author: Mr. PRESIDING JUSTICE SMITH

text:
    Edna F. Graham, Individually and as Ex’r of the Will of George Graham, Deceased, Plaintiff-Appellee, v. The City of Springfield, Defendant-Appellant.
    (No. 12200;
    Fourth District
    November 14, 1974.
    Richard L. Lott, of Springfield, for appellant.
    Graham and Graham, of Springfield, for appellee.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

Plaintiff sued the City of Springfield for damages to crops by flooding for 4 specific years alleging negligent operation in the operation of its dam impounding an artificial lake — Lake Springfield. Following a bench trial, damages were assessed for 2 years in the amount of $15,151.40. The City appeals arguing that the verdict is against the manifest weight of the evidence thus presenting to us the question of law as to whether the facts are inadequate to support the judgment that the City negligently and proximately caused the flooding resulting in damage to the crops. No issue is made as to the amount of damages — only, as we have said, the propriety of such.

That the City owed a duty to plaintiff to manage the dam in a manner so as not to cause unnecessary and excessive flooding is not disputed, that is, to so control the dam gates that such would not occur. The circuit court found that in the years of 1958 and 1960 there were occasions when the gates were lowered or opened “at a time when the lake was dropping.” Such acts, it said, constituted negligence.

This issue of law requires a recital of facts. Lake Springfield is owned by the City and was created in 1933. The dam creating the lake is about a fourth of a mile upstream from the farm of plaintiff. There are five concrete spillways. Each gate is 45 feet in length and the outlet gates are of the rolling drum type, which when raised to their highest point are 560 feet above sea level. They can be lowered 8 feet to 552 feet. The lake area is about 7 square miles and has a watershed of approximately 265 square miles. The gates can be lowered and raised as conditions dictate. In this regard, defendant reminds us that we must take into account in judging the conduct of the City the options available to the dam operator. This is correct, in our opinion, and we have it in mind in determining whether in the overall context, the negligence found by the trial court is against the manifest weight of the evidence.

During the 2 years in question, there was, as might be expected, a superfluity of rain. This event, naturafly, dictates a careful operation of the gates so as to prevent not only the flooding of the City’s power-generating facility at 562 feet, but the flooding of shoreline owners— possibly upstream owners on the creek flowing into the lake — and flooding downstream owners such as plaintiff. A judgment factor is involved as to just how much water is to be let out of the lake — that is, just how much should the dam be lowered and raised. This judgment partakes of anticipating how much water is flowing into the lake, which involves, as a concomitant, knowledge as to the saturation of the ground in the watershed. Obviously, there is an area where discretion is at large — that is, where judgment factors are so balanced that several alternatives may be correct, and the City argues that its conduct on the two occasions involved was in this area. This argument, of course, implies that during a period of heavy rain the dam will have to be lowered sufficiently to take care of the increased inward flow, and it implies further that sometimes flooding cannot be avoided. An expert estimated that if the five gates w“ere down to 1 foot below the surface of the lake, the water would pass over them at the rate of 750 cubic feet per second; if 2 feet, 2,120 cubic feet per second, and if 3 feet, 3,900 cubic feet per second. He also testified that the channel running through plaintiff’s farm — the full bank stage— could cany 2,500 cubic feet per second unless the river it runs into — the Sangamon — occasioned a backup. Plaintiffs property is located in a flood plain and defendant argues, therefore, that it is likely to be inundated regardless of how the dam is operated.

In 1958, the last days of July and the early days of August brought heavy rainfall and heavy flooding. Plaintiff argues that the dam was lowered all the way — 8 feet for several hours on August 1 which caused the flooding and that such excessive lowering was uncalled for and hence negligent. For July 30, an exhibit showed that the lake level was 559.97 in the middle of the afternoon and thereafter rose steadily due to heavy rains and attained a maximum level of 561.34 feet. On July 31, at 10:50 P.M., and on August 1, at 2:10 P.M., the lake gradually receded reaching a level of 561.10 feet at 2:10 A.M. The operator of the gates at that point lowered two gates to the maximum distance of 8 feet with an additional gate being set at the level of 555.4 feet. The City urges that bn á calculated inflow into the lake during this period of time there would be approximately 4,652 cubic feet per second, and regardless of the dam, tire creek flowing through plaintiffs land could not have accommodated this amount of flow. Defendant points to a creek which bypasses the lake and connects with the creek through plaintiffs farm some way downstream therefrom, to support the hypothesis that there would have been flooding in any event — the witness testified as to the cubic feet per second pouring from this secondary source — and that a resultant 8-foot flooding would extend all the way back to the dam. and hence over the farm.

