*1 Its here. not, situations, it is appropriate my judgment, believe, results, general the court application convic- lack of area of this court clarity tions. in my reasons for view on
My my question appear at 405, Whittington, opinion People post dissenting the dis- need not be I would affirm both here. repeated arrest convictions. conduct orderly resisting (No. 42077. vs. Appellee, Illinois, State Appellant. Whittington,
James Opinion October 1970. filed dissenting. JJ., Crees, C.J., and Culbertson Underwood, *2 court, Marion, of appointed Robert L. Butler, by for appellant. General, of Springfield, Attorney Scott,
William J. Vienna, of State’s Attorney, Wingate, and Lewis J. General, of counsel,) Leach, Assistant Attorney G. (Fred for the People. Kluczynski of delivered opinion
Mr. Justice court: court from a of circuit an judgment
This is appeal motion, Whitting- on County dismissing, of James Johnson relief. for post-conviction ton’s petition with another together On October 13, 1967, petitioner, Illinois Branch of the from the Vienna escaped prisoner, sentences had been where he serving State Penitentiary In their armed robbery. making escape, for forgery the State. Pe an automobile owned by commandeered two and on on October 1967, was October 15, titioner captured that he had been into and informed court brought of the crimes count information with in a two charged 108, ch. 121) an inmate Stat. (Ill. 1965, par. Rev. of a value excess (Ill. and theft of having property $150. time, At that same ch. 38, Rev. Stat. par. 16— him. On the following to counsel was appointed represent and, after consulta into court was brought day, petitioner counsel, and in waived writing, grand jury tion with orally be informa against by consented to proceeded proceedings, tion, to both He was sentenced charges. and pleaded guilty charge, a term from the escape to of one to four years then terms which term other was to be consecutive to all him he to a term served and was sentenced being concurrently run two to ten on the theft years charge all other terms then served. being In filed a se 1968, petitioner post-conviction pro June in that violation of his constitutional petition alleging rights the trial court did not as to whether he understood inquire of a and that he was twice consequences plea guilty, put convicted of two jeopardy by being charges (escape which arose out of the same action course theft) The State filed a conduct. motion to dismiss the petition, there was no violation asserting constitutional petitioner’s rights, countered petitioner with motion to strike the State’s motion to dismiss. At some in these point proceed- counsel was ings, appointed who then filed petitioner an amendment In se this amendment pro petition. it was charged constitutional Whittington’s rights *3 were violated in that the trial failed if court to inquire petitioner understood the of his of consequences plea guilty to the of theft and charge that the trial court erred in to obtain of “failing character, evidence moral proper health, habits, etc., family, at the time of the hearing * * aggravation *.” After mitigation a hearing motions, on the the trial court dismissed the petition failure to set forth a substantial violation of petitioner’s constitutional rights. transcript arraignment proceedings clearly
indicates that defendant was informed of his was rights, properly admonished as to the of a consequences of plea to the guilty charge understood those consequences. The court advised him with to count I respect that (escape) the penalty prescribed by statute was not less than one and not more than ten to be years, served in the penitentiary consecutively sentence any then being served. He was advised of his to counsel, trial rights by jury, and to subpoena admonition, and, witnesses, if understood when asked he “Yes, court again I do.” The repeated petitioner replied: and, reply regard- an affirmative receiving admonition upon thereof, petitioner’s accepted understanding ing petitioner’s informed was then to the He charge. plea guilty trial he had a right II that to count (theft) with respect to the could be sentenced penitentiary and that he jury, Pie ten than nor more than years. for a term of not less one and pe- this admonition asked if he understood was again admonition The court titioner “Yes.” repeated replied: and, in his was plea, a second time persisting petitioner found guilty. was it evident that is petitioner
From the foregoing, and as to consequences rights advised his properly admoni those and that he understood of a guilty, plea we find no error. See Wash People Accordingly, tions. Ill.2d ington, 5 58. in not obtaining that the court erred
