*1 ILLINOIS, Plaintiff-Appellee, v. STATE OF OF THE THE PEOPLE HUFF, Defendant-Appellant. SYLVESTER cons. Nos. District Fourth 9, 1976. Opinion filed December GREEN, J., dissenting concurring part. Nelson, Appellate both State Defender’s Richard Wilson and Thomas J.
Office, Springfield, appellant. Greanias, Attorney, (Jerry Finney, G. Assistant Basil State’s of Decatur State’s Attorney, counsel), People. opinion
Mr. REARDON delivered court: JUSTICE defendant, Huff, separate offenses charged with two Sylvester Criminal alleged 19 — 1 of the burglary, to be in violation of section 1). pleaded The defendant Code Ch. par. 19 — years’ to two February was sentenced each on 6—4(a) the Unified of Corrections section accordance to 6—4(a) charging a petition par. 1005 — defendant with a 14,1975, April was filed on alleged defendant, while on probation, had committed felony theft. A hearing report May 15, held on this 1975. The evidence at that Tucumcary revealed Shop Fashion Decatur, Illinois, burglarized 25,1975. been the evening of March Among the items taken were several pairs pants of a distinctive brand only sold by the Shop. Fashion Detective Dellert of the Decatur James *2 Police Department testified that he had searched the defendant’s residence and found a pairs number of boxed pants of room. These pants being were identified as similar to the ones taken burglary of the Fashion Shop. Defendant participation disclaimed in the burglary and claimed that he had purchased pants from one Winnie Smith and Decatur, Illinois, from another store in known Susler’sMen’s as Susler, Shop. Sewell Shop the owner of Susler’s Men’s testified that his store did not carry any pants of brands of found in defendant’s room and denied that the defendant purchased pants him. from trial court determined that defendant had violated the terms his of probation and his probation. revoked Defendant was sentenced to two imprisonment indeterminate terms with mínimums at 5 fixed years and the years. máximums fixed at 15
Defendant maintains that he was denied equal protection of the law because he did not a trial charges receive criminal out arising of burglary the Fashion Shop required before he was alleged to face the probation arising revocation violations out of the same conduct. In support position, of this upon People (1974), defendant relies v. Grayson 260, 43, 58 Ill. 319 N.E.2d which held that the doctrine of collateral estoppel apply will preclude relitigating a hearing an already issue which has in a criminal trial been resolved for the offense and based substantially the same evidence. Under rationale, Grayson if the alleged defendant had been tried for the acquitted, and theft the Fashion the State Shop would have been estopped relitigating by petitioning same issues his revoke sentence of The defendant’s is position premised on offense, concept that when a is a criminal he must tried for be proved guilty as a proof proof beyond amount of known (Ill. 1973, (Section reasonable doubt. 3 — 1 of the Criminal Stat. Rev. 38, ch. par. 1).) safeguard He that this is argues not available to probationers is where the defendant’s situation required held first at such a is an proof since the amount of 5— proof amount Section “preponderance evidence.” known 1973, 38, 4(c) (Ill. of the Unified Rev. Stat. ch. Code of Corrections . par. —6—4(c)) 100 5 many years proof for as to standard of Confusion had existed what
275 Ann. (Ill. Conf. proceeding. a required Jud. 1961, statutory provisions 59-63.) Report Prior to example, section unclear. For proof standard of 1959, 38, 789) provided (Ill. par. ch. Criminal Code of pertinent part: may, the court any during period probation,
“At time satisfactory proof of or other report by officer the conditions of probationer any violation 1959, the same.” revoke and terminate imposes This statute further a burden on defendant: " should not be terminated why to show cause entered, and sentence conviction.” proof of require
The Illinois so as to provision courts construed example, violation evidence. For held that the People v. Burrell 334 Ill. State a reasonable prove the act produce convincing probationer’s guilt doubt but must proof which his Koning revoked. landmark the same effect. case 364, 164 v. Price it was held that *3 by prove preponderance State was of evidence In 1961 the of the “preponderance violated order. statutorily of proof evidence” standard was mandated the enactment 1961, provided 6.1 of section Code of Criminal Procedure of part: in hearing,
“At when the court determines the conclusion of has been preponderance of the evidence violated, impose sentence.” revoke 1961, 38, 789.1) (Ill. par. Stat. ch. Rev. Procedure provision
This
carried
in the
of Criminal
forward
(Ill.
1963,
38,
Criminal
789.1).
Rev. Stat.
The Code of
par.
