People v. Day

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Day, 2011 IL App (2d) 091358
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ANN M. DAY, Defendant-Appellant.
District & No. Second District
Docket No. 2-09-1358
Filed August 30, 2011
Modified upon
denial of rehearing October 27, 2011
Held Defendant’s convictions for theft and forgery based on her taking of
(Note: This syllabus money from the real estate law firm she started with a partner were
constitutes no part of upheld where the evidence was sufficient to sustain her felony
the opinion of the court convictions and support the finding that she intended to permanently
but has been prepared deprive the firm and her partner of the funds, the restitution order was
by the Reporter of statutorily authorized, and the trial court did not err in setting the
Decisions for the restitution payments without considering defendant’s ability to pay.
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Kane County, No. 05-CF-430; the Hon.
Review Timothy Q. Sheldon, Judge, presiding.
Judgment Affirmed.
Counsel on Alan D. Goldberg and Deepa Punjabi, both of State Appellate Defender’s
Appeal Office, of Chicago, for appellant.
Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
Bauer and Barry W. Jacobs, both of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel PRESIDING JUSTICE JORGENSEN delivered the judgment of the
court, with opinion.
Justices Burke and Birkett concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant, Ann M. Day, was convicted of 10 counts of theft (720
ILCS 5/16-1(a)(1), (a)(2) (West 2004)) and 16 counts of forgery (720 ILCS 5/17-3(a)(1),
(a)(2) (West 2004)). She was sentenced to 48 months’ probation and 180 days in jail (with
credit for 64 days served) and ordered to pay $137,937.27 in restitution (in $2,873 monthly
installments) to Karen Tietz, her former law partner. The trial court denied defendant’s
motion to reconsider the sentence. Defendant appeals, arguing that: (1) the evidence was
insufficient to sustain the four Class 1 felony theft convictions; (2) the evidence was
insufficient to support the finding that she intended to permanently deprive her firm and
Tietz of any wrongfully taken funds; (3) the restitution amount was not statutorily authorized
and, therefore, is void; and (4) the trial court abused its discretion in ordering her to make
monthly $2,837 restitution payments without considering her ability to pay. We affirm.
¶2 I. BACKGROUND
¶3 On November 1, 2005, defendant was charged with 12 counts of theft and 18 counts of
forgery. Trial commenced on May 11, 2009. The State’s theory of the case was that
defendant and Tietz started a real estate law firm together and that, in the course of their
practice (from March to November 2004), defendant stole $137,937.27 from the firm and
Tietz. Defendant’s defense was that she was entitled to some of the money, and she
attempted to show that there was no evidence of each partner’s rightful net share and,
therefore, of how much was wrongfully taken. She argued that the evidence was unclear as
to whether the partners had agreed that they would equally split firm proceeds or that 85%
would go to defendant in the first year because she was the more experienced real estate
attorney.
¶4 Tietz testified as follows. In late 2003, Tietz and defendant met through their church and
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defendant asked Tietz if she wanted to open a law practice with her. Tietz agreed, and, in
December 2003, they opened Day & Tietz P.C., which was organized as a professional
service corporation (see 805 ILCS 10/1 et seq. (West 2004)) in St. Charles. The partners
discussed the division of profits and, according to Tietz, decided to equally split them; this
was an oral agreement. Addressing a “Preliminary Firm Plan” that defendant created, Tietz
explained that its purpose was to attempt to gain their church as a firm client; that is, it
constituted merely a “sale pitch” to the church and not the partners’ agreement as to how they
would run the firm. Tietz explained that the plan was only two pages in length, was never
filed with the Secretary of State, and was created merely as a marketing tool in an attempt
to gain the partners’ church as a firm client. However, a four-page version of the plan was
also admitted at trial, and it referenced that, during 2004, defendant would receive 85% of
the firm’s net proceeds and Tietz would receive 15%. Neither the two-page nor the four-page
document was signed.
¶5 Tietz further testified that defendant had an ongoing practice when they formed their firm
but defendant desired more income. The partners decided that, as to defendant’s existing
clients, defendant would keep the proceeds from the legal work she was performing for them.
There were about five such clients. Tietz testified that the last of these business relationships,
which pertained to real estate transactions such as closings, would have ended by February
or March 2004 given the nature of the transactions.
¶6 Within six months of forming the firm, Tietz and defendant were “busy” representing
clients in buying or selling real estate. Generally, if they represented a buyer, the buyer would
directly pay the firm. When they represented a seller, the firm’s fees came from the title
company. The firm placed the fees into its business operating account, which was held at
Benchmark Bank. They also held there a client trust account to hold client money to which
the firm was not entitled. The trust account held, for example, earnest money that a buyer
posted; the firm would present a check for that money to the title company at closing. Tietz
explained that there would be no reason for a firm attorney to write a check to herself out of
the trust account (or the business operating account) for an earnest money reimbursement.