As to 1960, there were heavy rains towards the end of the month of june. As to the year 1960, on June 23 at 2:45 P.M. the lake level was 561.01. At this time gate 1 was opened to a level of 555.6, or 4.4 feet, and gate 5 was opened to 556.5 feet, or 3.5 feet. In the next hour the level dropped .05 feet. There is no further recording of the level for 5 hours and 25 minutes. However, at 3:05 P.M. gate 1 was dropped to 553, and stayed at that level for 5% hours. Gate 5 was dropped to 556.3 at 3 P.M. and 556.2 at 4 P.M. Between 3:45 P.M. and 9 P.M., the lake had dropped another .21 foot. On June 25, at 9:35 P.M. gate 1 was completely closed.

It is obvious that on July 30, 1958, at .11:50 P.M. the lake was falling rapidly. Why gates 2 and 3 were then opened for 8 feet is beyond comprehension — it is no answer or rather no explanation, that the gate operator anticipated that the lake might rise because it might rain again. In our experience, it is always going to rain sometime in the future! As an aside, at no other time during the 4-year period was even one gate opened to 8 feet. The same is true as to 1960. There is no explanation whatsoever in the record for lowering the dam so substantially when the lake had started to fall.

Plaintiffs testimony was to the effect that except for two low places of approximately 15 acres there was no flooding on the farm from this bypass creek when it was out of its banks. Likewise, that there had been no prior crop loss of any extent prior to the building of the dam. However, in July, 1958, only 60 acres escaped damage out of 300. During the pertinent period in that year, though the corn was 7 feet tall, the water rose in a 12-hour period and completely covered it. After 6 or 8 hours it receded and the flow of water was always from the dam and not from the by-pass creek which connects down stream from the farm with the creek flowing from the dam. There is no tributary from the creek flowing through plaintiffs farm between the dam and the by-pass creek.

Another witness for plaintiff testified that he was farming in a similar area in July, 1958 and that water flooded out some of his land to a depth of 7 feet. He said that the flood came from the gates as the water rose so fast. He said it could not have come from the by-pass creek as the current was in a different direction, that is, down from the dam rather than backup. Another witness who had worked on plaintiff”s farm for 23 years prior to 1972 testified that the current in the creek indicated where the flooding came from — that is, from the dam.

The engineer employed by the city, David Wyness, though not so employed during the pertinent years, was in charge of the management of the gates on 1972. When asked to give a good reason for the action taken on August 1,1958, at 2:10 A.M. when the dam had one gate opened 3 feet and the lake was falling, for opening two more gates a full 8 feet, he testified that his records showed .80-inch rain on that evening at 9:30 P.M. We would note here that the gates were so opened — one at 3 feet and two at 8 feet — for many hours before the rain he referred to. Gates 2 and 3 were closed at 5 P.M. and 4:45 P.M. and after the first rain and before the second. The lake level had been falling for 5 hours with one gate opened at 3 feet, before the other two were opened 8 feet. The engineer’s explanation, if one could call it that, is hardly satisfactory, and this lack of any reasonable reason is one from which the court could properly infer negligence. The engineer testified that the decision to open the gates in full was not based upon the lake level but upon the anticipated lake level. Thus, the gates were then closed when the rain started coming down because, or so he testified, the lake was falling. He testified that it would be a proper procedure to raise or lower the gates a little at a time to see what effect this could have on lake level.