Petitioner argues habits, character, health, etc. moral evidence of his family, and mitigation. at time of hearing aggravation in counsel us indicates that The record before petitioner’s in mitiga desired testify the court that formed petitioner himself before his to surrender his attempt tion regarding account when the court took it into This he did and capture. incumbent He upon him. “it sentencing argues defendant’s to become informed of the court to proceed character, life, criminal rec moral family, occupation Nelson, we stated 367, In 364, ord”. circumstances “The burden presenting mitigating make it must a defendant and is he who record falls a reduction of order to justify a substantial showing stated, further on review.” at page sentence We *4 a defendant to stand otherwise would “To hold permit sentence, and, his later the if not with invoke silent pleased in sen tribunal to secure reduction of an aid appellate and it incumbent was Accordingly, upon petitioner tence.” now evidence he forth the the trial court to set not on was been adduced. Petitioner represented claims should have advice, certain and, mitigat- only counsel with presented by not now complain the trial He may factors to court. ing afforded after being that his was not full enough hearing evidence. the to present opportunity time Further, court for the first claims petitioner dis the which his case was that “inordinate speed to We did not allow him sufficient time patched” prepare. to this claim and have reviewed this record with respect any find no Neither nor his counsel made error. petitioner him for additional time. had conferred with Counsel request to the discussed the matter prior arraignment pending Wakeland, with him. In where de Ill.2d 265, indicted, fendant was entered plea guilty arraigned, was sentenced on the same under the indict day capias him, court, ment was served no violation upon finding stated, at “The defendant was rights, page repre 271: sented all by defender at public stages proceedings, conferred they to the There is any prior entry plea. no that counsel or he suggestion was that did incompetent conference, not fully his After the in perform duties. court, and admonition terrogation by defendant stated his attorney fully had his explained rights (See him.” People Richardson, also These same factors are present in this case. Petitioner was repre sented counsel who consulted with him prior arraign ment and him advised of his in rights, petitioner fully and admonished the trial court terrogated he yet persisted his On the basis us, of the plea. record before we cannot say were petitioner’s violated. rights that he
Finally, petitioner claims should not have been convicted and sentenced on both because arose charges they out same course of conduct. Our review of the record stole petitioner reveals vehicle prison motor *5 410 the theft Accordingly, as of his of escape.
grounds part plan separable” or otherwise was not motivated “independently of escape. the offense which constituted the conduct Scott, Ill.2d v. Stewart, People Ill.2d 310; v. (People 43 be sen It for defendant was therefore 135.) improper Stewart; v. People v. tenced the theft charge. People Cf. Scott; Ill.2d Schlenger, 13 63. af- is the of escape entered charge
The judgment upon of theft the entered charge firmed and the judgment upon is reversed. in and reversed part. in part
Affirmed dissenting: Mr. Chief Underwood, Justice the conclusion that do not with majority’s the agree stand. cannot both convictions for and theft have shall The person Criminal Code “When provides: not result did been more which convicted of two or offenses has after sentence conduct, from the before or same either in its discre either, court him the been for pronounced upon one any tion order that the term of may imprisonment the convictions commence at expiration the may the offenses.” (Ill. other of term of any imprisonment upon sup ch. y(m), (emphasis Rev. Stat. 1967, 38, par. 1— “An act or in the Code as: is defined “Conduct” plied).) mental state.” (Ill. acts, accompanying series of and the in Article As discussed ch. 4.) Rev. Stat. 1967, 38, par. 2— reck intent, Code, knowledge, “mental state” is the of4 in the com acts lessness, which person or negligence ch. 38, pars. an Rev. Stat. mission of offense. (Ill. thus is 7(m) of subsection The purport 1— 4—3 4— convictions for sentences consecutive to permit acts, or series of same act not result from “the which did mental necessary state” committed with accompanying an offense. the commission to constitute however, statute, Notwithstanding purport applica there been confusion its interpretation has state 7(m) committee comments to subsection tion. The 1— “ used and is that: is in section ‘Conduct’ defined 2—4 in Schlenger. transaction’ discussed sense ‘the same case The Schlenger Schlenger, [People 63].” based on