People v. Waud
356 N.E.2d 628
Ill. App. Ct.
1976
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*1 provisions the new trial under 5(a)) or failure to demand par. 103 — prior conviction confined on already defendant-prisoners pertaining 8—10). par. 1003 — Affirmed.

EBERSPACHER, J., concurs. MORAN, J.,

G. dissents. J. ILLINOIS, Plaintiff-Appellee, v. OF THE PEOPLE OF THE STATE WAUD, Defendant-Appellant. WILLIAM J.

Fifth District No. 76-87 Opinion filed October *2 MORAN, J., dissenting. G. J. Chafetz, Barry

Charles H. Offices, Delano and C., both of Delano Law P. of Springfield, appellant. for Ward, Attorney, H. Taylorville Irish, State’s (Bruce of D. of Illinois State’s John

Attorneys Association, counsel), of People. Mr. PRESIDING KARNS delivered the opinion of the court: JUSTICE Defendant-appellant William Waud was convicted six counts of J. forgery upon his plea guilty in Christian County sentenced to concurrent terms of from years one to ten on each count. appeal On defendant contends that the court failed comply substantially to with Supreme Court (Ill. Rule 402 110A, Rev. Stat. ch. par. 402) and that the court abused its discretion in denying probation and imposing penitentiary sentences defendant.

The State has us asked to dismiss appeal this to for failure file record within prescribed by the time Supreme Court Rule 608. 110A, par. 608.) Although approve we do not of the lengthy delay in preparation of the case, record the instant we have concluded that the delay was not attributable to defendant or counsel. The motion is denied.

aWhile school teacher and assistant principal, part- defendant worked time as general engaged contractor. While construction two area, private forged by homes defendant certain lien waivers materialmen the names of instance signing subcontractors. one waiver; another, the amount of a signed raised lien of a paid. waiver lien fact already first contends that the court to him the failed advise

possibility that imposed consecutive sentences have been on the six might separate required by disagree. At charges 402(a)(2). Rule We beginning plea proceedings defense counsel asked the court dispense with the penalties admonition of the for each offense because each count carried possible penalty. the same The court admonished the penalty defendant of for forgery but made no mention of consecutive sentences. The court stated that it advising later was not defendant of the possibility of ‘1 anticipate consecutive sentences because don’t that there would be than applied.” more one sentence The court offered defendant plea occasions, opportunity withdraw the on several once after the quoted statement above. substantial, at note the outset that requires Rule 402 not literal

compliance. (People Krantz, 187, 317 N.E.2d 58Ill. 2d (1974).) None by parties the cases particularly helpful cited are in our resolution the issues. The cases cited the State negotiated either deal with guilty pleas bargained where defendant had with the State and knew the *3 Pate, 9, sentence would v. (People App. receive 30 Ill. 331 N.E.2d 3d 853 (2d 1975); People Back, Dist. 746, v. App. 18 Ill. 3d 310 N.E.2d 420 (5th 1974)) Dist. or pleas involved taken the prior to effective date of Rule (People 372, Carpenter, v. 2 Ill. App. (1st 3d 276 N.E.2d 457 Dist. In 1971).) neither the cases cited did by defendant we reverse on this Carroll, 511, (People issue. v. 24 Ill. App. (5th 3d 320 358 Dist. N.E.2d 1974); People 3d 431, 319 N.E.2d 541 Ill. Dye, 1974).) v. 23 App. (4th Dist. Zatz, In People 322, 300 (4th Dist. v. 13 App. 1973), Ill. 3d N.E.2d 16 cited brief, defendant in his reply the court held that failure advise possible consecutive in sentences was reversible error a court, however, nonnegotiated plea. expressly The same Zatz overruled and no imposed. (People held error where no consecutive sentence was v. Wills, 25, Ill. App. (4th 1974), 23 3d 319 N.E.2d 269 part, Dist. in 61 aff’d 105, Ill. 2d 330 505 (1975).) N.E.2d has since in Wills been followed 929, v. People Cherry, 1975), 29 55 App. (4th Ill. 3d 332 N.E.2d Dist. and Mass, v. People 1975). 31 Ill. App. (2d 3d 334 N.E.2d 452 Dist. find in specifically no error the failure to advise defendant of the possibility of consecutive since sentences concurrent sentences were imposed, especially light in of the court’s statement that consecutive anticipated. sentences not were

Defendant next contends that the court failed to that a determine pleas 402(c). factual basis for the guilty required by existed Rule 88 first indictment and asked whether paraphrased

court read or each charge defendant understood the nature of the and then whether he guilt charge. questions admitted his of each All answered in the were In operative brought addition the affirmative. facts the offenses were sentencing out detail at the the hearing. We believe record reflects Hudson, compliance 402(c). People App. sufficient v. 7 Ill. 3d with Rule Holt, (5th 1972); People App. 288 N.E.2d 533 Dist. (3d 1975). 323 451 Dist. N.E.2d finally contends that the court abused its discretion in

refusing grant probation. sentencing hearing At witnesses good reputation community testified to defendant’s character and addition, granted probation. and recommended that In defendant be community other members of defendant’s surrounding and area appeared support and read their names into the record in of the motion Attorney The State’s made no recommendation but was obviously sympathetic presentence report to the defendant. The indicates defendant, years prior proceedings, in the 14 to these had been a teacher, principal principal, part-time general school assistant and unit contractor, good husband and and a of his church. father leader After job charges general dismissal from his because of the instant he became company position foreman for a steel and held that at the time of sentencing. speeding Prior to the instant offenses defendant had one ticket record, although appeared on his criminal several civil suits in the court records, contracting One apparently arising from his business. other was forgery charge, apparently similar to those of which defendant convicted, outstanding. bankrupt was Defendant had been declared at partial restitution the time of but had made efforts toward his pension. from teacher’s retirement prominence

