# People v. Perry > Illinois Supreme Court · February 16, 2007 · 224 Ill. 2d 312 URL: https://www.frixlaw.com/law-library/cases/9860896 ## Case - **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MICHAEL L. PERRY, Appellee - **Court:** Illinois Supreme Court - **Decided:** February 16, 2007 - **Citations:** 224 Ill. 2d 312; 309 Ill. Dec. 330; 864 N.E.2d 196; 2007 Ill. LEXIS 435 - **Precedential status:** Published - **Opinion:** Dissent by Fitzgerald - **Judges:** Carman, Fitzgerald - **Cited by:** 543 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9860896 ## How later opinions describe it (automated extraction) - holding that to prevail on a claim of ineffective assistance of counsel, a defendant must show both that: "counsel's errors were so serious, and his performance so deficient, that he did not function as the 'counsel' guaranteed by the sixth amendment" and that "there is a reas… - finding a cumulative-error analysis unnecessary where the defendant’s ineffective-assistance-of-counsel claims had been rejected on the basis “that counsel’s performance was not deficient or, even if deficient, did not result in prejudice under Strickland - holding that cumulative error analysis was unnecessary where the court had rejected all the defendant’s claims of ineffective assistance of counsel, concluding counsel’s performance was not deficient or, even if deficient, did not result in prejudice - finding that the word “includes,” “when followed by a listing of items, means that the preceding general term encompasses the listed items,” and “the preceding general term is to be construed as a general description of the listed items” - finding that the defendant adequately preserved the issue even though the specific statements were not precisely the same statements as those mentioned in the defendant’s posttrial motion ## Opinion text JUSTICE FITZGERALD, dissenting: I respectfully dissent because I believe the legislature was careful to exclude the mere “use” of property from the definition of “property” in section 15 — 1. 720 ILCS 5/15 — 1 (West 2000). That section defines “property” to mean “anything of value.” It includes: money, food and drink, real estate, fixtures, telecommunications services, electricity, gas, water, tickets, documents, photographs, computer programs, drawings, models, commercial instruments, and “written instruments representing or embodying rights concerning anything of value, labor, or services, or otherwise of value to the owner.” 720 ILCS 5/15 — 1 (West 2000). Notably, the statutory definition of property does not cover labor or services themselves, only written instruments embodying the rights to such services. This definition also does not include the right to temporarily use property. Therefore, the defendant cannot be found guilty of theft by deception of the use of a hotel room under section 16 — 1 (720 ILCS 5/16 — 1 (West 2000)). I further disagree with several points in the majority’s reasoning. In support of its holding, the majority states, “The phrase ‘anything of value’ is unambiguous. Clearly, the legislature intended to expand the definition of property to include not only items of tangible personal property but also other things of value such as real estate, electricity, and telecommunications services. The hospitality industry provides lodging to the public for profit. The market for hotel and motel rooms is vast. The use of a hotel room does have value. See Moline Water Power, 252 Ill. at 357 [1911] (stating that waterpower is property because it ‘is bought and sold in the market as freely as the products of the farm’). We conclude that the use of a hotel room is a thing of value as that phrase is used in the first sentence of section 15 — 1.” 224 111. 2d at 328. I first disagree that the phrase “anything of value” unambiguously supports the majority’s holding. I believe my interpretation above at least renders the phrase “anything of value” ambiguous. The majority opinion ignores the underlying premise of the sole citation for this proposition. The premise of this statement in Moline Water Power was that one buys and sells the ownership of the electricity in the market, not the right to temporarily use that electricity. In other words, it is not the rental of these things which is “bought and sold on the market”; it is the thing itself. The majority further emphasizes that it is a night of occupancy that was the “use” of the room which was permanently lost, explaining, “The property at issue here is the use of a hotel room. The hotel’s complement of rooms can he analogized to a store’s inventory of goods. The hotel has a finite number of rooms, which it can rent to members of the public 365 nights a year. One night in one room is a thing of value. When this thing of value is taken by deception, the owner has permanently lost the benefit of one night’s income. We, therefore, hold that each night of occupancy that is obtained by deception permanently deprives the owner of the beneficial use of the hotel room within the meaning of section 15 — 3(b) (720 ILCS 5/15 — 3(b) (West 2000)).” 