¶7 When the firm was first formed, defendant and Tietz did not receive any compensation
for their services. However, in March 2004, defendant informed Tietz that defendant’s
husband was no longer working and had heart problems and that defendant now needed
income. The partners agreed that defendant could draw a paycheck (through Paychex, a
payroll service). Later, in about May or June, Tietz also began receiving a paycheck from the
firm. When defendant began receiving paychecks from the firm, there were sufficient funds
in the firm’s account to pay her. At this time, Tietz attended real estate closings. When she
received a check from the title company, she gave it to defendant to deposit into the business
operating account. In the beginning, defendant did so.
¶8 On May 5, 2004, the firm hired a paralegal secretary, Mary Watts. She received a
paycheck through Paychex. Watts prepared closing documents, paid the firm’s bills, and
created files. Before Watts was hired, defendant wrote checks for the firm. The business
operating account was set up so that either partner was an authorized signer on the account;
that is, two signatures were not required on the firm’s checks. During this time, Tietz did not
review the firm’s bank statements.
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¶9 In October or November 2004, Tietz became concerned about the firm’s finances because
she discovered that a check purportedly issued to a plumber was not submitted to the firm’s
landlord for reimbursement. Defendant told Tietz not to worry about it. Tietz remained
concerned because the firm’s account balance was low. Also, she was unable to find a
plumbing company with the name specified in the checkbook register; the handwriting in the
register was defendant’s writing. The actual check (No. 1215), Tietz discovered, was not
made out to a plumbing company, but was made out to defendant, in the amount of $1,250,
and the check was signed by defendant. The day on which she discovered the actual check
was the last day the partners operated the firm together. Over the weekend that followed,
Tietz approached the police and made her initial complaint.
¶ 10 Tietz subsequently reviewed the firm’s financial records. Addressing one general
category of the over 120 exhibits admitted into evidence, Tietz testified that each exhibit
consisted of a check, from a firm client (a buyer) or a title company, that purported to contain
fees due to the firm for work it had performed. Further, each such exhibit included a deposit
slip and a bank statement from defendant’s personal business account at Old Second Bank
reflecting that the funds were deposited into defendant’s account and not into the firm’s
account. However, with respect to nine of these exhibits, which consisted of checks from title
companies, Tietz testified that those checks likely belonged to defendant because they were
issued in January and February 2004, when defendant was likely still working on her
preexisting client files. Tietz could specify neither defendant’s preexisting clients nor how
much income was due defendant for the work she performed for these clients.
¶ 11 As to certain other exhibits (Nos. 31, 102, and 104 through 108), Tietz testified that the
checks were made payable to the firm and that they contained both defendant’s and,
purportedly, Tietz’s endorsements. There were also corresponding deposit slips and bank
statements reflecting that the funds in these checks were deposited into defendant’s personal
business account at Old Second Bank. Tietz denied signing these checks over to defendant
and testified that Tietz’s endorsements on these checks were in defendant’s handwriting.
¶ 12 Exhibit No. 64, a $1,500 check payable to Dorothy Sokolowski, a firm client, contained
Sokolowski’s endorsement on the back; underneath Sokolowski’s endorsement was
defendant’s endorsement. The parties stipulated that, if called, Sokolowski would testify that
she did not endorse the check. The exhibit also contained a deposit slip and a bank statement
that reflected that the check was deposited into defendant’s account. The check was drawn
from the firm’s business operating account. Tietz testified that, if any monies were due this
client, they would have come out of the firm’s trust account. The firm’s practice was not to
issue client monies out of its business operating account.
¶ 13 The second general category of exhibits admitted at trial consisted of checks that were
generally payable to defendant and written out of either the firm’s operating account or its
trust account. A corresponding check ledger entry was attached, showing a discrepancy
between each check and the ledger entry. Tietz further identified several checks that
defendant wrote to herself out of the operating account, for an “escrow payment” or “earnest
money reimbursement.” Tietz explained that the firm did not hold client earnest money in
the operating account and did not advance money from their own personal funds for these
purposes.
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¶ 14 Addressing exhibit No. 45, a $3,500 check defendant wrote to herself on June 12, 2004
(and deposited into her personal business account on June 14, 2004) from the firm’s account,
Tietz testified that this amount was in addition to the Paychex checks defendant was
receiving and that she could not recall if the partners discussed whether defendant could take
this draw. Tietz explained that the partners’ agreement was that defendant could take only
salary payments (via the Paychex checks), not draws. Tietz conceded that, at the time, the
partners discussed that defendant’s real estate taxes were overdue and that defendant needed
assistance in paying them. Tietz could not recall if exhibit No. 45 represented a draw to pay
the taxes, and she stated that another check was used to pay at least some of the taxes.
Generally, Tietz was not concerned about the paychecks defendant was receiving, because
she assumed that they would eventually “square up.”
¶ 15 On cross-examination, Tietz testified that she did not review defendant’s client list before
they formed the firm. Tietz would take draws from the firm as money came into the firm. She
believed there would be time to catch up to defendant’s draws. Tietz’s understanding was
that, if any of defendant’s preexisting clients subsequently hired the firm to perform work,
the partners would spilt the proceeds if the fees were for more than a nominal amount. Tietz
conceded that “proceeds” refers to gross sales and is distinct from profits. Tietz testified that
no clients lost money as a result of any funds defendant took from the firm’s client trust
account. According to Tietz, clients were paid because defendant used funds from the firm’s
business operating account to replenish the firm’s client trust account.
