People v. Orrs

Mr. JUSTICE SCOTT delivered the opinion of the court: After trial by jury, Glenn A. Orrs, defendant, was convicted of the offense of felony escape and was sentenced to a term of five years’ imprisonment to run consecutively with terms he was already serving. The evidence at defendant’s trial disclosed that he had been convicted of four charges of burglary and was serving four concurrent terms of from three to nine years of imprisonment. During his incarceration he was assigned to the Peoria Community Correctional Center, and on May 20, 1978, having been granted a “work release,” he was employed at a facility in Peoria known as the Faith, Hope, Love and Christ Christian Mission. At approximately 4:10 p.m. on said date, a resident counselor from the Peoria Community Correctional Center arrived at the mission to pick up the defendant. The defendant asked if he could have a few more minutes to complete his work, which request was granted by the counselor. After 25 minutes the defendant failed to come out of the mission, so the counselor entered the building in search of him. The defendant had fled and never returned to the correctional center. The statutes under which the defendant was charged and convicted provide that: “A person convicted of a felony, or charged with the commission of a felony who intentionally escapes from any penal institution or from the custody of an employee of that institution commits a Class 2 felony.” Ill. Rev. Stat. 1977, ch. 38, par. 31 — 6(a). The defendant raises several issues in this appeal, the first being that his conviction should be reversed since the State’s proof did not establish that his conduct constituted an escape. The instant case is strikingly similar to People v. Cole (1980), 84 Ill. App. 3d 347. In Cole this court determined that a defendant serving a sentence for burglary at the Peoria Community Correctional Institute committed the offense of felony escape when he refused to return to the correctional center when on furlough and when ordered to do so by a counselor. In the instant case the defendant, in an effort to buttress his argument that he did not commit the act of escape, argues that the correctional center was not a penal institution, nor was he in the custody of an employee of such institution. It is the defendant’s argument that the correctional center is a work-release facility of the Department of Corrections and hence is not a penal institution within the statutory definition of such. A penal institution is defined as: “° ° ° a penitentiary, state farm, reformatory, prison, jail, 000 or other institution for the incarceration or custody of persons under sentence for offenses or awaiting trial or sentence for offenses.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 38, par. 2 — 14. As we interpret defendant’s argument, it is not denied that the correctional center is an institution, but it is his contention that it is not a penal institution because the offenders assigned there are not under immediate, actual and physical restraint such as prisoners housed in cells in a walled penitentiary. For purposes of rehabilitation and hopefully for an easier and successful transition into society, a correctional center does provide its inmates with a great latitude as far as freedom of movement is concerned, and the center provides its inmates with a living arrangement and atmosphere which is far less institutionalized than that of a high security prison. These differences, however, do not change its status to that of a nonpenal institution. Such a center is still under the direction of a warden, guards are present, and its inmates are sentenced law violators who are not there voluntarily. The inmates have only such freedom of movement and work opportunities as are provided to them by the supervisory officials. The poet Richard Lovelace was correct in his observation that “Stone walls do not a prison make — Nor iron bars a cage — .” A correctional center falls within the definition of a penal institution as statutorily defined in section 2 — 14 of the Criminal Code of 1961. Ill. Rev. Stat. 1977, ch. 38, par. 2 — 14. We further find no merit in the defendant’s assertion that he was not in custody of an employee of the correctional center. Though referred to as a resident counselor rather than a guard, the employee who called at the mission for the purpose of returning the defendant to the center had custody of the defendant. Such custody was acknowledged by the defendant when he requested of the counselor that his return to the center be delayed for a few minutes. When the defendant disobeyed and fled, he committed an escape just as effective as one who obtained freedom by wall scaling, tunneling or through the use of force. The defendant assigns as reversible error the trial court’s action in permitting a State witness to testify that the Peoria Correctional Center was a penal institution and also the failure of the court to instruct the jury regarding the definition of a penal institution. It is the defendant’s theory that when a supervisor of the correctional center testified that the center was a penal institution, such testimony was a conclusion going to the ultimate fact, which should have been determined by the jury. We harbor serious doubts as to whether the statutory definition, of a penal institution is a question of fact rather than one of law, and it is apparent that counsel for the defendant must also harbor some doubt, since, as previously noted, he peculiarly argues that as a matter of law the Peoria Community Correctional Center is not a penal institution, but as to the issue under consideration takes a contrary view or position by asserting that such determination is one of fact to be decided by a jury. Assuming ad arguendo that whether the center was a penal institution was a question of fact, the testimony of the supervisor was nevertheless harmless beyond reasonable doubt since the record is so replete with testimony describing the center, its purpose and operation, that it can only be concluded that the jury would have concluded that the center was penal in nature without the complained of opinion testimony. As to the defendant’s argument that error was committed by the court’s failure to instruct the jury on the statutory definition of a “penal institution,” it should first be noted that if such question is one of law then no instruction was necessary. Whether such question is one of law or fact is immaterial in the instant case, since the defendant has waived any error by his failure to tender such an instruction and further failed to object to the lack of such an instruction in his post-trial motion. (See People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331.) The defendant now claims that an instruction as to the definition of “penal institution” was necessary. If necessary, he had the affirmative duty to tender it, and failure to do so results in a waiver. Supreme Court Rule 451(c) (Ill. Rev. Stat. 1977, ch. 110A, par. 451(c)), relied on by the defendant, is of no assistance to him, for the rule grants relief only for the failure to object, not for failure to tender an instruction. We fail to find any merit in defendant’s claim of error regarding the trial court’s failure to instruct the jury as to the definition of “penal institution.” The defendant further argues that his conviction should be reversed since the trial court erred in denying his motion to strike surplusage in the indictment and for also overruling his objection to the State proving four separate felonies for which he was imprisoned. The surplusage complained of was an averment in the indictment that he had been convicted of burglary. It was the defendant’s argument before the trial court, and now before this court, that the specific crime, to wit burglary, should not have been disclosed, but instead an averment that he had committed a felony was sufficient and proper. We find no merit in defendant’s contention that the specific crime of burglary as averred in the indictment resulted in error. There is ample precedential authority for sustaining the correctness of an indictment in an escape case which avers the specific offense for which a defendant is incarcerated rather than generalizing the reason for his incarceration by stating that it was because of the commission of a felony. See People v. Hill (1959), 17 Ill. 2d 112, 160 N.E.2d 779, and People v. Arbuckle (1966), 69 Ill. App. 2d 251, 215 N.E.2d 825. We further disagree with the defendant that error was committed when the State introduced evidence of all four of his burglary convictions. In so disagreeing, we do not quarrel with the defendant’s assertion that such cumulative evidence could result in impressing the jury unfavorably as to his propensity to commit crimes. There is, however, a practical reason for the admission into evidence of all convictions of the defendant for which he is incarcerated at the time of his escape. The practical reason is that at the time of his trial for felony escape the State was uncertain as to whether the defendant would be able to successfully attack any of the individual convictions in post-trial proceedings. The State should not at its peril be required to select one conviction upon which to base their felony escape action. It is possible that one burglary conviction might be reversed. Should it be the one proved during the felony escape trial, then a conviction for escape based upon such conviction would fall. The law would be thwarted. It is not the intent or purpose of the law to establish and adhere to rules that would thwart the administration of justice. Lastly the defendant contends that if his conduct constituted an escape he should have been prosecuted under section 3 — 6—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1003 — 6—4(a)). This statutory provision provides that a committed person who fails to return from furlough or from work or day release is guilty of a Class 3 felony. Whether the defendant should have been prosecuted for committing a felony or a misdemeanor is the precise question which this court recently determined in the case of People v. Cole (1980), 84 Ill. App. 3d 347. In Cole this court determined that a prosecutor is vested with discretion in circumstances such as presented in the instant case as to whether an accused will be prosecuted for committing a felony or a misdemeanor. Since our decision in Cole, a sister appellate court district has filed the case of People v. Marble (1st Dist. 1980), 84 Ill. App. 3d 1. The case of Marble reaches a result contrary to that in Cole. In fact, the opinion in Marble generally adopted the position and reasoning in the dissent filed by Justice Barry in the case of Cole. The cases of Cole and Marble are irreconcilable both as to reasoning and result; however, we prefer to adhere to the position set forth by this court in Cole. We are mindful of the fact that divergent views from different appellate courts of our State regarding an identical issue results in a lack of stabilization and frequently presents problems concerning precedential authority. This felony versus misdemeanor prosecution question presented in Cole and Marble is a serious one which most likely will recur. It is to be hoped that our legislature will address itself to this problem and clearly spell out its legislative intent. For the reasons stated herein the conviction of the defendant by the circuit court of Peoria County and the sentence imposed thereon is affirmed. Affirmed. STENGEL, J., concurs.