text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Major James Brown, Jr., Defendant-Appellant.
    (No. 12278;
    Fourth District
    June 27, 1974.

      Francis J. Davis, of Auler Law Offices, of Champaign, for appellant.
    James R. Burgess, Jr., State’s Attorney, of Urbana (Robert James Steigmann, Assistant State’s Attorney, and Raul Villalobos, Senior Law Student, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant-appellant Major James Brown, Jr., was tried before a jury, convicted of burglary and sentenced 6 to 18 years in the penitentiary.

At approximately 1:30 A.M., a University of Illinois janitor observed two subjects in the vicinity of the burglarized premises; he went to a phone to call the police, and while making the call, observed one of the subjects inside the store. Other University of Illinois, Urbana and Champaign police officers arrived at the scene shortly thereafter. Nine University of Illinois and Champaign police officers testified to the discovery and arrest of the defendant inside the premises.

The defendant’s version of his arrest was in direct conflict with the State’s evidence. He testified that he was sitting in his parked car waiting for a friend, that he was there apprehended by the police who looked at his driver’s license. He was searched, handcuffed and taken into the building by the police. He stated that he had never been in the building before. On direct examination by his attorney defendant testified to a conviction for robbery in 1960, and in 1967 for forgery. He also stated that he was 31 years of age and had had “trouble with the law” for some 13 years. Defendant was on parole from the forgery conviction at the time of the commission of the offense here in question.

The defendant’s version of his arrest was supported by three witnesses, Herschel Long, his sister Donna Rae Long and Arbsie Hunt. They testified that they were outside the House of Chin, a restaurant in the vicinity of the scene of the burglary, and observed the defendant being taken by the police between the burglarized premises and another building after being handcuffed. In rebuttal one Sharon Weisman testified that she knew Donna Rae Long, and that Donna had called her on the second day of defendant’s trial, stating that her fiancé had “* # * been in on something of a robbery” and requested that Sharon testify that she too had been outside the House of Chin and saw the defendant being “* * * drug out of the car and into the store.” Weisman testified that she had received several calls from Donna Long asking her to testify falsely at Brown’s trial. She further testified that she was not with Donna Long on the evening in question and did not know anything about the burglary.

Defendant urges that the closing argument was so inflammatory and prejudicial that it deprived defendant of a fair trial. This contention is centered mainly upon the State’s Attorney’s characterization of the testimony of the defendant and his three witnesses as “perjured testimony” which was “blatant, completely without remorse, effort at perjury” which “you as jurors cannot condone” and which “was actively solicited on behalf of the defendant”. Defendant made no objections to these comments of the State’s Attorney. It is also clear that perjury was indeed being committed in the trial. On one side are nine police officers testifying to the discovery and arrest of the defendant inside the building and three defense witnesses testifying to his arrest outside the building, and his being taken into the building by the officers, in support of defendant’s own testimony. This conflict was direct, not predicated on opinion or surmise, but rather upon personal observation in each instance. Failure to object to statements made during closing arguments is deemed a waiver of irregularities contained therein (People v. Dailey, 51 Ill.2d 239, 282 N.E.2d 129), although comments not objected to will be considered if as a result thereof the defendant is deprived of a fair trial. People v. Donald, 29 Ill.2d 283, 194 N.E.2d 227; People v. Hall, 11 Ill.App.3d 670, 297 N.E.2d 377.

The trial judge is in a far better position than this court to determine the prejudicial effect, if any, of remarks made during argument, and unless there is a clear abuse of discretion his ruling should not be disturbed. (People v. Smothers, 55 Ill.2d 172, 302 N.E.2d 324.) In denying defendant’s post-trial motion in this case the trial judge specifically considered defendant’s contentions concerning the closing argument and denied the motion. We find no reason for disturbing that ruling.

Defendant also urges that his cross-examination of the witness Weisman was unduly restricted. The extent of cross-examination of witnesses rests in the discretion of the trial court and unless that discretion has been clearly abused to the manifest prejudice of the defendant a reviewing court will not interfere with the trial judge’s ruling. (People v. Gallo, 54 Ill.2d 343, 297 N.E.2d 569.) The record discloses thát counsel was permitted to go into sufficient detail to demonstrate to the jury possible motive for the witness to testify falsely. We therefore find no merit in this contention.

Lastly defendant urges that the court “* * * erred in not considering probation as a possible sentence in this cause.” This contention is bottomed on the premise that the trial judge mistakenly ássumed that the defendant was ineligible for probation by reason of his commission of the burglary while on parole from the prior forgery conviction. On March 1, 1973, hearing was had on defendant’s post-trial motion. On that occasion the trial judge denied the motion and ordered a presentence investigation and set the hearing on sentencing for March 22, 1973. At this juncture the State’s Attorney moved to revoke defendant’s bond and stated that the People would oppose probation. The trial judge then asked the following question: “He would be ineligible, wouldn’t he, for' probation?”, and added, “Committing a felony while on probation at least under the new — .” The sentencing hearing was then conducted some 3 weeks later, on March 22, 1973. There is nothing in the record of those proceedings which even remotely suggests that the trial judge entertained a belief that the defendant was ineligible for probation. His question at the close of the hearing on the post-trial motion was just that, a question, not a statement of fact. There is no merit to this contention.

Judgment affirmed.

SMITH, P. J., and TRAPP, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SIMKINS

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Darrell Isenberg, Defendant-Appellant.
    (No. 12268;
    Fourth District
    June 27, 1974.
    Dyer, Richmond, Moore & Nelson, of Hoopeston (William E. Nelson, of counsel), for appellant.
    Richard J. Doyle, State’s Attorney, of Danville (John R. McClory, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant-appellant Darrell Isenberg was convicted of the crime of involuntary manslaughter and sentenced to an indeterminate term with the minimum set at 3 years, 4 months and the maximum at 10 years. The defendant, at the time of the occurrence in question, was the driver of an automobile which struck and killed a motorcyclist. The sole issue presented by this appeal is controlled by the recent decision of the Supreme Court of Illinois in People v. McCollough, Docket No. 45634, Agenda 15. Therefore the judgment is affirmed.

Judgment affirmed.

TRAPP, P. J., and CRAVEN, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Billy Roy Sims, Defendant-Appellant.
    (No. 12027;
    Fourth District
    June 27, 1974.

      John F. McNichols and Theodore A. Gottfried, both of the State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (James R. Coryell, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant-appellant was tried before a jury, convicted of rape, armed robbery and aggravated kidnapping. He was sentenced 25 to 50 years for rape, 15 to 30 years for armed robbery and 20 to 40 years for the aggravated kidnapping, all sentences to run concurrently. On direct appeal the convictions were affirmed. (74 Ill.App.2d 352, 220 N.E.2d 3.) The issues raised in the direct appeal related to reasonable doubt, improper opening statement by the prosecutor and the trial judge’s refusal to permit defendant to call the victim of the crime as his own witness.

In People v. Sims, 4 Ill.App.3d 878, 282 N.E.2d 16, this court reversed an order of the trial court which had dismissed defendant’s petition for post-conviction relief without an evidentiary hearing. On remand a hearing was conducted, the issue presented being defendant’s contention that his conviction had been predicated upon the perjured testimony of three accomplices. The trial judge, after hearing the testimony, denied the defendant’s request to be retried and dismissed the petition. Defendant appeals from that order.

Defendant urges that he is entitled to a new trial “* * * since the three witnesses admitted that they lied when they implicated the defendant in a crime.” The resolution of defendant’s post-conviction conviction contentions involved, on the part of the trial judge, the determination of the credibility of the accomplice witnesses. Recitation of the evidence and testimony would serve no precedential purpose. It was established that the witnesses had by affidavits executed at various times since Sims’ conviction in 1965, changed their stories on several occasions, stating that their original testimony was true, then that it was untrue, then that one or another of the affidavits were untrue. During the hearing on the post-conviction petition all three stated that they had Hed during the original trial. There was evidence that at least one of them was aware of threats made to members of his family prior to the hearing, and a statement, by the witness of a third person, that he would not tell the truth during the hearing. The issue of credibility was squarely and thoroughly presented. The sole question was whether the three witnesses lied during the original trial or were they lying during the post conviction hearing. The trial judge found the latter proposition to be true and made a specific finding to that effect. We will not disturb that finding. People v. Bracey, 51 Ill.2d 514, 283 N.E.2d 685; People v. Alden, 15 Ill.2d 498, 155 N.E.2d 617.

Defendant also maintains that his “* * * constitutional guarantee of being proven guilty only by proof beyond a reasonable doubt was violated by the fact that the defendant had the burden of proving that the new evidence of perjury in the original trial was true.” None of the cases cited in support of this proposition are in point. It is a strained argument which contends a denial of due process after trial by jury, succeeded by an avenue for post-conviction relief which requires only that defendant establish constitutional infirmity in his conviction. We find no merit to this contention.

Defendant also contends that the trial court erred in ruling on the admissibility of evidence, and unduly restricted defendant’s cross-examination of the witnesses. Defendant argues that the trial judge erred in permitting the witness Arterbum to testify as to statements made by the accomplice witness Cram. This circumstance arose in the following manner: following Cram’s testimony the State’s Attorney called the witness Arterbum who was a sister of the accomplice witness Gentry. Over defendant’s objections Arterbum testified that she had talked to Cram prior to his testifying and that he had told her that Sims was guilty but that he intended to testify to the contrary. Defendant urges that this testimony tended to impeach Crum, but that no foundation had been laid for that impeachment during Cram’s cross-examination. When this objection was made in the trial court, the State’s Attorney offered to recall Crum and question him as to whether the conversation with Arterbum had occurred. The trial judge did not require that the witness Cram be recalled prior to receiving Arterburn’s testimony. This was not error. The provisions of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 122 — 6) provide the trial judge considerable latitude as to the types of evidence which he may consider in hearing and deciding petitions for post-conviction relief. The statute establishes, in pertinent part, that “[t]he court may receive proof by affidavits, depositions, oral testimony, or other evidence.” Courts of review have recognized that in post-conviction proceedings the trial judge has wide discretion as to the type of evidence he will receive in ruling on the allegations of the petition (People v. Humphrey, 46 Ill.2d 88, 263 N.E. 2d 77), and the taking of evidence deahng with the credibüity of witnesses comes within the discretionary rule. (People v. Wilson, 13 Ill.App.3d 675, 300 N.E.2d 576.) In Humphrey, supra, an aUegation of perjured testimony was the basis for the post-conviction rehef sought. The court held that it was within the discretion of the trial judge to consider the unsworn statement of a witness. Accordingly we hold that it was within the discretion of the trial judge to receive and consider the testimony of the witness Arterburn.

Other contentions of error in the receipt of testimony and allegedly undue restriction of cross-examination do not merit discussion.

Defendant asserts that the imposition of concurrent sentences for aggravated kidnapping and armed robbery should be reversed “* * * since, they arose out of a single transaction in which the crime of rape was committed.” The opinion of this court in People v. Sims, 74 Ill.App.2d 352, 220 N.E.2d 3, recited that defendant Sims and his three accomplices came upon the victim and her boy friend parked on a country road. At gunpoint, they robbed them. They then left the boy friend at the scene of the robbery and took the girl with them to a point some 5 to 6 miles distant. The rape was then committed. The armed robbery was complete prior to the kidnapping and rape, and was independently motivated, and is accordingly affirmed. The kidnapping was committed in order to effect the rape, and consequently the conviction for the charge for which the statute imposes the less severe penalty must be set aside under the authority of People v. Whittington, 46 Ill.2d 405, 265 N.E.2d 679; People v. Lerch, 52 Ill.2d 78, 284 N.E.2d 293; People v. Russo, 52 Ill.2d 425, 288 N.E.2d 412. The apphcable statutes at the time of defendant’s convictions of the aggravated kidnapping and rape were contained in articles 10 and 11 of the Criminal Code (Ill. Rev. Stat. 1965, arts. 10 and 11). The penalties prescribed for aggravated kidnapping and for rape were identical, i.e., any indeterminate term with a minimum of not less than 1 year. Section 117 — 1(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1965, sec. 117 — 1(a)) provided that “a person who has been found guilty of any offense except a capital offense, the sale of narcotics or rape may be admitted to probation * * (Emphasis added.) We conclude that this reflects a legislative determination that the penalty for rape, as contrasted to the penalty for aggravated kidnapping, is the more severe penalty. The sentence and conviction for aggravated kidnapping are therefore set aside. Defendant’s conviction for rape is affirmed as is the concurrent sentence imposed for that offense.

Defendant’s convictions and sentences for armed robbery, and for rape are affirmed. The conviction and sentence for aggravated kidnapping are reversed and the cause remanded to the circuit court with directions to issue an amended mittimus.

Affirmed in part, reversed in part and remanded with directions.

TRAPP, P. J., and CLYDESDALE, J., concur.


author: Mr. JUSTICE KUNCE

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Stanford Hadley, Defendant-Appellant.
    (No. 12056;
    Fourth District
    July 10, 1974.

      John F. McNichols and John L. Swartz, both of the State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, for the People.
   Mr. JUSTICE KUNCE

delivered the opinion of the court:

Defendant was found guilty by a jury of aggravated battery and not guilty of attempted robbery and appeals his conviction and sentence of 2 to 5 years. The issues presented are: (1) whether there is a fatal variance between the charge against the defendant as stated in the indictment and the two jury instructions defining the offense for which he was convicted; (2) whether the trial court erred in excluding evidence of the victim’s “loan sharking” activities on the basis of materiality and hearsay; and (3) whether defendant’s conviction for aggravated battery should be reduced in accordance with the new Unified Code of Corrections.

The victim, R. T. Spates, testified that the defendant approached him at a card game to purchase a T.V. located in defendant’s car and that once outside the house defendant pulled a knife and cut him in the stomach and chest. He obtained a stick, then chased and caught defendant, forcing him to throw the knife away, and called for the police. He stated he did not know the defendant and had never made a loan to anyone, including the defendant.

The defendant testified that he owed Spates money and when he saw him in the card game on May 14, 1972, he had left to avoid trouble but that Spates had followed him, attacked him with a knife and that Spates was cut in the struggle. He stated at trial that Spates was a loan shark and had loaned him money at a high rate of interest. He told a police officer on the date of the offense that he had never seen Spates before and said nothing about Spates trying to collect money from him, relating only that Spates drew a knife on him while walking down the street. R. V. Ratchelor, a fellow employee of Spates and an inmate of the Macon County jail testified that although he had not taken part nor observed any loan transactions of Spates, he had seen Spates take money on the street in front of a tavern. The court sustained objection to the line of testimony as immaterial. The defense counsel stated that if further inquiry could be made, it could be discerned whether the witness overheard any conversation by Spates. The court ruled that such evidence would be hearsay and then struck all of Ratchelor’s testimony after he had stated that he had never had any financial dealing with Spates and the court commented that the witness could have no knowledge of what the transaction he observed could have been.

As to the first issue of variance, section 12 — 4 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 4) states:

“(a) A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery and shall be imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to 10 years.
(b) A person who, in committing a battery either:
(1) Uses a deadly weapon;
ft ft ft
(9) * * * [Cjommits aggravated battery and shall be imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to 5 years.”

Defendant was indicted under section 12 — 4(b)(1) “in that he knowingly and without legal justification, caused bodily harm to R. T. Spates, while used a deadly weapon, to wit: a knife, in that he cut R. T. Spates in the abdominal area with a knife.” However, the jury instructions given without objection by defense counsel defining the offense for which he was subsequently convicted defined an offense under section 12 — 4(a) in that “A person commits the crime of Aggravated Battery who, in committing a battery, intentionally or knowingly causes great bodily harm to the person harmed.” Defendant, therefore, argues that the conviction should be reversed because defendant was not convicted of the crime for which he was charged, i.e., there was a fatal variance between the crime charged and the instruction given.

It should first be pointed out that defendant never objected to Instruction Nos. 7 and 8 tendered by the State and subsequently given, nor do they allege the variance as an error in their post-trial motion. They would generally be deemed to have waived the objection and would not be able to raise it for the first time on review. However, if there is, in fact, a fatal variance and defendant was convicted of a different offense than which he was charged, it would obviously constitute plain error for which this court may take notice for it clearly deprives defendant of substantial rights and is violative of the rule of fundamental fairness. Nevertheless, in the instant situation there is clearly no fatal variance.

The opinion of the court in People v. Rosochacki, 41 Ill.2d 483, 244 N.E.2d 136, is dispositive of the issue here. In Rosochacki the indictment alleged that defendant violated 9 — 1(a)(1) of the Criminal Code in that he “committed the offense of murder, in that [he] intentionally and knowingly stabbed and killed [the victim] with a knife without lawful justification ” * *.” The instructions given to the jury defined the murder in terms of section 9 — 1(a)(2) and 9 — 1(a)(3)—strong probability of death or great bodily harm and attempting or committing a forcible felony. Defendant contended that an accused may not be charged with one offense and convicted of a different offense. The court disposed of this argument by concluding:

“* * * We think, however, that the instructions correctly informed the jury of the legal principles applicable to the facts in the case, and that there was no fatal variance between the crime charged and the instructions given. * * * * We find that the defendant here was charged with murder and convicted of that crime, and even if a variance did exist between the type of murder charged in the indictment and the types described in the instructions, it would not vitiate the conviction unless it was of such a character as to mislead the defendant in his defense or expose him to double jeopardy. (People v. Nelson, 33 Ill.2d 48, 52; People v. Figgers, 23 Ill.2d 516, 518-9.) There is no evidence in this case whatsoever that the defendant was misled in his defense, nor did counsel at any time during the proceedings request additional time, allege surprise, or claim that it was impossible for him to prepare a defense to the proof being offered against him. See People v. Nelson, 33 Ill.2d at 52.” (41 Ill.2d at 491, 492.) (Emphasis supplied.)

As in Rosochacki, defendant in the instant case was not misled in his defense nor did defendant at any time during the proceedings request additional time or allege surprise or claim that it was impossible for him to prepare a defense to the proof being offered against him.

The only possible distinction between Rosochacki and the present case is that in Rosochacki the penalty for violating sections 9 — 1(a)(1), (2) and (3) is the same while in the present case the penalty for violating section 12 — 4(a) (1 to 10) and section 12 — 4(b) (1 to 5) differ. Although defendant was indicted under section 12 — 4(b)(1), the jury under the applicable instructions found defendant guilty of section 12— 4(a). The judge, however, in sentencing defendant used the lower penalty provisions of section 12 — 4(b)(1). Defendant, therefore, cannot claim any prejudice in that regard.

Defendant then is clearly guilty of aggravated battery under section 12 — 4(a) if the evidence supports such a violation. Here there was a clear question of credibility for the trier of fact, and the jury obviously believed R. T. Spates and not the defendant — not an implausible finding considering the various conflicting stories proffered by the defendant. The question then becomes one of whether the evidence shows the “great bodily harm” required by section 12 — 4(a). R. T. Spates contended that defendant pulled a knife and cut him in the stomach and chest. When the police arrived victim was taken to the hospital and had to have stitches. The arresting officer, Robert J. Davis, stated that when he arrived Spates was bleeding from the chest and head and from a puncture wound in his stomach. Spates stated, however, that he didn’t think he was in any danger of dying. Nevertheless, what constitutes great bodily harm to support an aggravated battery charge is a question of fact to be determined by the jury, and their decision in the present case is clearly not against the manifest weight of the evidence. People v. Polansky, 6 Ill.App.3d 773, 287 N.E.2d 747; People v. Newton, 7 Ill.App.3d 445, 287 N.E.2d 485; People v. Smith, 6 Ill.App.3d 259, 285 N.E.2d 460; People v. Barbour, 5 Ill.App.3d 323, 282 N.E.2d 175.

Defendant also contends that it was error in not submitting a battery instruction along with the instruction on aggravated battery as recommended by IPI-Criminal, § 11.07. However, battery under section 12 — 3 is committed when one “intentionally or knowingly # * * causes bodily harm to an individual ***Aggravated battery under section 12 — 4(a) is committed when one “intentionally or knowingly causes great bodily harm * * *’’ Therefore, the elements of battery have been substantially covered by the aggravated battery instruction (the only difference being in degree), and any instruction in that regal'd would be clearly cumulative.

The defendant next contends that it was error to exclude the testimony of a defense witness, Batchelor, that the victim was a loan shark. Defendant had previously testified that Spates was the initial aggressor and at the time of the assault was attempting to collect a loan which was given at a usurious rate. The defense then called Batchelor, who stated "that he had seen Spates taking money on the street and had never had any transactions with' Spates. He then began to testify to payments he had seen being made to Spates. The State then objected on the grounds of materiality. The court then sustained the objection stating that the mere transfer of money is no indication of any irregularity. This testimony was clearly immaterial because it does not help to prove or disprove any material fact or issues in the case. Obviously, there are two material factual questions here: (1) whether defendant knowingly caused great bodily harm to victim; and (2) whether defendant was acting out of self-defense because Spates was the initial aggressor. This testimony certainly does not help to prove or disprove either of these issues, and the testimony appears to be an effort by the defendant to prove Spates the aggressor by the introduction of collateral matters when direct evidence in that regard was lacking for defendant’s stories were highly contradictory. Furthermore, the introduction of such evidence would have tended to confuse the jury allowing it to base its decision on inferences that could have been drawn from his testimony.

Defendant also argues that this testimony is material in that it shows Spates’ bias and has a bearing upon the question of whether Spates was the aggressor. Whether or not victim is a loan shark is irrelevant in relation to the issue of whether Spates was the initial aggressor. Certainly in a battery prosecution the victim’s character or reputation for peace and quiet would be admissible on the question of self-defense, but victim’s alleged “loan sharking” activities is not evidence of such reputation.

The defense also contended that if further inquiry were made it could be discerned whether Batchelor ever overheard any conversations between Spates and other individuals. The trial court sustained the State’s objection to this offer of proof as hearsay. The trial court’s ruling in that regard was proper because these were to be statements made outside the personal knowledge of the witness, would be based on what the witness overheard, and would be used to prove the truth of the matters asserted therein.

Defendant also contends that evidence of a witness’ unsavory or illegal profession or line of business is admissible because it goes to defendants’ credibility or to impeachment of defendant’s statements. Spates testified that not only did he not make a loan to defendant, but that he had never made loans to anyone. The credibility of a defense witness may be attacked on cross-examination by showing that witness to be engaged in any unlawful or disreputable occupation. (People v. Crump, 5 Ill.2d 251, 125 N.E.2d 615; People v. Bond, 281 Ill. 490, 118 N.E. 14; People v. White, 251 Ill. 67, 95 N.E. 1036.) Nevertheless, the proper way to attack credibility in the present case after Spates’ denial of any loan activities on cross-examination was by introduction of evidence of other individuals who had engaged the loan transactions directly with Spates. This evidence would then be specifically admissible for the purpose of credibility only. This was not done here because the individual chosen in this regard did not have any transactions with Spates and any offer of proof as to conversations he overheard is hearsay.

On defendant’s last contention that sentence be reduced in accordance with the Unified Code of Corrections to which the People make no objection, during oral argument on appeal counsel for the defense stated that defendant was presently on parole and that this issue would be waived. It is, therefore, unnecessary that we consider this issue.

For the reasons stated above, the judgment of the circuit court of Macon County and the sentence imposed therein is affirmed.

Affirmed.

SMITH, P. J., and CRAVEN, J., concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gerald W. Swank, Defendant-Appellant.
    (No. 12108;
    Fourth District
    July 10, 1974.
    John F. McNichols, of the State Appellate Defender’s Office, of Springfield, for appellant.
    Richard J. Doyle, State’s Attorney, of Danville (John R. McClory, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant was convicted of murder and burglary upon verdicts of a jury. Concurrent sentences of 40 to 100 and 5 to 15 years were imposed respectively. He appeals both the conviction and the sentence.

Upon appeal it is urged that defendant was not proven guilty beyond a reasonable doubt; that the State’s Attorney made prejudicial arguments to the jury and that the sentence was excessive.

On October 12, 1971, the rural residence of Christine and Anna Walz was forcibly broken into at about 11 P.M. Christine, aged 84, died in her bedroom as the result of strangulation, and Anna was struck and beaten. Money or jewelry was taken from each.

In the prosecution of defendant upon the charges, it was shown that property belonging to the decedent was recovered shortly after the crimes from the automobile used by defendant; that the defendant had made incriminating admissions upon admission to a veterans’ hospital at about 1 A.M. following, and that defendant had signed a written confession on the day following the murder and burglary. Defendant testified in his own behalf and stated that the confession was untrue. He also presented alibi witnesses placing him at a Steak and Shake and at a gasoline station at times concurrent with the time of the offenses.

Upon the issue of prejudicial argument, the prosecution called to the jury’s attention the fact that the defendant had waited until trial some 6 months following the offenses to repudiate the confession he had made on the day after the murder. Defendant contends that such argument was improper and violated his fifth amendment right to remain silent, urging the analogy to instances where a prosecutor comments upon a defendant’s failure to testify at trial.

No objection to the argument was made at trial and the issue was not contained in any post-trial motion. Failure to object to improper argument generally waives the right to assert such issue on review. (People v. Edwards, 55 Ill.2d 25, 302 N.E.2d 306.) The record shows that a hearing on defendant’s motion to suppress the confession was held. At that time, no assertion was presented by defendant upon the question of the accuracy of the confessions.

Defendant cites Griffin v. California, 380 U.S. 609, 14 L.Ed.2d 106, 85 S.Ct. 1229. In considering the privilege against self-incrimination we cannot liken comment upon the nature and manner of defendant’s testimony which he chooses to give at trial with argument directed to defendant’s failure to testify at trial as in Griffin. Since the repudiation of the facts in the confession first occurred at trial, the argument which is here objected to constituted a fair comment upon the evidence presented and did not impair any substantial rights cognizable under Supreme Court Rule 615.

Defendant urges that he was not proven guilty beyond a reasonable doubt. He argues that his alibi testimony was unimpeached and covered the time of the offense and necessary driving, and that the evidence did not exclude the fact that some other person may have placed the stolen items in the automobile which he used.

The main thrust of the argument is that there exists a presumption of innocence and when facts may so be interpreted as to create a reasonable hypothesis of either guilt or innocence, it is required that the court accept the interpretation which would support the hypothesis of innocence. He cited People v. Johnson, 31 Ill.2d 321, 201 N.E.2d 367. In Johnson, however, one notes that all of the evidence presented to the trier of fact left a valid interpretation of facts which were consistent with innocence. Here, all of the evidence for the prosecution demonstrated guilt, while that of defendant was entirely exculpatory.

Strictly speaking, the alibi testimony was not without impeachment. A witness testified that defendant was at the service station an estimated hour later than did the alibi witness. Again, the jury might consider that upon cross-examination it developed that such alibi witnesses had refused to discuss the facts to which they might testify at the trial with the staff of the State’s Attorney prior to the trial. It is proper for the trier of fact to consider the attitude and manner of testifying by the several witnesses.

Although defendant’s argument seems generally in the context of the circumstantial evidence, it would actually require the jury to accept as true defendant’s testimony that the confession was inaccurate and that it was to be changed and to disregard the extensive testimony that the confession was in terms given and stated by defendant.

It was the function of the jury to evaluate the credibility of the conflicting testimony and such determination is not disturbed unless it is so improbable or unsatisfactory as to justify a reasonable doubt of guilt. In People v. Benedik, 56 Ill.2d 306, 309, 307 N.E.2d 382, the court said:

“It is not necessary that the jury disregard the inferences which naturally flow from this evidence, nor is the trier of fact required to search out a series of potential explanations compatible with innocence, and elevate them to the status of a reasonable doubt’.”

Defendant’s argument would require the jury to believe only the testimony of the defendant and his alibi witnesses and to disbelieve all other evidence. This record does not suggest that the jury verdict was so manifestly erroneous, or the evidence so unsatisfactory as to justify a reasonable doubt of guilt,

Finally, it is argued that the sentence for murder is excessive. Under the Unified Code of Corrections, section 5 — 8—1 (Ill. Rev. Stat. 1973, eh. 38, par. 1005 — 8—1(c)(1)), the minimum sentence for murder:

“[Sjhall be 14 years unless the court having regard to the nature and circumstances of the offense and the history and character of the defendant states a higher minimum term.”

The trial court acted within its discretion conferred by the statute considering the violent nature of the offense. The trial court expressly noted its consideration of the evidence before concerning the defendant’s moral character and personal background, together with the brutal nature of the offense and the possibility of rehabilitation. As stated in People v. Rudolph, 12 Ill.App.3d 420, 299 N.E.2d 129, the trial court has an opportunity to observe the defendant and the matters given in evidence, including the hearing in aggravation and mitigation, and to make a determination of the sentence to be imposed. As the prosecution points out, the defendant is eligible for parole when he shall have served 20 years less time credit for good behavior (Ill. Rev. Stat. 1973, ch. 38, par. 1003 —3—3(a)(1).) With credit for good time defendant may be eligible for parole within 11 years and 3 months. The record suggests no facts which persuade that the trial court abused its discretion.

Although not presented to the trial court or argued upon appeal we note the concurrent sentence imposed for burglary. It is the rule that in the case of crimes arising from the same course of conduct only a sentence for the more serious crime may be imposed. In People v. Prim, 53 Ill.2d 62, 289 N.E.2d 601, the supreme court, in affirming a conviction for murder, reversed the conviction for attempted aimed robbery which resulted in the death of the victim. (See also People v. Whittington, 46 Ill.2d 405, 265 N.E.2d 679). The stated rationale was that the acts were not independently motivated or otherwise separable.

In this case, however, defendant confessed that he had determined to burglarize the Walz residence, believing that the occupants were away. The burglary was completed upon his entering the home. In committing the murder his acts were clearly divisible and independently motivated as in People v. Wilson, 51 Ill.2d 302, 281 N.E.2d 626 (attempted burglary and murder); People ex rel. Evans v. Twomey, 52 Ill.2d 299, 287 N.E.2d 661 (burglary and aggravated battery); and People v. Moore, 51 Ill.2d 79, 281 N.E.2d 294 (burglary and rape).

The judgments of convictions and the sentences are affirmed.

Affirmed.

SMITH, P. J., and KASSERMAN, J., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ralph Brandon Kelly et al., Defendants — (Lola Goins, Defendant-Appellant.)
    (No. 12349;
    Fourth District
    July 17, 1974.
    John F. McNichols and J. Daniel Stewart, both of the State Appellate Defender’s Office, of Springfield, for appellant.
    No appearance for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

Defendant appeals from a sentence of 2 to 5 years for robbery. It is her position here that (1) the court’s admonition concerning the nature of the charge was insufficient, (2) the court’s admonition concerning the minimum and maximum penalties was inadequate and (3) her minimum sentence should be reduced. The defendant, together with Kelly and Coffman (not parties to this appeal) were charged with two counts of armed robbery and one count of criminal damage to property. A local attorney was appointed to represent the defendant and she was handed a copy of the indictment. Thereafter, in December, another attorney entered his appearance for her and the local attorney withdrew from the case. The Unified Code of Corrections (Ill. Rev. Stat. 1973, ch.'38, par. 1001 — 1—1 et seq.) became effective on January 1, 1973. Thereafter, the defendant’s motion for a severance from her co-defendants was allowed. On February 7, the defendant, Kelly, was convicted following a jury trial. On February 26, the defendant appeared in court with her attorney, moved to withdraw her plea of not guilty and to plead guilty for the lesser included offense of robbery.

The court advised her in the language of the statute the elements of robbery and she answered, “yes” to his question as to whether or not she understood the nature of the charge against her. It is asserted that this was insufficient because the trial judge did not tell her that there were two counts of armed robbery in the indictment and two different victims, did not tell her to which specific counts she was pleading guilty, did not advise her there were two other defendants involved in the crime, did not explain the principles of the law of accountability and lastly, that it was not explained to her that even though she was charged with armed robbery it was permissible for her to plead guilty to the lesser included offense of robbery. When this entire record is scrutinized these barbs directed at the admonition thus far, as we shall see, are tortuous and hyper-critical interpretations of the admonitions.

The record shows that the defense counsel informed the court that there had been a negotiated plea discussed prior to the effective date of the Unified Code and to the court’s question as to whether or not her guilty plea was a result of that plea agreement the defendant replied, “That’s right.” This statement was concurred in by the new State’s attorney. The court asked the defendant, “What’s your understanding of the plea agreement?” Answer: “That I will be sentenced to the reformatory for a sentence of not less than two years and not more than five years.” The court then stated, “Are you asking the court to accept your plea of guilty and to so sentence you?” Answer: “Yes, sir.” The court then accepted the defendant’s plea and sentenced her to not less than 2 or more than 5 years with a parole term of 3 years and asked, “Do you understand this parole term?” She said, “No, I don’t.” He then explained that if she had to serve the full time she would still be on parole for 3 years unless she got a discharge and stated to her that the Department of Corrections have the power to do this, i.e., reduce the parole term or discharge you from parole. “Do you understand this?” “Yes, sir.” The court then stated that there might be a little bit of inconsistency between the old Code and the new but he believed this sentence was to the defendant’s advantage and then said, “Do you agree, Mr. Brandt?” Reply: “Yes, sir.” “Do you agree, Mr. State’s attorney?” Reply: “Yes, sir.” “Do you agree, Mrs. Goins?” Reply: “Yes, sir.” It is urged here that the statement- with > reference to the parole is a violation of the plea agreement. The record does not indicate that any question of parole was any part of the plea agreement and if this vitiates it, it vitiates the entire proceedings and the plea must be vacated and the case remanded to the trial court for a new arraignment. The defendant in effect argues that the minimum in this case must be reduced from 2 years to 1 year and 8 months under the Code of Criminal Corrections notwithstanding the plea agreement as the minimum cannot be more than one-third of the maximum. We think the record in this case is sufficient for effective sentencing without remandment to the trial court for further consideration under the plea. All other required findings, admonitions and terms of the plea agreement were fully complied with.

Accordingly, the sentence in this case is modified and as modified, the minimum sentence shall be not less than 1 year and 8 months and the maximum not more than 5 years. With the sentence as modified, the conviction is affirmed and the cause is remanded to the circuit court of Jersey County with directions to issue an amended mittimus reflecting the foregoing modifications. People v. Mize, 9 Ill.App.3d 647, 292 N.E.2d 731.

Conviction affirmed, sentence modified and cause remanded with

directions to issue a modified mittimus.

TRAPP and SIMKINS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Tharthur Johnson, Defendant-Appellant.
    (No. 12272;
    Fourth District
    July 17, 1974.

      Deneen, Sullivan and Deneen, of Bloomington (Robert Deneen, of counsel), for appellant.
    Paul R. Welch, State’s Attorney, of Bloomington (Kai A. Wallis, of Circuit Attorney Project, of counsel), for appellee.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The defendant appeals from a judgment of the trial court of McLean County in a bench trial finding him guilty of reckless conduct and imposing a 60-day sentence. The defendant was charged with aggravated battery and found not guilty of that charge. There was no count for reckless conduct and accordingly two issues are presented to us. (1) Is reckless conduct a lesser offense when included in the charge for aggravated battery, and (2) whether the evidence was sufficient to prove the defendant guilty of reckless conduct beyond a reasonable doubt.

Some ladies were threatened by a couple of intruders in their apartment. They awakened their brother and told him of the incident and gave a description of the intruders. One of the young ladies called her fiance and related the account to him and he in turn called his brother. The three men then proceeded to look for the intruders in the neighborhood. At this time one of the men was carrying a broom handle about 2 to 3 feet long. They went on to the property of the defendant looking for the intruders. The defendant came out of the house and ordered them off his property. Evidence indicated that there was loud talking and conversation between the parties. Defendant at first was on his porch holding a gun in his hand when he gave them the order to leave. They passed by him and as they did so, he fired a shot into the ground. When the three searchers got on or near the city sidewalk, they turned to the defendant and told him that they were now on public property and would not leave until the police arrived. They likewise told him that the police had been called. At this time the defendant was some 10 feet away from them and they were standing side by side on the sidewalk. The evidence indicates that at no time did any of the three make any advances or threats to the defendant. At this point in time, the defendant fired a second shot into the ground and this shot ricocheted into the chest and arm of one of the three. The court found that the defendant honestly felt threatened when he fired the first shot. It likewise found that there was no legal justificacatión for the second shot which produced die injury. However, the court found that the defendant’s conduct under the facts and circumstances was a gross deviation from the standard of conduct which a reasonable person would have exercised or should have exercised under the circumstances; that the failure to retreat to his porch when the three searchers were closer to the city sidewalk than to the house and therefore, at this point, physically incapable of committing any bodily harm upon the defendant nullified any thought that the second shot was in necessary self-defense or justified for his own self protection. Self-defense was waived during oral argument.

The first issue as to whether or not reckless conduct is a lesser offense under a charge of aggravated battery has been laid to rest in this court’s opinion in People v. Thomas, 1 Ill.App.3d 139, 275 N.E.2d 253, and we adhere to the views expressed in that opinion.

Recklessness is defined in section 4 — 6 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 4 — 6), as follows “Recklessness. A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. * * *” The trial court heard and considered the testimony of the witnesses and drew the inferences from the facts and circumstances described. Unless they are inherently impossible or unreasonable, they should be accepted on appeal. (People v. Coleman, 127 Ill.App.2d 38, 261 N.E.2d 705, and People v. Dunham, 13 Ill.App.3d 784, 300 N.E.2d 328.) Under the facts and circumstances described in this record, the trial court could weH find that the firing of .the second shot was not reasonably necessary or required to protect this defendant and his household even though the defendant may have felt that it was reasonably necessary to do so. There was considerably lapse of time between the two shots although the evidence is in conflict on this point. An independent witness who heard the first shot and saw the second testified that the defendant was standing near a tree and that the middle man of the three turned around just as the shot was fired and to this extent corroborates the testimony of the three men rather than that of the defendant.

Of importance also is the fact that it was stipulated that the defendant Johnson fired the bullet that caused great bodily harm to the injured person and the trial court therefore had only to decide whether or not the act was recklessly performed. As one looks at the undisputed evidence at a point in time when the second shot was fired, the conclusion seems to be inescapable that the defendant’s conduct constituted a gross deviation from that standard of care and conduct which a reasonable person would or should exercise under a like situation. Defendant cites People v. Post, 39 Ill.2d 101, 233 N.E.2d 565, where the court held that firing a gun into the ground was not per se recklessness warranting a conviction for manslaughter. The evidence there was largely circumstantial and does not furnish the solid facts here presented as to the conduct of the parties and the lack of necessity for defendant’s action. Thus, the trial court was warranted in its finding that the conduct of the defendant was reckless as herein above defined as an included offense and in violation of section 12 — 5 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 12 — 5), which reads as follows:

“Reckless Conduct, (a) A person who causes bodily harm to or endangers the bodily safety of an individual by any means, commits reckless conduct if he performs recklessly the acts which cause the harm or endanger safety, whether they otherwise are lawful or unlawful. * * *”

The judgment should be and it is hereby affirmed.

Affirmed.

TRAPP and SIMKINS, JJ., concur.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Belleville, Defendant-Appellant.
    (No. 73-223;
    Fifth District
    July 1, 1974.

      Robert E. Farrell and Michael J. Rosborough, both of the State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Donald J. Dahlmann, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE CREBS

delivered the opinión of the court:

Defendant was convicted of burglary upon his plea of guilty in the Circuit Court of St. Clair County. He was sentenced to the penitentiary for a term of not less than 2 years or more than 6 years.

On this appeal defendant claims that the trial court failed to comply with Supreme Court Rule 402 (Ill. Rev. Stat, ch. 110A, par. 402.); that the trial court improperly denied his request for probation; and that his sentence was excessive.

A review of the entire proceeding shows that defendant as to all of the points he has questioned under Supreme Court Rule 402 (Ill. Rev. Stat, ch. 110A, par. 402) was properly admonished. While it would be preferable if a method of separate questions and answers had been used, we find the procedure here used sufficient where no question arises as to defendant’s ability to understand.

Defendant next claims that he should have been granted probation for the purpose of treatment as a drug addict. (Ill. Rev. Stat. 1973, ch. 91½, par. 120.10.) In this regard defendant cites People v. Robinson, 12 Ill.App.3d 291, 297 N.E.2d 621. We adhere to our holding in Robinson but find that the facts here require a different result. The only evidence in this record of defendant’s use of drugs is his own statement and he states that he has not used such drugs for 3 months. Under all the circumstances of this case we find that denying probation for the purpose of treatment was not error.

While there is evidence in the record to sustain the trial court’s denial of probation, there is nothing in addition to justify a sentence in excess of the minimum provided by law. In other words, to justify more than a minimum sentence, it takes evidence in addition to what is necessary to justify a denial of probation. Since such additional evidence does not appear in this record, we reduce to a minimum of 1 year and a maximum of 3 years.

Judgment affirmed as modified.

G. MORAN, P. J., and CARTER, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Arneda Gilmore, Defendant-Appellant.
    (No. 71-83;
    Fifth District
    June 27, 1974.
    Richard G. Younge, of East St. Louis, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   PER CURIAM.

CREBS, J., took no part.


author: Mr. JUSTICE CARTER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dorie Weintraub et al., Defendants-Appellants.
    (No. 73-132;
    Fifth District
    June 25, 1974.

      Robert E. Farrell and Richard E. Cunningham, both of the State Appellate Defender’s Office, of Mt. Vernon, and Wüliam A. Hyde, Senior Law Student, for appeHant Dorie Weintraub.
    Hendricks & Watt, of Murphysboro (David W. Watt, Jr. and Earl S. Hendricks, Jr., of counsel), for appellants Yolande Tullar, Terry G. Nelms, and Roger Genet.
    Arnold M. Jochums, of Carbondale, for appellants Rima Riszkiewicz, Christopher S. Korch, Herbert Kent, and Terry J. Munk.
    Howard L. Hood, State’s Attorney, of Murphysboro, for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

This is an appeal by eight defendants involved in seven cases decided in the Circuit Court of Jackson County. These seven cases were consofidated for appeal since a common issue is involved — namely, the effect of the Illinois Supreme Court’s declaration in People v. McCabe, 49 Ill.2d 338, that section 22 — 40 of the Criminal Code is unconstitutional insofar as it relates to marijuana.

AH of the defendants pled guilty to the possession of marijuana in violation of section 22 — 40 and were sentenced to varying terms of probation and to fines ranging from $250 to $1000. On dates ranging from approximately 11% months to sfightly more than 2 years following the date of sentencing the various defendants filed motions to terminate their probation and withdraw the guilty plea. All of the defendants except Weintraub also requested a refund of fines and costs paid by them. In the case of Weintraub the record indicates that she had not paid any of the fine. Four of the defendants, Weintraub, Genet, Tullar, and Nelms, also asked that the record be expunged.

The trial court granted all of the motions with respect to the termination of probation but did not grant any of the other relief requested, claiming that it had no authority to grant any relief beyond the termination of probation.

The issue on appeal, therefore, is whether or not the trial court had authority to grant the additional relief requested by the various defendants, namely, withdrawal of the guilty plea and vacation of judgment, return of fines and costs paid by the defendants, and expunction of the record.

In denying the additional relief requested, the trial court delivered a well-reasoned decision and order, the gist of his reasoning being (1) that McCabe was decided after all of the defendants had been sentenced and that the holding in that case was not retroactive; (2) that none of the defendants filed in time for a direct appeal; and (3) that only three statutory methods are available for making a collateral attack upon a judgment, and none of the defendants qualified under any of these. The three methods listed by the trial court are procedure under section 72 of the Civil Practice Act (Ill. Rev. Stat., ch. 110, sec. 72); relief under the Habeas Corpus Act (Ill. Rev. Stat., ch. 65, sec. 22); and proceedings under the Post-Conviction Hearing Act (Ill. Rev. Stat., ch. 38, sec. 122 — 1 et seq.).

The issues involved for our consideration are whether or not the holding in McCabe is retroactive and, if it is retroactive, whether any or all of the defendants are entitled to the relief requested, in view of the motions made by them and the timing of these motions.

McCabe held that the classification of marijuana under the Narcotic Drug Act with a mandatory 10-year sentence upon first conviction, rather than under the Drug Abuse Control Act with a maximum of 1 year and no prohibition on probation, was arbitrary and deprived the defendant of equal protection. We have no hesitancy in deciding that this holding is retroactive.

In People ex rel. Barrett v. Sbarbaro, 386 Ill. 581, 590, the court said: “An invalid law is no law at all. It confers no rights and imposes no duties. * * The effect of the enactment of an invalid amendment to a statute is to leave the law in force as it existed prior to the adoption of such amendment. * « * That portion of an order, judgment or decree of a court having jurisdiction of the subject matter and the parties, to a controversy, which is in excess of that jurisdiction, is as futile as an entire decree without any jurisdiction.”

In People v. Rogers, 401 Ill. 53, 56-57, the court said: “Since an invalid law is no law at all and wholly inoperative, the effect of the invalid amendment of 1941 was to leave the Parole law in force as it existed prior to the adoption of the 1941 amendment.” In Grosso v. Kucharski, 93 Ill.App.2d 233, the plaintiff was injured when she stumbled over a stool in the Cook County recorder’s office. This occurred in May, 1960. She sued and recovered $5000. The county appealed claiming governmental immunity. Appellee contended that the Tort Immunity Act, which would have barred her suit, was declared unconstitutional in 1965 and that its effect was retroactive. The court agreed, holding that, if there is no language in the decree which limits the effect of a holding of unconstitutionality, such holding operates retrospectively. It distinguished Molitor v. Kaneland Community Unit District No. 802, 18 Ill.2d 11, by pointing out that the court did expressly limit the retrospective effect of its decision in Molitor. In Grosso the court stated: “When a statute is declared to be unconstitutional it is considered to be void as of the date of its enactment. No rights can be predicated upon it nor can it afford protection to anyone who has acted under it. In legal contemplation it is as inoperative as though it had never been in existence.” Holding that a decision declaring a law unconstitutional operates only prospectively, the court stated, “* * * would be equivalent to declaring that the statutes which they invalidated were at one time constitutional. This cannot be done.” 93 Ill.App.2d at 237.

Holding that a law is unconstitutional is quite different from holding that a defendant has not received constitutional treatment under a law. In the latter case the law is still there. He may be guilty, though certain of his rights may have been overridden. But, if the law is unconstitutional, there is no law and there can be no question about proper procedures for protecting his rights under the law because in theory his rights have never been threatened or affected, and he should be placed in the position he occupied before he was arrested.

In our opinion all of these defendants are entitled to be placed in the position they would have been in had the provision on marijuana not been a part of the law. This means that they would not have been arrested, would not have appeared in court, would not have been placed on probation or fined, and there would be no record. It appears to this court that, when a defendant is in this position and files a motion with the court to have his status restored, he should not be bound by the rules and procedures which have been written for defendants who may in fact be guilty of having violated a law and whose rights to show otherwise or to show that proper procedures were not followed can rightfully be circumscribed by rules which they are then bound to follow.

Certainly we must agree that the time for a direct appeal has expired, though it may be argued that a direct appeal is not involved since in all of these cases the appeal is from denial of a motion which in effect is a collateral attack upon the convictions. We can agree also that habeas corpus and the provisions on post-conviction relief do not apply because of the statutory definition of situations in which the defendant must be in for them to apply.

The legislative history of section 72 indicates that it was the purpose of the Legislature to provide a remedy for those who might otherwise be denied while still imposing some bounds with respect to time. But in Irving v. Rodriquez, 27 Ill.App.2d 75, 79, the court said: “A void judgment as distinguished from a voidable judgment may be vacated at any time, even after the expiration of the prescribed period within which judgments ordinarily may be vacated. The duty to vacate a void judgment is based upon the inherent power of the court to expunge from its records void acts of which it has knowledge. The doctrines of laches and estoppel do not apply.” (Emphasis added.) In United States v. Lewis, 342 F.Supp. 833, the defendant filed a motion in the nature of an application for a writ of error coram nobis to have set aside a 1958 conviction for evading a special occupational tax under the Internal Revenue Code and to have his fine remitted. The special occupational tax provision was held unconstitutional by the United States Supreme Court in 1968. The Court quoted Justice Harlan in United States v. United States Coin & Currency, 401 U.S. 715, 28 L.Ed.2d 434, 91 S.Ct. 1041 (1971): “‘Marchetti and Grosso [cases holding a law unconstitutional] dealt with the kind of conduct that cannot constitutionally be punished in the first instance.’ ” (342 F. Supp. at 835.) The court then went on to say: “Complete retroactivity has now been accorded * * (342 L. Supp. at 835.) In this case the court makes the further significant statements: “The government, however, advances the transparent argument that because [defendants] chose to plead guilty they voluntarily acquiesced in their sentences and are not entitled to reimbursement of the money which they paid as fines. * * * This reasoning ignores the realities and imperfections in the administration of criminal justice * * * in such circumstances, it is not possible to waive an unknown right * * * the payment of a court-imposed fine in the face of the unfavorable, and since abandoned, constitutional principles embodied * * * can hardly be described as voluntary acts * * * certainly this court’s equity powers are broad enough to remedy the situation here existing in which manifest injustice has occurred.”

None of the cases cited by the State (People ex rel. Wineland v. Calhoon, 287 Ill.App. 273; Village of Park Forest v. Bragg, 38 Ill.2d 225; People v. Bandy, 239 Ill.App. 273) involved the constitutionality of a law. Calhoon involved a mandamus action to expunge the record. Bandy involved a writ of error alleging that the information did not state sufficient facts to constitute a crime, and in Bragg the Supreme Court simply held that a magistrate does not have statutory or inherent power to suspend fines indefinitely.

1095

This court held in People v. Macieiski (order filed April 27, 1972, Docket No. 72-69 — not reported) that it had the power to vacate judgments and provide for the remission of fines when one has pled guilty and been sentenced under a law later declared to be unconstitutional.

We believe that under the circumstances involved in these cases all of the defendants are entitled to the relief requested. Accordingly, we remand these cases to the Circuit Court of Jackson County for the institution of proper steps to grant this relief.

Affirmed with respect to termination of probation. Remanded with directions for the granting of other relief requested by the defendants.

Affirmed and remanded with directions.

CREBS and EBERSPACHER, JJ., concur.