There is, in our opinion, sufficient testimony on which the circuit court could base a finding of negligence. We are not limited to documentary evidence — there were eyewitnesses as to the water flowing from the dam. Suffice it to say it is reasonable to find negligence in the act of lowering the dam when the lake itself is going down. There was data which shows that more water was being discharged than flowing in. There was no explanation as to why the two gates were dropped to their full level. These facts justify a conclusion of negligence — certainly, absent any explanation — or any satisfactory explanation. It needs no citation of authority that a reviewing court is not a super-factfinding body. In short, we are not at liberty to substitute our judgment as to the facts— which is not to say that we would have found differently. The judgment appealed from is well within the evidence; that is, it is not manifestly against the weight of the evidence. Accordingly, the judgment appealed from is affirmed.

Affirmed.

CRAVEN and SIMKINS, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE CRAVEN.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Silagy, Defendant-Appellant.
    (No. 12532;
    Fourth District
    November 21, 1974.
    Richard J. Wilson and Thomas Nelson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    No appearance for the People.
   Opinion by

Mr. JUSTICE CRAVEN.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Dye, Defendant-Appellant.
    (No. 12299;
    Fourth District
    November 21, 1974.

      John F. McNichols and J. Daniel Stewart, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Richard J. Doyle, State’s Attorney, of Danville (John R. McClory, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals from convictions entered upon his respective pleas of guilty to burglary and two counts of theft under $150. Concurrent sentences of 3 years to 20 years for burglary and 1 year on each charge of theft were imposed.

The pleas were made without any negotiation or bargaining. We agree with defendant’s position that the convictions upon tire charges of theft must be reversed. The defendant, with others, entered the home of one Jones, taking Jones’ property and that of his son. In People v. Schlenger, 13 Ill.2d 63, 147 N.E.2d 316, People v. Stewart, 45 Ill.2d 310, 259 N.E.2d 24, and People v. Whittington, 46 Ill.2d 405, 265 N.E.2d 679, it is said that sentences should not be imposed for each of several offenses resulting from acts which are not otherwise separable or independently motivated. It cannot properly be said that the respective thefts were independently motivated or otherwise separable from the burglary within the context of such decisional law.

Defendant also challenges the sufficiency of the court’s admonition under Supreme Court Rule 402 at the time of taking the plea. Such contentions are supported only by exploitation of certain language in People v. Harl, 11 Ill.App.3d 372, 297 N.E.2d 404. In People v. Butchek, 22 Ill.App.3d 391, 317 N.E.2d 148, it was pointed out that such language was dicta and that the functions of the admonitions required by the Rule was to establish a valid plea of guilty and not to provide a “bargaining tool.”

One such contention is that the plea is invalid in that the court failed to advise defendant that consecutive sentences might be imposed for the offenses charged. Where appropriate, an admonition concerning possible consecutive sentences is required under Supreme Court Rule 402. Section 5 — 8—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—4(a)) includes the language:

“The court shall not impose consecutive sentences for offenses which were committed as a part of a single course of conduct during which there was no substantial change in the nature of the criminal objective.”

At the time of sentence such language was operative and the admonition urged is not properly applicable. In addition, the record shows that the trial court observed that the consecutive sentences would not be imposed.

It is also urged that the plea is invalid in that the court failed to advise defendant that, upon the facts, sentence could not be imposed upon the respective thefts charged. The decisional rule of People v. Schlenger, 13 Ill.2d 63, 147 N.E.2d. 316 and People v. Stewart, 45 Ill.2d 310, 259 N.E.2d 24, guides.and limits the court in imposing sentence. Such, however, is not incorporated within, or a part of, the text of Supreme Court Rule 402. The “bargaining tool” argument upon which defendant relies is no longer viable, as we have noted, and since there is no claim of a plea bargain, the argument is not appropriate.

Burglary is a Class 2 felony. (Ill. Rev. Stat. 1973, ch. 38, par. 19— 1(b).) In the course of admonishing defendant as to the nature of an indeterminate sentence, the court stated several illustrations. He also referred indirectly to section 5 — 8—1(c)(3) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c)(3)), which provides that as to a Class 2 felony, the minimum sentence was not to be greater than one-third of the maximum. The phraseology was that the “maximum cannot be greater than three times the minimum.” Again, as one of the several illustrations of indeterminate sentence, it was stated that defendant might be sentenced to a maximum of 20 years and a minimum of 6 years and 4 months.

