author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph Wright, Sr., Defendant-Appellant.
    (No. 12127;
    Fourth District
    June 12, 1974.

      John F. McNichols and J. Daniel Stewart, both of State Appellate Defender’s Office, of Springfield, for appellant.
    C. Joseph Cavanagh, State’s Attorney, of Springfield (James W. Jerz and Edward N. Morris, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant-appellant Joseph Wright was charged in a case docketed in the circuit court of Sangamon County under number 45 — 72 with resisting arrest, fleeing a police officer, driving without a driver’s license, and faffing to have a driver’s license. He was tried before a jury, convicted of all charges and the appeal from those convictions pends in this court under our general number 11867. The jury’s verdict was returned on March 25, 1972. One Pearl Meyer served as a member of the jury, and one Daryle Williamson appeared as a witness for the People.

On March 28, 1972, the State filed a “Motion to Show Cause” in case 45 — 72. The motion recited the return of the verdict on March 25, 1972, and the fact that Daryle Williamson had testified in the case as a witness for the People, and that Pearl Meyer had served on the jury. The motion further recited:

“That on March 26, 1972, Joseph Wright with the intent to harrass or annoy Pearl Meyer communicated directly with Pearl Meyer in that on said date at the Holiday Inn East at about 1:50 a.m., he said to Pearl Meyer in the Coffee Shop of said motel this, or this in substance:
1 thank you from the bottom of my heart and I’m going to get even with you’
said communication intended to produce mental anguish or emotional distress to said Pearl Meyer, who had served as a juror and participated as a juror in reaching the verdict in the proceedings known as Sangamon County Circuit Court No. 45 — 72.”

The motion further recited that:

“Joseph Wright, with the intent to harass or annoy Daryle Williamson, a witness for the People in Sangamon County Circuit Court No. 45 — 72, communicated directly with Daryle Williamson at the Holiday Inn East on March 26, 1972, at about 1:50 a.m., in that he said this, or this in substance:
‘You white [expletive deleted], you are a bastard and you caused me to be convicted of four counts and I am going to get you and get your wife and get your kids * *
and that such communication produced mental anguish and emotional distress in Daryle Williamson, and was tirade to Daryle Williamson because of his testimony on behalf of. the People in the legal proceedings in the Sangamon County Circuit known as case No. 45 — 72.”

The motion concluded:

“That said threats ánd conduct by Joseph Wright as stated above showed utter disrespect for the peace and dignity of this court and tended to hinder and obstruct the orderly administration of justice.
WHEREFORE, the People move that defendant Joseph Wright be ordered to show cause why he should not be held in contempt of this honorable court.”

On March 27, 1972, in a case bearing Sangamon Circuit Court case no. 72-S-2-76, a two-count complaint was filed against defendant Wright charging that on March 26, 1972, he violated the provisions of section 32 — 4(a) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, sec. 32 — 4(a)) in that:

“[Count I] on the 26th day of March A.D. 1972, in the County of Sangamon and. the State of Illinois, Joseph L. Wright committed the offense of HARASSMENT OF A JUROR, when, with the intent to harass or annoy Pearl Meyer he communicated directly with Pearl Meyer in such a manner as to produce mental anguish or mental distress because Pearl Meyer had served as a juror and participated as such juror in reaching the verdict in a legal proceeding, #45 — 72 in the Sangamon County Circuit Court in which said Joseph L. Wright was a defendant.”
and
“[Count II] on the 26th day of March A.D. 1972, in the County of Sangamon and the State of Illinois, Joseph L. Wright committed the offense of HARASSMENT OF A WITNESS when with intent to harass or annoy Daryle Williamson, he communicated directly with Daryle Williamson in such a manner as to produce mental anguish or emotional distress because of the testimony of Daryle Williamson who had been a witness in a legal proceeding in the .Sangamon County Circuit Court #45 — 72 in which said Joseph L. Wright was a defendant.”

On March 30, 1972, the motion to show cause was granted and the hearing on the contempt therein charged was set for April 4, 1972. On April 3, 1972, defendant filed a motion to consolidate the contempt proceedings with the criminal charges in case 72-S-2-76 pursuant to section 114 — 7 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 7), stating that the contempt and criminal charges arose from the same transaction and should be prosecuted as if the same were under a single charge. Defendant had previously demanded jury trial in case 72-S-2-76. On April 3, 1972, the defendant also filed a motion for substitution of judge in the contempt proceedings pursuant to section 114 — 5 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 5). Judge Coutrakon who had presided during defendant’s trial on the four charges originally filed in case 45 — 72 had granted the motion to show cause and had ruled on all other matters pertaining to the contempt proceedings; and the hearing on the merits of the show cause order was set before him. The motion named Judge Coutrakon and an additional circuit judge who appears to have had no connection with the matter.

On April 4, 1972, the trial judge denied the motion to consolidate, and also denied defendant’s motion for trial by jury stating that he would not impose a sentence in excess of 6 months, and also denied defendant’s motion for substitution of judge. Judge Coutrakon thus presided over the hearing, at the conclusion of which he found the defendant guilty of contempt and imposed sentence of 5 months to be served at the Illinois State Farm. This appeal ensued.

Defendant assigns error in the denial of his motion for substitution of judges. In ruling on the motion the trial judge stated that it was his understanding of the law that “The only time you’re entitled to substitution of judges is when the statute authorizes it * * * as I understand the law contempt proceedings are neither civil nor criminal but sui generis and the only time you’re entitled to a substitution of judges was under the previous old law when it was called change of venue — that was when the statute provided for it in a contempt case and the statute does not provide for — uh—change of venue in contempt cases for prejudice of the Judge.”

It is apparent from the allegations of the motion for rule to show cause that this case involves indirect criminal contempt; neither the appellant nor the appellee argues otherwise. For a recent discussion of the distinction between direct and indirect criminal contempt see People v. Javaras, 51 Ill.2d 296, 281 N.E.2d 670. Defendant urges that the court erred in the denial of his motion for substitution of judges since the provisions of section 114 — 5(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 5(a)) govern the matter. This statute provides:

“§ 114 — 5. Substitution of Judge.
(a) Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of judge or any 2 judges on the ground that such judge or judges are so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the case but shall transfer it to another court or judge not named in the motion.”

The appellee contends that the only statute which provides for substitution of judges in a contempt proceeding is section 21a of the Venue Act (Ill. Rev. Stat. 1971, ch. 146, par. 21a), which provides:

“When any defendant in a proceeding for contempt arising from an attack occurring otherwise than in open court, upon the character or conduct of a judge, which proceeding is pending before the judge whose character or conduct was impugned, fears that he will not receive a fair and impartial trial before such judge, he may petition the court for a change of venue from such judge, such petition to be verified by affidavit of the defendant, and thereupon such change shall be granted.”

Appellee urges that this is the only provision of the statute which permits substitution of judges in contempt proceedings, and that since defendant’s conduct did not constitute an attack upon the character or conduct of the trial judge defendant’s motion did not fall within the purview of the statute.

In support of his contention that the provisions of section 114 — 5(a) of the Code of Criminal Procedure are applicable in cases involving indirect criminal contempt the defendant relies primarily upon People v. Goss, 10 Ill.2d 533, 141 N.E.2d 385. In this case one Carl Champagne had brought suit for divorce against his wife Shirley in the Superior Court of Cook County. He also made a motion that he be granted temporary custody of their child. The hearing on the petition was conducted in several stages and during one of the hearings, a private detective testified on behalf of the plaintiff that on certain specified days the defendant, Shirley Champagne, had spent the early morning hours in the apartment of the alleged contemnor Goss. Goss appeared regularly on an evening television broadcast program five nights a week from a Chicago station. In a broadcast on the evening of July 28, the day on which the private detective had testified, Goss characterized the detective in reference to his testimony in the Champagne case as a “professional sneak and liar”. In subsequent broadcasts Goss repeated these allegations concerning the detective. Again during the course of the hearings Goss referred to the plaintiff Carl Champagne and his relatives as a family with “court-admitted hoodlum connections” and also referred to Carl Champagne during his broadcasts as a “known associate of hoodlums/’ Also during the broadcasts Goss denied that he had committed adultery with Mrs. Champagne and expressed sympathy for her. Then subsequently the trial judge issued a rule to show cause. At the hearing Goss disclaimed any intent to influence or intimidate the judge or witnesses and said that his motive was to defend himself before his television public against charges which were being made at the trial. The trial judge entered an order finding defendant in contempt of court and stating:

“The public utterances and characterizations by the said Thomas Duggan Goss of the plaintiff and witnesses called in his behalf were false, completely foreign to the evidence presented, with a positive tendency and designedly calculated to bring odium upon the testimony of the witnesses produced by the plaintiff and to inspire distrust in their testimony; engender a public atmosphere of hostility incompatible with judicial proceedings; create in the public mind by false, incompetent and prejudicial hearsay made without the safeguards of an oath or right of cross examination the belief that the plaintiff and those associated with him were of base character and that the plaintiff should not prevail in his cause; to create in the minds of witnesses fear and apprehension of being held to public scorn and ridicule and to exculpate himself from a charge amply substained by the evidence.”

The trial judge then sentenced Goss to 10 days in the county jail and a fine of $100.