¶ 16 Watts testified that she worked for the firm as a legal secretary and paralegal. She
performed recordkeeping duties for the firm, including creating deposit slips and ensuring
that deposits were made. When she received checks to deposit, Watts did not verify them
with the title companies or reconcile them with the Housing and Urban Development
statements from the closings. Thus, if, for example, four checks were issued and the attorney
kept two, Watts would not have been aware that she was not given all checks to deposit into
the firm’s account.
¶ 17 At some point, Benchmark Bank contacted Watts to notify her that the firm’s client trust
account had a $6,000 deficiency. Watts informed defendant of the problem, and defendant
told her to transfer monies from the firm’s business operating account to cover the
deficiency. According to Watts, defendant also instructed her not to inform Tietz of the
deficiency.
¶ 18 In September, Watts was unable to reconcile the business operating account statement
with the firm’s Quickbooks accounting program. The statement showed $6,000 in earnest
money returns that should not have come out of that account. Watts printed out reconciliation
reports to give to defendant and Tietz. Watts explained to defendant the purpose of the
reports, and defendant took both copies and ripped up Tietz’s copy, stating that there was no
need for it.
¶ 19 Addressing new clients to the firm, Watts testified that “we would just kind of divvy
them up equally.” Both defendant and Tietz had authority to sign firm checks. It was not
common for Tietz to write a check. It was common for defendant to write checks out of the
firm’s business operating account.
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¶ 20 The defense called Donna Slemp, a real estate broker who knew defendant through a
mutual real estate client. Slemp testified that she was present at the firm’s office on July 30,
2004, to pick up a check. Tietz was also present. After about five minutes, defendant returned
from real estate closings and presented checks from the closings that needed to be signed.
Slemp testified that she heard Tietz say to defendant: “[g]o ahead, just sign them all, deposit
them. They’re all yours, anyway.” Slemp is a friend of defendant’s and is also her landlord.
Defendant did not testify.
¶ 21 On September 30, 2009, in a 31-page order, the trial court found defendant guilty of 10
counts of theft and 16 counts of forgery. On December 9, 2009, the court sentenced
defendant to 180 days in the Kane County jail (with credit for 64 days served) and 4 years’
probation. The court also ordered defendant to pay $137,937.23 in restitution to Tietz in
$2,873 monthly installments.1 Subsequently, the court denied defendant’s motions for a new
trial and to reconsider the sentence.2 Defendant appeals.
¶ 22 II. ANALYSIS
¶ 23 A. Sufficiency of the Evidence
¶ 24 1. Value of Wrongfully Taken Funds
¶ 25 Defendant argues first that her four convictions of Class 1 felony theft should be
reversed. In counts I and III, the State alleged that defendant committed theft of currency (in
excess of $100,000 but not exceeding $500,000) belonging to the firm, and in counts II and
IV, it alleged that defendant committed theft of currency belonging to Tietz. Defendant
argues that the evidence was insufficient to show the value of the wrongfully taken funds,
because the court failed to calculate and subtract from its value assessment her share of any
firm profits. She contends that there was no evidence of gross sales and expenses and,
therefore, no evidence of each partner’s rightful net share. Thus, in her view, the State did
not establish the amount of Tietz’s losses (after subtracting defendant’s share) or that they
amounted to more than $100,000 (the threshold for Class 1 felony theft). Defendant requests
that we reverse her convictions or, alternatively, reduce the convictions to misdemeanor theft
of under $300. For the following reasons, we reject defendant’s argument.
¶ 26 When we review a challenge to the sufficiency of the evidence, the relevant inquiry is
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. People v. Moore, 375 Ill. App. 3d 234, 238 (2007). “The reviewing court will not
1
Specifically, on the four Class 1 theft counts, the court sentenced defendant to 48 months’
probation and 180 days in jail, and it ordered the restitution. On the six counts of Class 2 theft, the
court sentenced defendant to 48 months’ probation. On the 16 counts of forgery, the court sentenced
defendant to 24 months’ probation. Finally, it ordered that all sentences run concurrently.
2
Via an order entered on January 21, 2010, the supreme court allowed defendant’s motion
to strike her name from the roll of attorneys licensed to practice law in Illinois. In re Ann Maureen
Day, M.R. 23573 (2010).
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substitute its judgment for that of the fact finder on questions involving the weight of the
evidence or the credibility of the witnesses and will not reverse a criminal conviction unless
the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt
of the defendant’s guilt.” Id. Further, the primary rule of statutory construction is to ascertain
and give effect to the legislature’s intent. People v. Whitney, 188 Ill. 2d 91, 97 (1999). The
language of the statute must be afforded its plain, ordinary, and popularly understood
meaning. In re Detention of Lieberman, 201 Ill. 2d 300, 308 (2002). Issues of statutory
construction present questions of law, which we review de novo. People v. Caballes, 221 Ill.
