dissenting:
Section 5 — 5—3.2(b)(1) of the Unified Code of Corrections provides as a factor favoring imposition of an extended sentence that the defendant has “been previously convicted in Illinois of the same or greater class felony, within 10 years.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(1).) What is a conviction “in Illinois” is the question presented, and the majority decides that the phrase includes convictions in Federal courts sitting within the State. I disagree.
The majority includes Federal convictions because it finds the statute’s central purpose to be heavier penalties for repeat offenders. Given that purpose, excluding convictions in the Federal court would, according to the majority, apply the statute “upon the sheer chance of an offender’s having being convicted earlier in a Federal or in a State court” and “it would treat more harshly offenders who have prior convictions in State courts, while exempting Federal offenders.” (113 Ill. 2d at 22.) The majority’s reasons no more support the decision reached than they undermine the interpretation of section 5 — 5— 3.2(b)(1) advanced by the defendant and contemporaneously rejected: the same criticisms of chance and unequal treatment leveled against the sovereign limitation (Illinois State convictions only) apply with equal force against the territorial limitation (State and Federal convictions in Illinois) which the court adopts. If prior Federal offenders are to be sentenced to extended terms because of their status as repeat offenders, why did our legislature not include extended terms for defendants with criminal records earned in other States? The statutory limitation “previously convicted in Illinois” does not allow for the consistent application of what the majority identifies as the statutory purpose — punishment of recidivism; it follows that the majority has failed to focus accurately upon the legislative intent by including prior convictions in Federal courts in Illinois within the purview of the statute.
Neither can the majority opinion be rationalized by the notion that an extended term is appropriate whenever the defendant has been convicted by either sovereign of a crime committed in Illinois: a defendant may plead guilty or nolo contendere and be convicted “in a district other than that in which an indictment or information is pending against him” (Fed. R. Crim. P. 20(a)), so a conviction in a Federal court situated within Illinois does not establish that the crime was perpetrated in Illinois. In fact, there was nothing in the record before the trial judge at the time he sentenced the defendant in this case which indicated whether the bank robbery for which he was convicted by the Federal court located in Illinois took place in Illinois. (Although the State appended to its brief a copy of the Federal indictment specifying that the bank robbery occurred in Illinois, that copy has not been authenticated or subjected to challenge in court, and for that reason it cannot support the imposition of an extended sentence in this case.) Having striven to excise elements of chance from the invocation of section 5 — 5—3.2(b)(1), the majority in fact introduces a larger element of “sheer chance” (113 Ill. 2d at 21) since defendants convicted by a Federal court in Illinois for crimes committed in other States (or even United States territories) would be treated as recidivists while defendants whose prior convictions for felonious conduct in the same States were in State courts are not.
I have yet another problem with the interpretation adopted by the majority. The statute contemplates as a factor for an extended term that the defendant was previously convicted “of the same or greater class felony.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(1).) By requiring that the previous conviction fall within “the same” or greater class of felony, the statute assumes that it will apply only to prior convictions for classified felonies. However, felonies are not classified in the Federal statutes. Moreover, section 5— 5 — 3.2(b)(1) does not instruct the court to consider “any law of the United States *** which is substantially similar” to Illinois law, as does, for example, section 9— 1(b)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(b)(3)). I find, therefore, no reason to presume that the General Assembly intended Illinois courts in applying section 5 — 5—3.2(b)(1) to categorize the conduct outlawed by Federal laws according to the classes of analogous felonies proscribed under Illinois law.
The classification of defendants eligible for extended sentences under section 5 — 5—3.2(b)(1) is undoubtedly ambiguous; if it were not, we would not be spending all this time trying to construe it accurately. However, in searching for the proper interpretation of the statute, the majority has not been “mindful of the rule of construction in Illinois which requires us to resolve statutory ambiguities in favor of criminal defendants.” (People v. Foster (1983), 99 Ill. 2d 48, 55.) In People v. McCarty (1983), 94 Ill. 2d 28, the court decided that robbery was not a form of theft for purposes of an enhanced sentence for recidivists (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1(e)(1)). “At the very least,” the court observed, “it would violate the principle that ambiguities in penal statutes, particularly in the case of enhancement provisions, must be resolved in favor of the defendant (People v. Hobbs (1981), 86 Ill. 2d 242; People v. Haron (1981), 85 Ill. 2d 261, 277-78; People v. Lund (1943), 382 Ill. 213, 215-16; People v. Carlock (1981), 102 Ill. App. 3d 1100).” (Emphasis added.) People v. McCarty (1983), 94 Ill. 2d 28, 34-35.
For these reasons, I construe section 5 — 5—3.2(b)(1) as referring only to convictions in Illinois State courts. That construction is favored by our rule that ambiguities in penal statutes must be resolved favoring lenity. Accordingly, I dissent from the majority’s opinion resolving this ambiguity to the contrary. I would remand this case for resentencing.