224 Ill. 2d at 335-36. By continuing to equate the mere “use” of a hotel room with a “store’s inventory of goods” the majority continues to ignore the distinction between rental, in which the owner allows another temporarily to possess a thing, and the sale of a thing, where ownership of the thing itself changes hands. The leap of logic in the majority’s analogy is that a store is not in the habit of renting its inventory of goods for temporary use. Because the failure to recognize this distinction, I believe the majority has made an unwarranted expansion of section 15 — 1 of the statute beyond the legislature’s intention. Moreover, it is unclear that the Embassy Suites would have otherwise obtained the money for the night’s lodging used by defendant. The majority cites no specific evidence that defendant denied the hotel the opportunity to rent the room to another customer. Further, there is no basis to conclude that there were any nights when the hotel was full and another party would have taken the suite. In this context, the mere opportunity that the hotel might have had to take in other money for the suite cannot be found to constitute “property” for purposes of the general theft statute. The majority’s expansive interpretation is problematic for several other reasons. First, tenants and landlords could potentially apply the court’s reasoning concerning “use” to criminalize breaches of leases. Commentators have criticized similar approaches because of “the possibility of theft prosecutions in cases of holdover or eviction in a landlord-tenant relationship” and the “problem *** of distinguishing between theft and criminal trespass.” Model Penal Code §223.2, Comment, at 173-74 (1980). Commentators also state that obstacles to theft prosecution in these situations makes sense, for “the immobility and virtual indestructibility of real estate makes unlawful occupancy of land a relatively minor harm for which civil remedies supplemented by mild criminal sanctions for trespass should be adequate.” Model Penal Code §223.2, Comment, at 172 (1980). Furthermore, “Relations between a landlord and a tenant are so minutely regulated and constitute such a delicate socio-political problem that it would be wrong to introduce the possibility of a theft prosecution for unauthorized occupancy by a tenant or improper eviction by a landlord.” Model Penal Code §223.2, Comment, at 172 (1980). These criticisms may explain the lack of even one prior appellate court decision which has found that the mere “use” of property for a period of time constitutes “property” under section 15 — 1. Previous cases have only implicitly found that leaseholds constituted property under section 15 — 1 and have not provided an iota of analysis on the issue. See People v. Hagan, 199 Ill. App. 3d 267 (1990) (where the appellate court overturned a conviction of attempted theft by deception of a commercial lease, but did not address whether a lease was property under section 15 — 1); People v. Veasey, 251 Ill. App. 3d 589 (1993) (where the appellate court upheld a conviction of theft by deception of a car lease, but similarly did not specifically address whether the right to temporarily use the car constituted “property” under the statute). Therefore, this court will be the first to hold that this type of “use” is “property” under section 15 — 1, and thus the first to apply the theft-by-deception concepts to landlord-tenant law. My research has revealed only one case that has, albeit implicitly, supported my interpretation over the majority holding. In People v. Mattingly, 106 Ill. App. 2d 74 (1969), a tenant signed a lease and paid a security deposit to the landlord. Upon arriving on the first day of his tenancy, the tenant found that other persons were already occupying the premises. The landlord was subsequently convicted of theft by deception of the security deposit. In reversing the conviction, the court found that the failure of the landlord to deliver possession would not terminate the lease and the tenant would have the right to gain possession from the occupants by suit in forcible detainer. Accordingly, the landlord had a right to control the security deposit until the termination of the lease. The fact that others occupied the premises when the tenant was to take possession did not entitle the tenant to demand a portion of the security deposit which he had paid. Thus, the landlord’s refusal to return that portion of the security deposit did not constitute theft by deception. Therefore, the court reversed the landlord’s conviction. Significantly, the Mattingly court focused only on the money that remained in the hands of the landlord as being the “property” subject to theft, rather than focusing on the use of the premises which the landlord denied the tenant. This is because the court found that the lease was still in effect until the tenant had gained the right to possession by a suit in forcible detainer. Yet, the majority is overturning Mattingly, sub silentio, making the deceptive taking of the tenant’s contractual right to the “use” of the premises illegal, and subjecting the landlord to a theft conviction. The implications of the majority’s reasoning are therefore squarely applicable to typical landlord-tenant situations. Consider three common, hypothetical cases. The first situation is the typical failure of a landlord to provide habitable rental property, even for a short period of time. For instance, a landlord may lack the money or desire to sufficiently winterize the building. Nevertheless, the landlord accepts rent from various tenants in the building, knowing full well that the facilities to provide the building’s heat and hot water are inadequate. But he decides to wait until the facilities actually break down in the dead of winter before he fixes the problem. Consequently, the landlord has denied the tenants the benefit of their bargain. The tenants have lost their contractual right to “use” of the apartment, and also the opportunity to rent another apartment before the onset of winter. Some tenants may even have lost sub-rental income. Under normal circumstances, the landlord would be subject to civil remedies such as a suit by the municipality seeking an injunction to repair the property, and for fines for ordinance violations, or a tenant’s suit directly against the landlord for whatever value that the property has been diminished. Following the majority’s reasoning, however, the landlord has committed a theft because he consciously deprived the tenants of their rightful “use” of the property to which the tenants were entitled under the lease. Depending on the number of apartments in the building, the number of days deprived, and the degree to which the building was without heat, the landlord could also be liable for theft by deception and a Class 2 felony (720 