2d 282, 289 (2006).
¶ 27 As to the four Class 1 felony theft counts, the State had to prove that defendant: (1)
knowingly obtained or exerted unauthorized control over the firm’s or Tietz’s property
having a value exceeding $100,000 but not exceeding $500,000; or (2) knowingly obtained
by deception control over the firm’s or Tietz’s property having a value exceeding $100,000
but not exceeding $500,000. Further, the State had to prove that defendant intended to
permanently deprive the firm or Tietz of the use or benefit of the property. 720 ILCS 5/16-
1(a)(1)(A), (a)(2)(A), (b)(6) (West 2004). The value of the property taken is an element of
the offense that must be resolved by the trier of fact as either exceeding or not exceeding the
specified value. 720 ILCS 5/16-1(c) (West 2004).
¶ 28 Defendant argues that the State failed to prove the value of the property taken, because
there was no evidence of the firm’s gross sales and expenses and, consequently, no evidence
of what each partner’s rightful net share should have been. At common law, a partner, for
example, could not be convicted of theft or embezzlement of partnership property, because
the property had to belong exclusively to another. See, e.g., People v. Dettmering, 278 Ill.
580, 587-88 (1917); see also Jane M. Draper, Annotation, Embezzlement, Larceny, False
Pretenses, or Allied Criminal Fraud by a Partner, 82 A.L.R. 3d 822 (1978) (noting that the
basis for the common-law rule was that, since partners are treated as joint tenants of the
partnership property, the use or appropriation of the partnership’s property by a partner for
his or her private use is not a criminal act). Defendant concedes that, by statute, a partner can
now be found guilty of embezzling partnership property. 720 ILCS 5/16-4(a) (West 2004).
However, she argues that it does not follow that, where the property is shared by the
defendant and the complainant, the property should be treated as belonging entirely to the
complainant or that the defendant’s property interest should be entirely disregarded in
calculating the value of the property of which the complainant has been wrongfully deprived.
As we explain below, we reject defendant’s argument because the statute does not require
a determination of the parties’ interests in assessing the value of the wrongfully taken
property.
¶ 29 As to the theft statute, no case has yet addressed the argument defendant presents. The
State argues that there is no provision in the theft statute that requires a fact finder to consider
an offender’s interest in the property when determining the value of the property involved.
Further, the State notes that section 16-4(a) of the Criminal Code of 1961 (Code) provides
that “[i]t is no defense to a charge of theft of property that the offender has an interest therein,
when the owner also has an interest to which the offender is not entitled.” (Emphasis added.)
720 ILCS 5/16-4(a) (West 2004); see also 720 ILCS 5/16-4(b) (West 2004) (in cases of
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spousal property, a theft prosecution may not be maintained unless, at the time of the alleged
offense, the parties were not living together as spouses and were living separately). The
Committee Comments to section 16-4(a) state that “the provision removes any doubt
regarding the commission of theft by a co-owner, such as a partner, joint tenant or tenant in
common, or any other type of co-owner who exercises unauthorized control with the intent
to permanently deprive such co-owner of his interest in the property.” 720 ILCS Ann. 5/16-
4(a), Committee Comments-1961, at 289-90 (Smith-Hurd 2003). Thus, the relevant
provisions of the theft statute make it clear that a partner, shareholder, or other co-owner
claiming an interest in the subject property may be found guilty of theft.
¶ 30 We further conclude that, specifically, as to the value-of-the-property element of theft,
the State was not required to prove defendant’s interest in the wrongfully taken property. In
other words, a partner, shareholder, or other co-owner claiming an interest in the subject
property may be found guilty of theft of the full value of the property. Given that, under
section 16-4(a), a co-owner may be found guilty of theft irrespective of the fact that he or she
has an interest in the subject property, we cannot conclude that the fact finder, in calculating
the value element of theft, must subtract the co-owner-defendant’s interest therein. The
statute does not mandate defendant’s interpretation, and we decline to read into it this
requirement. It remains that the amount wrongfully taken was over $100,000 and not one-
half of that amount. To conclude that the value taken was less than that would authorize a
co-owner to take funds from a business entity regardless of the co-owner’s duties and
obligations to the entity. Such a conclusion would, in a sense, eviscerate the business entity.
