*1 (61 Ill. mortgagor.” by a equitable may traditional be raised defenses January until not filed 119,126-27.) complaint foreclosure was was on plaintiff when may and on remand the court determine unreasonable notice its conduct amounted of the transfer and whether Bank National delay See First prejudiсe of the defendants. Ill. 218-19. Brown the cause remand judgment
We therefore reverse the foreclosure, complaint for dismissing directions to vacate the order proceedings further permit plead, and for plaintiff to further opinion. accordance with this
Reversed and remandеd with directions. DEUSEN, concur. JJ.,
UNVERZAGT and VAN ILLINOIS, Plaintiff-Appellee,v. THE PEOPLE OF OF THE STATE BROWN, Defendant-Appellant. MICHAEL District No. 80-224 Second Opinion.filed January *2 Defender’s Morris, Appellate State Mary both of and David S. Robinson Office, Elgin, appellant. of for Preiner, A. (Barbara Fitzsimmons, Attorney, of Wheaton State’s Michael J. People. Attorney, counsel), for the
Assistant State’s of of the court: opinion DEUSEN delivered VAN the offenses Defendant, Brown, guilty to pleas of Michael entered 12—11(a)(1)) and 38, par. (Ill. home ch. invasion Rev. Stat. par. ch. Stat. aggravated (Ill. Rev. kidnapping for ransom impris years 30 terms of 10—2(a)(1)) concurrent and wаs sentenced to and excessive were contending onment. He these sentences appeals, in Kane for similar offenses disparate he received 12-year sentences trial court by the being fully admonished October after 110A, par. ch. pursuant (Ill. Stat. Supreme to Court Rule 402 Rev. 402), only The defendant these Class X offenses. pleas entered to plea agreement Attorney would that the State’s with the State was eight counts remaining make no as and the recommendation to sentence trial sentencing. The of the indictment until after would remain force against pеnding court then was made were similar aware there that he would defendant defendant and advised counties. respective necessarily concurrent sentences receive pleas In its which statement of the facts defendant 24,1979, about 11 a.m. July State informed the court that on Chicаgo. Beinhauer West Irma knocked on the door of the residence of situation, and local sewer survey of the doing informed her he was a way produced in and his when she he forced unlocked the screen door Defendant ordered pellet gun Luger pistol. which resembled a automobile Beinhauer, the Beinhauer uncle into her two children and her directed Chicago. There he and directed her to drive to a bank West from her money personal Mrs. Beinhauer check to withdraw to draft became account, defendant to be cashed waiting but while for the chеck money. obtaining nervous and to without ordered her drive off threatening where, use by group proceeded The to Kane 308 pellet
of the residence gun, Lydia he forced Freeman to leave her been alerted accompany police them to her bank in St. Charles. Thе and, in which although escape, crashed the car attempted defendant he he and all was then arrested riding. of the victims were still Defendant and subsequently Page County. returned to old at the presentence years
The was report also noted defendant his time of these and lived with rеcently unemployed offenses. He was son, girlfriend, helped whom whom he planned marry, he and her decep- support. by theft Defendant had been convicted of misdemeanor tion robberies $70. and fined He had also been convicted of armed 30,1975, 24,1975, 2,1975, August which he July occurred and on June Defend- years imprisonment. sentenced to concurrent terms four term, having ant was parole released on of his serving years after two granted been Correc- good Department of meritorious time credit offenses, parole tions. his parole He was on at the time of the gave period. officer him a report favorable along well presentence got report further stated defendant parents problems his emotional and that he believed he had his drugs prior caused him to commit the offenses. He had used psychologist A convictions since that time. but had not done so appreciate the sentencing hearing testified at the could criminality differentiating between difficulty conduct but had *3 disorder reality schizophrenic and a fantasy. He stated that defendant had during episode and was the offenses probably experiencing рsychotic question. father, Law- girlfriend Defendant’s also testified. mother age rence psychiatrist Brown stated that had been taken to a defendant but he it was discontinued. cooperate would not treatment and and was problems also testified that defendant had no serious childhood an always never violent. Sharon Brown testified that defendant ex- impulsive, testimony, defendant personality. obsessive In his own committing pressed regretted remorse for the offenses and the victims of help for his them. He obtain leniency asked the court for so that he could committing the problems, mental the cause of his which he asserted were offenses in question. that, do armed robberies