Since a correct computation is that the minimum would be 6 years and 8 months, it is urged that the inaccuracies in phraseology make the plea invalid. The statutory provision that the “minimum shall be set according to the following limitations” is a direction to the court in imposing sentence. Supreme Court Rule 402 does not expressly require that the court admonish concerning the provisions of the statute so limiting the minimum term. Such limiting provision becomes relevant only at the time of the hearing upon sentence which follows the taking of the plea. In People v. Butchek, 22 Ill.App.3d 391, 317 N.E.2d 148, it was determined that admonition under Supreme Court Rule 402 as to the minimum sentence means the statutory minimum set out in the statute defining the offense.

The admonition of the trial court was detailed and complete. As stated in People v. Doyle, 20 Ill.2d 163, 166-67, 169 N.E.2d 250:

“[T]he remarks and advice of the trial court must be read in a practical and realistic manner. The essentials have been complied with if an ordinary person in the circumstances of the accused would understand them as conveying the information required by the rule.”

The record shows “substantial compliance” within the terms of People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559. In People v. Dudley, 58 Ill.2d 57, 316 N.E.2d 773, the court found that there had been no compliance with Supreme Court Rule 402(b), which directs that the record shall set out the terms of a plea agreement. The Dudley opinion reiterates the position stated in People v. Morehead, 45 Ill.2d 326, 332, 259 N.E.2d 8:

“It is not the policy of this court to reverse a judgment of conviction merely because error was committed unless it appears that real justice has been denied * #

Here, as in Dudley, there is no claim that the plea was not voluntary, or that there was actual harm or prejudice.

The record shows that the court directed that no mittimus be issued upon the conviction for theft and it is thus unnecessary to remand.

The conviction for burglary is affirmed, but the convictions for theft are reversed.

Affirmed in part, reversed in part.

SMITH, P. J., and SIMKINS, J., concur.


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Cedric Nicks, Defendant-Appellant.
    (No. 12046;
    Fourth District
    November 21, 1974.

      John F. McNichols and J. Daniel Stewart, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Jerry Finney, Senior Law Student, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant, Cedric Nicks, appeals from three judgments entered on three jury verdicts finding him guilty of three counts of armed robbery and from a sentence imposed of 10 to 30 years to be served consecutively to a prior armed robbery sentence. Defendant raises the following issues: (1) Whether the trial court abused its discretion in not ordering a competency hearing, (2) Whether defendant was proven guilty beyond a reasonable doubt, (3) Whether the trial judge erred in implying that defendant had been charged with prior criminal offenses, (4) Whether only one judgment'should have been entered because the three counts of armed robbery arose from a single transaction, and (5) Whether the sentence is excessive.

On April 7,1972, defendant appeared pro se for arraignment after being charged by information with the February 12, 1972, robbery of Rudow’s Market in Decatur, Illinois. On April 13, 1972, defendant appeared without counsel and told the court that he had dismissed his counsel. Defendant promised to obtain other counsel. On April 17, 1972, defendant again appeared pro se and told the court that he did not try to obtain counsel. Defendant did not respond to further questioning. The court then appointed the public defender to represent defendant. On June 12, 1972, Alan Bennett, the Macon County public defender, moved to withdraw as counsel for defendant stating that he had previously represented defendant in another case, that defendant would not cooperate or give the information or assistance needed in the defense of that case, that defendant’s family has complete control over litigational decisions made by defendant, and that defendant has told him that he no longer wanted his representation. After a hearing the court granted Mr. Bennett’s motion to withdraw as counsel. On June 30,1972, defendant once again appeared pro se and refused to respond to questions regarding representation. The court then appointed new counsel.

At the trial, Douglas Whitfill, the manager of Rudow’s Market, testified that on the evening of February 12, 1972, a man walked into the store, pushed a sack through his office window, pointed a gun at him, and stated, “This is a hold-up, give me all your money.” He then proceeded to put the money into the sack. After handing the robber the sack, he left the office and walked with the robber to the check-out counters where the robber asked the two checkers for their money, put it in his sack, and ran out of the store. He further stated that the robber was in the store approximately 5 minutes and described him as black, having a goatee, weighing about 150 pounds, being about 5'8", and wearing a beret, sun glasses, and a green jacket. He stated that two weeks after the robbery he viewed a line-up and identified defendant as the robber. On cross-examination he stated that he identified defendant on the basis of size, and that he could not positively identify defendant as tiie robber.