We cannot conclude that the legislature intended such a reading. Corporate law mirrors this
conclusion, and we find no reason to interpret the Code any less restrictively. See, e.g., Sears
v. Weissman, 6 Ill. App. 3d 827, 832 (1972) (where corporate directors made a loan to
themselves from the corporation, they were jointly and severally liable to the corporation for
the amount of such loan); see also 805 ILCS 5/8.65(a)(1) (West 2008) (business corporation
act provision stating that corporate directors who vote for or assent to a prohibited
distribution are “jointly and severally liable to the corporation for the amount of such
distribution” (emphasis added)).3
¶ 31 Defendant relies on two cases addressing the criminal-damage-to-property statute (720
ILCS 5/21-1(1) (West 2004) (“the extent of the damage is an element of the offense to be
resolved by the trier of fact as either exceeding or not exceeding the specified value”)), which
contains language similar to the theft statute (720 ILCS 5/16-1(c) (West 2004) (“When a
charge of theft of property exceeding a specified value is brought, the value of the property
involved is an element of the offense to be resolved by the trier of fact as either exceeding
or not exceeding the specified value.”)). In People v. Schneider, 139 Ill. App. 3d 222 (1985),
the defendant appealed his conviction of criminal damage to property exceeding $300. He
argued that the State did not prove that the damaged property, an automobile in which he
asserted he maintained a property interest (along with his former wife), was the property of
3
In the civil context, although “lawyers are not bound by the same fiduciary duties as those
of nonlawyer corporate officers and directors [citation], the principles are similar.” Dowd & Dowd,
Ltd. v. Gleason, 352 Ill. App. 3d 365, 374 (2004).
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another under the criminal-damage-to-property statute. The Schneider court, assuming
arguendo that the defendant maintained a property interest in the vehicle, rejected this claim,
holding that the statute imposed “criminal responsibility on a person who damages another’s
interest in property, regardless of whether ownership of the property in question is shared.”
Id. at 224-25. However, the court reversed and remanded the cause so that a jury could
consider the defendant’s ownership interest in determining the extent of the damage
valuation attributable to his former wife’s property interest. Id. at 225. This finding was
determinative of whether the defendant would be guilty of a felony or a misdemeanor. Id.;
see also People v. Jones, 145 Ill. App. 3d 835, 839 (1986) (relying on Schneider and holding
that, where the defendant was convicted of criminal damage to his estranged wife’s vehicle,
which was marital property in which he had an interest, the trial court erred in calculating the
restitution amount, because it failed to deduct the value of the defendant’s interest in the car;
cause remanded for a proper evaluation of restitution).
¶ 32 As defendant concedes, Schneider and Jones involved criminal damage to property and
did not address theft. We reject defendant’s suggestion that we look to the foregoing cases
for guidance in interpreting the theft statute. Each case involved a scenario where a husband
and wife arguably co-owned certain property. The theft statute addresses the specific
instances in which co-ownership may be used as a defense when one spouse is the defendant
and the other is the complainant. See 720 ILCS 5/16-4(b) (West 2004) (in cases of spousal
property, a theft prosecution may not be maintained unless, at the time of the alleged offense,
the parties were not living together as spouses). Interestingly, in both Schneider and Jones,
the parties were not living together and were either estranged or involved in dissolution
proceedings; thus, if a theft had been involved, application of section 16-4(b) would have
warranted a different outcome in each case. In any event, the criminal-damage-to-property
statute contains no provision analogous to section 16-4(b) and we, therefore, conclude that
the cases cited by defendant provide no guidance.
¶ 33 We also reject defendant’s reliance on State v. Debus, 2002 MT 307, 59 P.3d 1154,
which assessed the impact of creditors’ claims on shareholders’ interests in corporate
property after the corporation was dissolved. Id. ¶ 32. The Debus court set aside the
defendant’s conviction and held that, because the corporation was dissolved and insolvent
on the relevant date, there would have been no leftover funds for the shareholders after the
corporation’s creditors were paid; therefore, no rational fact finder could have found that the
minority shareholders owned the money over which the defendant exercised control. Thus,
Debus is not on point.
¶ 34 We further find unconvincing defendant’s argument that the State failed to establish the
income defendant generated from her preexisting clients and, therefore, it failed to prove the
precise amount that was wrongfully taken. Specifically, we reject defendant’s claim that
Tietz’s testimony constituted mere speculation. Tietz testified that defendant represented five
preexisting clients and that her work for these clients should have been completed by early
March 2004. She explained that any real estate transactions, i.e., closings, that would have
commenced immediately before they formed the firm would typically have been completed
by that time. Critically, Tietz identified checks that were deposited into defendant’s personal
business account that could have been attributable to these clients, and the trial court
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excluded them from its calculation.
¶ 35 Finally, we reject defendant’s claim that Tietz’s testimony concerning exhibit No. 45, a
$3,500 check defendant wrote to herself on June 12, 2004 (and deposited into her personal
business account on June 14, 2004), was unclear as to whether the check represented an
authorized draw. Defendant asserts that the trial court erred in finding that the check was an
unauthorized transaction. Tietz testified that this amount was in addition to the Paychex
checks defendant was receiving and that she could not recall if they discussed whether
defendant could take this draw. Tietz stated that their agreement was that defendant could
take only salary payments (via the Paychex checks), not draws. Although Tietz conceded
that, at the time, the parties had discussed that defendant’s real estate taxes were overdue and
that she needed assistance to pay them, Tietz could not recall if exhibit No. 45 represented
a draw to pay the taxes and she stated that another check represented payment of some of the
taxes. Based on the foregoing, we cannot conclude that the trial court erred in finding that
exhibit No. 45 represented an unauthorized transaction.4 We further note that, even if the
court’s finding were erroneous, the evidence was sufficient to show that defendant
committed a theft of currency of over $100,000.