We note while circumstances of the 1975 the was record, physical harm appear in the is no evidence that there Although by of those offenses. inflicted the defendant the commission collided automobile pellet gun defendant used a and the Beinhauers’ offenses, physically no one was present several other vehicles in the they had reported harmed. Two offenses present of the victims of the the Additionally, difficulty nervous. sleeping afterwards and had become it a result of increased as premiums Beinhauers’ automobile insurance avoid arrest attempted to being damaged defendant when judge con- the trial In December imposing sentence on the sidered, record, sentencing factors and appropriate on the so, judge reviewed doing him. In presentence report submitted to these upon which Page County, nature of in Du defendant’s conduct pertaining the facts upon were and also remarked forced had there noting defendant then-pending County charges, Kane attempted had also the car and Freeman to leave her home and enter imposed escape when The trial court police approached. sentences appeals. from which defendant 7,1980, in the circuit court was sentenced February defendant years’ terms of County, guilty plea, on. his to concurrent based
imprisonment robbery, armed aggravated kidnapping purse. her upon taking $60 abduction of Mrs. Freeman and the case pleas Defendant’s motion to withdraw his 7,1980. sentences County was the Kane heard on March It did not refer to Page County and was that his Du premised upon genеral issue history mental keeping sentences were not with defendant’s denied, background. and defend- pleas The motion to withdraw the ant has appealed. must be County sentences
Defendant contends that his Du presumed sentencing the trial court’s be excessive and an abuse of imposed upon they discretion because to the sentences disparate offenses, alia, him in v. Henne citing, for similar inter rule that recognize 10 Ill. the established App. 3d 179. We require fundamental law that defendants respect fairness and for the Bares similarly (People v. grossly disparate situatеd not receive sentences. of law 97 Ill. This rule App. or does not deal sentence is excessive with the issue of whether a insufficient, but, rather, unequal imposing it deals with the unfairness We the same offense. sentences codefendants for the commission of reject any any application law has contention that such rule of similar imposed upon single sentences for the commission identical, the sentences disparity or but between separate, offenses. The imposed and the sentences subsequently by the trial court Kane imposed is no indication the trial in Du in this case court *4 it than is an any Du more Page County sentences were excessive insufficient. indication that in imposed the sentences Kane are otherwise 30-year sentences Defendant also contends that the imposed terms 12-year excessive and requests they be reduced tiеs, in and lack of strong family youth Kane County. emphasizes his physical injury his People v. Moon (See (1976), victims. 3d 854, 865.) He refers to his remorse and awareness that his conduct bizarre constituted serious crimes. expressed understanding Defendant his at the sentencing hearing that it was necessary go prison for him to and stated hoped he he would help receive his problems. for mental
A reviewing court has authority to reduce a sentence as excessive only if it is determined that the trial in court abused its discretion imposing it. (People v. Cox People Perruquet v. (1980), 82 Ill. 2d (1977), 68 Ill. imposed A sentence by a trial court will not be disturbed clearly appears unless it penalty great that the constitutes a departure from spirit purpose; the fundamental law and its a sentence which both reflects the seriousness of gives adequate the offense and consideration to the potential rehabilitative of the defendant will be 545, cert. People upheld. (1979), 439 denied (1978), Ill. Heflin S. Ct. 848. 59 L. Ed. 2d U.S. by the trial report considered
Initially, presentence we note that the charges in Kane pending judge did the similar make reference to Page in Du conduct which of defendant’s arose out of a continuаtion in plea sought to enter County. It stated that defendant it accept because judge there had refused to County, Kane but the trial report in 1975. The original attorney prosecutor defendant’s had been the the case was appointed and attorney indicated had been nеw at the Isaac taken awaiting tests of defendant diagnostic the outcome of improperly trial court suggested that the Ray Chicago. Center in It is considered such evidence. convictions, or the resulting yet pending charges