In imposing sentence the court noted defendant’s record. But community exemplary prior and noted offenses and light of the seriousness and number defendant’s prominence community past present “impact” and necessary so as not to youth community, imprisonment others, tempt particularly the deprecate the seriousness of the offense and disrespect for law youth community, toward criminal conduct government. and the institutions of 583, 338 (1975), supreme N.E.2d 168 our 61 Ill. 2d People Bolyard, *4 1975, 110A, (Ill. Stat. ch. Supreme that Court Rule 615 Rev.

court stated penitentiary to a 615) reviewing courts reduce par. does not authorize scope of further probation. to The court noted sentence “[t]he is limited to the probation a an application review from denial of did, fact, its in exercise the trial court determining extent of whether arbitrary in an by acting that discretion whether it abused discretion or 168, 169-170.) In 583, 586, Ill. 338 N.E.2d (61 2d manner. [Citation.]” with a child. convicted of liberties Bolyard, defendant had been indecent arbitrarily characterizing in judge The held that the trial had acted court “sinful, all and reprehensible the crime as most act of the offenses” the his into his of injecting personal bias consideration in contending instant seeks draw that the trial court analogy, case to an defendant, Bolyard in only type just of as the trial court considered Thus, of that this is only type argues considered crime. case McAndrew, 441, (2d to v. 96 Ill. People App. similar 2d 239 N.E.2d 314 1968), Dist. an where the court found abuse of discretion the denial of probation in trial his “hippies.” court’s statements of beliefs about do not believe the trial court’s remarks in the instant case can deprecating be so about characterized. The court’s concern guideline seriousness of the statutory offense based on a which it was required 1975, 38, to (Ill. 6—1(3); consider. Rev. Stat. ch. par. see 1005 — 673, 332 People Meyer, App. (3d v. 30 Ill. 1975).) 3d N.E.2d 606 Dist. The remarks were neither unduly regret venal nor harsh. While we imposition of a penitentiary sentence this defendant that if and note we sat as granted probation, we would have we say cannot from the us that trial record before court refused to its discretion arbitrarily. People exercise or acted Thus we by are bound v. Bolyard. principles These recentiy People have been reaffirmed v. Butler, 485, 64 Ill. (1976); 2d 330 People N.E.2d 64 Ill. Rege, 2d 356 N.E.2d (1976). imposed

The trial cotut a years. maximum sentence ten What we said is have above not determinative the propriety of the maximum imposed sentence on Considering defendant. defendant’s rehabilitative potential as background, evidence we believe the maximum imposed sentence was clearly a departure excessive and from the mandate of the Criminal Code. recently We have discussed the effect imposed the maximum sentence an indeterminate sentence and the factors that fixing should be considered the maximum term of imprisonment People Perruquet, App. 355 N.E.2d 112 (5th 1976), Dist. need repeat we not these matters here. Pursuant to Supreme 110A, Cotut Rule 615 par. 615) we reduce the maximum imposed years. sentence term of three judgment of the Circuit County Court of Christian is affirmed the denial of probation imposition and the a minimum term of imprisonment year. imprisonment of one The maximum term of is years from years. modified reduced term to term three ten Affirmed as modified.

JONES, J., concurs. *5 MORAN, dissenting:

Mr. GEORGE J. JUSTICE 559, 563, that People Hamby, supreme In 6 Ill. 2d court held no probation judge error occurred in the denial of where the trial denied probation personal because of his belief that sellers of narcotics “are certainly probation.” People Bolyard, never entitled to In 61 Ill. 2d supreme holding Hamby, saying: court rescinded its believe, however, judge’s “We do not that the basis for the trial summary Hamby is probation denial of detailed consistent present concepts sentencing procedures with and alternative sentences under the Unified Code of Corrections.” In Bolyard the defendant was convicted of indecent liberties and the personal opinion trial that judge denying probation expressed perpetrator probation. supreme of such a crime should never receive The judge arbitrarily that trial acted Bolyard denying held this probation for reason.

In present only personal case the trial court was concerned with its among exemplary belief that those us who have lived lives and who have an This is acquired education should never be entitled to following judge. trial exemplified by the statement of the very prominence is the of this man. His “The second factor community the fact that he was a youth closeness to the a man would be bound principal. teacher and Probation for such that him. quite impact young people have an on the knew that temptations might youth future that be afforded to knew of be, instance, granted, might this if would be too probation were community. His as a great. position your leader of the view size, small I suppose might be considered somewhat of victim whereby system only of the times. But we can’t have law go Or or the uneducated or the jail. friendless the followers I Mr. is an man. This is an poor. say, But as Waud educated community if man in that educated crime. I believe we had a money people from a bank six different times the embezzled if got probation such a man almost would have idea get probation.” anybody could reasons, I would remand this case to the trial court foregoing

For the hearing. new