¶ 36 In summary, the evidence was sufficient to establish the value of the wrongfully taken
funds.
¶ 37 2. Intent
¶ 38 Next, defendant argues that her theft convictions should be reversed because the State
failed to establish the intent element of theft. For the following reasons, we reject her
argument.
¶ 39 The State charged defendant with theft in violation of sections 16-1(a)(1)(A) and 16-
1(a)(2)(A) of the Code. Under the first section, the State had to establish that defendant
obtained or exerted unauthorized control over Tietz’s or the firm’s property. 720 ILCS 5/16-
1(a)(1) (West 2004). Under the second section, the State was required to prove that defendant
obtained by deception control over that property. 720 ILCS 5/16-1(a)(2) (West 2004). Under
both types of theft, the State was further required to prove beyond a reasonable doubt that
defendant intended to permanently deprive Tietz or the firm of the property (720 ILCS 5/16-
1(a)(1)(A) (West 2004)), or that she knowingly used, concealed, or abandoned the property
in such a manner as to permanently deprive Tietz or the firm of its use or benefit (720 ILCS
5/16-1(a)(1)(B) (West 2004)).
¶ 40 Defendant claims that the evidence did not show that she intended to permanently
deprive Tietz or the firm of any funds. She points to Tietz’s testimony that they would
eventually square up their finances as the firm became established and more profitable.
4
Although we need not reach the issue of the partners’ agreement concerning the
apportionment of firm profits, we note that it presents a credibility issue. We cannot conclude that
no rational fact finder could have credited Tietz’s testimony that they agreed to equally share firm
profits.
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¶ 41 “Since an intent to permanently deprive an owner of his property can seldom be proved
by direct evidence it has been held that such intent may be deduced, or inferred, by the jury
from acts committed and circumstances in evidence.” People v. Falkner, 61 Ill. App. 3d 84,
87 (1978). However, as defendant notes, it may not be proven with mere speculation or
conjecture. See People v. Reich, 241 Ill. App. 3d 666, 670 (1993).
¶ 42 Defendant relies on People v. Jensen, 103 Ill. App. 3d 451 (1982). In Jensen, the
defendant, through use of a “sob story,” deceived several victims into lending him money.
They did not specify that the money needed to be repaid, but the defendant did state that he
would repay the money. The court reversed the defendant’s conviction, holding that the
defendant’s repayment declarations were not proven false and that the lack of repayment did
“not necessarily negate an intention to repay.” Id. at 455.
¶ 43 Here, defendant notes that she informed Tietz of her financial struggles due to her
husband’s health problems and unemployment, that the partners discussed allowing
defendant to draw from the firm, and that, in the future, Tietz’s and defendant’s finances
were expected to even out. Defendant argues that here, similar to Jensen, there was no proof
that she never intended to reimburse Tietz following a full accounting of the firm. Defendant
further points to Tietz’s testimony that defendant asked to receive a paycheck due to her
husband’s issues and Tietz’s testimony that she believed there was time to catch up to
defendant’s payments. Defendant also points to Tietz’s testimony that she assumed that they
would eventually “square up” the funds. Defendant does not dispute that she took certain
funds from firm accounts or client fees and she concedes that she may have taken more than
Tietz had contemplated or authorized, but she contends that this does not prove that she
intended to permanently deprive Tietz or the firm of the funds. She urges that the mere
possibility that she would not give Tietz her share is insufficient to show beyond a reasonable
doubt the requisite intent. Defendant notes that she did not abscond with the funds and that
the funds remained in her personal business account. Finally, defendant points to Slemp’s
testimony that she overheard Tietz tell defendant to deposit several checks from real estate
closings, stating, “they’re all yours, anyway.”
¶ 44 We conclude that, viewing the evidence in the light most favorable to the State, a rational
trier of fact could have found that defendant intended to permanently deprive the firm or
Tietz of the wrongfully taken funds. The evidence showed that the partners agreed that
defendant would take payments from the firm only via the Paychex checks. The
overwhelming evidence was that the parties agreed that defendant could not take proceeds
from the firm’s accounts or client fees. That Slemp testified to the contrary on this point was
a credibility issue for the fact finder to resolve. The evidence also showed that defendant
endorsed checks payable to the firm and deposited them into her personal account. Further,
Watts testified that defendant instructed her to transfer funds from the firm’s business
operating account to the client trust account to make up a $6,000 deficiency in the trust
account. Notably, Watts also testified as to two acts of concealment by defendant. First, she
testified that defendant instructed her not to inform Tietz of the deficiency. Second, she
testified that defendant destroyed a reconciliation report she had prepared for the partners.
¶ 45 Based on the foregoing evidence of concealment and repeated draws from the firm, a
rational trier of fact could have found that defendant intended to permanently deprive the
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firm and Tietz of the funds at issue.
¶ 46 B. Sentencing-Restitution Amount
¶ 47 Next, defendant argues as an alternative to vacating her convictions of Class 1 felony
theft that the trial court’s restitution order be vacated and the cause remanded for a new
determination of restitution. She contends that the restitution order was void because it was
not statutorily authorized. Defendant claims that the restitution amount exceeded Tietz’s out-
of-pocket costs and did not account for defendant’s partial interest in the funds at issue. We
reject defendant’s argument.
¶ 48 Any portion of a sentence that is not statutorily authorized is void. People v. Felton, 385
Ill. App. 3d 802, 805 (2008). A void order may be attacked at any time and is not subject to
procedural default. Id. If, however, an order is improper because of a mistake of either law
or fact, it is voidable and the error can be forfeited. People v. Fouts, 319 Ill. App. 3d 550,
552 (2001). As the State notes, the restitution order was entered without objection and
defendant did not challenge the restitution amount in her motion to reconsider the sentence.
See People v. Marlow, 303 Ill. App. 3d 568, 570 (1999) (a defendant who fails to object to
an alleged error at sentencing or in a postsentencing motion forfeits any sentencing issues on
appeal).
¶ 49 The restitution order here did not exceed the trial court’s authority and, therefore, was
not void. We review de novo whether a restitution order is statutorily authorized. Felton, 385
Ill. App. 3d at 805. The restitution statute authorizes restitution for “actual out-of-pocket
expenses, losses, damages, and injuries suffered by the victim named in the charge.” 730
ILCS 5/5-5-6(b) (West 2004). The trial court ordered $137,937.23 in restitution and directed
payment to Tietz in $2,873 monthly installments. Defendant argues, as she did above in
addressing the sufficiency of the evidence on the value of the wrongfully taken funds, that,
at most, Tietz would have been entitled to one-half of the restitution award, based on the
partners’ agreement to equally share the firm’s profits. The court’s restitution award was, in
her view, a windfall to Tietz and void. Defendant requests that we reduce the award to, at
most, one-half of the amount awarded.
¶ 50 The trial court did not err in ordering $137,937.23 in restitution. Based on the evidence
presented at trial, $137,937.23 was the value of the funds defendant wrongfully took from
the firm or Tietz or, put another way, the actual “losses, damages, and injuries suffered by
the victim[s] named in the charge.” 730 ILCS 5/5-5-6(b) (West 2004). We do not read the
out-of-pocket loss limitation in the restitution statute to require apportionment of funds
unlawfully taken from the firm or Tietz. Thus, the restitution order was not void.
¶ 51 We also reject defendant’s argument that our conclusion results in a windfall for Tietz.
Defendant contends that, before the theft, Tietz had only a partial interest in the property, but
that, after the theft, the trial court essentially awarded her the entire interest in the property.
We disagree. First, we again note that, in the trial court, defendant did not challenge the
restitution amount. Second, for purposes of calculating restitution for funds taken by theft,
we do not agree that defendant necessarily retained any interest in the wrongfully taken
funds, because there were two victims in this case: the firm and Tietz. The trial court
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properly ordered, as restitution, the total amount stolen. Further, we have no quarrel with the
fact that this view mirrors the result, in the civil context, in a case involving a law firm’s
lawsuit against certain partners who left the firm to start a new one. There, the court held that
the former partners could not retain any compensation they earned while they were breaching
their fiduciary duties to the firm. Dowd, 352 Ill. App. 3d at 385 (relying on the corporate law
principle that “Illinois law permits a complete forfeiture of any salary paid by a corporation
to its fiduciary during a time when the fiduciary was breaching his duty to the corporation”).
We reject defendant’s claim in her petition for rehearing that our holding, and our citation
to Dowd, imposes criminal liability for defendant’s breach of her (civil) fiduciary duty to the
firm. To be clear, our rejection of her restitution argument is based solely on our reading of
the statute and our conclusion that defendant’s argument is not a reasonable interpretation
of the provision.
¶ 52 Finally, as to defendant’s emphasis that she took only from her firm and her partner and
did not take any client funds, it has been noted that the acts are morally equivalent. See In
re Siegel, 627 A.2d 156, 159 (N.J. 1993) (noting that there is “no ethical distinction between
a lawyer who for personal gain willfully defrauds a client and one who for the same untoward
purpose defrauds his or her partners”).
¶ 53 In summary, the trial court did not err in ordering defendant to pay Tietz $137,937.23 in
restitution.
¶ 54 C. Sentence-Monthly Installments
¶ 55 Defendant’s final argument, raised as an alternative to vacating her theft convictions, is
that the trial court abused its discretion in ordering her to make $2,873 monthly restitution
payments without considering her ability to pay. She requests that we impose a repayment
plan based on a fixed percentage, i.e., 10%, of defendant’s income or, alternatively, that we
remand the cause for a hearing to determine the appropriate fixed monthly payment that
would constitute a “feasible financial burden.”
¶ 56 A trial court must determine a reasonable time and manner for the payment of restitution
to ensure that restitution can be paid. People v. Fuzz, 218 Ill. App. 3d 418, 422 (1991).