Paula Percival testified that on the evening in question she was working check-out at the market when she saw a man behind her with a gun. She stated that the robber-told her to give him the money which she proceeded to do. She stated that defendant -was carrying a bag and described the robber in a fashion similar to that given by Whitfill, adding that the beret was green and the robber was wearing green pants. She further stated that several weeks after the robbery she viewed a lineup and identified defendant as the robber. On cross-examination she stated that she identified defendant because he looked similar to the robber (although he no longer had a goatee), was the same size and was black. She stated that other than that she could not identify defendant as the robber.

Paul Layton testified that on the evening in question he was working in the store and saw a man standing between the two check-out counters. He proceeded to describe the robber in a fashion similar to that given by WhitfiH and Percival. He further stated that several weeks after the robbery he viewed a line-up and identified defendant as the robber mainly on the basis of height and color.

Joe Nathan Davis, defendants half-brother, was called by the State and testified that on the evening in question defendant asked Debbie Schwenker to take him to see a girl friend in her car. Debbie and he proceeded to take defendant, but the girl wasn’t home. He stated that they drove defendant over by Hess Park near Broadway to see another woman, but he didn’t see where defendant went. He further stated that while defendant was gone, he and Debbie waited in the car and talked. He stated that after a while defendant returned with a bag, the same bag he had when he left home. He stated that he wasn’t certain what was in the bag, and that there was no conversation between the three upon defendant’s return. The three then drove to the Marilyn McKenna residence. He stated that while there defendant lent him approximately $100, along with another $100 the next evening. This money was divided between Debbie and himself. He stated that the following day defendant, Marilyn, Debbie and he went shopping in Springfield. After this witness was excused the record reads as follows:

“(At this point the defendant violently overturns counsel table. Defendant starts shouting at prosecutor and jury such words as “Shoot me” and “I’ll kill you.” A black woman from spectator section comes rushing up to defendant and starts addressing the jury panel. Defendant and woman began praying, getting on knees at counsel table, loudly sobbing and yelling. Court bailiffs and personnel attempt to restrain.)
The Court: Just a moment. Will you take her out of the courtroom. We will have no such demonstration at any time. Take her out of the courtroom. She is excluded from the courtroom. For right now leave her here until we have — leave her here, and she will be quiet or she will be removed. Now you hear that? We will have no such demonstration at any time. This court will absolutely not tolerate that. Now you know better than that. You’ve had ex- • fifia» penence .

The next day the court stated in reference to the disturbance:

“The Court: * # * There was quite a disturbance in the courtroom with a table being up-ended, defendant on his feet yelling and pointing, a woman in the courtroom coming up and addressing the jury about ‘the defendant has brain damage.’ Also had to be forcibly removed from within the bar * # *”

The woman was identified as defendant’s mother:

“The Court: She came through the gate up by the jury stand yelling and crying Tie’s got brain damage’ and started to use prayers and what not and it was with some difficulty that we got her back to the audience side * * * The record I’m sure doesn’t show that she started yelling, talking, and getting down on her knees around the counsel table * * *”

Debbie Schwenker testified that on the evening in question defendant asked her and Davis to take him somewhere. They then drove in front of a house off Main where defendant left the car and returned 10 minutes later. They then took defendant to visit a lady and parked near Garfield Street on Central Avenue. She stated that where they parked was about two or four blocks from Rudow’s Market. She stated that defendant then got out of the car, told them to wait, returned a half-hour later, ducked down on the floor and in a very loud voice said “Go.” They then drove to Marilyn McKenna’s house without any conversation. She stated that Davis and defendant went into the house first, and when she finally entered she went into the bedroom and “there was some money on the bed and Cedric and Marilyn was standing, counting the money.” She stated that she received money from Davis on that evening and the next, at which time defendant, Davis, McKenna and she went shopping in Springfield. She further testified that on the evening in question defendant was wearing a green army jacket and a beret style canvas colored hat. She also stated that she had seen defendant with a goatee but couldn’t recall when.

