WOODSTOCK – For burglars, the difference between prison and probation could be whether someone is living in the house being burglarized, according to a recent appellate court ruling on a McHenry County case.
After a jury trial in February 2011, Brett A. Roberts, 39, was convicted of residential burglary and criminal damage to property for stealing copper pipes from a vacant home in May 2010 on Queen Anne Road near Woodstock.
A real estate agent had gone into the home to check on it and interrupted the burglary, prosecutors said.
A hacksaw was found in the basement next to a pile of copper piping pieces, and fingerprints from a pipe led investigators to Roberts. Prosecutors also said that Roberts sold copper tubing to a scrap metal recycler one week later.
Last week, the Illinois 2nd District Appellate Court reduced Roberts’ conviction from residential burglary, ruling that the home was not actually a “dwelling” according to the law.
To make it a dwelling, the owners – or any occupants – must intend to live there within a reasonable period of time, the court said.
The distinction shifts the crime from a residential burglary, a Class 1 felony, down to a burglary, a Class 2 felony.
The first, more serious offense of residential burglary is not eligible for probation and is typically punishable by between four and 15 years in prison.
Burglary, however, is a Class 2 felony with a three- to seven-year sentencing range – or offenders can get probation.
Attorney Michael Froelich had been appointed to represent Roberts and took the case to trial. A large part of his argument had been based on the reasoning behind the appellate court’s ruling, he said.
The homeowners had moved to North Carolina and did not plan to live there again.
That makes it just a building, Froelich said, like a warehouse.
“My position was clear: There has to be an identifiable owner that I can point to, or someone who intends to live there,” he said. “This is not a residential burglary. This is a burglary.”
The argument that someone, someday could buy the house didn’t fly with the judges, either.
“There can be no violation of the privacy and sanctity or the home when there is no one who considers the premises in question to be his or her home (or future home),” the court said.
Assistant State’s Attorney Michael Combs, who is chief of the Criminal Division, was one of the prosecutors on the case.
“The idea behind it is that it’s more serious to break into a home when people are living there,” Combs said of the judges’ ruling.
There’s a greater chance for violence during a residential burglary, he said.
Roberts has been housed at the Vienna Correctional Center and had an Aug. 24, 2015, projected parole date.
His case now has been sent back to McHenry County court for a new sentencing; a status date has been set for Feb. 4.
In addition to this case, Roberts’ criminal history in McHenry County includes four convictions for forgery with prison sentences totaling 10½ years, as well as obstructing justice and possession of a controlled substance, both of which had one-year sentences.
Because of Roberts’ extensive criminal history, he is eligible for an extended term.
“The judge could still give him the same 10 years based upon his extensive history,” Combs said. “Our position is going to be that he should still get 10 years because he’s a career criminal.”