The Supreme Court reversed and remanded finding error in the refusal of the trial judge to grant Goss’s motion for change of venue from the trial judge which motion alleged prejudice on the part of the judge. The court stated:

“The statute (Ill. Rev. Stat. 1955, chap. 146, par. 21,) provides for a change of venue upon the filing of an affidavit of prejudice. The petition filed on behalf of the plaintiff in error, while it contained many extraneous matters, was nevertheless sufficient to bring the statute into play, and the prayer of the petition for reassignment of the case, or for a change of venue, should have been granted. Because it was not, the judgment must be reversed * *

The 1955 statutes governing changes of venue in criminal cases were contained in chapter 146, and so far as pertinent here, are as follows:

“CHANGES OF VENUE IN CRIMINAL CASES
18. CAUSES. When any defendant in an indictment or information in any court in this state shall fear that he will not receive a fair and impartial trial in the court in which the case is pending, because the judge of the court is, or the inhabitants of the county in which tiie case is pending are prejudiced against him, or the attorney representing him, the court shall award a change of venue upon the application of the defendant as hereinafter provided.
* " * *
21. When cause prejudice of judge. When the cause for a .change of venue is the prejudice of the judge or any two of them against the defendant or his attorney, the petition shall be accompanied by the affidavit of the defendant or his attorney, stating that he believes the judge, or any two of them, as the case may be, are so prejudiced against the applicant or his attorney, that either cannot have a fair and impartial trial, and thereupon the .case may be tried by any other of the circuit judges of the circuit in which the case is pending, and the venue shall not be changed from the county in which the indictment is found or the information is filed, in such case.
21a. Change in contempt proceedings from judge impugned. When any defendant in a proceeding for contempt arising from an attack occurring otherwise than in open court, upon the character or conduct of a judge, which proceeding .is pending before the judge whose character or conduct was impugned, fears that he will not receive a fair and impartial trial before such judge, he may petition the court for a change of venue from such judge, such petition to be verified by affidavit of the defendant, and thereupon such change shall be granted.”

It is perfectly clear that by any definition the contempt in Goss was criminal and that it was indirect. It should also be noted that section 21 of the 1955 statute was the predecessor of section 114 — 5(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 5(a)). Roth involve the alleged prejudice of the judge and the right of the defendant, upon appropriate petition, for a substitution of judge. The appellee argues that the supreme court in Goss did not, in fact, rely upon section 21 of the 1955 statute but rather upon section 21a of the 1955 statute. He bases this argument upon the case of McAdams v. Smith, 25 Ill.App.2d 237, 166 N.E.2d 446. In McAdams the court was dealing with section 21 of the 1959 statute. This paragraph was identical with section 21 of the 1955 statute. McAdams involved a direct criminal contempt. In the McAdams opinion the court discussed the opinion of the supreme court rendered in People v. Goss, 10 Ill.2d 533, 141 N.E.2d 385, and in doing so stated:

“Although the court cites section 21, it is obvious that it must have intended to cite 21a. It is clear that in the Goss case the contempt was indirect; the court did not know the facts by its own observation in the courtroom, (25 Ill.App.2d at 244.)

We respectfully disagree with the McAdams’ court analysis of the statutory basis for the holding in Goss. The utterances in Goss did not constitute “° * * an attack upon the character or conduct of a judge * •* and thus the provisions of section 21(a) of the 1955 statute were not invoked. The Supreme Court, in Goss, relied upon precisely what it said it relied upon, section 21 of the 1955 statute. We therefore hold, under the command of People v. Goss, 10 Ill.2d 533, 141 N.E.2d 385, that the provisions of section 114 — 5(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 5(a)) govern application for substitution of judge in cases involving indirect criminal contempt. The denial of defendant’s motion constituted reversible error.

This holding is dispositive, and we see no need to reach other issues raised by defendant. Judgment reversed and cause remanded for further proceedings.

Judgment reversed.

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


source: Caselaw Access Project

author: Mr. JUSTICE SEIDENFELD

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Gloria J. Felton, Defendant-Appellee.
    (No. 73-173;
    Second District
    June 14, 1974.

      F. Lawrence Lenz, State’s Attorney, of Freeport (Dennis P. Drda, Assistant State’s Attorney, of counsel), for the People.
    No brief for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The State appeals from an order granting defendant’s motion to suppress a revolver as evidence seized from her in a warrantless search, after which she was charged with violation of weapons and gun-registration laws (Ill. Rev. Stat. 1971, ch. 38, pars. 83 — 2(a) and 24 — 1(a) (4)).

No answering brief has been filed by defendant. While such failure would permit the exercise of our discretion to reverse pro forma (People v. Spinelli (1967), 83 Ill.App.2d 391, 393), we have concluded that the merits of the case should be reached to avoid an unjust result. See People v. Marro (1972), 4 Ill.App.3d 197, 201.

At the hearing held on the motion to suppress, Officer Kramer of the Freeport Police Department testified that on March 20, 1973, he received a telephone call from an attendant at a gas station concerning a theft of sunglasses. He proceeded to the station where the attendant explained that the glasses were missing after two black men had tried on glasses while he put gasoline in their car. No mention was made of defendant, a black woman.

The attendant described the car, including the license number. Later the officer apprehended a car matching the description carrying two black men and the defendant. The officer asked the driver for his driver’s license, and ordered all of the occupants out of the car. After exiting the two men were frisked and defendant’s coat pockets were checked. The officer stated he had no reason to believe that defendant was involved in the theft of the sunglasses. Nor was anyone formally placed under arrest. When the driver asked the reason for the officer’s action, Kramer told him he was checking out a complaint and that the driver said “Go ahead.”

The car was then thoroughly searched by Kramer and another officer who arrived at the scene, but no sunglasses were found. Kramer then returned to the individuals and searched the crotch and belt area of the men, and rechecked the defendant’s coat pockets.

Officer Kramer further testified that defendant had her arms folded in front of her and was holding her leather hip-length coat shut. He asked defendant to remove her coat thinking that she might have the sunglasses concealed under the coat. However, defendant refused to do so, turned partially away, hesitated and directed what the officer considered a puzzled look toward one of the others. The officer asked a second time, then stepped in front of her, took hold of her hands and the coat at the same time and pulled them apart. As he did so, his right hand touched something hard near her left arm which turned out to be a loaded revolver.

Kramer testified that at no time did he ask defendant’s consent to search her person. He also stated that the gas station attendant’s complaint had made no mention of firearms and the officer had no reason to believe he would find any. Nor was Kramer apprehensive of an assault or attack against him at the time of the second search of the individuals.

On diese facts, the State contends that the search of the defendant was reasonable and therefore valid under the United States and Illinois Constitutions because the officer had probable cause to search the defendant even though the search was not incident to a valid arrest.

We conclude that under the circumstances shown in the record, the State did not satisfy its burden to prove proper justification for the warrantless search and that the court therefore properly granted the motion to suppress.

It is beyond dispute, as the State concedes, that both the Illinois and the United States Constitutions protect an individual from unreasonable searches and seizures. (See People v. Grod (1944), 385 Ill. 584, 586; People v. Tassone (1968), 41 Ill.2d 7, 10); and that a search may not precede an arrest and serve as part of its justification. Sibron v. New York (1968), 392 U.S. 40, 63, 20 L.Ed.2d 917, 934-935, 88 S.Ct. 1889.

Since Officer Kramer testified that he had no probable cause to believe that defendant had committed or was about to commit an offense and said that he did not arrest defendant before the search, the cases cited by the State which involve searches incident to a lawful arrest are not particularly helpful. (E.g. United States v. Rabinowitz (1950), 339 U.S. 56, 94 L.Ed, 653, 70 S.Ct. 430; People v. Holloman (1970), 46 Ill.2d 311; People v. Pickett (1968), 39 Ill.2d 88; People v. Georgev (1967), 38 Ill.2d 165; People v. Carlton (1965), 58 Ill.App.2d 163.) Recently decided United States v. Robinson (1973), 414 U.S. 218, 38 L.Ed.2d 427, 94 S.Ct. 467, is also distinguishable by these facts.

Likewise under the circumstances the warrantless search cannot be justified as a limited search for weapons. (Cf. People v. Moore (1966), 35 Ill.2d 399, 402-403; Terry v. Ohio (1968), 392 U.S. 1, 29, 20 L.Ed.2d 889, 910-911, 88 S.Ct. 1868.) And since the officer did not have probable cause to believe that defendant was committing an offense, People v. Tassone, 41 Ill.2d 7, People v. Moore, 35 Ill.2d 399, and In Re Boykin (1968), 39 Ill.2d 617, are similarly not controlling.

The State has suggested that defendant’s furtive gesture constituted an effort of concealment and was therefore an expression of the consciousness of guilt which warranted the officer’s further search, citing People v. Superior Court (1970), 478 P.2d 449. But the California court noted that looks and gestures and movements taken alone are insufficient to constitute probable cause to search since they may, in fact, be consistent with innocence. The court held that it is only when the furtive gestures are coupled with other circumstances tending to show- probable cause (such as open contraband or suspicious objects in plain view, or prior reliable information), that the suspicious movement will be included in the basis for finding probable cause for a search. Illinois authority is in agreement with this view. See People v. Reed (1967), 37 Ill.2d 91, 94. Compare People v. McKnight (1968), 39 Ill.2d 577, 579.

In absence of any showing of probable cause, the principles limiting searches under stop-and-frisk circumstances control. The pertinent Illinois statutes (Ill. Rev. Stat. 1971, ch. 38, pars. 107 — 14 and 108— 1.01) represent a codification of the holdings in Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868, and Sibron v. New York, 20 L.Ed.2d 917 (People v. Lee (1971), 48 Ill.2d 272, 278-279). Three restrictions are placed upon the right of policemen to “stop and frisk” individuals suspected of criminal acts: (1) the stop itself must be justified by specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant that intrusion; (2) assuming a valid stop, a limited search of the suspect for weapons is justified only if a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger; and (3) the authorized search is confined in scope to an intrusion reasonably designed to discover objects capable of use as weapons. People v. Watson (1972), 9 Ill.App.3d 397, 400.

The trial judge quite properly found that the search here did not come within the statute or decisions. When officer Kramer investigated the complaint at the gas station, no mention was made of the presence of a black woman (contrast People v. Fizer (1972), 9 Ill.App.3d 397 (abstract opinion)). Upon apprehending the vehicle described, no one was placed under arrest. Kramer did not ask defendant for identification or explanation of her activities, as authorized by section 107 — 14 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 107 — 14). Kramer had no reason to believe that defendant was involved in the theft of the sunglasses (compare People v. West (1973), 13 Ill.App.3d 550, 555; see also People v. McCarty (1973), 11 Ill.App.3d 421, 422), nor was the officer apprehensive of an assault or attack against him at the time of his second search of the individuals. No mention of firearms had been made and the officer had no reason to believe that he would find any (contract People v. Bennett (1973), 14 Ill.App.3d 225 (abstract opinion)).

In view of the circumstances of this record, the evidence secured through the search of defendant’s person originated in an unlawful act which made the evidence discovered inadmissible. The trial court’s order of suppression is supported by the evidence and we therefore affirm.

Affirmed.

GUILD and RECPIENMACHER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Casner, Defendant-Appellant.
    (No. 72-349;
    Second District
    June 14, 1974.

      Ralph Ruebner and Adam Lutynski, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gerry L. Dondanville, State’s Attorney, of Geneva (Clarence Wittenstrom, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

William Casner, the defendant, was convicted of rape, conspiracy, and battery after a jury trial. He was sentenced to a term of 5-15 years in the penitentiary for the offense of rape, 1-5 years for the offense of conspiracy, and to the time served awaiting trial for the battery offense.

Defendant appeals from the rape and conspiracy convictions contending that he was not proven guilty beyond a reasonable doubt; that the exposure of the jury to an Allen-type charge during the voir dire, closing argument and in the instructions requires a new trial; and that he may not be convicted for both the offenses of rape and conspiracy to commit rape.

From the entire record we have concluded that the evidence is sufficient to prove defendant’s guilt beyond a reasonable doubt. It would serve no useful purpose to go into the evidence in great detail. The complaining witness testified that she had agreed to work as a cocktail waitress on December 31, 1971, New Years Eve. This was the first and only time she had worked as a cocktail waitress. The defendant Casner and one Burch (who was indicted with Casner but whose case was severed for trial) were bouncers at the cocktail lounge. The prosecutrix drank several drinks during the course of the evening, more after closing, and became sick. She asked another waitress who had secured the employment for her to take her home but was told that she should find another ride as the other girl was going to a party. The witness testified that the lounge owners wife offered to take her home and that she assumed that she was going with her when the owners wife and another girl helped her out to the car. She testified that Casner and Burch also got into tire car; that she then passed out and that the next thing she remembered was being helped out of the car into the back seat of another car, with defendant driving and Burch also in front.

She said that from that point on she was sober and recalled everything although she was terribly ill. She may have dozed off from time to time but she assumed that she was being taken home. She then related the attacks by both the defendant and Burch, during the course of which she protested and was beaten by each of them.

A witness who had been employed as a babysitter testified that when the prosecutrix arrived home she was bruised about the face, under the left eye and showed blood under her left ear; her clothes were wrinkled and halfway off; her hair was terribly messed up; and she was hysterical and repeated that she had been beaten and raped. The babysitter called the police and the prosecutrix was taken to a hospital. The examining doctor testified that force had been used in the act of intercourse and that when he examined her the victim was in a highly emotional state requiring sedation. After the defendant knew that the police were looking for him he left the state and went to California, Nevada and Texas.

The defense essentially was that the complaining witness voluntarily engaged in the sexual acts. From the record we would conclude, as the jury apparently did below, that defendant’s testimony was improbable in its details, largely uncorroborated and generally incredible under all the circumstances. The verdict was based upon an abundance of supporting evidence and the record does not disclose a reasonable doubt of defendant’s guilt.

Defendant contends the jury’s exposure to an Allen-type charge during voir dire, during closing argument and in the written instructions, interfered with and prejudiced its deliberations.

The court in examining one of the prospective jurors stated that the verdict must be unanimous. The juror was asked whether he would listen to the arguments of other jurors if he found himself in the minority, and was reminded that if tire jury did not agree it would be necessary to have a trial before another jury, probably no better than this and chosen in the same way. Defense counsel did not object, but in examining the same juror inquired whether in view of the unanimous verdict requirement as stated by the court, the individual would still require that he be personally convinced of guilt and not sign a guilty verdict merely because he happened to be in the minority. In closing argument, defense counsel again admonished the jury in similar language. In the State’s closing argument, the prosecutor stated to the jurors that they were no longer individuals but parts of a unit and that the court would instruct them that it would take a unanimous verdict for conviction.

Over defendant’s objection tire court gave the following written instruction to the jury before it retired to deliberate:

“In a large proportion of cases absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror and not a mere acquiescence in the conclusions of others, yet you should examine the questions submitted with proper regard and deference for the opinions of each other, and you should listen to each other’s opinions with a disposition to be convinced. It is your duty to decide the case if you can conscientiously do so. If a much larger number of jurors favor conviction, a dissenting juror should consider the reasonableness of his doubt when it makes no impression upon the minds of other jurors, equally intelligent and impartial, and who have heard the same evidence. If upon the other hand, the majority favors acquittal, the minority should ask themselves whether they might not reasonably doubt the correctness of their judgment.
If you should fail to agree on a verdict the case must be retired. Any future jury must be selected in the same manner and from the same source as you have been chosen, and there is no reason to believe that the case would ever be submitted to twelve men and women more competent to decide it, or that the case can be tried any better or more exhaustively then [sic] it has been here, or that more or clearer evidence could be produced on behalf of either side.”

The defendant tendered and the court also gave the following instruction:

“Any verdict you reach must be unanimous. And in your deliberations you should examine the questions submitted with a proper regard and consideration for the opinions of each other. You should listen to each other’s arguments with an open mind, and you should make every reasonable effort to reach a verdict.”

As to the statement made in the State’s final argument, it should first be noted that no objection was made to the argument. In addition, it was not addressed to the “heed the majority” theme criticized in People v. Prim (1972), 53 Ill.2d 62, 73, 76, but rather was a response to a closing statement by defense counsel to the effect that a juror should not sign a guilty verdict if he might go home and a year later wonder if the defendant really were guilty. In the sense that the defense comments seem to border on an improper reference to a definition of reasonable doubt, it would appear that the commentary deserved some response by the State, which it received.

Part of the statement by the court in the voir dire examination referred to was similar to the admonishment found in the instruction tendered by the defendant. The statement additionally indicated as did the court’s written instruction that if the prospective juror found herself in the minority she should listen to the arguments of the others to see whether they were right and she was wrong; and did not give the same advice if she found herself to be in the majority. Also the statement referred to the necessity of retrial by a similar jury if no unanimous verdict could be reached. Thus the court’s statements in voir dire may be considered together with its written instruction in assessing the impact of the admonishments on the jury.

The case before us is not close on its facts. The jury deliberated only 1% hours in reaching its verdict on multiple offenses; the charge was given with the original instructions and not as a supplemental instruction after a deadlock had developed;; and both in voir dire and in closing argument defense counsel was permitted to emphasize the necessity of each juror being personally convinced of defendant’s guilt before returning a guilty verdict. Upon examination of all the circumstances, including the statements made in the course of voir dire examination, in closing argument and by written instruction to the jury, we conclude that the Allen-type statements given to the jury did not coerce or interfere with its deliberation to the prejudice of the defendant and thus did not constitute reversible error. People v. Iverson (1973), 9 Ill.App.3d 706.

This cause was tried before the opinion of People v. Prim. 53 Ill.2d 62, was filed. As we stated in People v. Iverson, 9 Ill.App.3d 706, 710, we do not approve the giving of an instruction such as we have before us or any admonishment that contains the “heed the majority” theme, and cases tried following the opinion in Prim must be guided by that opinion.

We, therefore, affirm the rape conviction. However, we are in agreement with the defendant’s argument that the conspiracy charge must be reversed.

Under the Criminal Code no person can be convicted of both the inchoate and principal offense. (Ill. Rev. Stat. 1971, ch. 38, par. 8 — 5.) Conspiracy is an inchoate offense. (S.H.A. ch. 38, par. 8 — 5, Committee Comments (1961).) It was, therefore, error to convict the defendant both for conspiracy to commit rape, and rape. People v. Miller (1966), 74 Ill.App.2d 356, 359.

The State contends the point is waived because it was not raised in the trial court, but confesses error if this court elects to entertain the point under the plain error doctrine. We do so elect. The error is both fundamental and patent and requires the conviction on the conspiracy charge to be reversed. See Ill. Rev. Stat. 1973, ch. 110A, par. 615(a); People v. Baker (1970), 130 Ill.App.2d 89, 93-94.

We, therefore, affirm the conviction on the charge of rape and reverse the conviction on the charge of conspiracy to commit rape.

Affirmed in part, reversed in part.

GUILD and RECHENMACHER, JJ., concur.


author: Mr. JUSTICE ALLOY Mr. JUSTICE STOUDER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Robinson, Defendant-Appellant.
    (No. 73-68;
    Third District
    June 13, 1974.
    STOUDER, J., dissenting.

      John Barton, of Barton and Barton, of Marseilles, for appellant.
    Robert E. Richardson, State’s Attorney, of Ottawa, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from an order entered by the Circuit Court of La Salle County in a post-conviction proceeding initiated by defendant James Robinson. From the record it appears that, following plea negotiations, James Robinson entered a plea of guilty to the crime of forcible rape.

The record discloses that the victim was an 86-year-old resident of a retirement home and that defendant had infected the victim with gonorrhea. The record discloses also that defendant was fully admonished in accordance with Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, § 402). The defendant was thereafter sentenced to a term of not less than 10 nor more than 40 years, based upon plea negotiations and the recommendation of the State’s Attorney. The court did not participate in the plea negotiations but accepted the recommendation of the prosecutor, and the sentence was consistent with such plea negotiations.

It appears that a few days following the proceeding in the trial court, the prosecutor prepared and signed, and the trial judge also joined in signing, an official statement or pen letter which included recitations of facts and circumstances relating to the defendant and the crime for which he was convicted. A recommendation was also included in the letter which specifically recited, “It is recommended that this defendant serve the maximum time possible under the 10-40 year sentence imposed upon him.” It appears also from the record that defendant James Robinson found out about the recommendation as a result of the fact that a friend of his, a fellow prisoner who was working in the record office at the diagnostic depot, saw the recommendation and showed it to defendant James Robinson.

Defendant Robinson thereafter filed a post-conviction petition alleging that the recommendation contained in the so-called pen letter violated the plea bargain, because, it is asserted, it would have the effect of substantially increasing the minimum time which defendant Robinson would be required to serve before he would be considered for parole. It is recited in the petition that defendant Robinson was not advised, prior to entering the plea of guilty, that such pen letter or recommendation would be made, and defendant also asserts in such petition that if he had known such recommendation would be made he would not have agreed to plead guilty. At the hearing conducted in connection with the sentence, and following plea negotiations, defendant acknowledged that he was pleading guilty because he was in fact guilty.

At the hearing on the post-conviction proceeding, the executive secretary of the Pardon and Parole Board testified that in his opinion, the recommendation by the judge and the State’s Attorney that the prisoner serve the absolute maximum on a sentence of from 10 to 40 years would be a factor which the board would consider in determining eligibility of defendant for parole. A former acting chairman of the Pardon and Parole Board, now acting as a special assistant to the State Appellate Defender, also testified that the recommendation would be a critical factor, but only one of many factors in determining parole eligibility. The testimony of the witnesses indicated that.they did not know who the members of the Parole Board would be at the time defendant would first come up for parole, and, also, did not know whether the Parole Board at that time would be influenced in any way by the recommendation of the State’s Attorney or the trial judge, and that they could not predict whether or not defendant would or would not receive parole at the earliest possible opportunity.

Defendant asks that the guilty plea be vacated on the premise that he was induced by false promises by the prosecutor and the trial judge and was not properly advised of the consequences of his plea before it was accepted, simply by reason of the fact that the pen letter was written to the Parole Board a few days after he was sentenced. Hiere is nothing in the record to indicate that there was any thought or discussion of the question of a pen letter or any recommendation in any respect whatsoever as to parole for defendant, when defendant pleaded guilty in the trial court.

The issue before this court has been specifically considered by the Supreme Court of this State in the case of People v. Hawkins, 54 Ill.2d 247. In the Hawkins case a statement had been prepared by the prosecutor, in which the trial court concurred, and in which a recommendation was made to the Parole Board that defendant would be an unfit subject for early parole because of the probability of his initiating trouble of an interracial nature. In that case, also, defendant contended that his guilty plea must be set aside because he was not advised that such recommendation would be made, and that the trial court and prosecutor violated the plea agreement by such course of action. In the Hawkins case the court specifically found that the filing of the State’s Attorney’s statement, concurred in by the court in that case, a short time afer sentencing, was not a fundamentally unfair procedure and was consistent with the obligations of the prosecutor and the court. It was pointed out in Hawkins that the State’s Attorney and the sentencing judge were required to be notified prior to defendant’s parole hearing in order to afford them an opportunity to express their views regarding the propriety of parole for defendant. It was also noted that, from a practical standpoint, the passage of time between sentencing and a defendant’s initial parole hearing might result in a diminution of recall of pertinent observations which might aid the Parole Board in determining if parole should be granted. The court therefore found that the making of the recommendation shortly after defendant’s sentencing is not improper.

As is true in this case, defendant in Hawkins relied on Santobello v. New York, 404 U.S. 257, 30 L.Ed.2d 427, 92 S.Ct. 495. As indicated in the Hawkins opinion in the supreme court, however, Santobello is not applicable to present case. In the Santobello case the prosecution clearly violated its prior agreement not to recommend a sentence. Also, in Smith v. United States, 469 F.2d 705, cited by defendant, the court found that where narcotics cases are involved, defendant must be advised that parole eligibility is precluded if there is a guilty plea. That case, clearly, is not applicable to the present issue. The observations of the Illinois Supreme Court in People v. Hawkins, 54 Ill.2d 247, 252, however, are particularly pertinent to the issue now before this court. The supreme court stated there:

“Parole has been classified as a matter of grace and clemency (People ex rel. Kubala v. Kinney (1962), 25 Ill.2d 491, 493) to which one incarcerated for a criminal offense has no right even though he may be eligible, because he may not demand his discharge before the maximum term of his sentence has expired. (People ex rel. Jones v. Brantley (1970), 45 Ill.2d 335, 338.) In the present case defendant would become statutorily eligible for parole upon the completion of the minimum sentence imposed, and defendant’s contention that said recommendation affected his possibility of parole is mere conjecture.”

Certainly no admonition was required as to any possible pen letter or statement which might be made by the prosecutor and trial judge in connection with parole. As indicated in People v. Hawkins, 3 Ill.App.3d 359, at 361:

“In People v. Chaney (Ill.App.2d) it was held after careful consideration of the relevant authorities, that the trial court need not admonish the defendant that as a consequence of a plea of guilty the State’s Attorney or some other person might oppose his parole. We reiterate this rule.”

The court in People v. Chaney, 2 Ill.App.3d 675, pointed out that to require that a trial court embark on problems relating to parole and actions of the Parole Board which might result from a recommendation of the prosecuting attorney or the court would involve the court in a “quagmire of uncertainty and irrelevant detail, almost incomprehensible in scope.”

It is clear from the precedents referred to, that the making of the recommendation following sentencing, is only what it purports to be— simply a recommendation. The Parole Board is entitled to a true reflection of the viewpoint of the prosecutor and the court as to parole for a prospective parolee. There was no bargain express or implied that the State’s Attorney or the court would not disclose what they felt to be the proper treatment of defendant in any communication to the Parole Board. It is also clear that the authority to parole, vested in the Pardon and Parole Board, has been classified as a matter of grace and clemency to which defendant has no right even though he may be eligible, and that his conduct in prison as well as other factors are considered by the Pardon and Parole Board in determining when and if parole should be granted.

On a review of the precedents and for the reasons stated, we find no basis for reversal of the order of the trial court denying the relief of withdrawal of the guilty plea requested in the post-conviction petition. The order of the Circuit Court of LaSalle County will, therefore, be affirmed.

Affirmed.

SCOTT, P. J., concurs.

Mr. JUSTICE STOUDER

dissenting:

I do not agree with the majority of the court. The evidence presented by the defendant in support of his petition for post-conviction relief is sufficient to require that such relief be granted and consequently I believe the trial court’s conclusion to the contrary is erroneous.

People v. Hawkins, 54 Ill.2d 247, 296 N.E.2d 725, the case principally relied upon by the majority, involves, as does this case, a post-sentencing statement accompanying the mittimus and is therefore a pertinent authority. However, because of significant differences between the procedure and facts in the Hawkins case and those in the instant case, I believe the reasoning and result in Haiokins are not appropriately extended to approve the trial court’s action in this case.

The differences I refer to are twofold. The first is that in Hawkins an appeal was taken from the original judgment and sentence, it appearing that the statement somehow or other became a part of the record on appeal. This procedure caused the appellate court in its review of the conviction to express grave doubts and concern that the issue presented by the statement was even reviewable. (See People v. Hawkins, 3 Ill.App.3d 359, 277 N.E.2d 893.) Because of the procedure involved, the supreme court upon further review, although dealing principally with the issue of the statement, was compelled to do so from a peripheral point of view and the court concluded that the absence of any evidence concerning the purpose and effect of the statement rendered the defendant’s position speculative and without merit. This brings me to the second difference between the Hawkins case and this case which is a difference in procedure, i.e., the present case involves a post-conviction petition and the presentation of evidence relative to such petition tending to show the effect of such a statement on defendant’s future incarceration. In this respect I believe the evidence fairly demonstates that at least by force of accepted policy and custom, the statement of the State’s Attorney concurred in by the trial judge recommending “* * * this defendant serve the maximum time possible under the 10-40 year sentence imposed upon him” meant that any meaningful consideration of defendant’s application for parole would be delayed or postponed. In other words, defendant’s potential release on parole would be considered as if a greater minimum sentence had been imposed.

The State in the court below and in this court sought to minimize the purpose and effect of the statement by suggesting that the statement is merely a recommendation and, consequently, whether the parole board attaches any significance to the recommendation is the parole board’s business and not that of the prosecution. Essentially this is the position which the court adopted in the Hawkins case where because of the absence of evidence it could not be determined how or to what extent such a statement would affect the defendant’s incarceration. Where, as in this case, the testimony of witnesses indicates the fact that such a recommendation will in effect extend the defendant’s minimum period of incarceration, the purpose, intent and effect of the statement are confirmed.

It goes with out saying that a plea of guilty is the highest order of proof in a criminal case since it represents a confession in open court that the accused is guilty of the offense charged. Such expressions of guilt are not to be regarded lightly and courts should give convictions based on guilty pleas their full legal effect where the record indicates such pleas are understandably and voluntarily made.

Whether pleas are voluntary has raised many questions in recent years and represents an area of our criminal justice system which is in a process of evolution. So far as the instant case is concerned I do not believe that any problem of adequate advice or admonishment is involved. Rather, I believe the issue to be resolved in this case depends on that aspect of voluntariness of a guilty plea related to inducement. It has only been a few years since courts officially recognized that plea bargaining existed, that it was a desirable feature of our justice system, and that disclosure of plea bargaining rather than concealment thereof better served the fairness of our procedures. It requires only a short memory to recall those days in which a defendant after arriving at a plea bargain with the prosecution was required to deny in open court that any bargain existed or that his plea was induced by any promises.

Supreme Court Rule 402(d) (Ill. Rev. Stat. 1971, ch. 110A, par. 402(d)) initially recognizes not only the existence and benefit of plea bargaining but does so with the requirement that the provision of the bargain be revealed in open court so that the Mai court may accept or reject the conditions thereof. Full disclosure of the terms of the plea bargain not only obviate possible misunderstanding or misrepresentation but also enable the court to proceed in accord with the terms of the bargain. If the trial judge believes the terms of the bargain are inappropriate the defendant is permitted by the rule to withdraw his proposed guilty plea, to plead not guilty and thereafter to avail himself of the further processes of the law.

Having now fully approved the concept of plea bargaining it seems to me that the elements of full disclosure and good faith compliance with the terms of the bargain become essential ingredients in determining whether the plea is voluntary. Where, as in this case, a particular minimum sentence is recommended by the State’s Attorney, is agreed upon by the parties, and, where a greater minimum sentence could have been imposed in accord with the statute, the defendant may justify assume that his parole eligibility and hence his incarceration will be governed by the applicable statutory provisions concerning eligibilty for parole. In the instant case the State initially proposed that in return for a guilty plea a sentence of from 20 to 60 years would be recommended. The defendant unequivocally refused to accept such proposed recommendation. The effect of the post-sentencing statement is to modify or amend without the knowledge of the defendant the legal effect of the minimum sentence imposed, thereby constituting a failure of the court to accept and impose sentence in accord with the provisions of the plea bargain. If on the one hand the court may impose a minimum sentence less than could have otherwise been meaningfully imposed and at the same time by action undisclosed to defendant materially modify the minimum sentence, it seems to me that such action is contrary to our concept of fairness. The relationship between the court’s recommendation and the action of the Parole and Pardon Board is neither defined by statute nor judicial precedent, thus permitting covert informal arrangements to exist without formal sanction. Under such circumstances a defendant may be induced to plead guilty by a proposed recommendation which the prosecution is willing or anxious to make, well-knowing that without the knowledge of the defendant the sentence can be modified to the defendant’s disadvantage. If the court in accepting such a recommendation believes that the terms of the arrangement are satisfactory and acceptable it goes without saying that if the court then takes action which is in effect contrary to its previous holding concerning the appropriateness of a minimum sentence we have a situation likely to promote misunderstanding and confusion.

Granted that in People v. Hawkins, 54 Ill.2d 247, 296 N.E.2d 725 the court held that Santobello v. New York, 404 U.S. 257, 30 L.Ed.2d 427, 92 S.Ct. 495, was inapposite because the State’s Attorney in the Hawkins case made no recommendation concerning the post-sentence statement as a part of the plea bargain. But the court was able to do so because in the absence of any evidence of the effect of the recommendation it could not be said that the defendant’s sentence was adversely affected by the prosecution’s action. Whether or not the prosecution included as a specific term of the plea bargain any reference to a post-sentencing statement would seem to be immaterial when the effect of such action is, as in the present case, established by evidence. The conclusion that the defendant has been misled to his disadvantage seems to me inescapable. It also should be noted that in a plea bargaining situation the prosecution and the defense are not adversaries when it comes to seeming approval and performance of a plea bargain. The parties have a unity of interest, for whatever their individual reasons might be, in having a plea bargain accepted, approved and performed by the court. This places an added burden on the prosecution to see that the provisions of the bargain are earned out and, conversely, creates a duty that the prosecution take no action contrary to the terms of the agreement or which might defeat its terms.

Doubtless, a post-sentencing statement is both a necessary and desirable procedure in acquainting the Department of Corrections with the details of the offense and tile factors which influenced the court in imposing the sentence which it did. However, I have substantial doubt that it is either necessary or desirable to include in such a statement any recommendation concerning the defendant’s future eligibility for parole. Such recommendations are usually sought at the time parole is considered and, accordingly, it would seem proper that any recommendations be made at that time. This is particularly true where the recommendation is inconsistent with what the court has already held to be an appropriate sentence. Where the prosecution intends to make such a recommendation it seems to me that due to the effect thereof, fundamental fairness requires that such intention be disclosed to the defendant.

Historically courts justified disregard of the existence of plea bargaining by rationalizing that only guilty persons pleaded guilty and those accused of criminal offenses had no right to any particular sentence. Since such reasoning has now been rejected it seems inconsistent to me to now declare that parole is a matter of grace available to persons who have pleaded guilty only because they are guilty. The rules, regulations and standards which are applicable to parole under a system administered by a professional staff are designed to avoid the concept of parole as a matter of grace. While parole is not a matter of right, a criminal offender in custody does have the right to have his release on parole considered according to the rules and regulations free from arbitrary or capricious action.


author: Mr. JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerome Henderson, Defendant-Appellant.
    (No. 71-293;
    Fifth District
    May 27, 1974.

      Robert E. Farrell, of Office of State Appellate Defender, of Mt. Vernon, and Ted Mannen and William L. Clark, Senior Law Students, for appellant.
    W. C. Spomer, State’s Attorney, of Cairo (Ralph J. Mendelsohn, Assistant State’s Attorney, 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 Alexander County, on a jury verdict, against the defendant, Jerome Henderson, for the offenses of attempt murder and attempt armed robbery, and the imposition of sentences of 4 to 12 years for attempt murder and 2 to 7 years for attempt armed robbery, said sentences to run concurrently.

The defendant contends: first, that the “one-man show up” of the defendant was overly suggestive; secondly, that the identification was the fruit of an unlawful arrest; and lastly, that both convictions were based on the same conduct arising from a single transaction.

Marion Verble, a gasoline station attendant, was stabbed by his assailant who succeeded in taking money from him. Verble then fought his assailant and recovered the money from him. The assailant then again stabbed Verble and fled, after stating that he was stabbing him to “do away with the evidence.” Approximately 3 days after the above incident, the complainant was shown a group of photographs by the police. The complainant identified a photograph of the defendant as being the alleged assailant. Based upon this tentative identification by the complainant the defendant was contacted and asked to come to the police station.

Upon the defendant’s arrival at the police station, he was questioned briefly and then taken to the hospital wherein the complainant was recuperating. The defendant was taken into the complainant’s room and was identified by the complainant as the assailant who had attempted to rob and had stabbed him. Subsequently, the defendant was again brought to the hospital and in the presence of numerous police officers, he was identified by the complainant.

It is now argued that the procedures followed in displaying the defendant to the complainant were so unnecessarily suggestive as to cause the complainant to misidentify the defendant as the alleged assailant. It is well established that if the confrontation is so suggestive that it deprives a suspect of due process of law, the evidence of identification is rendered inadmissible. Stovall v. Denno (1967), 388 U.S. 293, 18 L.Ed. 2d 1199, 87 S.Ct. 1967; People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152.

There are several situations, however, in which a “one-man show up” is justified. One such situation is where a showing in a hospital is necessitated by the uncertainty of the victim surviving. (Stovall v. Denno (1967), 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967; People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152; People v. Owens, 126 Ill.App.2d 379, 261 N.E.2d 785; People v. Boyce, 113 Ill.App.2d 266, 252 N.E.2d 71.) In Stovall, the United States Supreme Court upheld the validity of the identification and stated:

“The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned. However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, and the record in the present case reveals that the showing of Stovall to Mrs. Behrendt in an immediate hospital confrontation was imperative.” 388 U.S. at 302, 18 L.Ed.2d at 1206, 87 S.Ct. at 1972.

In Owens and Boyce Illinois appellate courts upheld “one-man show up” identifications in hospitals even though the witnesses were not in critical condition. Therein the procedure was justified on the ground that the victim faced hospitalization for a considerable length of time.

In the instant case the evidence in the record discloses that on April 29, 1971, the day of the “one-man show up,” the complainant was in critical condition. At the pre-trial hearing on the motion to suppress the identification William Bowers, a Cairo police officer, stated that he knew the extent of the complainant’s wounds, that the complainant had been in surgery and his condition was critical.

Under such circumstances the single suspect identification of April 29, 1971, was justified and not so suggestive as to violate the defendant’s right to due process of law. This is even more apparent when it is realized that the “one-man show up” did not occur until after the complainant had identified the defendant from a group of eight photographs. Accordingly, we find no merit in the defendant’s contention that the single-suspect identification was overly suggestive.

Next, it is argued that said identification was the fruit of an unlawful arrest and as such should have been suppressed. That claim was advanced by the defendant in a pre-trial motion to dismiss the indictment, but the motion was denied. The State, while conceding that the defendant was arrested without a warrant, maintains that there was probable cause for such an arrest.

A warrantless arrest is justified when the arresting officer has reasonable grounds to believe that a person is committing or has committed an offense. (Ill. Rev. Stat. 1969, ch. 38, sec. 107 — 2(c).) “Reasonable cause does not require evidence sufficient to convict one arrested, but requires only that a reasonable and prudent man having the knowledge possessed by the arresting officer at the time would believe the person had committed an offense.” People v. Doss, 44 Ill.2d 541, 546, 256 N.E.2d 753, 756.

In the instant case the police knew that a crime had been committed and that the victim thereof, who had a close look at the assailant, made a photographic identification of the defendant. We find that such particulars constituted reasonable grounds to suspect the defendant of the offense in question, and, therefore, the arrest, although warrantless, was lawful.

Finally, the defendant contends that both convictions, attempt murder and attempt armed robbery, were based on the same conduct arising from a single transaction. The thrust of this argument is that the State failed to establish that the two offenses were independently motivated or otherwise separable.

Section 1 — 7(m) of the Criminal Code (Ill. Rev. Stat. 1989, ch. 38, sec. 1 — 7(m)), which was applicable at all times relevant to the case at bar, provides that:

‘When a person shall have been convicted of 2 or more offenses which did not result from the same conduct, either before or after sentence has been pronounced upon him for either, the court in its discretion may order that tire term of imprisonment upon any one of the convictions may commence at the expiration of the term of imprisonment upon any other of the offenses.”

Thus, it is error to sentence a defendant for two or more offenses if each offense arises out of the same conduct. (People v. Duszkewycz, 27 Ill.2d 257, 189 N.E.2d 299.) This proscription applies whether the sentences imposed are to run concurrently or consecutively. (People v. Schlenger, 13 Ill.2d 63, 147 N.E.2d 316; People v. Miles, 133 Ill.App.2d 599, 273 N.E.2d 647.) The Criminal Code defines conduct as “an act or series of acts, and the accompanying mental state.” (Ill. Rev. Stat. 1969, ch. 38, par. 2 — 4.) Separate sentences may be imposed for distinct acts which are independently motivated or otherwise separable although they arise out of the same conduct. People v. Prim, 53 Ill.2d 62, 289 N.E.2d 601; People v. Steioart, 45 Ill.2d 310, 259 N.E.2d 24.

In People v. Hawkins, 131 Ill.App.2d 286, 288, 268 N.E.2d 511, 513, the court there held:

“We believe it is clear that the conduct which was proved as a basis for the attempt robbery conviction was factually, and under the definition of § 2 — 4, legally distinct from the conduct which evidenced attempt murder.”

Likewise, in People v. Garry, 131 Ill.App.2d 715, 268 N.E.2d 568, it was held that attempt murder and attempt armed robbery were two separate offenses. In Garry, the court stated that attempt murder includes an additional element other than attempt robbery, i.e., the intent to kill. In People v. Tittsworth, 131 Ill.App.2d 907, 268 N.E.2d 884, the defendant was convicted of robbery and involuntary manslaughter and the court similarly held that the two offenses were independently motivated and that separate concurrent sentences could be imposed. This court, under a set of facts similar to those herein present, had an occasion, in People v. Ike, 7 Ill.App.3d 75, 286 N.E.2d 391, to affirm concurrent but separate sentences for the offenses of attempt murder and armed robbery. Therein we stated “that though the robbery and attempted murder arose out of closely related acts of defendant they nonetheless constituted two separate and distinct offenses * * *.” 7 Ill.App.3d at 81, 286 N.E.2d at 395.

We believe that two separate and distinct offenses were charged here. From the testimony of the complainant it appears that the attempt murder was subsequent to the time the attempt armed robbery was perpetrated. And, the words attributed to the defendant indicate that the attempt murder was motivated, not by a desire to rob the complainant, but by an intent to “do away with the evidence.” Applying the “independent motivation” test to the instant case, we find that the sentencing of the defendant to concurrent sentences for attempt murder and attempt armed robbery was, under the circumstances herein present, proper.

A like result would be reached under the Unified Code of Corrections; see People v. Siglar, 18 Ill.App.3d 381, 309 N.E.2d 710.

In view of the foregoing the judgment of the circuit court of Alexander County is affirmed.

Judgment affirmed.

CARTER and CREBS, JJ., concur.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lamont Irons et al., Defendants-Appellants.
    (No. 72-106;
    Fifth District
    May 27, 1974.

      Robert E. Farrell and Richard E. Cunningham, both of Office of State Appellate Defender, of Mt. Vernon, and Frank Kerzisnik, Senior Law Student, for appellants.
    Robert H. Rice, State’s Attorney, of Belleville (James W. Jerz and Martin P. Moltz, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Defendants were convicted in a jury trial in the Circuit Court of St. Clair County on each of three counts of an indictment charging armed robbery. They were sentenced to tire penitentiary for terms of not less than 8 nor more than 10 years. A third person, also charged in the indictment, was not apprehended. In this appeal it is contended that the trial court erred in denying a motion to suppress identification testimony and in admitting certain physical evidence. It is also contended that the State failed to prove guilt beyond a reasonable doubt and that the sentences imposed were excessive.

The robbery occurred about 6:10 P.M. on March 13, 1971, when three men entered the Comet Liquor Store in East St. Louis and at gun point took $335 from the cash register, $125, a watch and ring from a customer, and $31 from a part-time employee. When the men came in, all three of the victims were in the back part of the store watching television. They were told that “This is it,” and were forced to assume kneeling positions in the back storage room with their faces to the wall. When the cash register, located at the front of the store, was found to be locked the proprietor, Mr. Newell, was ordered to come and open it. One of the robbers demanded that he remove the bills and change and put them on the counter. Having done so, he was ordered to put it all in a bag and then was escorted back to the back room where the robbers proceeded to rifle the pockets of the other individuals, taking their money and jewelry.

At the trial all three victims testified that at the time of the robbery it was still light outside and that the store and back room were well lighted with fluorescent lights. Robinson, the part-time employee, and Domescik, the customer, testified that from their first view of the robbers as they entered the store, each of them looked to be of slight build, young, slender and about 5' 9" to 5' 10" tall. Having had so little opportunity to observe the robbers before being forced to kneel and face the wall, they stated they were unable to identify the defendants, but could only say that defendants resembled them in appearance. Newell testified that he had a good look at all of the robbers and that he was positive of his identification of defendants based on his face-to-face confrontation with them during the several minutes it took to open and empty the register and place its contents in a bag.

Another witness, Clifford Williamson, stated that at the time of the robbery he was standing in front of an oil station across the street about 50 or 75 yards from the liquor store. He noticed a 1954 Willys automobile in the liquor store parking lot, and though he never did see anyone leave or enter it, he did see it being driven away immediately after the robbery. A week later defendant Irons was arrested in a 1954 Willys, and on the basis of Williamsons testimony that this was the same car he had previously seen at the time of the robbery, it was admitted into evidence.

Both defendants offered alibi evidence, Robinson to the effect that he was at a friend’s house at the time, which testimony was supported by the friend; and Irons to the effect that he was playing pool at a pool hall, which evidence was offered by .three friends.

We shall first consider the contention that the Willys automobile should not have been admitted into evidence. Williamson testified that he first noticed the Willys because he was interested in antique cars, that he had once owned a 1937 Willys and was familiar with the make, that 1955 was the last year it was manufactured, and that he had not seen one in 5 or 6 years. He also noticed that this particular car was a two-tone, dark-over-light, that it was a four-door, and that most of the Willys he had ever seen were two-door sports cars. Defendants argue that such evidence was inadmissible because it was offered as testimony of an expert and Williamson was not so qualified. It is also argued that the car was never connected with the robbery. We cannot agree. The function of an expert witness is to draw inferences and reach conclusions from facts peculiarly within his knowledge and ordinarily beyond the capacity of the jury. Here, the witness merely recited facts which he observed or which were within his knowledge, and the inferences and conclusions to be drawn from those facts were left to the jury. To the witness the car was distinctive and it was the jury’s perogative to determine whether the witness could reasonably identify it the next time he saw it. Likewise, that it was connected to the crime and used by robbers was a reasonable inference for the jury to make from the facts before it. We find that the car was properly admitted into evidence as one facet to be considered in assessing defendant Irons’ connection with the robbery.

Defendants’ next contentions involving the alleged error of the trial court in refusing to suppress the identification testimony of Newell, and the failure of the State to prove guilt beyond a reasonable doubt, we shall discuss together because of their interrelation. Newell’s positive in-court identification is challenged on the grounds that it was unfairly influenced by unnecessarily suggestive police procedures in showing Newell pictures of two of the defendants prior to trial, and in holding a “tainted” line-up. At the hearing on the motion to suppress, it was brought out that on the day following the robbery Newell was shown two police mug shots, one of defendant Robinson, and one of Grimes (the accused who was not apprehended). Newell stated that though it was his opinion at that time that they looked like the men who robbed him he did .not then make a positive identification because he wanted to see them in person and did not want to base an identification on mere photographs. At a police line-up held on March 24, 1971, Newell positively identified both Robinson and Irons. Defendant contends that the line-up was impermissibly suggestive because it contained only these two defendants; and a third man who bore no physical resemblance to either of them. Further, Irons claims to have been prejudiced because he had to appear in the line-up with Robinson who had already been identified by photograph, and also because he was denied the right to counsel which he had previously requested.

We do not believe these contentions are well taken. The pictures were shown the day following the robbery and before anyone was in custody. Such a procedure is widely and effectively used in criminal law enforcement as a means of apprehending offenders as quickly as possible and is not to be condemned in and of itself. (Simmons v. United States, 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967.) Whether such a showing is impermissibly suggestive is dependent upon the individual facts of each case. Here, it is true that only one other man appeared in the lineup with defendants, but a line-up is not rendered defective or prejudicial merely because of its numerical composition or the manner in which it is conducted as such matters go only to the weight of the identification testimony. (People v. Williams, 117 Ill.App.2d 34.) Also, Irons was not provided with counsel, but one who has not been formally charged does not have a right to counsel as a condition to his appearance in a line-up. People v. Burbank, 53 Ill.2d 261.

Considering these matters individually and collectively we do not believe them to be so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. In any event, whether denial of due process actually occurred depends on whether the witness’ later indentification at the trial was dependent on or influenced by such events. The rule is that where a line-up or other confrontation is held improper, the in-court identification is nevertheless admissible if it has a prior independent origin. (People v. Spencer, 7 Ill.App.3d 1017.) Here, the witness had an opportunity to observe the robbers face to face for a number of minutes in a well lighted store as he complied with their demand to empty the cash register. Also, the general physical descriptions given shortly after the robbery matched those of defendants. Such facts reveal a sufficiently independent and uninfluenced source to stand as the basis for the witness’ in-court identification, and we find the trial court properly allowed the admission of such testimony.

As to whether defendants were proved guilty beyond a reasonable doubt, the rule is well established that a positive identification by even one witness, who had a good opportunity to observe an accused in terms of length of time, proximity and lighting conditions, is sufficient to sustain a verdict of guilty. (People v. Solomon, 24 Ill.2d 586; People v. Kriston, 12 Ill.App.3d 18.) Obviously, the jury in the case before us did not believe defendants’ alibis, nor were they obliged to. (People v. Taylor, 8 Ill.App.3d 727.) In the exercise of their function to weigh the evidence and determine the credibility of witnesses, they apparently did believe Newell, and it is not within our perogative sitting as a court of review, to reverse their finding on the grounds of insufficiency of evidence unless there is a reasonable and well founded doubt of gmlt, and the verdict is found to be palpably contrary to the weight of the evidence. (People v. Rose, 124 Ill.App.2d 447.) As indicated above we have reviewed the record in detail, and, applying these rules, we have found no basis for disturbing said verdict or for substituting our judgment for that of the jury. Accordingly, the judgment of the Circuit Court of St. Clair County with respect to both defendants is affirmed.

However, we do believe that this is an appropriate case in which to exercise our power to reduce sentences. Armed robbery is a Class One felony under the Criminal Code (Ill. Rev. Stat. ch. 38, sec. 18 — 2), and, as provided by section 5 — 8—1(c)(2) of the Unified Code of Corrections (Ill. Rev. Stat., ch. 38, sec. 1005 — -8—1(c)(2)), “the minimum term therefore shall be 4 years unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum * * At the time of the offense defendant Rons was 18 years of age and defendant Robinson was 17 years of age. Neither one of them was convicted previously. We do not deprecate the seriousness of their crime, but the sentences imposed can hardly be said to be indeterminate, nor do they give effect to the possibility of defendants’ rehabilitation. We therefore reduce the sentence of each defendant to a minimum of 4 years and a maximum of 10 years.

Judgment affirmed, sentence modified.

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


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Levon Kirkland, a/k/a Vernon McKinney, Defendant-Appellant.
    (No. 73-406;
    Fifth District
    May 27, 1974.
   PER CURIAM.

CARTER, J., took no part.

Robert E. Farrell, of the Office of the State Appellate Defender, of Mt. Vernon, for appellant.

Herbert J. Lantz, State’s Attorney, of Chester, for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Louis Miles, Defendant- Appellant.
    (No. 73-197;
    Fifth District
    May 29, 1974.

      Robert E. Farrell and Brenda E. Richey, both of Office of State Appellate Defender, 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:

On a plea of guilty in the Circuit Court of Williamson County defendant was convicted of burglary and sentenced to the penitentiary for a term of not less than 3 nor more than 12 years. In this appeal defendant contends that the trial court erred, (1) in failing to inform him that he had a right to counsel at the hearing in aggravation and mitigation, and (2) in failing to inquire further into the voluntary nature of his guilty plea when at sentencing defendant made a remark indicating that his plea may have been induced by threats.

At defendant’s arraignment, 2 days after the crime, he requested that he be allowed to plead guilty immediately. The record reveals the court’s reluctance to accede to this request, but, on defendant’s insistence, the court did agree to accept his plea after a detailed and thorough admonition as to his constitutional rights. Defendant makes no contention that at this time he did not intelligently and understandingly waive his right to counsel, nor does he dispute that the record clearly shows at this time that his plea was wholly voluntary, uninfluenced by any threats, promises or coercion.

The first question posed is whether the effective waiver of counsel at arraignment continues through subsequent sentencing procedures.

We find such question has been considered previously and answered strongly in the negative. In People v. Vesley, 86 Ill.App.2d 283, it was held that the imposition of sentence in a criminal case is a critical stage of the trial and within the rule that the right of an accused to counsel extends to all critical stages of a proceeding. (See also Mempa v. Rhay, 389 U.S. 128, 19 L.Ed.2d 336, 88 S.Ct. 254.) In addition, our supreme court has held that a finding of waiver will not be made unless it appears from the record in each critical stage of the proceeding the trial judge specifically offered, and the accused knowingly and understandingly rejected, the representation of appointed counsel. (People v. Hessenauer, 45 Ill.2d 63.) In People v. Hinkle, 1 Ill.App.3d 202, the court found that a sentence imposed upon a defendant following his guilty plea, with neither offer nor rejection of counsel during the sentencing process, will be required to be set aside as imposed without effective waiver of counsel, even though the defendant, who had no counsel at any time, expressly waived his right thereto at an earlier stage the proceeding.

We find the facts of the case before us come within these rules and are governed thereby. The record is clear, and, in fact, it is undisputed that defendant appeared without counsel at his hearing in aggravation and mitigation, and that sentence was imposed without any mention of defendant’s right to counsel, nor any offer being made to appoint counsel. Under these circumstances defendant’s previous effective waiver of counsel cannot be considered as a continuing waiver carrying over and through the subsequent sentencing process. We therefore affirm defendant’s conviction based upon the proper acceptance of his guilty plea, but we reverse the order imposing sentence and remand the cause with directions to vacate said sentence and to hold further proceedings consistent with the views herein expressed.

With reference to defendant’s second contention it appears that immediately following imposition of sentence and when the court was explaining to defendant his right to appeal, the following colloquy occurred:

“Court: * * * If you desire to appeal you may do so within 30 days.
Defendant: Can I tell you now that I do?
Court: Yes * * *
Defendant: Okay, cause when I was here before I said — you asked me if I was threatened to plead ‘guilty’ and I said ‘No’, but I can prove it.
Court: Alright, you can proceed with your Notice of Appeal * * * the Court Reporter will furnish you with a transcript of the proceedings.”

Defendant argues from the above that even though in previously accepting defendant’s plea the court may have properly determined its voluntariness in compliance with Supreme Court Rule 402(b) (Ill. Rev. Stat., ch. 110A, sec. 402), nonetheless, when confronted with defendant’s statement in the later proceeding that he was threatened, the court should have inquired further into the basis of his assertion. It is contended that the failure to do so gives rise to doubt as to voluntariness and casts a shadow upon acceptance of the plea. From the colloquy it would appear that defendant’s statement was not intentionally ignored by the court but rather inadvertently overlooked. Defendant did not press his point, nor does he make any specific statement on appeal that there were in fact any threats made to obtain his guilty plea. However, we tend to agree that further inquiry by the court would have been preferable, particularly in view of the fact that defendant was appearing without counsel. We therefore direct that in the new sentencing proceeding contemplated by this opinion further appropriate inquiries should be made of defendant in open court relative to said alleged threats.

There being no evidence at this time that defendant’s plea was other than voluntarily and understandingly made, the judgment of the Circuit Court of Williamson County is affirmed with the condition that if the court determines on further inquiry as above directed that defendant’s plea was not voluntary, then the judgment should be vacated and such further proceedings had as necessary.

Conviction affirmed, sentence set aside and cause remanded with directions.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Patrick Gillen, Defendant-Appellant.
    (No. 73-195;
    Fifth District
    June 4, 1974.

      Robert E. Farrell and Martin Carlson, both of Office of the State Appellate Defender, 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:

On a plea of guilty in the Circuit Court of Williamson County defendant was convicted of forgery and was sentenced to the penitentiary for a term of not less than 2 nor more than 10 years. In this appeal he contends that his guilty plea should be set aside because the record casts a substantial doubt on the voluntariness of his plea contrary to the requirements of Supreme Court Rule 402(b); and, in the alternative, that the trial court erred in faffing to advise him of his right to counsel at the time of sentencing, and that such error requires a vacation of the sentence and remandment for re-sentencing.

From the record it appears that defendant was 40 years of age and had pursued his education through IVz years of college. At his arraignment, the day after the alleged offense, the court read the information to him and informed him of, and explained his constitutional rights, including but not limited to his right to counsel, a preliminary hearing, consideration by the grand jury, a jury trial and the possible sentence involved. Defendant then informed the court that he wanted to waive counsel and all other rights and plead guilty. With great care the court again discussed defendant’s various rights and questioned defendant as to his understanding of each of them. Expressing his desire to waive counsel and a preliminary hearing, defendant stated that it would be “a waste of time; it is a waste of the State’s time and my time.” Later, again expressing his understanding of what he was doing in waiving his rights, he stated, “I am guilty and I would like to get started.” Finally, the following colloquy occurred:

“Court: Well, do you understand then, if you waive your right to trial by jury and plead guilty you will never be able to contest the fact that you were convicted of forgery?
Defendant: Yes, sir.
Court: You waived counsel, that’s right, Mr. Gillen?
Defendant: Yes. There is only one reason I would have and that is because I have a very severe heart condition, and in fact I am, I almost died last August. I am out of one kind of medicine and I would like to see my doctor.
Court: Are you sick now, do you think?
Defendant: I know I am. I am dizzy.
Court: Are you dizzy now?
Defendant: Yes, complications.
Court: Well, you say that you are feeling dizzy now and you are sick?
Defendant: Yes, sir.
Court: Mr. Gillen, before you waive all of these rights 888
Defendant: It is not that type of sick. It is just my heart jumping all around.
State’s Atty: May I inquire, is this a physical or a mental illness?
Defendant: It is physical. It is heart. I just would request as soon as possible some medical attention. They tell me upstairs that they do not have any.
Court: They can get you a doctor.
Defendant: I need one immediately.
Court: Well, do you want me to continue this proceedings then?
Defendant: No, sir. I would like to finish this.
Court: You want to finish this proceeding?
Defendant: Yes.
Court: Do you want to sit down? Are you feeling that bad?
Defendant: No.
Court: All right then, I think we were down to your right to trial by jury and whether you are going to plead guilty or not. Let me ask you, do you feel well enough to go on with this proceeding?
Defendant: Yes, sir. I would like to waive all rights and just throw myself on the mercy of the court.”

In answer to further questions defendant stated that he was making his plea of his own free will and accord, and that it was not induced by any threats or promises. He then described the manner in which he committed the crime — by signing another person’s name to a check without authority and with intent to defraud that person or the bank. The court then accepted the plea and the case was continued to permit preparation of pre-sentence report. In conclusion, the court informed defendant that he would direct the sheriffs office to arrange for him to see a doctor and to obtain such medicine as he might need.

At the sentencing hearing, held approximately 1 week later, the defendant attributed his crime and preceding difficulties to chronic alcoholism. The only mention made of his illness was that for the past 6 months he had been having trouble with his heart, that he thought he was in need of medical treatment more than incarceration, and that he would like to be considered for such treatment.

Defendant argues that this record does not affirmatively establish that his waiver of counsel and guilty plea were entered voluntarily as required by Supreme Court Rule 402(b), and that, to the contrary, the statements he made to the court regarding his illness and need for medical treatment necessarily cast substantial doubt on their voluntary nature. In his brief defendant suggests that the only conclusion to be drawn from the record is that his heart condition and need for treatment may have compelled him to plead guilty and to waive his constitutional rights. We cannot agree. Defendant is a mature individual with a far better education than average. It is perfectly clear from the record that defendant knew every detail of the crime with which he was charged, and that he freely and voluntarily admitted his guilt with a full understanding of his rights and the consequences of his waiving them. When the question of defendant’s illness came up, the court was most solicitous, but defendant interrupted him stating, in effect, that it was not the kind of sickness that would affect his decision to waive his rights, that he was not feeling so badly that he needed to sit down, and that he did not wish to have the proceeding continued, but wanted to finish it. In defendant’s subsequent sentencing proceeding there was no indication whatsoever that he considered his plea to have been other than freely and understanding^ entered. Also, it is interesting to note that even in the briefs on appeal it is not claimed that either his plea or his waiver of counsel was forced or induced by his heart condition. Rather, it is only suggested that the possibility may have existed. In the light of the record so strong to the contrary, we cannot accept such unfounded speculations. Accordingly, we conclude that the trial court’s acceptance of defendant’s waiver of counsel and plea of guilty was proper.

Defendant’s next contention is that the trial court erred in failing to advise him of his right to counsel at his sentencing hearing, and that such failure requires a vacation of the sentence imposed and remandment for resentencing. It is undisputed that defendant did appear without counsel at such hearing and that he was neither informed of his right to counsel nor was appointed counsel offered to him. The State argues that once having effectively waived counsel at an earlier stage in the proceeding such waiver remains effective through all subsequent stages, and, therefore, there was no need to advise defendant again of his right to counsel at the time of sentencing.

We have considered this identical point in the recent case of People v. Miles, 20 Ill.App.3d 131. It was our conclusion that imposition of sentence in a criminal case is a critical stage of a Mai and within the rule that the right of an accused to counsel extends to all critical stages of a proceeding (Mempa v. Rhay, 389 U.S. 128, 19 L.Ed.2d 336, 88 S.Ct. 254; People v. Vesley, 86 Ill.App.2d 283); and that a sentence imposed upon a defendant following his guilty plea, with neither offer or rejection of counsel during the sentencing process, will be required to be set aside as imposed without effective waiver of counsel, even though the defendant, who had no counsel at any time, expressly waived his right thereto at an earlier stage of the proceeding. People v. Hinkle, 1 Ill.App.3d 202; People v. Hessenauer, 45 Ill.2d 63.

We abide by our holding in Miles and the reasoning therein contained. Accordingly, the order of the trial court imposing sentence herein is reversed and the cause is remanded with directions to vacate said sentence and to schedule a new sentencing hearing during which defendant shall be informed of his right to counsel.

By reason of the affirmance of defendant’s conviction and remandment for re-sentencing we do not choose to consider defendant’s other contention relating to the imposition of the previous sentence.

The judgment of the Circuit Court of Williamson County convicting defendant of forgery is affirmed; the order imposing sentence is reversed and the cause is remanded for a new sentencing hearing.

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

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


author: Mr. JUSTICE CARTER

text:
    The People ex rel. William E. McGuire et al., Petitioners-Appellants, v. Paul W. Sympson, Warden, Illinois State Penitentiary at Menard, Respondent-Appellee.
    (No. 73-177;
    Fifth District
    June 5, 1974.
    Robert E. Farrell, of Mt. Vernon, and Richard D. Thomas, of Chicago, both of State Appellate Defenders Office, for appellants.
    Herbert J. Lantz, Jr., State’s Attorney, of Chester (David P. Rau, Assistant State’s Attorney, of counsel), for appellee.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

The defendants were each charged by criminal complaints in Menard County with two counts of burglary and one count of theft over $150. On December 22,1972, they pled guilty to those offenses and were sentenced to serve 4 to 6 years in the penitentiary.

On May 30, 1973, the defendants filed pro se a petition for a writ of habeas corpus in the Circuit Court of Randolph County. The petition alleged that the trial court before which they had previously entered pleas of guilty had lacked jurisdiction to enter judgments against them because they had not waived their rights to grand jury indictments. The petition further alleged that the relators were indigent and requested appointment of counsel.

The trial court entered an order on June 5, 1973, granting leave to proceed in forma pauperis and then denied the petition on the grounds that it “* * * does not state a cause of action and is insufficient in law.” No hearing was held and counsel was not appointed by the court.

The defendants’ first argument, that the petition should have been construed as a request for post-conviction relief, lacks merit. The defendants were convicted in Menard County. The Post-Conviction Hearing Act provides that a proceeding “shall be commenced by filing with the clerk of the court in which the conviction took place a petition * * (Ill. Rev. Stat, ch. 38, sec. 122 — 1.) The Circuit Court of Randolph County did not have jurisdiction to grant post-conviction relief to the defendants.

The defendants’ second point is that counsel should have been appointed to represent them for their habeas corpus petition. In People ex rel. Ross v. Ragen, 391 Ill. 419, the supreme court held that a defendant has no right to appointed counsel in a habeas corpus proceeding and stated:

“This being a case involving only the enforcement of relator’s civil right of personal liberty, separate and distinct from the criminal proceeding in which punishment for a crime was imposed upon him, he is not in the position of an ‘accused’ in a criminal prosecution. The court is neither authorized nor empowered to appoint counsel to appear for him.”

This rule has also been consistently followed in the Federal courts and should be followed in this case.

The defendants’ final contention is that the habeas corpus petition did raise a question of a jurisdictional nature. Habeas corpus relief is available after conviction was rendered by a court which lacked jurisdiction or where there has been some occurrence subsequent to the conviction which entitles the defendant to release. (People ex rel. Lewis v. Frye, 42 Ill.2d 58.) The defendants allegation is that there was a waiver of indictment but that the waiver was invalid. This does not raise a question of a jurisdictional nature. The mere allegation of a violation of Supreme Court Rule 401(b) presents neither a constitutional or jurisdictional question.

The dismissal of the habeas corpus petition by the Circuit Court of Randolph County is affirmed.

Judgment affirmed.

CREBS and EBERSPACHER, JJ., concur.


author: Mr. PRESIDING JUSTICE G. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Louis Albers, Defendant-Appellant.
    (No. 73-25;
    Fifth District
    June 5, 1974.
    Robert E. Farrell, of Mt. Vernon, and Bruce Stratton, of Springfield, both of Office of State Appellate Defender, for appellant.
    No brief filed for the People.
   Opinion by

Mr. PRESIDING JUSTICE G. MORAN.