reversed a conviction for which larceny grand defendant same facts as a conviction of same also referred to armed court robbery. Schlenger *6 for bur earlier cases which had characterized convictions transac as the “same glary being based larceny Mc People tion”. v. Ill. (See Griffin, v. People 247; 402 Mullen, Ill. People v. 253; Fitzgerald, Ill. 400 297 The and un committee have led to erroneous comments justified as interpretations of subsection (m), represented the conceded majority may here. it be opinion While that both car and his theft of a were Whittington’s escape transaction”, of the “same there is no author part statutory ity which conviction two which occur precludes for offenses in the “same transaction”. The statute much more speaks narrowly, consecutive sentences precluding only where offenses are of the same “conduct”. the com part Were correct, mittee comments of this the decision court in People ante, v. at would be In Lacey, clearly Lacey, wrong. 219 we affirmed convictions for and theft multiple burglary rule, without mention the so-called “same transaction” which majority in this case. If statute adopts pro conviction, hibits as as well consecutive sentencing, Lacey is a more surely instance for its than appropriate application offenses, in i.e., for Whittington, Lacey burglary-theft, are those which the committee precisely comments suggest as of the “same transaction” I being rule. am origin to dissent from I what consider to compelled be ma case, inconsistent and jority’s decision this incorrect shall discuss the framework statutory as am it convinced be should interpreted.
412 have
We had with the in which no situations difficulty have act is involved and disallowed single consistently v. convictions in such cases. (See, e.g., People Stewart, Ill.2d rob (aggravated battery-attempted 45 310 ; Scott, Ill.2d with intent bery) v. People (burglary 43 135 to commit with intent to commit rape— burglary theft — ; with intent sexual conduct) to commit deviate burglary ; v. People Ill.2d Duszkewycz, People (rape-incest) 27 257 larceny.) v. Ill.2d Schlenger, (armed robbery-grand 63 cases, All of these cited support majority opinion, also, Hill, are act situations. Ill.2d single (See v. Chicago confu The 130, (disorderly conduct-obstructing traffic.) sion in area this arises where there is than one act. more
In the Fourth Ritchie, 66 Ill. 2d People App. District cited the committee comments Appellate Court subsection and concurrent (m) and held convictions to com sentences for both with intent rape burglary mit could not be sustained since arose out they rape conduct or case oc “same transaction.” rape after house entry curred defendant’s forcible of the victim’s been trailer. The of this decision has validity questioned Ritchie, (See court on two occasions. *7 Ritchie, Ill.2d In Raby, 392, 404.) 392, 397; People the two convictions we found State’s argument was be affirmed but the issue should held that “convincing”, However, in before us on review. no properly Johnson, we considered this precise question 463, court de it to the contrary decided directly appellate and in Ritchie: cision Ritchie,
Johnson, like involved convictions The defendant for sentencing rape burglary. concurrent the statutory a broad construction of that case argued in “same transac- words, mean the general “same conduct” to in in “situations construction The court this rejected tion.” from a of closely arises series offense which more than one related acts crimes and the are distinct and clearly require different elements of held further in We Johnson proof.” re crimes are and distinct rape burglary “separate different to sustain them. quiring entirely elements of proof has no as is connection with the rape necessary burglary evident when we to consider that burglary stop before the laid a hand on the victim.” complete defendants case. The same is to the instant reasoning directly applicable his theft of a state-owned car occurred to Whittington’s prior The offense of occurs whenever know escape. person theft “obtains over or exerts unauthorized control ingly property of the owner” and “intends to the owner perma deprive of the use or Stat. nently benefit of the Rev. property.” (Ill. ch. 16—1 38, par. (a) 1(d)(1).) Certainly commission of the theft in was instrumental Whittington’s it is a curious sort of which leads escape; yet reasoning to conclude from that the majority that fact alone defendant cannot be convicted for theft. Had the been escape thwarted, the offense of theft been no com would have less Had plete. been forced to abandon the stolen Whittington car to his and nevertheless prior escape, succeeded escap afoot, the two offenses ing would be But clearly separate. here, where was successful in Whittington with the escaping car, stolen the majority rewards his total success by finding conviction for the distinct crime of theft to be impermis sible. Wholly apart being, my an incor judgment, rect of the interpretation the result statutory provisions, here undesirable for is it seems say contem prisoners that, successful, “If plating escape is your all lesser escape offenses which have aided your are unpunishable,” thereby commission of encouraging the lesser offenses. I think the clear language statute in this prohibits and that terpretation the recent holding this court in Johnson, demands contrary ruling case. *8 fol- as forth restate the set Johnson would approach until a act treated as single A series of acts should be