At the close of the State’s evidence, the defense stated that it had no evidence to offer and rested. The jury then returned a verdict of guilty on all three counts for the armed robbery of Douglas Whitfill, Pam Stogs-dill, and Paula Percival and judgment was entered on all three verdicts. After the hearing in aggravation and mitigation the court stated that only one sentence for armed robbery should be given because the three judgments arose out of the same occurrence. The court then imposed a 10- to 30-year sentence for the armed robbery to run consecutively to a previous armed robbery sentence.

Defendant first contends that the trial court abused its discretion in not ordering a competency hearing. Section 104 — 1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 104 — 1) states:

"For the purpose of this Article, ‘incompetent’ means a person charged with an offense who is unable because of a mental condition:
(a) To understand the nature and purpose of the proceeding against him; or
(b) To assist in his defense # * *”

The statute goes on to state that if at any time during the course of the trial and before the pronouncement of sentence the court has “reason to believe” that defendant is incompetent to stand trial, the court shall conduct a competency hearing. The “reason to believe” standard has now been replaced by a “bona fide doubt” standard under the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 2—1). (See also People v. Bender, 27 Ill.2d 173, 188 N.E.2d 682.) Defendant cites various instances during the course of the trial which, if it is contended, should have given the court “reason to believe” defendant was incompetent or which should have raised a “bona fide doubt” of defendant’s competency. First, the pretrial colloquies between defendant and the court concerning securing representation and defendant’s refusal to respond to further questioning in that regard. Secondly, reference is made to Public Defender Bennett’s motion to withdraw as counsel for defendant citing defendant’s refusal to cooperate and the fact that the defense presented no evidence in defendant’s behalf either at the trial or the hearing in aggravation and mitigation. Finally, reference is made to an incident in which defendant overturned the counsel’s table and shouted at the prosecutor and jury “Shoot me” and “I’ll kill you.” Defendant’s mother then came running from the spectator section yelling “the defendant has brain damage,” and defendant and his mother then began praying and loudly sobbing and yelling.

Whether or not to hold a competency hearing lies within the sound discretion of the trial court. (People v. Pridgen, 37 Ill.2d 295, 226 N.E.2d 598.) In Pridgen defendant’s counsel stated to the trial judge that defendant was unable to remember anything about the crime, could not cooperate, and specifically requested the court to impanel a jury to determine competency. Defendant stated that he was suffering from amnesia and could not cooperate in the preparation of his defense. The court then received a behavior clinic report which stated that defendant could cooperate and knew the nature of the charge. In fact, defendant had undergone an operation for removal of a bullet from his brain. The trial judge, however, refused a sanity hearing and was affirmed.

The instant case is not nearly as compelling as the factual situation in Pridgen. Here no question was raised by anyone regarding defendant’s competency. Furthermore, although defendant certainly displays a belligerent attitude and a contempt for the processes of the court, there is nothing in the record to indicate that because of a mental condition defendant could not understand the nature of the proceedings or could not assist in his own defense. Nevertheless, the trial judge who had observed defendant throughout the pre-trial and trial proceedings is in a better position to make this decision than is this court, and a reading of the whole record does not indicate that this discretion was abused.

It is next contended that defendant was not convicted of the offense of armed robbery beyond a reasonable doubt. We do not agree. Defendant relies primarily upon the uncertainty of the identification testimony. Obviously, the line-up identification testimony was, indeed, highly equivocable and uncertain. Nevertheless, there is clearly enough evidence to sustain defendant’s conviction. Joe Nathan Davis testified that he and Debbie Schwenker drove defendant to a place near the scene of the crime on the evening in question. He also stated that defendant had a bag with him when he left the car and returned with the bag. The store employees testified that the robber placed the stolen money into a bag. He also testified to receiving various sums of money from defendant shortly thereafter and to going shopping with defendant the next day. Debbie Schwenker testified that on the evening in question she drove defendant to within two or four blocks of the market at which time defendant left. the car. She further testified that upon his return defendant ducked down on the floor and yelled “go” in a loud voice. She also stated that she then drove defendant to the McKenna residence and later saw defendant counting money in the bedroom. She also admitted receiving money from Davis shortly thereafter and shopping with defendant in Springfield the next day. She stated that on the evening in question defendant was wearing a green army jacket and beret (and had worn a goatee in the past). The testimony of the three store employees established that the robber was wearing a green jacket and beret. On the basis of the record before us there is clearly no reason to disturb defendant’s conviction.