1963
ch.
specifically
“preponderance
Procedure of 1965 did not
mention
merely
part:
stated in
but
evidence” standard for
has
“(d)
If the
that a condition
court determines
* *
1965,
38,
3.)
violated,
par.
(Ill. ch.
been
117 —
Procedure
of Criminal
in the Codes
maintained
language
This
3.)
38,
1967, 1969, 1971,
par.
ch.
1967,1969,
Stat.
and 1971.
Rev.
117 —
mandating
as
the courts
was construed
This provision
in
proof
standard
evidence
preponderance
People
447,
(1968), 1, 98 Ill. 2d 239 App. N.E.2d In 1973 the Code of Criminal Procedure was provide, 6—4(c), pertinent amended to in section in part:
“(c) The State has the going burden of forward with the proving evidence and violation 1973, 38, 6—4(c).) evidence.” This 1975, provision now in effect. Ill. 4(c). 1005-6 — with v.
Beginning People (1958), 395, 148 App. Kostaken 16Ill. 2d N.E.2d rule Illinois has been that a has right, nor no is the State obliged delay trial proceedings until a is had on the criminal offense which constitutes a probation. violation of Kostaken, defendant, while robbery indicted for charged with trial court refused the defendant’s demand robbery under indictment and proceeded with the hearing for Probation was revoked and the indictment was subsequently dismissed. Defendant appealed, alleging violation of various rights including constitutional jeopardy, right trial, double a speedy right by jury. to trial reviewing rejected arguments specifically held there was abuse “no of discretion shown the trial court’s decision proceed with the a trial instead of under the 395, 400, indictment.” 16 Ill. 2d App. 148 N.E.2d 617.
We v. People (1966), followed Kostaken Brooks 67 Ill. App. 2d 214 (abstract). N.E.2d 498 rule set has forth Kostaken been uniformly (1975), followed cases. v. (People other Ill. Harkness 545; 3d v. People (1973), Yarbar Ill. App. 3d 442; 303, 273 N.E.2d v. People 194; Ballard 2d 520; Ramirez 266 N.E.2d Smith 105Ill. App. jurisdictions Other are in agreement with the Illinois rule. See at L. cases cited 36 Ed. equal
Defendant complains protection violation but we find class, no such All probationers, violation. the members of defendant’s proved have been an offense reasonable doubt and sentence, Their imprisonment, sentenced. less harsh than conditioned the defendant’s terms and observance of the conditions If he order. fails to meet the standards and this *4 evidence, is proved by the probation the bemay (People revoked. A Crowell probation is hearing qualitatively revocation different from a criminal trial every not in a criminal trial is right extended to probation hearings. (People v. Beard 59 Ill. 2d right probation The be guilty to found of a 6—4(c). The by section extended expressly is not doubt reasonable 5 — being merely being revoked probation probationer whose terms the comply with the his failure to resentenced because of probation. Since accepted when he agreed which he probation order to proof, by the same standard governed all proceedings Standlee without merit. See complaint to be we deem defendant’s (E.D. 1975), F. Supp. Wash. Rhay was trial court sentence the imposing contends that
Defendant next basis for which were the burglary and theft him punishing for at the alleged perjury and for his should that correctly argues these considerations hearing. He sentence to be severity not control the its discretion that the trial abused The concludes offenses. defendant 5- to sentences. imposing 15-year 560, 321 N.E.2d v. Strickland 18 — 1 of guilty robbery in violation of section pleaded defendant 1), an offense for Criminal Code 18 — circumstances imprisonment year which minimum term 1 unless the persuades the defendant history and the and character of offense (Section 8—1(c)(3) the Unified higher the court to set a minimum. 8—1(c)(3)).) Corrections physical at the No years age Strickland was 17 time of offense. Strickland, this, his first injury resulted victim the offense. to the conviction, jail term of 6 years’ probation to 3 including sentenced imprisonment. months evidence at the violations, six disclosed defendant committed including the failure to his officer and commission report thefts, obtaining of crimes of various control over a stolen burglary, violating was subsequently vehicle. Defendant found Thereafter, State asked a 6- sentencing hearing, at the court, 18-year charges. sentence based on these six imposing a 6- sentence, 18-year except made no finding not entitled to return to because of On violations. sentence, appeal, this court imposing stated that in a trial court should be question offense provisions penalty guided Strickland minimum sentence. increasing the reasons for statutory may while conduct defendant’s court ruled reassessment of reflect court’s in order to considered did sentence because reversed potential but rehabilitation guidelines imposing proper that the trial court observed appear improper of an possibility since the minimum sentence greater to the giving rise and the conduct the initial offense commingling clearly present. probation revocation *5 In determining guidelines court, for resentencing, White 93 Ill. App. 235. N.E.2d stated:
