author: Mr. JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Barringer, Defendant-Appellant.
    (No. 74-15;
    Fifth District
    September 11, 1974.
    Robert E. Farrell and Steven Clark, of State Appellate Defender’s Office, of Chicago, for appellant.
    Robert J. Neely, State’s Attorney, of Metropolis (Ralph J. Mendelsohn, of Model State’s Attorneys Support Unit, of counsel), for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from a judgment entered by the circuit court of Massac County, on a plea of guilty, against the defendant, James Bar-ringer, for the offense of escape and the imposition of a sentence of 1 to 3 years in the penitentiary, said sentence to run concurrently with the sentence which defendant was serving at the time of his escape.

The defendant’s sole contention on this appeal is that the “trial court failed to comply with Supreme Court Rule 402(d)(1),” prohibiting it from initiating plea discussions, “when it modified the plea agreement by insisting that the sentence include the defendant’s payment of court costs.” The defendant cites one case, People v. Bennett, 16 Ill.App.3d 972, 307 N.E.2d 176, in support of this contention.

In People v. Bennett this court found that:

“The trial judge substantially modified the plea agreement by inserting the provision concerning probation. The judge insisted that a probation provision be a part of the agreement even after both attorneys stated that they did not think it was necessary.” (16 Ill.App.3d at 973.)

This court there held “that such conduct is a violation of Rule 402(d) (1).” (16 Ill.App.3d at 973.) The defendant contends that instant case “is factually similar to Bennett.” We do not agree,

In Bennett the trial court’s action resulted in a substantial modification of the plea agreement. Not only did that modification drastically alter the plea agreement, but it injected the possibility of incarceration where none had existed previously. In contrast, the trial judge in the instant case merely inserted the condition that the defendant pay die court costs. It was appropriate for the judge to do so in view of the language in section 13 of the act in judgments and executions (Ill. Rev. Stat. 1971, ch. 38, par. 180—3), which provides:

“When any person is convicted of an offense under any statute, or at common law, the court shall give judgment that the offender pay the costs of prosecution.”

In fact, the court in People v. Harris, 97 Ill.App.2d 288, 240 N.E.2d 123, cert. denied, 395 U.S. 985, held: “[Sjection 180 — 3 (Judgment for costs) of Chapter 38 leaves no discretion in the court by the use of the word shall’.” (97 Ill.App.2d at 302.) Therefore the trial judge was not only authorized but required to have the defendant pay the court costs. We hold the trial judge’s compliance with tire foregoing statutory requirement did not violate the proscription against the trial judge’s initiation of plea negotiation embodied in Supreme Court Rule 402 (d)(1).

Having found the defendant’s only contention without merit, we affirm the judgment of the circuit court of Massac County.

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Morris Jackson, Defendant-Appellant.
    (No. 71-203;
    Fifth District
    January 23, 1974.

      James R. Streicker, Assistant Appellate Defender, of Chicago, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

The defendant has appealed from his conviction and sentence of 50 to 100 years, on a charge of murder, in the circuit court of St. Clair County.

The first issue presented for review is whether it was reversible error for the trial court to deny defendant’s motion to suppress a written statement, in which defendant stated his participation in an armed robbery and shooting which resulted in the death of the victim, taken while defendant was in custody and the crime was being investigated. In the trial court defendant referred to the statement as a confession; he here refers to it as an admission. It contained the material facts, which constituted the necessary elements of the crime and which directly implied the defendant’s guilt, and amounts to a confession of the crime with which defendant was charged.

Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 requires that before the police can interrogate a criminal suspect in custody at the police station or before such suspect can be significantly deprived of his freedom of action, the police must inform such suspect of his constitutional rights. Where a defendant contends that a confession was involuntary, the burden is on the State to prove by a preponderance of the evidence that the confession is voluntary. People v. Sammons, 17 Ill. 2d 316, 161 N.E.2d 322, 324.

Defendant contends that there is nothing in the record which reveals an express waiver of his Miranda rights nor which indicates a clear manifestation to waive those rights. The totality of the circumstances must be examined in determining whether a confession is voluntary, the trial court need not be convinced beyond a reasonable doubt, and a finding that the statement was voluntary will not be disturbed unless it is contrary to the manifest weight of the evidence. (People v. Prim, 53 Ill.2d 62, 289 N.E.2d 601.) Here there was evidence that the defendant was questioned, after the Miranda warnings were given, two to three hours at the first questioning which terminated at 4:00 P.M. and was questioned 15 to 60 minutes the following morning at 10:30 or 11:00 A.M. before he confessed; that the police talked casually to him; that he had an eighth grade education and was 17 years old, and had not been threatened or coerced. He was not attended by counsel or relatives and was in custody less than 24 hours before he made the statement. The defendant challenged much of the State’s testimony; it was the defendant’s word against the word of three policemen, and there was ample evidence from which the trial court could determine the confession was made knowingly and voluntarily. Mere conflict in evidence on material facts and issues will not justify a reversal of the trial court’s finding of admissibility. People v. Paulson, 80 Ill.App.2d 44, 225 N.E.2d 424.

The next contention is that the court erroneously instructed the jury that defendant had confessed to the crime charged in the indictment. The given instruction was:

“You have before you evidence that the defendant confessed that he committed the crime charged in the indictment. It is for you to determine what weight should be given to the confession. In determining the weight to be given to a confession, you should consider all of the circumstances under which it was made.”

The indictment charged that Morris Jackson and Carlos Mosley, “with the intent to kill Dennis Schwent, shot the said Dennis Schwent with a gun and killed the said Dennis Schwent, without lawful justification * # -phe confession stated that Mosley shot the victim. Defendant therefore relies upon the court’s distinction between a statement which is only an admission and one which constitutes a confession of guilt of the crime charged, made in People v. Stanton, 16 Ill.2d 459, 158 N.E.2d 47. Admitting that no objection was made in the trial court, defendant seeks relief under the plain error rule (ch. 110A, § 615(a)). In the trial court defendant referred to this statement as a confession, and as pointed out we consider it as such since it contained the material facts which constituted the necessary elements of the crime of murder! We find no merit in the contention.

Defendant’s next contention is that since at the time of his arrest and conviction he was 17 years of age he was denied equal protection of the law by virtue of the limitations in criminal prosecutions imposed by §2 — 7(1) of the Juvenile Court Act (Ill. Rev. Stat. 1969, ch. 37, § 702 — 7(1)) in which it was provided that “no boy who was under 17 years of age or girl who was under 18 years of age at the time of the alleged offense may be prosecuted under the criminal laws”. Defendant being 17 at the time of the alleged offense and conviction was not entitled to the benefits of the Act in the absence of a request to transfer the case to the adult courts, whereas a girl of the same age and under the same facts would have been so entitled. Our Supreme Court has resolved the question in People v. McCalvin, 55 Ill.2d 161, 302 N.E.2d 342, in which, as here, both the alleged offense and the conviction occurred before the Constitution of 1970 became effective. That court held equal protection was not violated by that provision of the Juvenile Court Act, and adhered to its holding in People v. Pardo, 47 Ill.2d 420, 265 N.E.2d 656.

The last contention is that the sentence of 50 to 100 years is excessive considering defendant’s youth and lack of a prior felony record. Regardless of the 50 year minimum imposed the defendant would be eligible for consideration for parole after serving 20 years, less time credit for good behavior, by virtue of the legislature’s recognition of a public policy of rehabilitation in section 123 — 2(a) (3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1969, ch. 38, §123 — 2(a) (3)). While we appreciate the seriousness of the offense, it does not justify ignoring the public policy of rehabilitation declared by the legislature both in the Code of Criminal Procedure and now by the Unified Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, § 1001 — 1—1 et seq.). Final disposition on defendant’s direct appeal, coming after the effective date of the Unified Code of Corrections entitles him to consideration of the provisions of it in determining the proper sentence imposed after prescribed presentencing procedures (Art. 3, Unified Code of Corrections) and sentencing procedures (Art. 4 of said Code).

We therefore affirm the judgment of conviction, and remand the cause to the circuit court of St. Clair County for sentencing in accordance with the provisions of the Unified Code of Corrections.

Affirmed and remanded.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas Schanuel, Defendant-Appellant.
    (No. 72-343;
    Fifth District
    January 23, 1974.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon (Michael Q. Jones, Senior Law Student, of counsel), for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court;

Defendant, who was charged by indictment with violation of § 402 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56V2, par. 1402) in the circuit court of St. Clair County, was convicted on his negotiated plea of guilty to § 402(b) of the Act, as an adult. His application for probation was granted on recommendation of the State’s Attorney and a probation period of five years was ordered.

Defendant has appealed contending his constitutional right to equal protection of the law was violated and that the statutory scheme under which he was convicted was unconstitutional in that it violated his right to equal protection under the fourteenth amendment to the United States Constitution and article I, §§ 2 and 18 of the 1970 Constitution of the State of Illinois. The act of possession with which defendant was charged occurred on March 2, 1972, at which time defendant was 17 years of age; he was convicted on July 20, 1972, after his 18th birthday, at both of which times sections 2 — 7(1) and 2 — 7(3) of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, pars. 702 — 7(1) and 702 — 7(3)) were in effect. The 1970 Constitution of the State of Illinois became effective July 1, 1972.

The Juvenile Court Act provided that unless the procedures set out in the Act are followed:

“* * * no boy who was under 17 years of age or girl who was under 18 years of age at the time of the alleged offense may be prosecuted under the criminal law of this State or for violation of an ordinance of any political subdivision thereof.” § 2 — 7 (1) of the Juvenile Court Act, Ill. Rev. Stat. 1971, ch. 37, par. 702 — 7(1).

Reing 17 years old at the time of the alleged offense, this male defendant was proceeded against as adult, whereas had the defendant been a female, the statute would have been operative.

The Constitution of 1970 in addition to prohibiting the denial of equal protection of the laws in § 2, article I in much the same language as does the fourteenth amendment to the United States Constitution, in § 18, article I contains the following mandate:

“The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts.” § 18, art. I, Constitution of Illinois 1970.

In People v. Ellis, 10 Ill.App.3d 216, 293 N.E.2d 189, the defendant was 17 years old at the time of the offenses and at the time of his conviction and sentence. Noting that §2 — 7(1) of the Juvenile Court Act referred to age “at the time of the alleged offense”, the court held there was a denial of equal protection under the 1970 Constitution of Illinois, making specific reference to § 18 of article I of the 1970 Constitution, as well as under the fourteenth amendment of the U.S. Constitution.

In People v. McCalvin, 55 Ill.2d 161, 302 N.E.2d 342, a case in which the defendants were tried, convicted and sentenced prior to the effective date of the Constitution of 1970, our Supreme Court specifically held that § 2 — 7 of the Juvenile Court Act did not violate the equal protection clause of the United States Constitution. In doing so the Court commented on the result reached in Ellis, and in a special concurring opinion one Justice considered § 2 — 7 (1) of the Act violative of § 18 of article I of the 1970 Constitution, but inapplicable since the conviction occurred before the effective date.

In view of what was said in McCalvin, and the Courts consideration of Ellis, we conclude that in this case, involving an alleged offense committed before the effective date of the 1970 Constitution, for which defendant was convicted and sentenced after he became 18, and after the Constitution of 1970 became effective, and in which no evidence was introduced in opposition to, nor in support of the statutory classification provided in §2 — 7(1) of the Act, that there is no merit to defendant’s constitutional contentions.

Defendant further contends that he was not properly admonished prior to acceptance of his guilty plea, in that Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402) was not substantially complied with before acceptance of the plea. The argument is principally based on whether defendant knowingly and understandingly entered his plea, on the basis that he was not advised that his plea was to a misdemeanor rather than a felony. Defendant was charged under section 402 of the Illinois Controlled Substances Act which provided for penitentiary sentence and an alternative penalty of imprisonment other than in the penitentiary. There was in fact no election to be made, the offense was by statute a misdemeanor. (People v. Novotny, 41 Ill.2d 401, 244 N.E.2d 182.) We find there was substantial compliance with Supreme Court Rule 402.

However, under the Unified Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 37, par. 1101 — 1—1 et seq.) the provisions of which are applicable to this defendant on direct appeal, probation on a misdemeanor, shall not exceed a period of two years (par. 1005 — 6—2), and we therefore modify the probation order to provide that the duration of the probation be for two years.

We therefore affirm the judgment as modified.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Douglas, Defendant-Appellant.
    (No. 72-279;
    Fifth District
    January 23, 1974.

      Rehearing denied October 4, 1974.

    Robert E. Farrell, Deputy Defender, of Mt. Vernon, for appellant.
    Nicholas G. Byron, State’s Attorney, of Edwardsville, for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

The defendant pled guilty to armed robbery and was sentenced to serve a minimum of five and a maximum of fifteen years in the penitentiary. The defendant was 17 years old at the time of the alleged offense on January 21, 1972.

The sole issue is the constitutionality of the then-existing Juvenile Court Act which provided that, with certain exceptions, no boy under 17 years of age or girl under 18 years of age could be prosecuted under the criminal laws of this State. (Ill. Rev. Stat., ch. 37, sec. 702 — 7.) The defendant contends that, because the statute provided 17-year-old girls with a procedural protection not given to 17-year-old boys, he was denied equal protection of the law. The defendant further alleges that the above provision is in violation of article I, section 18 of the 1970 Illinois Constitution which became effective on July 1, 1971 and which provides that equal protection of the laws shall not be denied or abridged on account of sex.

The question presented in this appeal has previously been answered by the Illinois Supreme Court in People v. McCalvin, 55 Ill.2d 161, 302 N.E.2d 342. That case differs from the instant case only in that the prosecution in McCalvin was completed before the effective date of the 1970 Illinois Constitution. In its opinion the Illinois Supreme Court stated:

° * We do not have in this statutory scheme * * * a discrimination based upon sex alone * * s.
The line that the statute formerly drew between those minors who were to be prosecuted criminally and those who might be retained within the jurisdiction of the juvenile court cannot, in our opinion, be fairly described as a suspect classification. * * * We therefore hold that section 2 — 7 of the Juvenile Court Act did not violate the equal-protection clause. We adhere to the conclusion we reached in People v. Pardo (1970), 47 Ill.2d 420, 265 N.E.2d 656. * * •”

This court is bound by the Illinois Supreme Court’s holding that the discrimination in the statute was not based on sex alone. Since that holding is dispositive of the issue raised in the instant case, we are compelled to affirm. For discussion of the issue raised, see People v. Jackson, 22 Ill.App.3d 170, 317 N.E.2d 276, and People v. Schanuel, 22 Ill.App.3d 174, 317 N.E.2d 279, both of which have been filed in this court on this date.

Affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Cynthia Barnes, Defendant-Appellant.
    (No. 73-272;
    Fifth District
    August 30, 1974.

      Robert E. Farrell, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert H. Howerton, State’s Attorney, of Marion, for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

The defendant, Cynthia Barnes, was indicted for the offense of murder and pled guilty to that offense. A sentencing hearing was held, and a sentence of 20 to 100 years was imposed by the circuit court of Williamson County. This appeal followed.

The defendant’s sole contention upon appeal is that the sentence imposed is excessive. In arguing that she has a “high potential for rehabilitation,” the defendant relies upon her age (she was only 17 years of age at the time of the alleged offense) and upon the fact that she had no prior criminal record.

When imposing sentence upon a defendant, a court is to consider both the seriousness of the offense and the possibility of restoring the defendant to useful citizenship. (Ill. Const, art. I, § 11.) In the instant case the sentence reflects the extremely egregious nature of the offense.

Before the court accepted the guilty plea, the State’s Attorney informed the judge of the details of the alleged offense as elicited from the defendant in a prior confession. The defendant allegedly went to the home of Martha Damico on the morning of February 19, 1973, and asked to use the telephone. At this time the defendant possessed a kitchen paring knife and a pair of women’s nylon hose. Upon being admitted by Mrs. Damico, a paraplegic who was confined to a wheelchair, the defendant, without provocation, attempted to choke Mrs. Damico with the nylon hose. When the hose tore, the defendant endeavored to choke her victim with her hands. The defendant then stabbed Mrs. Damico with the paring knife, and Mrs. Damico fell to the floor. The defendant then found a meat fork and used that instrument to stab Mrs. Damico two more times. The defendant then strangled Mrs. Damico with an electrical cord and removed several objects from the house. The defendant admitted in open court that she had committed the murder and that she was not legally justified.

Nothing in the record other than the defendant’s youth and lack of prior criminal record suggest that the defendant has a high potential for rehabilitation. The flagrant, cold-blooded nature of the offense committed suggests otherwise. The trial judge stated that, from what he had read, seen and observed, he had not found any remorse or moral feeling of guilt on the part of the defendant. In light of these findings, and the nature of the offense, we conclude there was no abuse of discretion in imposing a minimum sentence in excess of 14 years.

A reviewing court will not alter a sentence imposed by a trial judge in the absence of a manifest abuse of discretion. People v. Bonner, 37 Ill.2d 553, 229 N.E.2d 527; People v. Bennett, 9 Ill.App.3d 1021, 293 N.E.2d 687.

Judgment affirmed.

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


author: Mr. JUSTICE EBERSPACHER Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eutues White, Defendant-Appellant.
    (No. 73-342;
    Fifth District
    September 16, 1974.

      Robert Farrell and Margaret Maxwell, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Philip G. Feder, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

The defendant, Eutues White, was convicted of murder on a jury verdict in the circuit com! of St. Clair County and sentenced to the Illinois State Penitentiary for a minimum term of 199 years and a maximum term of 200 years. On direct appeal this court remanded the cause to the trial court for a second evidentiary hearing to determine whether the defendant’s confession was properly admitted into evidence and to resentence the defendant pursuant to the new Code of Criminal Corrections. (People v. White, 10 Ill.App.3d 914, 295 N.E.2d 300.) Subsequently, the trial court held a second evidentiary hearing to determine the admissibility of the defendant’s confession. After determining that the confession was properly admitted into evidence, the trial court entered a new judgment of conviction and imposed a sentence of 66 to 198 years in the penitentiary. The defendant appeals therefrom.

The defendant raises two issues in this appeal: first, that the trial court erred in denying defendant’s motion to suppress the confession and second, that the sentence imposed upon him by the trial court was excessive.

The defendant’s first allegation of error is in two parts. The defendant contends first that the trial court erred in not suppressing defendant’s confession because the evidence introduced at the second hearing on tire motion to suppress establishes that the defendant attempted to exercise his right to remain silent and to have the advice of an attorney and that such attempt was frustrated by the investigating officers. Next, it is asserted that the trial court erred in denying the motion to suppress the confession of the defendant because the State failed to caU aU material witnesses to the confession.

Only two witnesses testified at the second hearing on defendant’s motion to suppress, Detective William Stanis and Captain William Johnson of the East St. Louis Police Department. Detective Stanis testified that the defendant was arrested on May 24, 1969, and that he was advised of his rights at that time. According to Detective Stanis, the defendant did not make a statement on May 24, 1969. Detective Stanis interrogated the defendant on two occasions on May 25, 1969, and he allegedly informed the defendant of his rights on each occasion. When Detective Stanis was asked how the defendant responded when he was informed of his rights for the first time on May 25, the detective stated, “In essence, he waived his rights, that he would talk to me.” Next, Detective Stanis answered affirmatively to the question: “At that time did he [defendant] state to you that he wished to make a statement?” The witness then identified “People’s Exhibit No. 1” as the statement made by the defendant on the morning of May 25, 1969. The witness testified that the defendant wished to make another statement on the afternoon of May 25, 1969. The witness identified “People’s Exhibit No. 2” as that statement.

The two statements made by the defendant on May 25, 1969, pertain to the alleged murders other than the murder charged in the instant case. Detective Stanis stated that the defendant did not make a statement on May 24, or 25, concerning the alleged murder in the instant case.

Detective Stanis questioned the defendant for the third time on May 26,1969. Detective Stanis testified that the Miranda warnings were given, and the defendant then made a statement concerning the charge in the instant case. He stated that the defendant seemed to understand his constitutional rights, that he knowingly chose to waive those rights, that no force, threats or promises were used to induce the defendant to confess and that the defendant never expressed a desire to stop the questioning or to consult an attorney.

Captain William Johnson, Detective Stanis’ superior, testified that he talked with the defendant- briefly on the day of his arrest, May 24, 1969. Captain Johnson informed the defendant of his rights and asked if he wished to talk. Captain Johnson testified that the defendant said, “he didn’t want to tálk about it; he would rather see a lawyer.” The witness stated on three other occasions on direct examination that the defendant informed him, Captain Johnson, that-he would rather talk to a lawyer. After- the defendant said that he did not wish to talk, he was placed back in a cell. Captain Johnson did not know whether the defendant made a phone call or talked to an attorney. Captain Johnson testified that he then turned the case over to Detective Stanis.

After Johnson had been excused as a witness, counsel approached the bench and an unrecorded colloquy took place, the defense counsel then informed the court that the defendant did not wish to testify. The State’s Attorney then recalled Captain Johnson to the stand. Captain Johnson then gave the following testimony:

“Q. If someone asked for a lawyer it is the practice of your department to see that they are able to get a lawyer?
A. If he had asked for a lawyer I would have given him the phone there on my desk and let him use the phone.
Q. When you said that he wanted to speak to a lawyer, do you mean that he asked, that he wanted to retain a lawyer?
A. Well, I am not sure this is what the words that he said but he didn’t want to talk, so therefore I had him put back in the cell block.
Q. Well, could it have been that you just assumed when you were seeing him that he wanted a lawyer, since he didn’t want to talk?
A. Yes.
Q. If he had asked for a lawyer would Detective Standis [sic] have been notified of that fact.
A. He would have been, yes.
Q. Would any questioning have proceeded before he was able to talk to one?
A. Not to my knowledge.”

On cross-examination, Johnson was asked the following questions and gave the following answers:

“Q. Captain you testified just a moment ago that you talked to Eutues White when he first came in, to see if you knew him— what you knew about him — that he chose not to talk, that he would rather talk to a lawyer; something to that effect is what you said?
A. Well—
Q. This is important, I want to get this straight; did he specifically ask you and say, I want a lawyer; I want to talk to a lawyer?
A. No, he never asked me about he wanted to talk to a lawyer; he didn’t want to talk to me, so I would assume that he would rather have a lawyer there present, but he didn’t ask for one, if he had he would have used the phone there on my desk.
Q. Now, I know that a lot of what police officers testify to is based upon years of experience in a routine way of doing things; you say, he had asked for a lawyer, I would have let him use my phone; can you say specifically in this case that Eutues White didn’t ask for a lawyer?
A. No, he didn’t ask for a lawyer.”

The State’s Attorney then recalled Detective Stanis. He testified that the defendant never asked for an attorney, that if the defendant had requested an attorney, he, Stanis, would have been advised and that if the defendant had requested an attorney, he, Stanis, would not have questioned the defendant further.

This court’s decision in the instant case depends upon our interpretation of the foregoing testimony of Captain Johnson. On direct examination, Captain Johnson stated four times that when he informed the defendant of his rights on May 24, 1969, the defendant stated that he did not want to talk and that he would rather talk to a lawyer. After he was recalled as a witness, however, Captain Johnson stated that the defendant did not ask for a lawyer but merely stated that he did not wish to talk to the police. Captain Johnson answered affirmatively to the question: “Well, could it have been that you just assumed when you were seeing him that he wanted a lawyer, since he didn’t want to talk?”

It is argued that Captain Johnson’s testimony is so contradictory and suspicious that it must be interpreted in the defendant’s favor. However, it is only necessary that the prosecution make out a prima facie case that the confession was voluntary before the defendant is required to present some evidence. The trial court need not be convinced beyond a reasonable doubt that the confession was voluntary. (Lego v. Twomey, 404 U.S. 477, 30 L.Ed.2d 618, 92 S.Ct. 619), and its finding will not be disturbed unless it is contrary to the manifest weight of the evidence. (People v. Prim, 53 Ill.2d 62, 289 N.E.2d 601, cert. denied, 412 U.S. 918; People v. Nemke, 46 Ill.2d 49, 263 N.E.2d 97, cert. denied, 402 U.S. 924; People v. Bunting, 18 Ill.App.3d 99, 309 N.E.2d 316.) Since the defendant failed to proffer any evidence to contradict Captain Johnson, the trial court could, in its discretion, accept Johnson’s testimony as true and, in view of the record before us, we are compelled to do likewise.

Accepting Johnson’s testimony as true we are presented with the question of whether a defendant who manifests his unwillingness to talk may, at a later time, be interrogated again by the police. The defendant cites United States v. Crisp (7th Cir. 1970), 435 F.2d 354, for the proposition that “an interrogator cannot seek retraction of the claim of silence after defendant has indicated that he did not wish to talk.” Our supreme court was confronted with a factual situation similar to the one presented in the instant case in People v. Pittman, 55 Ill.2d 39, 302 N.E.2d 7. Therein the court distinguished Crisp in the following manner:

“In Crisp the defendant was subjected to immediate persistent interrogation even after he had indicated he did not wish to answer any questions pertaining to the crime of which he was charged. It is of interest that in Crisp defendant’s statement, given several months after the improper questioning, was held admissible because defendant was fully informed of his rights.” (55 Ill.2d at 55-56.)

The supreme court continued by finding that:

“In the present case over 24 hours had elapsed between the time that Williams informed police he did not wish to speak and his agreement to give a statement. During tins interval there is no evidence of any persistent police exhortations as condemned in Doss [Doss v. Bensinger (7th Cir. 1972), 463 F.2d 576, cert. denied, 409 U.S. 932] and Crisp." (55 Ill.2d at 55.)

Thereafter the court held that the trial court did not err in concluding that these statements were voluntarily made. Since there is no evidence that “any persistent police exhortations” of the defendant occurred in the instant case we find no merit in defendant’s claim that his refusal to talk precluded the police from seeking a retraction at a later time. See also United States v. Collins (2nd Cir. 1972), 462 F.2d 792; People v. Brookshaw, 12 Ill.App.3d 221, 299 N.E.2d 20.

The defendant also contends that the trial court erred in ruling that the confession was admissible because the State failed to call all material witnesses at the second evidentiary hearing on defendant’s motion to suppress. The defendant is correct--in stating that, as a general rule, where the voluntary nature of a confession is brought into question the State must produce all material witnesses. (People v. Armstrong, 51 Ill. 2d 471, 282 N.E.2d 712.) The defendant is also correct in stating that Captain Cornelius O’Sullivan, a probable material witness in the instant case, was not produced at the second evidentiary hearing on defendant’s motion to suppress. It is crucial, however, that the defense did not object to the State’s failure to call Captain O’Sullivan in the trial court.

Prior to 1964 the law was uncertain as to whether the defendant had to object, at the hearing on a motion to suppress, to the State’s failure to call a material witness. The following provision of the Criminal Code, however, became effective on January 1, 1964:

“The burden of going forward with the evidence and the burden of proving that a confession was voluntary shall be on the State. Objection to the failure of the State to call all material witnesses on the issue of whether the confession was voluntary must be made in the trial court.” (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 11 (d).)

The committee comments to that section state, “The second sentence of subsection (d) clarifies a problem of considerable uncertainty in the Illinois cases.” S.H.A. ch. 38, §114 — 11(d), committee comments, at 215 (1970).

Three of the four cases cited by the defendant were decided prior to 1964. (People v. Williams, 26 Ill.2d 190, 186 N.E.2d 353; People v. Wright, 24 Ill.2d 88, 180 N.E.2d 689; People v. Sammons, 17 Ill.2d 316, 161 N.E.2d 322.) The only post-1964 case cited by the defendant is People v. Armstrong, 51 Ill.2d 471, 282 N.E.2d 712. That case is distinguished from the instant case, however, since the defense attorney did object to the State’s failure to call a material witness in the trial court.

In People v. Harper, 127 Ill.App.2d 420, 262 N.E.2d 298, cert. denied, 404 U.S. 1062, it was held that the defendant’s failure to object to the State’s failure to produce a material witness at the hearing on the motion to suppress a confession precluded entertainment of the objection on appeal. Since the defendant in the instant case has failed to advance any reason which would permit circumvention of the foregoing statute we will not entertain his objection to the State’s failure to caU a material witness which is raised for the first time on review.

The defendant’s final contention is that the sentence imposed upon him was excessive. Originally, the trial court imposed a sentence of a minimum of 199 years and a maximum of 200 years in the penitentiary. After remandment the trial court resentenced the defendant to a minimum of 66 years and a maximum of 198 years in the penitentiary.

In reviewing the sentence imposed by the trial court it is not our function to determine the propriety thereof based on what we might have done. Rather we are to determine whether the trial court exercised proper discretion in deciding upon the sentence imposed. (People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673; People v. Moore, 8 Ill.App.3d 1059, 291 N.E.2d 519.) In People v. Latson, 5 Ill.App.3d 1100, 284 N.E.2d 436, the court offered the following guidelines for the review of the sentence imposed by the trial court:

“The power to reduce the punishment imposed by the trial court should be exercised with caution, and this court will not reduce a sentence unless it clearly appears the punishment is a departure from fundamental law, its spirit and purpose, or that the penalty is not proportioned to the nature of the offense. [Citations.]” 5 Ill.App.3d at 1104.

Since the defendant waived a presentence investigation his past criminal record is not before us. Its absence did not preclude the trial court from considering other factors which are in the record. The defendant’s signed confession describes a premediated crime of a particularly egregious nature, committed in a senseless and “cold-blooded” manner. The jury that convicted the defendant in 1969 recommended the death penalty.

Sentences exceeding that imposed in the instant case have been upheld in severe cases. (E.g., People v. Malcom, 14 Ill.App.3d 378, 302 N.E.2d 352; People v. Richards, 120 Ill.App.2d 313, 256 N.E.2d 475.) Given the nature of the offense, the manner in which it was committed, and that the record discloses no mitigating circumstances, the sentence imposed by the trial court will not be reduced by this court.

For the foregoing reasons the judgment of the circuit court of St. Clair County is affirmed.

Judgment affirmed.

CREES, J., concurs.

Mr. PRESIDING JUSTICE GEORGE J. MORAN

dissenting:

The majority opinion poses the main question as to whether the trial court could find defendant’s confession to be voluntary according to the manifest weight of the evidence. However, the principal question is whether or not the defendant at any time prior to the signing of his statement requested an attorney and if he did, the statement is inadmissible in evidence. Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 694, 86 S.Ct. 1602; United States v. Blair, 470 F.2d 331; People v. Turner, 56 Ill.2d 201; People v. Henenberg, 55 Ill.2d 5.

The record discloses that the defendant is a borderline retardate with an I.Q. of 76, who signed a confession after 3 days of questioning by the police. He asked for an attorney on the morning of the first day of his questioning. The confession was therefore inadmissible.


author: Mr. JUSTICE CREBS Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerry Ray Casper, a Minor, Defendant-Appellant.
    (No. 71-165;
    Fifth District
    September 23, 1974.
    Robert E. Farrell and Richard E. Cunningham, both of State Appellate Defender’s Office, of Mt. Vernon, and William J. Becker and Steven Willoughby, Senior Law Students, for appellant.
    W. C. Spomer, State’s Attorney, of Cairo, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

The defendant was charged by petition in the Circuit Court of Alexander County with being a delinquent child in need of supervision. An adjudicatory hearing was held, and the defendant was adjudged to be delinquent.

On this appeal, the defendant alleges that the juvenile petition was fatally defective and that the State failed to prove that he obstructed a police officer as alleged.

The juvenile petition stated:

“That on February 2, 1971, in the City of Cairo, Alexander County, Illinois, he committed the offense of violating the curfew law of the State of Illinois. That he was disorderly and resisted arrest and did obstruct officers of the Cairo Police Department in the performance of their duties.”

A delinquent minor is defined as “* * # any minor who prior to his 17th birthday has violated or attempted to violate, regardless of where the act occurred, any federal or state law or municipal ordinance; * * (Ill. Rev. Stat., ch. 37, par. 702—2.) Section 4 — 1 of the Juvenile Court Act (Ill. Rev. Stat., ch. 37, par. 704 — 1(2)) provides that a juvenile petition shall set forth facts sufficient to bring the minor under section 2 — 1. Due process of law requires that a minor charged with being delinquent must be given notice of the charges against him. (In re Gault, 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428.) The defendant contends that the instant petition did not state facts sufficient to bring him under section 2 — 1 and did not provide adequate notice of the charges against him. We disagree.

In the case of In re Whittenburg, 16 Ill.App.3d 224, 305 N.E.2d 363, a minor was alleged to be delinquent in that he committed the offense of aggravated battery upon an individual. The petition did not set forth all the elements of the offense of aggravated battery in that it did not allege the infliction of “great bodily harm” or “permanent disability or disfigurement.” The defendant appealed the adjudication of delinquency alleging that the petition was fatally defective. The appellate court upheld the sufficiency of the petition and stated:

“The basic test is whether tire petition sets forth facts sufficient to bring the defendant within the statutory definition of delinquency. In this regard, the statutory definition is quite broad and includes any minor who has violated or even attempted to violate “* * * any federal or state law or municipal ordinance * * (Ill. Rev. Stat. 1971, ch. 37, par. 702 — 2.) On that basis, the simple language of the petition that the minor # * committed a battery on William Vickers * *” was sufficient to charge delinquency * # 16 Ill.App.3d at 225.

The petition in the instant case did allege that the defendant was a minor who had violated state laws including obstructing a peace officer and violating the curfew law. The petition also informed the defendant of the date of the alleged offenses, the city in which they took place and that the officers involved were members of the Cairo Police Department.

While the petition could have been better drawn, we hold that it was sufficient to give the defendant proper notice of the charges and to bring the defendant within the statutory definition of delinquency.

The defendant also contends that the State failed to prove that he resisted or obstructed a police officer as alleged in the petition. Three police officers testified that the car in which the defendant was riding on the evening of February 2, 1971, was stopped because it matched the description of an automobile that was suspected of being used in a burglary. The driver of the car opened the trunk of the car when requested to do so by police. The driver and two companions then stepped away from the car upon request. The defendant refused to move away from the car, however, and a struggle ensued during which the defendant struck one of the officers in the mouth. The offense of obstructing a police officer is defined as follows:

“A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer of any authorized act within his official capacity commits a Class A misdemeanor.” (Ill. Rev. Stat. ch. 38, par. 31 — 1.)

The defendant asserts that the police did not have probable cause to conduct a warrantless search of the car in which he was riding. He contends, therefore, that his obstruction of the police officer was not the obstruction of an authorized act.

We deem it unnecessary to determine whether the police had probable cause to search the car or whether the State proved that the defendant was guilty of obstructing a peace officer. The defendant was adjudged delinquent on the grounds that he was guilty of obstructing a peace officer and that he violated the curfew law. The record supports the conclusion that the defendant did violate the curfew law, and the defendant does not allege in this appeal that the court’s finding with respect to the curfew law was improper. The finding that a minor has violated or has attempted to violate any state law is sufficient to support an adjudication of delinquency.

No issue as to the constitutionality of the statutes here involved was raised in the trial court; hence, we will not consider such as issue on review. People v. Amerman, 50 Ill.2d 196, 279 N.E.2d 353.

For the foregoing reasons the judgment of the Circuit Court of Alexander County is affirmed.

Judgment affirmed.

EBERSPACHER, J., concurs,

Mr. PRESIDING JUSTICE GEORGE J. MORAN

dissenting:

The petition was as the defendant claimed, fatally defective for failure to set forth facts sufficient to bring the defendant under section 2 — 1 of the Juvenile Court Act, as required by section 4 — 1(2) (a) of the Act (Ill. Rev. Stat. 1971, ch. 37, par. 704 — -1(2) (a)). Section 2 — 1 provides that proceedings under the Juvenile Court Act may be brought against minors alleged to be delinquent as defined in section 2 — 2 (Ill. Rev. Stat. 1971, ch. 37, par. 702 — 2). That section provides:

“Those who are delinquent include (a) any boy who prior to his 17th birthday or girl prior to her 18th birthday has violated or attempted to violate, regardless of where the act occurred, any federal or state law or municipal ordinance; and (b) any minor who has violated a lawful court order made under this Act.”

These sections require that the petition allege facts showing a minor to be delinquent. The juvenile petition stated:

“That on February 2, 1971, in the City of Cairo, Alexander County, Illinois, he committed the offense of violating the curfew law of the State of Illinois. That he was disorderly and resisted arrest and did obstruct officers of the Cairo Police Department in the performance of their duties.”

The majority asserts that the Juvenile Court Act is satisfied if a petition merely states that a crime was committed against a particular person. This ignores the clear requirements of the statute. Aside from the date, the petition contained only conclusions of law. The petition thus failed to state facts sufficient to bring defendant under section 2 — 1 as required by section 4 — 1(2) (a).

The petition also violated defendant’s right to due process under articles I and II of the Constitution of the State of Illinois and the Fourteenth Amendment to the United States Constitution because it failed to set forth the alleged misconduct with' particularity and conform with notice which would be deemed constitutionally adequate in criminal proceedings. In Re Gault, 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428; In re Urbasek, 38 Ill.2d 535; People v. Heard, 47 Ill.2d 501.

Even if the petition had been properly drawn, the trial court’s decision should be reversed because the delinquency statute (Ill. Rev. Stat., ch. 37, par. 702 — 2) violates the due process clause of the Fourteenth Amendment of the United States Constitution and article I, section 2, of the 1970 Constitution of the State of Illinois. The language in question is:

“Those who are delinquent include (a) any * * * [minor] who * * * has violated or attempted to violate, regardless of where the act occurred, any federal or state law or municipal ordinance; * *

The constitutional requirement of definiteness in penal laws is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying rationale is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed. If the language of the statute is given its ordinary, plain meaning, the statute makes delinquent all minors who violate any Federal law or the law of any State or municipality anywhere, regardless of where the illegal act was performed. The statute incorporates the whole of the law of the United States, both civil and criminal, as grounds for declaring a minor delinquent. While citizens are presumed to know the law and mistake of law is usually not a defense, minors or their parents cannot be reasonably deemed to have notice of what conduct the act forbids.

The statute is also void because it gives authorities an impermissibly high degree of discretion in its enforcement. However the statute is construed, it is sufficiently broad to cover insignificant violations which should not constitute grounds for having a minor declared delinquent. Realistically, tire determination of whether minor violations will be prosecuted rests to a great degree with the police and juvenile officers. The statute gives them the broadest latitude to apply the provisions in a discriminatory fashion according to their personal taste and prejudices. Their discretion is limited only by the requirement, easily overcome, that the officer find some kind of violation as a basis for initiating proceedings against the minor. The statute’s almost total lack of standards allows authorities an impermissibly broad degree of discretion in violation of due process. Thornhill v. State of Alabama, 310 U.S. 88, 84 L.Ed. 1093, 60 S.Ct. 736; Cantwell v.Connecticut, 310 U.S. 296, 84 L.Ed. 1213, 60 S.Ct. 900; Shuttlesworth v. Birmingham, 382 U.S. 87, 15 L.Ed.2d 176, 86 S.Ct. 211; Coates v. Cincinnati, 402 U.S. 611, 29 L.Ed.2d 214, 91 S.Ct. 1686; Papachristou v. City of Jacksonville, 405 U.S. 156, 31 L.Ed. 2d 110, 92 S.Ct. 839; Smith v. Goguen, 415 U.S. 566, 39 L.Ed.2d 605, 94 S.Ct. 1242.

The last sentence of the majority opinion states, “The finding that a minor has violated or attempted to violate any State law is sufficient to support an adjudication of delinquency.” I agree that the statute sweeps that broadly and that is what makes it unconstitutional.


author: Mr. JUSTICE CREBS

text:
    The People ex rel. Curtis Chapman, Petitioner-Appellant, v. Dr. Terry B. Brelje, Administrator of the Psychiatric Division of the State Penitentiary at Menard, Respondent-Appellee.
    (No. 73-94;
    Fifth District
    September 4, 1974.
    Robert Farrell, of Mt. Vernon, and Allen L. Wiederer, of Chicago, both of State Appellate Defenders Office, for appellant.
    Herbert J. Lantz, Jr., State’s Attorney, of Chester (David P. Rau, Assistant State’s Attorney, of counsel), for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Randolph County dismissing a petition for a writ of habeas corpus for failure to state a cause of action. Petitioner contends that the trial court was in error not only in dismissing the petition without a hearing but also in failing to appoint a guardian ad litem, to protect his interests.

Setting the background it appears that on May 25,1949, petitioner was convicted of murder on his plea of guilty and he was sentenced to death. Five years later, on April 5, 1954, a jury determined that he was insane and he was committed to the Psychiatric Division of the State Penitentiary at Menard. On March 15, 1973, while still confined to the latter institution, he filed the present petition pro se. In his petition he raises no question concerning the lawfulness of his murder conviction, but, rather, limits his challenge to the jurisdiction of the court in his sanity hearing on the grounds that he was not personally present at said hearing. He contends, therefore, that his commitment as an insane person was unlawful, and he requests that he be discharged, or in the alternative, that he be transferred to the general division of the penitentiary to await execution.

On appeal counsel does not argue this jurisdictional question for the reason that the court’s records verify petitioner’s presence at his sanity hearing. Instead, it is contended that the real issue presented by petitioner was whether he had regained his sanity; that habeas corpus is a proper remedy to obtain a judicial determination of that question (People v. Young, 80 III.App.2d 479); and that he was entitled to a hearing and the appointment of a guardian ad litem to insure that his personal rights were protected. People ex rel. Suddeth v. Rednour, 33 Ill.2d 278.

The State does not deny these principles but attempts to distinguish this case on its facts, arguing that such principles are applicable only in a proceeding where a person, who has been declared mentally incompetent, seeks to be declared competent. It is contended that petitioner here seeks only his release from his original murder conviction and that habeas corpus does not lie for such purpose unless such judgment was void because of a lack of jurisdiction or because of the happening of some event since his detention which would entitle him to release. (People ex rel. Lewis v. Frye, 42 Ill.2d 311.) In effect, the State would liken this petition to one of an ordinary prisoner attempting to attack his conviction on non-jurisdictional grounds, and not to one of an incompetent endeavoring to re-establish his competency.

We cannot view the petition in such a narrow manner. Obviously, it is not artfully drawn, but, under the circumstances, that is understandable. Petitioner has been confined since 1949 on his murder conviction, and since 1954 he has been held in the Psychiatric Division as a mental incompetent. Technically, he does not specifically allege a recovery from insanity, nor does he specifically request a judicial determination of that question as ordinarily would be required in a habeas corpus proceeding. Nonetheless, the main thrust of his petition is clearly directed towards the question of his sanity. He makes no challenge against his murder conviction; instead he challenges only the lawfulness of his commitment as an insane person. Impliedly, yet forcefully, he makes known his belief in his present sanity by specifically requesting a transfer from the psychiatric to the general division of the penitentiary. Under these circumstances, though technically deficient in its phraseology, the petition appears to us to have been a sufficient request for a judicial determination of his present sanity. We therefore find that the trial court erred in denying petitioner a hearing on his petition for a writ of habeas corpus and in refusing to appoint a guardian ad litem to assist him, in rephrasing his petition, if necessary, and to insure that his personal rights are protected.

Accordingly, the judgment of the Circuit Court of Randolph County is reversed and the cause is remanded for further proceedings in accordance with the views herein expressed.

Judgment reversed and remanded with directions.

EBERSPACHER and CARTER, JJ., concur.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth J. Anderson, Defendant-Appellant.
    (No. 73-91;
    Fifth District
    September 27, 1974.
    Geismann & Ferguson, of Highland, for appellant.
    Douglas Marti, States Attorney, of Greenville (James W. Jerz and Edward N. Morris, both of Model District State’s Attorneys Office, of counsel), for the People.
   REVISED OPINION UPON DENIAL OF REHEARING

PER CURIAM:

Defendant appeals from a judgment of the trial court sentencing him to a minimum of 1 year and a maximum of 3 years in the penitentiary, entered on his plea of guilty to a charge of possession and a charge of delivery not exceeding 30 grams of a controlled substance, to-wit; lysergic acid diethylamide (commonly known as LSD) in violation of section 401(c) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56%, par. 1401(c)).

Defendant contends only that the trial court abused its discretion in denying him probation.

The trial judge conducted a long and searching hearing on defendant’s eligibility for probation. There were many things in defendant’s record which would indicate that he should be granted probation and there were other things which indicated the opposite.

The hearing established that the defendant, prior to the instant case, had a good reputation in his community and that his family’s reputation was also unblemished. Those who testified on behalf of tire defendant included his former employer, his high school counselor and his minister. All of them testified that the defendant was capable of rehabilitating himself and was a person of good reputation, notwithstanding the offense he had just committed. When specifically asked about imprisonment for the defendant, the minister replied: “I don’t think it would serve any good purpose, it would serve as a detriment to his life * *

Dr. Theodore Reich, a psychiatrist who conducted a court-approved psychiatric evaluation of the defendant, concluded as follows:

“Mr. Anderson does not appear to suffer from those psychiatric disabilities associated with repeated anti-social or violent acts. He does not appear to suffer from any psychiatric disability which would interfere with his school performance. Accordingly, it is entirely possible that he would be able to conform his behavior to the requirements of the law. At the present time he denies any sort of drug use and, since he was never addicted to any drug, does not appear to crave it. ® * *”

The Bond County probation officer did not dispute either the opinion of the defendant’s good reputation or the opinion that defendant could rehabilitate himself without imprisonment.

The record shows also that defendant was a veteran of 4 years’ service with the United States Marine Corps, receiving an honorable discharge. His tour of duty included time in South Vietnam where his military record indicates he was an exemplary marine. His awards include numerous medals and he was promoted to the non-commissioned officer rank of sergeant.

However, the record also indicates that the defendant admitted to prior use of drugs and to sales for profit.

While one might disagree with the trial court in denying probation, it does not appear that his decision was reached arbitrarily or capriciously but rather after long and arduous consideration.

However, the trial court did not mention the possibility of defendant committing another offense, any necessity to protect society from this defendant, or the possibility of rehabilitation, factors which should be considered as provided in section 117 — 1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 117 — 1). Therefore, we cannot say that the court gave any consideration to any of these factors in denying probation.

In People v. Ruf, 13 Ill.App.3d 392, 393, 300 N.E.2d 597, this court said:

“Furthermore, during the pendency of this appeal the Uniform [sic] Code of Corrections, (ch. 38, § 1001 et seq.) has become effective. Defendant is entitled to have her conviction reviewed in light of its provisions and have consideration given to receipt of punishment as provided by its provisions. [Citations.] In addition to reiterating the factors provided in ch. 38, § 117 — 1 which has now been repealed, it provides alternatives which were not available to the trial court at the time of sentencing (ch. 38, § 1005— 5 — 3), if the court is of the opinion that a sentence of probation supervision is not appropriate. (Ch. 38, § 1005 — 6—1.) It also provides for a system of periodic imprisonment to permit a defendant to attend to family needs. (Ch. 38, § 1005 — 7—1.) We cannot say that a disposition other than that imposed would be inconsistent with the ends of justice.
For these reasons we affirm the conviction, but reverse and set aside the sentence and remand this cause for sentencing under the provisions of the Uniform [sic] Code of Corrections.”

For the same reasons in the present case we affirm the conviction, but reverse and set aside the sentence and remand this case for sentencing under the provisions of the Unified Code of Corrections.

Conviction affirmed, cause remanded for resentencing.

Mr. JUSTICE JONES took no part in the consideration or decision of this case.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Carroll Huard, Defendant-Appellant.
    (No. 73-215;
    Fifth District
    October 1, 1974.
    Robert E. Farrell and James Streicker, of State Appellate Defenders Office, of Chicago, for appellant.
    Frank H. Schniederjon, State’s Attorney, of Effingham, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

On April 13, 1973, Robert Carroll Huard was charged by information with the offense of deceptive practice. Subsequently defendant pled guilty to the charge and was sentenced to 1 year in accordance with plea negotiations. Defendant appeals on the grounds of defective information, failure to sufficiently inform him of right to counsel, alleged violations of Supreme Court Rule 402 (Ill. Rev. Stat., ch. 110A, par. 402) and improper sentencing. Defendant has been released on bond.

Defendant first contends that the information is fatally defective because it does not allege intent to defraud as required in People v. Greene, 92 Ill.App.2d 201, 235 N.E.2d 295; People v. Samples, 80 Ill. App.2d 182, 224 N.E.2d 284; and People v. Billingsley, 67 Ill.App.2d 292, 213 N.E.2d 765.

We also note that the statute (Ill. Rev. Stat. 1971, ch. 38, par. 17 — 1) commences as follows: “A person commits a deceptive practice when, with intent to defraud * *

We agree that it is necessary to allege intent to defraud. In view of this holding it is unnecessary to discuss the other contentions.

Judgment reversed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roosevelt Baldwin, Defendant-Appellant.
    (No. 72-286;
    Fifth District
    August 15, 1974.
    Robert E. Farrell, Richard E. Cunningham, and Timothy F. Flynn, all of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert H. Howerton, State’s Attorney, of Marion, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Defendant, Roosevelt Baldwin, was charged with aggravated battery, attempt and unlawful use of a weapon in the Circuit Court of Williamson County on August 9, 1972. On August 14, 1972, the defendant was brought before the Circuit Court of Williamson County and on this occasion charged with the offense of escape.

On August 21, 1972, the defendant appeared with his appointed counsel, the public defender, and pursuant to a plea negotiated with the State’s Attorney, plead guilty to the charges of aggravated battery and escape.

The State recommended a sentence of 3 to 5 years for aggravated battery and a sentence of 4 to 6 years for escape with the sentences to run concurrently. As part of the negotiation agreement the other charges were to be dismissed. After some questioning the court accepted the guilty pleas. The defendant waived the introduction of mitigating evidence' and the State waived the introduction of evidence in aggravation. The court then sentenced the defendant in accordance with the negotiated agreement and dismissed the other charges.

In this appeal the defendant alleges that the trial court failed to comply with Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, par. 402) in several respects when it accepted defendant’s guilty pleas.

Supreme Court Rule 402(a)(2) requires that the court personally address the defendant in open court informing him of and determining that he (defendant) understands the minimum and maximum penalty to which the defendant may be subjected because of prior convictions or consecutive sentences (Ill. Rev. Stat. 1973, ch. 110A, par. 402(a)(2)), and that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty. (Ill. Rev. Stat. 1973, ch. 110A, par. 402(a)(3).) A review of the record fails to indicate that tire court complied with these requirements.

Supreme Court Rule 402(b) requires the court to personally question the defendant in open court to confirm the terms of a plea agreement or that there is no agreement and to determine whether any force, threats, or any promises, apart from a plea agreement, were used to obtain the plea. (Ill. Rev. Stat. 1973, ch. 110A, par. 402(b).) The record fails to reveal that the court personally ascertained from the defendant whether any force or threats were used to obtain the plea. This clearly is in violation of Supreme Court Rule 402(b). People v. Hendrickson, 11 Ill.App.3d 219, 296 N.E.2d 751.

The fact that the plea was negotiated did not remove this case from the section governing acceptance of guilty pleas. People v. Spicer, 10 Ill.App.3d 390, 294 N.E.2d 72.

In the case of People v. Kehoe, 10 Ill.App.3d 955, 295 N.E.2d 292, we reversed the judgment where the trial court accepted a guilty plea without first informing the defendant that he had a right to plead not guilty as required by Supreme Court Rule 402(a)(3) and that the trial court did not question the defendant personally in open court to determine if any force or threats or any promises, apart from a plea agreement were used to obtain the plea as required by Rule 402(b).

Considering the totality of these deficiencies we cannot say that there was substantial compliance with' the requirements of Supreme Court Rule 402. We note that this case involves a negotiated plea and the defendant may plead anew, however, the State then has the right to reinstate the charges of attempt and unlawful use of a weapon which were dismissed as part of the plea negotiations.

We therefore reverse the judgment of the Circuit Court of Williamson County and remand with instructions to allow defendant to plead anew if he so chooses.

Defendant’s sentence is in excess of that prescribed by the Unified Code of Corrections. If the defendant decides not to plead anew he is entitled to be resentenced in accordance with the provisions of the Unified Code of Corrections. People v. Shadowens, 10 Ill.App.3d 450, 294 N.E.2d 107.

Reversed and remanded with directions.

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


author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    The People ex rel. Thomas R. Lundblade, Petitioner-Appellant, v. Thomas R. Israel, Warden, et al., Respondents-Appellees.
    (No. 74-21;
    Fifth District
    September 25, 1974.
    Ralph Ruebner and Phyllis J. Perko, both of State Appellate Defender’s Office, of Elgin, for appellant.

      Philip G. Reinhard, States Attorney, of Rockford, and Herbert J. Lantz, State’s Attorney, of Chester (James W. Jerz and Martin P. Moltz, both of Model District State’s Attorneys Office, of counsel), for appellees.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Randolph County dismissing relator’s petition for habeas corpus.

An information was filed in the trial court charging relator, Thomas Lundblade, with arson. He pled guilty to that charge and was sentenced to serve 2 to 20 years in the penitentiary.

Subsequently, he filed a petition for writ of habeas corpus in the Circuit Court of Randolph County, contending the information was invalid for failure to include an essential element of the offense of arson.

The information reads in pertinent part:

“* * # Thomas Robert Lundblade committed the offense of arson, in that he by means of fire, knowingly damaged certain real property at 2510 Holmes, to-wit: a certain apartment building, the property of Marvin Cúratelo, in violation Paragraph 20 — 1, Chapter 38, Illinois Revised Statutes.”

Appellant now contends that the information was jurisdictionally void for failure to allege that he had committed arson without the consent of the owner.

The sole issue presented by this appeal is controlled by this court’s recent decision in People v. White, 22 Ill.App.3d 206, 317 N.E.2d 273. Therefore the judgment is affirmed.

Judgment affirmed.

EBERSPACHER and CARTER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kirby Gardner, Defendant-Appellant.
    (No. 73-403;
    Fifth District
    September 19, 1974.
    Robert E. Farrell and Richard E. Cunningham, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Ronald A. Niemann, State’s Attorney, of Salem, for the People.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendant pled guilty to the offense of rape in the Circuit Court of Marion County pursuant to a negotiated plea, whereby all other charges pending against him were dismissed. He was sentenced to a term of not less than 3 and not more than 12 years in the Illinois State Penitentiary.

The defendant argues that his conviction should be reversed because the trial court failed to comply with the provisions of Supreme Court Rule 402 governing acceptance of pleas of guilty. We need not, however, discuss this contention because defendant in this case has not received a sentence prescribed by law for conviction of the offense of rape.

The plea agreement proposed to the trial court provided that defendant would enter a guilty plea to the count of the indictment charging him with rape. In return, the State would recommend dismissal of all other charges pending against defendant and recommended a sentence of not less than 3 years and not more than 12 years. After discussing the plea agreement with the defendant, the court accepted the plea and imposed the agreed upon sentence. This was error. The minimum term for rape is 4 years. Ill. Rev. Stat., ch. 38, par. 11 — 1(c).

The trial court lacked the authority to impose a sentence less than the statutory minimum for a conviction of rape. While a trial court has great discretion regarding the imposition of sentence, that discretion must be exercised within the minimum and maximum limits fixed by the legislature. (People v. Richeson, 24 Ill.2d 182, 181 N.E.2d 170; People v. Hart, 132 Ill.App.2d 558, 270 N.E.2d 102.) The trial court has authority under Supreme Court Rule 402(d) to approve a plea bargain voluntarily entered into between the defendant and the state. However, this presupposes that the agreement is one that the court has power to approve. Since the plea agreement in this case called for a minimum sentence of less than 4 years, the court had no power to approve the agreement.

Since the State entered into bargain with the defendant that it could not fulfill, it is necessary to set aside the agreement although it was approved by the trial court.

For the foregoing reasons the judgment of the trial court is reversed and this case is remanded to the circuit court of Marion County for proceedings consistent with' this opinion.

Reversed and remanded with directions.

CARTER and EBERSPACHER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Griffin W. Howard, Defendant-Appellant.
    (No. 72-342;
    Fifth District
    September 19, 1974.
    Robert E. Farrell and Allen L. Wiederer, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Nicholas G. Byron, State’s Attorney, of Edwardsville, for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Delta K. Groves, Defendant-Appellant.
    (No. 74-37;
    Fifth District
    September 5, 1974.
    Robert E. Farrell and Richard E. Cunningham, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert H. Howerton, State’s Attorney, of Marion, for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles White, Defendant-Appellant.
    (No. 74-6;
    Fifth District
    September 11, 1974.

      Robert E. Farrell and Steven Clark, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Byron L. Connell, State’s Attorney, of Mound City (Ralph Mendelsohn, of Model State’s Attorneys Support Unit, of counsel), for the People.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

On September 19, 1973, defendant was charged by criminal complaint with theft and arson. On the same date he waived indictment, pled guilty to both charges and received concurrent sentences of 1 to 3 years.

Subsequently, on October 17, 1973, defendant filed separate notices of appeals as to each conviction which were consolidated on this appeal. The sole question for review here is whether the charge was invalid for failure to include an essential element of the offense of arson.

The complaint reads in pertinent part:

“Complainant * * * Deputy Sheriff, Pulaski County, Illinois, on oath charges: That: * * * Charles White committed the offense of ARSON, in that (he) did then and there by means of fire, knowingly damage personal property of A. M. Mayberry, to wit: three double beds and one single bed, with springs and mattresses, said damage amounting to more than $150.00, being located in the residence of A. M. Mayberry, * * * in violation of Paragraph 20 — 1(a), Chapter 38, Illinois Revised Statutes, 1973.”

The statutory definition of arson provides in pertinent part that:

“A person commits arson when, by means of fire or explosive, he knowingly: (a) Damages any real property, or any personal property having a value of $150 or more, of another without his consent” Ill. Rev. Stat., ch. 38, par. 20 — 1(a). (Emphasis added.)

Defendant now contends that the complaint was insufficient for failure to allege that he had committed arson without consent of the owner and requests that his conviction be reversed.

A complaint, information, or indictment which fails to recite the essential elements of the crime charged does not state an offense. (People v. Abrams, 48 Ill.2d 448, 271 N.E.2d 37; People v. Leach, 3 Ill.App.3d 389, 279 N.E.2d 450; People v. Billingsley, 67 Ill.App.2d 292, 213 N.E.2d 765.) Essential language may be omitted only if it is necessarily implied by the charge. (People v. Latham, 13 Ill.App.3d 371, 299 N.E.2d 808; People ex rel. McLain v. Housewright, 9 Ill.App.3d 803, 293 N.E.2d 911.) In this case it is clear that the complaint contains no language from which non-consent can be inferred. Thus the key question in this appeal is whether non-consent is an essential element of tire offense of arson.

The phrase “without his consent” first appeared in the 1961 Criminal Code. (See Ill. Rev. Stat. 1961, ch. 38, par. 20 — 1(a)(1).) Historically, in the sense of the common law and of our own prior criminal code, non-consent was not an element of die offense of arson. (People v. Harris, 263 Ill. 406, 105 N.E. 303 (1914); 3 Statutes of Illinois (Gross) 1873-74, pars. 13 — 19, at 120-121 (2d ed.).) At common law, arson was simply the wilful and malicious burning of the dwelling house, including structures appurtenant thereto, of another. (See 2 W. Blackstone, Commentaries *220.) At common law, one could not be convicted of arson for burning his own building. Similarly, if the owner consented to the burning of his building by another, such other person could not be guilty of arson. 5 Am. Jur. Arson, § 30 (1962); A. Curtis, A Treatise on the Law of Arson, §53, at 66 (1936).

The Committee Comments to the 1961 Criminal Code note that various other buildings and property had been added by statute either to the offense of arson or as a separate lesser offense. The Committee Comments also make clear that the present code was a sorting out and classification of the several offenses theretofore provided by statute. The 1961 code redefined the various types of burning offenses so as to bring within the statutory offense of arson the more serious offenses with a common penalty and the less serious offenses into criminal damage to property, disassociated from the traditional concept of arson. Thus it appears that the legislature did not intend to introduce a new element into the statutory definition of arson by inserting the phrase “without his consent”, and that the statutory plan contemplates that “consent” is an affirmative defense. People v. Abruscato, 77 Ill.App.2d 75, 222 N.E.2d 263, so holds. Abruscato was convicted of arson under the current Criminal Code. On appeal he argued his conviction was invalid due to lack of proof that his act of burning a building was done without the owner’s consent. The court agreed that there was a complete absence of formal proof that the acts charged against Abruscato were committed without the property owner’s consent, but refused to set aside the conviction on this basis. The court followed the common-law rule as espoused in People v. Harris, 263 Ill. 406, 105 N.E. 303, that there was no obligation to offer formal proof that destruction of property by fire was against the owner’s consent in the absence of some suggestion that the owner had, in fact, given such consent.

Moreover, the contention that the complaint was defective for failure to allege that the acts of arson were done without the consent of the owner has no merit in light of the opinion in People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269, and People v. Woodward, 55 Ill.2d 134, 302 N.E.2d 62. In Harvey the defendant contended that an indictment charging him with the offense of aggravated battery was void for failure to allege that the battery, which is by definition included in the offense of aggravated battery, was committed “without legal justification.” However, his contention was rejected because the indictment which was couched in statutory terms, sufficiently informed the defendant of the charge and particularized the offense so as to bar a subsequent prosecution. (People v. Harvey, 53 Ill.2d 585, 588-89, 294 N.E.2d 269, 270-71. See also People v. Gant, 9 Ill.App.3d 774, 293 N.E.2d 20; People v. Hoffman, 9 Ill.App.3d 842, 293 N.E.2d 16.) In Woodward the court considered the question of the degree to which the elements of the principal offense must be alleged when an inchoate offense has been charged. The court, following its previous ruhng in People v. Williams, 52 Ill.2d 455, 288 N.E.2d 406, rejected the defendant’s argument that the indictment charging him with attempted burglary was insufficient for failure to state that the attempted unlawful entry was “without authority.” People v. Woodward, 55 Ill.2d 134, 137-38.

Arguably, both Woodward and Harvey can be distinguished from the fact situation now before this court. Woodward addressed specifically the sufficiency of an indictment for attempt. Harvey considered the question of the degree of specificity required in an indictment omitting an element of a lesser included offense. However, in People v. Gallo, 54 Ill.2d 343, 297 N.E.2d 569, not cited by either party in this case, the court rejected defendant’s contention that an indictment charging him with the offense of intimidation was void for failure to allege that his conduct was “without legal justification.” “Legal justification” and “authority,” as involved in Harvey, Woodward, and Gallo, and “consent” as involved in this appeal, are all matters of exoneration or defense.

Under these principles, defendant’s position that the complaint charging him with arson is void for failure to allege want of consent is untenable. Accordingly, his conviction is affirmed.

Judgment affirmed.

EBERSPACHER and CARTER, JJ., concur.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Clyde Johnson, Petitioner-Appellant.
    (No. 73-417;
    Fifth District
    September 13, 1974.
    Michael J. Rosborough, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.


author: Mr. JUSTICE CARTER

text:
    Thomas F. Reagan, Plaintiff-Appellee, v. Betty S. Reagan, Defendant-Appellant.
    (No. 74-94;
    Fifth District
    August 27, 1974.

      Rehearing denied October 2, 1974.

      George E. Morgan, of Winters, Morgan and Austin, of Marion, for appellant.
    James W. Sanders, of Marion, for appellee.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

This is an appeal by the defendant-appellant, Betty S. Reagan, from an order of the Circuit Court of Williamson County dismissing her motion to vacate a decree for divorce. In appellant’s motion to vacate the decree, she alleged that tire entry of appearance was a nullity because it was dated prior to the time of filing the complaint and that her signature on the entry of appearance was obtained by deceit and fraud.

The appellant’s motion raises three questions:

1) Can the court vacate the decree after the expiration of 30 days?
2) Did her entry of appearance confer jurisdiction on the court in view of the time which elapsed between the date of its signing and the date of filing?
3) Was her signature on the entry of appearance fraudulently obtained?

Appellant and appellee, Thomas F. Reagan, were married in 1964 and they lived in their home until September 13, 1973. On September 1, 1972, appellant signed an entry of appearance in which she expressly waived the necessity of summons and consented that an immediate default might be taken and entered against her. On September 13, 1973, appellant was committed to the Anna State Hospital for chronic alcoholism, and, a week later, the complaint for divorce and her entry of appearance were filed. On October 5, 1973, while appellant was still hospitalized, a decree of divorce was entered, citing extreme and repeated mental cruelty as the grounds. Appellee notified appellant on a visit to the hospital before her release on November 1, 1973, that a decree of divorce had been granted.

On January 17, 1974, appellant filed a motion to vacate the decree and to have set aside certain transfers of property made pursuant to a provision in the entry of appearance, which provision was incorporated in the divorce decree. All of this property, eight vacant lots and the home site, was conveyed to appellee’s brother by deed signed by appellant and appellee on September 1, 1972; this was the date that appellant signed the entry of appearance. This deed and another deed dated October 5, 1973, the date of the divorce, wherein appellee’s brother and appellee’s brother’s wife reconveyed the property to appellee were filed in the recorder’s office on October 18, 1973. On January 30, 1974, appellant’s motion to vacate was denied.

In Bowman v. Bowman (1872), 64 Ill. 75, 81, the court said: “When a bill has been taken pro confesso, and a decree entered by default, it rests in the sound discretion of the court to relieve the party of the consequences of the default * * #. This court has the right to review the exercise of such discretion in chancery proceedings.” In Bratkovich v. Bratkovich (1962), 34 Ill.App.2d 122, 126-127, 180 N.E.2d 716, the court stated: “It is a fundamental principle of law that the question of the jurisdiction of a court as to subject matter or as to parties can be raised at any time either directly or collaterally.”

The court stated in the case of Barnard v. Michael (1945), 392 Ill. 130, 135: “A judgment, order or decree entered by a court which lacks jurisdiction * * * is void, and may be attacked at any time or in any court, either directly or collaterally. An application to vacate a judgment or decree, made to the court that rendered it within thirty days after its entry, is a direct attack upon the judgment or decree, but if made after the expiration of thirty days it is a collateral attack.” In Maher v. Title Guarantee & Trust Co. (1901), 95 Ill.App. 365, 387, it was stated: “* * * while courts of equity have the power to vacate a fraudulent divorce, though in so doing the rights of iimocent third parties will be sacrificed, they will proceed with great caution, especially where there has been a second marriage on the faith of the fraudulent decree * *

In the instant case the record does not show that either party has remarried and there is no evidence that third parties would be seriously injured if appellant’s motion to vacate the decree were granted. We have no hesitancy in holding that appellant is not barred in the filing of her motion by the 30-day provision in tire Civil Practice Act.

Was the entry of appearance, which in this case was executed more than 1 year prior to the filing of the complaint for divorce, valid? Appellee argues that it is, citing Vayette v. Myers (1922), 303 Ill. 562, 136 N.E. 467; Hannah v. Hannah (1968), 94 Ill.App.2d 372, 236 N.E.2d 783; and 24 Am. Jur. 2d Divorce & Separation § 293 (1966). We do not find any of this authority controlling in the instant case. In Vayette the bill for divorce was filed on January 6, 1920, by the husband, and on the same day the wife filed an entry' of appearance prepared and signed the day before. Also, she received a copy of the bill the day before it was filed and endorsed on it “ ‘I have received a true copy of this bill this fifth day of January, 1920.’ ” (303 Ill. at 565.) Furthermore, her waiver said: “[A]t the January term, A. D. 1920, of said Circuit Court of Livingston County « * * ” (303 Ill. at 563), so in any.case her waiver was not binding beyond the January term of court. Also, the court took the trouble to note that “[t]he filing of the biH and the entry of appearance were at one and the same time.” 303 Ill. at 565.

It should be noted that in cases cited by the court in Vayette as supportive of the rule that a presumption exists in favor of the regularity of an entry of appearance, the entry was either signed upon the original bill (Epps v. Buckmaster (1898), 104 Ga. 698, 30 S.E. 959); endorsed on the summons (Harrison v. Morton (1898), 87 Md. 671, 40 A. 897; Snell v. Stanley (1872), 63 Ill. 391); or endorsed on the bill (Bowman v. Bowman (1872), 64 Ill. 75). The court in Vayette also remarked that “* * » ft is universally the rule that an agreement not to defend a divorce case is void as against public policy and vitiates a decree entered in pursuance of such agreement * * 303 Ill. at 567.

In Hannah the husband signed an appearance and consent on July 13, 1967, and left it with his wife’s attorney. The decree was entered on July 19, 6 days later. His consent form stated: “I hereby appoint-as my solicitor and attorney * * Though the court held that this gave the wife’s attorney the authority to name another attorney to represent him, it remarked: “* # * the practice reflected by the record could open the door to fraud * # # we therefore condemn it, most particularly the practice of causing the appointment of an attorney to be executed in blank and suggest that the appointed attorney be one actually and personally designated by the prospective defendant. Consistent with good practice, the appointee should be notified and indicate his acceptance before fire appointment is executed.”

Appellee cites 24 Am. Jur. 2d Divorce & Separation §293 (1966), which supports the proposition that an appearance and waiver is not invalidated by the fact that it is signed before the action is commenced. This section in Am. Jur. 2d is supported by three footnoted cases: In Green v. Green (1954), 77 Ariz. 219, 269 P.2d 718, the wife authorized her attorney to represent her, and the court held she was bound by her authorization because the facts showed that her attorney did appear on her behalf and filed an answer. In Jones v. Jones (1953), 209 Ga. 861, 862-863, 76 S.E.2d 801, 803 the court decided that in the case of only a 3-day lapse tire waiver was effective but stated that one “* * * may waive service before the petition is filed, provided only that such waiver clearly identifies the suit to which it refers.” In Jacobs v. Ellett (1945), 108 Utah 162, 158 P.2d 555, the husband was in the Army overseas, and prior to executing an appearance and consent, he received a copy of the complaint. Five days later the complaint was filed, and the court held the waiver valid.

We do not feel that any authority cited by appellee is controlling with respect to an entry of appearance in a divorce action executed more than 1 year before a complaint is filed, one which leaves open, as did the consent in the instant case, the question of when or if a complaint might be filed and the grounds for divorce which might be selected. Also the status of property and other matters could change materially within a years time. As has been noted, the courts have struggled to support waivers executed even a few days in advance of the filing of a complaint. An important matter of, public policy is involved. In Bradshaw v. Bradshaw (1966), 69 Ill.App.2d 91, 216 N.E.2d 513, the court stated: “The State, as the sovereign, has an interest in maintaining the integrity and permanency of the marriage relation. [Citation.] Whether there is a contested hearing with both parties present or an ex parte hearing, the entry of a decree of divorce should not be treated as a casual matter." (69 Ill.App.2d at 94.) Quoting from McKeon v. McKeon, 4 Ill.App.2d 515, 124 N.E.2d 564, the court said: # In equity cases it has been the common practice where an appearance and answer are on file and an ex parte hearing has been held to require that notice be served upon the opposing party of the approval and entry of the decree or that the opposing party indicate on the decree his approval. This practice is in the furtherance of justice * ° V” 69 Ill.App.2d at 95.

We hold that due to the long period of time between the execution of the entry of appearance and its filing, thus giving rise to uncertainties which could result in prejudice to the defendant, and because of its public policy implications with regard to the marriage relation, the entry of appearance in this present case was void.

Though we agree with the proposition that one may be estopped from attacking a divorce decree where substantial benefits under the decree have been accepted and where one or both of the parties have remarried, thus involving the interests of innocent third parties, the record in this case does not disclose that either party has remarried or that any substantial benefits have been accepted. The period between the entry of the decree and the filing of the motion to vacate was only 3Vz months, so only a few monthly payments of $200 could have been made. The record shows that appellant contributed substantially to the acquisition of the coin collection which the decree pm-ported to award her. On the other hand, by the decree she lost all of her interest as joint tenant in property owned by the appellant and appellee. So on balance it would appear that she lost more than she has gained as a result of the decree.

Two Illinois cases holding that the wife was estopped from challenging a decree are readily distinguished from the instant case. In Guelzo v. Guelzo (1937), 292 Ill.App. 151, 10 N.E.2d 881, the wife had accepted benefits as provided in the decree. Her challenge, however, was based on a claim of non-residence, and the court said that, since she alleged residence in her complaint, she could not now come in and claim non-residence. In Friend v. Northern Trust Co. (1942), 314 Ill.App. 598, 42 N.E.2d 330, the wife accepted in open court $25,000 plus $5,000 attorney’s fees and had remarried before moving to vacate the decree. In Bratkovich v. Bratkovich (1962), 34 Ill.App.2d 122, 180 N.E.2d 716, the court stated: “The application of the foregoing rule [the rule that a court can consider the question of jurisdiction at any time] has been narrowed in some divorce cases where the party attacking the decree for want of jurisdiction has accepted the benefits and privileges of the divorce decree by a remarriage, or where the other party has remarried and the intervening rights of third parties are affected.” (34 Ill.App.2d at 127.) This court held in Forest v. Forest (1973), 9 Ill.App.3d 111, 291 N.E.2d 880, that a motion to vacate a default divorce decree should be granted, the court saying, “[N]o rights or interests of any third parties [are] affected by the avoidance of the decree and # # * it cannot be said that the integrity of the institution of marriage has been in any way impugned.” 9 Ill.App.3d at 115.

For the reasons stated, the motion to vacate and the relief requested by the appellant must be granted. It is not necessary that we explore the question of fraud.

The judgment of the Circuit Court of Williamson County is reversed and the cause is remanded with directions to vacate the decree and for further proceedings consistent with this opinion.

Reversed and remanded with directions.

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