Arrests and not be considered may ordinarily not they conduсt which are v. Tiess (People imposed. be determining length of a sentence to case, However, 51.) 97 Ill. App. 3d ransom for kidnapping aggravated commission the offense of County did not end in Du being which sentenced defendant was It was County. county but rather continued into line escape, crashed defendant, attempt concluded until in his abortive car, riding, and was were still Page County in which victims in Kane conduct Defendant’s apprehended by police abduction concerning the County, although it included facts County, charged defendant was Freeman for which the sentencing judge thе Du necessarily properly before this case. 482, the v. La Pointe Ill. 2d
In its recent decision of criminal the extent to evidence supreme again court has clarified ' mis though that may sentencing hearings even conduct be introduced at A sen- conviction. subject prosecution has сonduct not been the *5 used of evidence types in the sources tencing judge has wide discretion im be punishment kind and extent determining him in the to assist considering is not limited to by the law. limits fixed posed within the adversary circum under the be admissible only which would information the accuracy of the insure carе to long he exercises stances of a trial so as Ill. 2d (1981), 88 (People v. La Pointe information considered. these did violate judge trial that the Our of the record discloses review sentencing defendant. standards sentence,
In imposing mitigation trial court found defendant did not bodily inflict or intend to inflict harm to the victims. added, however, The court very causing came near to the defendant harm to the victims and did find in aggravation that defendant’s sentence was necessary offense, to deter others committing the same defendant had a prior history of criminal activities which included two robberies, armed and that the defendant’s character and attitudes indi- cated that likely he was to commit another crime. review,
After careful say we cannot that the trial court abused its discretion in its imposition of sentences on the in this case. judgment and sentences of the trial сourt are affirmed.
Affirmed.
REINHARD, J., concurs. NASH, dissenting: I respectfully dissent having concluded from the record of the sentencing hearing that the judge trial improperly considered the then pending charges in in imposing sentence.
As noted majority, pending charges arrests or will not ordinarily be considered in detеrmining length (See of a sentence. People v. Fritz (1979), 77 Ill. App. 3d grounds (1981), rev’d on other 72; 84 Ill. 2d People v. Smothers (1979), App. 70 Ill. 3d see also People v. (1981), 97 Ill. App. 14.) Generally presumed it is that a Siefke sentencing judge will disregard improperly information included within a presentence report, but that presumptiоn is if rebutted the record reflects did, fact, the court (E.g., consider such People Brown evidence. (1980), 91 Ill. App. (court 3d 163 specific evidence); reference to People v. De Groot (court objection overruled evidence).) In case, the present judge expressly trial rеferred to and reviewed defendant’s conduct for which then pending. cannot, therefore, It presumed be that conduct of defend not, ant did in part, form a basis imposed. for the severe sentences I would remand for a sentencing new hearing to be certain defendant
was not sentеnced in both Du and Kane counties for the same conduct. Compare 81 Ill. 2d v. Poll NAPERVILLE, THE CITY OF Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant.—THE BATAVIA, OF Plaintiff- CITY
Appellee, REVENUE, v. THE Defendant-Appellant. DEPARTMENT OF *6 81-207,
Second District Nos. 81-222cons. 22, Opinion January filed Tyrone Fahner, General, C. Attorney (Imelda Terrazino, Chicago of R. General, Assistant Attorney counsel), appellant. of for Janega Glink, Ancel, Glink, Diamond, Katherine S. and Marvin both of J. Murphy C., Cope, & P. Chicago, appellees. of REINHARD opinion delivered the of the court: actions, These appeal, brought consolidated on the circuit courts of and Kane counties under the Administrative Review (Ill. Act Rev. Stat. ch. par. to review final seq.) et assessments the Department against the cities of Revenue Naperville and Batavia for public liability (Ill. State utilities tax Rev. Stat. ch. par. February the circuit court seq.). et Du Naperville v. City entered an order in the case of Illinois Department Revenue, pertinent part found: