Illinois Sentencing Memorandum – Redacted

Author: LegalEase Solutions


Defendants, Joe and Brad Smith, who are father and son, were accused of stealing a building owned by an elderly woman.  She mistakenly believed she would be able to quitclaim the building and then the defendants would find her good financing repair the building, and then quitclaim the building back to her.  Defendants disputed the elderly victim’s version of the story arguing in part that they had no financial incentives to agree to such an arrangement.  Subsequently criminal charges were filed against the Defendants and they were convicted of Class 3 Theft by Deception and were given the maximum jail sentence of 15 years each.  The sentences are extendable, and the sentencing range was extended because the victim was elderly.  Mr. Brad Smith has no criminal background whatsoever and Mr. Joe Smith has only one conviction that is over ten years old. A survey of Illinois law, both statutory and case law will reveal that this Court erred in sentencing Defendants to 15 years as such a sentence is clearly excessive.


The relevant statute under which Defendants were convicted under 720 ILCS 5/16-1 which reads in part:

(b) Sentence.
(4) Theft of property from the person not exceeding $ 300 in value, or theft of property exceeding $ 300 and not exceeding $ 10,000 in value, is a Class 3 felony.
(5) Theft of property exceeding $ 10,000 and not exceeding $ 100,000 in value is a Class 2 felony.
(7) Theft by deception, as described by paragraph (2) of subsection (a) of this Section, in which the offender obtained money or property valued at $ 5,000 or more from a victim 60 years of age or older is a Class 2 felony.

The plain language of the statute indicates that offenses falling under the definition of theft committed upon victims of 60 years of age or older have been elevated to Class 2 felony by Section 7, thereby resulting in a stricter sentence for offenders whose victims are 60 years of age or older. However, an offender cannot be given a sentence which is longer than the maximum prescribed for the offense under which she is convicted unless an aggravating factor applies as provided for under 730 ILCS 5/5-8-2.  which reads in part:

(a) A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5-8-1 [730 ILCS 5/2-8-1] for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5-5-3.2 [730 ILCS 5/5-5-3.2] or clause (a)(1)(b) of Section 5-8-1 [730 ILCS 5/2-8-1] were found to be present. If the pre-trial and trial proceedings were conducted in compliance with subsection (c-5) of Section 111-3 of the Code of Criminal Procedure of 1963  (725 ILCS 5/111-3), the judge may sentence an offender to the following:

(4) for a Class 2 felony, a term shall be not less than 7 years and not more than 14 years;
(5) for a Class 3 felony, a term shall not be less than 5 years and not more than 10 years;

The aggravating factors that the above section mentions which a Court shall take into account to decide the sentence are found under  730 ILCS 5/5-5-3.2.  which reads in part:

Factors in Aggravation. (a) The following factors shall be accorded weight in favor of imposing a term of imprisonment or may be considered by the court as reasons to impose a more severe sentence under Section 5-8-1 [730 ILCS 5/5-8-1]
(relevant sections reproduced)
(8) the defendant committed the offense against a person 60 years of age or older or such person’s property;

The Defendants’ conviction may be extended if the offence is committed against a person above 60 yrs of age. But in the given case, since the crime of theft by deception with a victim of age 60 yrs or above has already been elevated in terms of the class of felony it falls in and the sentence that can be affirmed on a offender of such an offence, there is no need for increasing the years of a sentence to an extended term, or imposing additional penalty on an offender who commits the said crime against a victim of 60 yrs or above.

In  People v. Ferguson 132 Ill.2d 86, 97, 547 N.E. 2d 429 (Ill. 1989), the Illinois Supreme Court ruled that if an offense is already enhanced based on the victim’s age, an additional penalty based on the victim’s age is improper unless there is a clear legislative intent to accomplish that result.

The statute states that an offense against a person of 60 years of age or more shall be punished with greater penalty. As such, imposing an additional penalty by the courts based on the aggravating factor of the victim’s age being 60 years or more would result in a harsh and excessive sentence. Put differently, the offender is already charged under the stricter section as a result of his offense against a person of 60 years or more. At the time of passing the sentence, he is given additional extended term for the same fact that was considered in deciding his sentence under the stricter section.  Illinois courts have reversed or reduced such enhanced sentences in order to avoid imposition of excessive punishment.

The age of the victim should not be considered for the imposition of an additional penalty, and extended term, under subdivision (b)(4)(i) of this section where the penalty for the underlying offense has already been enhanced based on the age of the victim. People v. Bosley, 197 Ill. App. 3d 215, 143 Ill. Dec. 201, 553 N.E. 2d 1187 (2 Dist. 1990).

Since the age factor was already used to enhance thefts between $5,000 and $10,000 from Class 3 to Class 2 felonies, the age factor could not be used to impose an extended term for either the Class 2 or the Class 3 offense. To hold otherwise could result in greater penalties being imposed for less serious offenses. People v. Chapin, 233 Ill. App. 3d 28 (1992).

Where the defendant was charged with aggravated criminal sexual assault because his victim was over the age of 60, the sentencing court erred in considering in aggravation that the defendant was eligible for an extended-term sentence based on the victim’s age. People v. Embry, 179 Ill. App. 3d 1059, 128 Ill. Dec. 873, 535 N.E. 2d 87 (1989).

In addition to the factors that may aggravate a conviction by a court, there are also mitigating factors that the Court should consider to minimize or withhold a sentence.
730 ILCS 5/5-5-3.1 reads in part:

(a) The following grounds shall be accorded weight in favor of withholding or minimizing a sentence of imprisonment:
(1) The defendant’s criminal conduct neither caused nor threatened serious physical harm to another…
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime.
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime.
(10) The defendant is particularly likely to comply with the terms of a period of probation.
(11) The imprisonment of the defendant would entail excessive hardship to his dependents.


  1. No Violent Act or Physical Injury

In the case at hand, the Defendants’ acts did not cause or threaten to cause serious physical injury or harm to the victim.  The Defendants do not have a criminal record.  Therefore, there is no aggravating factor that prescribes the imposition of an extended sentence.  This case is analogous to People v. Milton, in which a 30-year prison term for burglary was reduced to 12 years because of defendant’s youth, lack of prior convictions, and the fact the victim was uninjured; People v. Milton, 182 Ill. App. 3d 1082, 538 N.E. 2d1227 (Ill., 1989).

  1. No Grievous Crime Involved

In People v. Neither 230 Ill. App. 3d 546; 595 N.E.2d 124 (1992) the Court once again reduced the extended sentence for robbery as a crime that does not meet the criteria for exceptionally brutal or heinous conduct so as to warrant an extended term. See also People v. Anderson, 142 Ill. App. 3d 240, 488 N.E. 2d 557 (1985) (reducing defendant’s sentence for residential burglary from 17 years to six, even though extended term was based on the fact that the burglars crashed in on a 63-year-old blind woman and her 10-year-old son).

  1. Only Conviction is Over Ten Years Old

The Defendants have no recent prior history of criminal convictions. The only conviction that is on record is one which is over ten years old in Mr. Joe Smith’s background.

Illinois case law shows that convictions over ten years old are generally not taken into account when deciding the defendant’s sentence.  In People v. Smith, a defendant is eligible for an extended term sentence if he committed a felony in Illinois, which was of equal or greater classification, within a 10-year period prior to his current conviction, exclusive of time spent in the custody of any state or federal correctional authority. People v. Smith, 199 Ill. App. 3d 839, 145 Ill. Dec. 826, 557 N.E. 2d 596 (1990).

Here, the Defendant’s past conviction is over ten years old. Hence, his criminal record should not be taken into account at sentencing.

  1. No Criminal Background

The second defendant, Mr. Brad Smith, has no criminal background whatsoever. Illinois courts have repeatedly taken into account the youth of the offender and his lack of criminal background to reduce or reverse his sentence.

The defendants’ youth at the time of the offence and lack of any criminal background was taken into account while reducing the sentence for theft in People v. Ligons, 45 Ill. App. 3d 21, 59 N.E.2d 223 (1977). See also, People v. Norfleet, 15 Ill. App. 3d 567; 304 N.E.2d 672; (1973).

Even in cases involving grievous crimes, courts have reduced sentences in view of the defendant’s youth and lack of criminal background. In People v. Rockymore 4 Ill. App. 3d 624, 281 N.E.2d 698 (1972) a conviction for aggravated battery and in People v. Jones, 92 Ill. App. 2d 124, 235 N.E. 2d 370 (1969) conviction for homicide were reduced in view of similar circumstances.


The facts of the given case and study of Illinois’ case law reflect that the defendants have been granted an excessive sentence in the form of the extended period of 15 years for the offense of Theft by Deception.

The similar offense when committed upon an aged victim of 60 years or more is already defined and elevated to a Class 2 felony punishable with 7 to 14 years of imprisonment. As such, conviction of the defendants under class 3 felony, which is otherwise punishable with 5 to 10 years of imprisonment, while considering the age of the victim constitutes excessive term of 15 years imprisonment.  Furthermore, the Court must take into account lack of physical injury to the victim, lack of criminal background, and lack of a heinous crime.  Therefore, the term is unfair and excessive and should have resulted in a term of only five years.