class X felony conviction are required for

eligibility for a Class X extended-term sentence under section 5-

-5--3.2(b)(1).

    Accordingly, I would vacate the defendant's 40-year sentence

for unlawful possession of a stolen vehicle and remand for re-

sentencing on that conviction.