At the end of the first day of the trial defendant suddenly overturned the counsel table and began shouting at the prosecutor and jury. Defendant’s mother then rushed in from the spectator section yelling and praying. After the disturbance the court admonished defendant’s mother to refrain from such activity in the future and “* * * This court will absolutely not tolerate that. Now you know better than that. You’ve had experience.” It is contended that these statements by the trial judge prejudiced defendant because it implied that he had been charged with prior criminal offenses. We first note that defense counsel did not object to the statements either when made or in the post-trial motion. Secondly, the statement was directed to defendant’s mother, not to defendant. Thirdly, the jury did not know that the black woman was defendant’s mother. Fourthly, the trial judge, immediately after the incident, instructed the jury to disregard the entire incident. Defendant was clearly not prejudiced by such statements, nor was he denied a fair trial because of them.

Although the trial judge imposed only one sentence, judgments were entered on jury verdicts finding defendant guilty on all three counts of armed robbery. Nevertheless, the three counts clearly arose out of the same course of conduct or transaction. Even the trial judge before imposing sentence stated that the three counts arose from a single occurrence. Furthermore, it cannot be said that the three acts were independently motivated. All three acts occurred almost simultaneously, and in each instance it was store money either from a safe or cash register which was taken.

In People v. Leggett, 2 Ill.App.3d 962, 275 N.E.2d 651, the court stated that the conviction for the lesser of crimes arising from the same conduct necessitates a reversal of the conviction for that lesser crime provided, of course, that the conviction and sentence imposed on the greater 'crime is sustained. Although Leggett involved different crimes arising from the same conduct its rationale is equally applicable to the instant situation where three judgments of the same crime arise from a single transaction. Although the trial judge was correct in imposing only one sentence, he erred in entering judgments on all three counts of armed robbery. Accordingly, the judgment entered on the jury verdict finding defendant guilty of the armed robbery of Douglas Whitfill and Rudow’s Market is hereby affirmed, but the judgments entered on jury verdicts finding defendant guilty of the armed robbery of Paula Percival and Pam Stogsdill are reversed.

Defendant also contends that the 10- to 30-year sentence imposed upon him was excessive because it was made to run consecutive to a recent armed robbery conviction and sentence. The record, however, does not indicate that the trial judge abused his discretion in imposing a consecutive sentence. Section 5 — 8—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—4(b)) states, “The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court may set forth in the record.”

The present record indicates that the trial judge followed the statutory guidelines. The court stated on the record that it was concerned with the nature and circumstances of this particular offense where a gun was used, innocent persons were confronted, property was taken by force, and where a person’s life could easily be taken. The court obviously considered the history and character of the defendant and commented on defendant’s long history of being at odds with society. The record indicates that defendant was declared delinquent in 1956 and has had parole violations and at least four felony convictions, three for armed robbery, since then. This prior conduct alone is sufficient to support a consecutive sentence especially in light of further statements of the trial court concerning the necessity of protecting the public. In view of the record before us, we do not believe that we should exercise empower under Supreme Court Rule 615 (Ill. Rev. Stat. 1973, ch. 110A par. 615) to reduce defendant’s sentence to a concurrent term.

Accordingly, for the reasons stated above, the judgment entered upon the conviction of defendant for the armed robbery of Douglas Whitfill and Rudow’s Market and the consecutive sentence imposed thereon should be affirmed. The judgment entered upon defendant’s conviction for the armed robbery of Paula Percival and Pam Stogsdill should be reversed.

Affirmed in part, reversed in part.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Cedric Nicks, Defendant-Appellant.
    (No. 12034;
    Fourth District
    November 21, 1974.