lows : introduced which previously an additional factor is for the necessary absent, which is an essential element one is, more than when a That proof offense. separate involved, are proof than offense act and more one one additional of at least offense the separate requires proof time of element, not in existence at essential which was con- offense, offenses are separable then the the first both. victions be had and sentences imposed may that This test rejects previous suggestion necessarily to be whether cases ought conviction the test multiple motivated.” (People the offenses were “independently of con definition Stewart, The statutory mental the accompanying duct includes “a series of acts with acts from “a series of state.” This is different saying quite motivation,” lan as the former the same underlying series of acts into separate breaking guage envisages of such additional elements and distinct offenses when introduced with the accompanying further offenses are the defendant’s An which focuses on mental state. approach an to steal a state- motivation allows inmate underlying in his or render a unconscious owned vehicle guard prison be had for the effort to and conviction could only escape, if motivation was offense of his ultimate simply rationale, in de of that addition to its vice escape. statute, is, indicated, it actu as earlier parture in order commission of lesser offenses ally encourages accomplish greater. in- Code further Section of the Criminal provides 3—3 has been misconstrued dication framework statutory Subsections of section majority. (a) (b) 3—3 in this set forth the should control clearly framework which case. *9 estab- may a the same conduct of defendant When
“(a) offense, defendant lish more than the commission of one be for each such offense. may prosecuted known to the proper If the several offenses are “(b) time the prosecu- officer at the of commencing prosecuting court, they tion of a and are within jurisdiction single as must be pro- a single except prosecuted prosecution, if based on the same act. vided in are they Subsection (c), 2When or more offenses are as “(c) required charged court in may Subsection the interest of (b), justice order be tried that one or of such shall charges more Ill. ch. separately.” 3(a) Rev. Stat. 1967, 38, pars. 3— and (b).
The committee and comments the consideration disclose rejection committee of a compromise suggestion which would have where further prosecutions prohibited conviction, initial results in a “thus prosecution per- only one sentence for mitting a course conduct.” of single (Committe Comments, S.H.A., ch. 30, 3, p. § 3— Therefore, under as a de- paragraph (a) adopted, fendant may be and for each convicted sentenced separately such offense based the “same conduct”. upon Paragraph (b) provides several offenses must be prosecuted single if prosecution are only based on the “same act”. they Sections and read 7(m), outline together, 3—3 1— legislature’s general plan regard prosecu- tions and When several offenses sentencing. are based on the same act by defendant they must be combined in single prosecution one conviction and only sentence be may When several imposed. offenses are based on the “same con- duct” of defendant he be may convicted of acts] [series each, but only concurrent sentences bemay When imposed. several are conduct”, offenses not based the “same they be may prosecuted and sentences be' con- separately may current or consecutive. a misconcep-
I the majority opinion perpetuates believe overlooks the interpre- tion the statutory provisions as a is unjustified This result in Johnson. tation adopted law, in its result. undesirable matter of affirm both convictions. would JJ., Crees, dissent. join Culbertson (No. 42718. vs. Appellee, Illinois, State Powell, Appellant.
Odell *10 October Opinion 1970. filed Defender, of Murphysboro, Public H. Pugh, Orwin for appellant. General, of Springfield Attorney Scott, William J. State’s Attorney, Murphys- Richard E. Richman, General,
boro, Attorney Assistant G. Leach, (Fred for the counsel,) People.