However, the trial court is not required to consider a defendant’s financial circumstances
when setting the amount of restitution; the trial court is required to consider the ability to pay
only when determining the time and manner of payment or when considering a petition to
revoke restitution. People v. Gray, 234 Ill. App. 3d 441, 444 (1992); 730 ILCS 5/5-5-6(f),
(i) (West 2004). Further, “the court shall determine whether restitution shall be paid in a
single payment or in installments, and shall fix a period of time not in excess of 5 years ***
within which payment of restitution is to be paid in full.” 730 ILCS 5/5-5-6(f) (West 2004).
A trial court’s order concerning the time and manner of payment of restitution is reviewed
for an abuse of discretion. People v. Stites, 344 Ill. App. 3d 1123, 1125 (2003).
¶ 57 Defendant raised her inability to pay in her motion to reconsider the sentence. In that
motion, defendant argued that, due to her unemployment and lack of job prospects, she
would be unable to comply with the monthly restitution amount ordered by the court. At the
hearing, defense counsel further argued that defendant had two children (ages 18 and 7) and
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that, after practicing for 20 years, she was in the process of relinquishing her law license. Her
only income was her husband’s income (which was unspecified). Defense counsel likened
the monthly restitution payments to paying a mortgage and argued that, even if defendant
worked two or three jobs, she would be unable to pay the full restitution amount within 48
months. In denying the motion, the court acknowledged its understanding of the magnitude
of the payments, but it also acknowledged that Tietz had “been forever harmed” by defendant
and that the cause had been pending for five years. The judge also noted his familiarity with
defendant, whom he had known since she began practicing law. The judge also noted that,
if, in the future, defendant were unable to make the payments (for failure, for example, to
obtain employment), she could petition the court for a modification. 730 ILCS 5/5-5-6(i)
(West 2004).
¶ 58 We first reject defendant’s argument that the trial court did not at all consider her ability
to pay. The trial judge specifically mentioned his familiarity with defendant. Also, the facts
that defendant was about to relinquish her law license and that she was unemployed were
before the court. The court also noted its understanding of the magnitude of the burden that
the $2,873-per-month restitution payments imposed, but it nonetheless denied defendant’s
request to reconsider the sentence. We find no error with its decision to impose the monthly
restitution amount.
¶ 59 In arguing in the alternative for a modification of the restitution order to one based on
10% of her income, defendant relies on several cases where the reviewing court modified a
restitution order from a fixed monthly amount to one based on a fixed percentage of the
defendant’s net income. See People v. Reece, 228 Ill. App. 3d 390, 392, 396 (1992) (upon
holding that the $39,159 restitution order imposed an “ ‘impossible financial burden,’ ” even
if the defendant could return to his job after his four-year term of incarceration, the court
remanded for a redetermination of the proper amount or method of payment based on a fixed
percentage of the defendant’s net income, where the defendant was the sole support for his
wife and three children and earned $7.35 per hour (for 35 hours per week) at his last job);
People v. Rupert, 148 Ill. App. 3d 27, 29-30 (1986) (modifying $200-per-month-for-four-
years restitution order to 10% of the defendant’s net monthly income and extending
restitutionary period to five years, where, after taking judicial notice of the fact that the
defendant had a new, lower-paying job, the court concluded that the defendant’s college
degree in law enforcement administration would be of limited use due to his criminal record
and where his income in the previous year was $6,000 and was not likely to significantly
increase in the future); People v. Knowles, 92 Ill. App. 3d 537, 540-41 (1980) (modifying a
$1,176-per-month-for-59-months restitution order to one based on monthly payments of 10%
of the defendant’s net income for a five-year period (and set at a $53,891 maximum amount),
where the defendant’s gross salary the previous year was $6,570, his gross income was just
over $125 per week, and he was repaying his parents between $10,000 and $15,000 for his
legal fees and related costs).5
5
Thus, in Reece, the challenged restitution order equaled the defendant’s income. In
Knowles, it exceeded the defendant’s income. Finally, in Rupert, it was initially 25% of the
defendant’s income and would have been higher due to his new, lower-paying job.
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¶ 60 Defendant requests a fixed percentage of her income, arguing that few people, including
those with steady incomes, could comply with an order mandating such a “high” monthly
payment. She suggests that a modification to 10% of her net monthly income would help
ensure that the restitution payments will be made to Tietz, because the payment amount
would be more realistic and within defendant’s ability to pay.
¶ 61 We decline defendant’s request to remand for a hearing to modify the restitution order.
As the record stands, we are unable to assess whether defendant’s unemployment status as
of the hearing on her motion to reconsider would be long-term or temporary. Although
defendant will not be working as an attorney for the majority of the restitutionary period, she
is a highly educated and experienced person who should be able to obtain work earning an
above-average salary. If this does not occur or if her income is insufficient for purposes of
making her restitution payments, defendant can, as the trial court noted, petition the court for
a modification. We cannot conclude that the trial court’s ruling was unreasonable.
¶ 62 III. CONCLUSION
¶ 63 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.
¶ 64 Affirmed.
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