“It is clear that upon sentence be imposed for the original offense the conviction of which the granted defendant was If the act a alleged to be constitutes another crime sentence and to imposed act, subsequent the the defendant tried should be for such crime and sentence imposed the criminal orderly under processes. This not preclude original does on sentence the offense and the distinction is drawn as to any question so obviate of double jeopardy.” 93 Ill. App. 2d case,
In this in support argument the punished him for the burglary proved offense at hearing, defendant cites a letter the trial judge from Attorney and the State’s to the and Parole Pardon Board:
“The defendant had pled guilty to a burglary charge and was and, placed on subsequently, became involved another which offense resulted in the termination of his The perjured himself witness stand and has circumstances, shown no remorse for conduct. Due to the defendant should parole.” not be early considered for The defendant also following cites the remarks the trial judge, made at the resentencing hearing:
“We a full hearing on the I violation. Estened to all of It evidence. was then it is evident evident that you now stuck your your foot in you mouth these pairs when said two of pants came from Mr. Susler when Mr. said, Susler appeared he Tve before, them, never seen them I’ve never sold not they’re anything and, course, that he me.’ bought really that is you where up by tripped far. going too
# # # I can’t any But see sentence than appropriate less five would be minimum; that’s when you consider the crimes we are with, felonies, plea faced three two was a on which there third, just finding on the and the wasn’t finding preponderance. very It was clear to the court that he had violated as charged burglary.” another From remarks it appears sentencing these judge believed that defendant had perjured himself at proceeding. By the revocation phrase above, “three felonies” the trial quotation immediately judge was apparently referring two offenses which granted and the burglary which was basis for remarks, revocation. Based on these seems clear that the trial original convictions for the only the defendant judge punishing probation revocation. occasioned but also the defendant admitted originally time, the At the imprisonment. notwithstanding recommendation 6-years imprisonment. terms of 2- to concurrent State recommended behavior any culpable only evidence Subsequent plea, the at adduced evidence appropriate that this the entire record hearing. We conclude Rule Court authority Supreme under exercise of this court’s case for the 110A, 615) modify the sentence. sentences affirmed. revoking less, of not modified to concurrent sentences provide *6 this is remanded to the Circuit Court years, nor more than 6 cause mittimus consistent with to issue an amended County Macon instructions with in this expressed opinion. the views modified; affirmed, remanded with
Judgment cause sentence directions.
CRAVEN, J.,P. concurs. GREEN, in dissenting part: Mr. in concurring JUSTICE ruling affirming I concur in majority probation. I but rather agree imposed improper that the sentences sentences, I as this reducing resentencing remand would therefore, I, court did Strickland. dissent from the reduction of sentences. Ill.
In
recognized
Strickland
that
v. Ford
imposing
permits
judge
trial
sentence
upon
revocation of
the defendant’s conduct
consider
upon
to the extent that the
bears
conduct
potential
principle People
for rehabilitation. We
Elsner
followed
(1975), 27 Ill.
Tatum
we
subsequent
Here, burglaries. has two Evidence of defendant been convicted of justify his conduct of a determination subsequent stealing would poor. judge majority trial reduce potential rehabilitation 6-year minimum 2- to burglaries sentences to near time terms—the sentences recommended the State at the defendant was sentenced to The fact that originally placed require does not upon sentence revocation to be limited to a near minimum term. For us to reduce these sentences to extent entirely done here is for us to our substitute judgment judge. for that
The difference sentencing person between for improper conduct and considering conduct it bears upon potential rehabilitation as that factor, turn, bears proper length of sentence is most subtle. Because of the judge’s severity statements and the of the sentence however, imposed, agree I with the majority judge that the trial gave improper consideration to the misconduct of defendant on I would remand so that he impose giving sentence proper consideration to that conduct.
The power of reviewing courts to is usually reduce sentences exercised when those sentences are found to be in severity. excessive In those cases reviewing usually has the benefit trial court’s the appropriate sentence based proper factors. Where the sentence found to have been factors, based improper consideration of reviewing court does not have the of that judgment by the trial .benefit court. To reduce sentence under those circumstances to make the reviewing corut the sentencing court. The reduction the sentence here is to make the sentence that which this court would have been the trial court. *7 ILLINOIS,
THE PEOPLE OF THE STATE OF Plaintiff-Appellee, DONALDSON, PHILLIP Defendant-Appellant.
Fourth District No. 13660 Opinion filed December