ILCS 5/16 — 1(a)(2) (West 2000)). The tenant’s right to “use” of the property is clearly a “thing of value” to them, making the landlord guilty of theft by deception. Perhaps clearer is a typical “self-help” eviction. A tenant has not paid rent for three months. Instead of initiating a proceeding for forcible entry and detainer, the landlord deliberately changes the locks on the tenant’s apartment, permanently barring the tenant from the property. Because the tenant still retains the right to the “use” of the property for the remainder of the lease, a landlord would be guilty of theft of the tenant’s right to “use” the property under the lease. The third case is one of a holdover tenant. The family’s breadwinner has lost his job and is unable to pay rent. The family knows that it is unlikely or unwilling to pay the arrears on the rent and holds out in the apartment until the landlord institutes civil proceedings for forcible entry and detainer. The family avoids the landlord and deprives the landlord of his ability to rent the property to another tenant. Under all normal circumstances, the legislature has given the tenant the benefit of civil legal processes of forcible entry and detainer, which begins with a five-day notice, service of process, and, eventually, a day in court. Thus, the tenant has the legal right to “use” the premises until a court finds that the landlord has the right of possession. This opinion theoretically entitles the landlord to submit a complaint for prosecution upon the tenants for a felony offense punishable by six years in prison in lieu of or in addition to the normal course of civil proceedings. I do not know what the deleterious effects of this additional remedy may be, but I believe that it is best considered by the legislature. Next, this decision implicates the legislative judgment not to criminalize ordinary cases sounding in contract. I believe the legislature should act with caution in imposing criminal penalties on a hotel guest, landlord, tenant, or any party which has the right to “use” property where contractual remedies remain available. As Judge Posner has stated, “[U]nder the common law (including the common law of Illinois ***), a breach of contract is not considered wrongful activity in the sense that a tort or a crime is wrongful. When we delve for reasons, we encounter Holmes’s argument that practically speaking the duty created by a contract is just to perform or pay damages, for only if damages are inadequate relief in the particular circumstances of the case will specific performance be ordered. In other words, and subject to the qualification just mentioned, the entire practical effect of signing a contract is that by doing so one obtains an option to break it. The damages one must pay for breaking the contract are simply the price if the option is exercised. See Oliver Wendell Holmes, Jr., The Common Law 300-02 (1881); Holmes, ‘The Path of the Law,’ 10 Harv. L. Rev. 457 , 462 (1897). Why such lenity? Perhaps because breach of contract is a form of strict liability. Many breaches are involuntary and so inapt occasions for punishment. Even deliberate breaches are not necessarily culpable, as they may enable an improvement in efficiency ***. *** The option of which Holmes spoke was the option not to perform because performance was impossible or because some more valuable use of the resources required for performance arose after the contract was signed.” Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., 313 E3d 385, 389-90 (7th Cir. 2002). Here, the hotel seeks criminal punishment because of the inability, at least initially, to screen out defendant as a customer and thereafter to be made whole through adequate contractual remedies. Further, defendant’s theft of the “use” of the hotel property could also simply be characterized as a breach of his duty to pay under the contract. The holding today calls into question whether a person who deliberately breaches a contract may also be subject to significant criminal penalties. Lastly, the legislature has already addressed the concerns in other statutes. In these provisions, the legislature has specifically outlawed the act of unlawfully using a hotel by employing words such as “use,” “lodging,” or “accommodations.” The legislature has prohibited defendant’s behavior in section 16 — 3(a) (720 ILCS 5/16 — 3(a) (West 2000)), which is a Class A misdemeanor. This provision states, “(a) A person commits theft when he obtains the temporary use of property, labor or services of another which are available only for hire, by means of threat or deception or knowing that such use is without the consent of the person providing the property, labor or services.” 720 ILCS 5/16 — 3(a) (West 2000). Second, the Innkeeper Protection Act (740 ILCS 90/5 (West 2000)) also specifically prohibits this action, and also is a Class A misdemeanor for the first offense. This provision states, “Any person who, with intent to defraud, shall obtain lodging, food, money, property or other accommodation at a hotel, inn, boarding house or lodging house without paying therefor shall be guilty of a Class A misdemeanor. In case of a second conviction of the offense described, the punishment shall be that provided for a Class 4 felony.”'740 ILCS 90/5 (West 2000). I deduce from these examples that the legislature could have explicitly employed words such as “accommodation,” “lodging,” or “use” of property in its definition of “property” in section 15 — 1. This demonstrates that the legislature has explicitly intended that defendant’s behavior receive punishment as a Class A misdemeanor. Therefore, defendant’s behavior will not go unpunished had the court ruled that the “use” of a hotel room is not “property” within section 15 — 1 (720 ILCS 5/15 — 1 (West 2000). Because of the foregoing reasons, I respectfully dissent. JUSTICE KILBRIDE joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9860896. Public record. Not legal advice.