      John F. McNichols and J. Daniel Stewart, both of State Appellate Defenders Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Jerry Finney, Senior Law Student, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

■ Defendant appeals from a judgment entered on a jury verdict finding him guilty of armed robbery and from a sentence imposed of 12 to 20 years. Defendant raises the following issues: (1) Whether the trial court abused its.discretion in not ordering a competency hearing, (2) Whether the trial court erred in not suppressing evidence of the gun, (3) Whether allegedly prejudicial hearsay testimony was improperly admitted, (4) Whether defendant was proven guilty beyond a reasonable doubt, (5) Whether defendant was deprived of a fair trial because of certain prosecutorial closing remarks, (6) Whether defendant’s 1964 armed robbery conviction was improperly admitted, and (7) Whether defendant’s sentence is excessive.

On April 13, 1972, defendant appeared and informed the court that he had dismissed his attorney. On April 17, 1972, defendant indicated that he was unable to hire an attorney and refused to respond to further questioning by the court. The court then appointed the public defender to represent defendant. On May 17, 1972, after completion of the jury selection process the record reads as follows:

“The Court: Just a minute, this court isn’t recessed yet. Mr. Bennett, there is one matter I want to take up here. Show the jury is out of the courtroom and is excused. I have noticed all day today that this defendant has been trading messages and glances and looks with people on the front row who are returning that. This has been distracting to the jurors and it’s taking the attention of the jurors. Defendant: I will continue to do it until you give me an equal opportunity. My rights have been violated.
# » #
The Court: The record will indicate the attitude of the defendant and the Court will deal with that at the appropriate time.”

’’ At the trial Torn Erlenbusch testified that on the evening of March 2, 1972, he was working as a bartender at the Industrial Workers Hall in Decatur, Illinois. He stated that the door buzzer rang and he proceeded to open the door when an individual appealed with a gun in his hand. The individual then stated to him “I want your money” and “Tom, get the money out of the safe.” He stated that he then put money from the safe and cash register into the robbers bag. In the process the robber told the three store patrons to put their hands on the bar and keep them there. At this point the gun held by the robber accidentally discharged. The robber tiren fled out the back door. He described the robber as weighing approximately 150 pounds, 5'6" tall, black, and wearing an army fatigue jacket with hood pulled up, a handkerchief over his face, and sunglasses, and stated that none of his face could be seen.

William Leslie Warren testified that he was a customer in the lounge on the evening in question, but that he couldn’t identify the robber because his face was too well covered.

Leonard Tappendorf, another customer in the lounge, identified the robber in a similar fashion to that given by Erlenbusch. He also stated that a few days after the incident he viewed a line-up and identified the defendant as the robber. He stated on cross-examination that he was not positive defendant was the robber, that he couldn’t see the robber’s face, and that he based his identification on height and weight.

Clifford Grunden testified that he was also a customer in the bar on the evening in question and identified the robber in a fashion similar to that given by the other witnesses. He further stated that the lighting conditions in the bar were good and that he could see the robber’s skin above the tops of his eyelids to his hair. He stated that he saw defendant at the union hall playing bingo on the day following the robbery and clearly recognized him as the robber. He stated that he also viewed a line-up the following week and clearly identified defendant as the robber. He further stated that he was certain of his identification of defendant because he stared at him constantly during the robbery, because he noticed that the robber had two little knots on his forehead, and because he could see his eyes through the sunglasses when the robber turned to the side.

At this point defense counsel moved to suppress evidence and a hearing was held outside the presence of the jury. Jack Coventry, a Decatur police officer, testified that on March 6, .1972, he talked with Pauline May and David Daker at headquarters. He stated that May was worried about her daughter, Marilyn McKenna, who was going with defendant, and she proceeded to ■ implicate defendant in the union hall robbery. He stated that he then went to 644 East Leafland, Marilyn McKenna’s residence, and arrested defendant. The defendant was taken from the premises'after May and Daker arrived. He stated that he was told by Daker that the gun used in the robbery was in the house, and such a gun was found in a false ceiling by Officer Brown. He stated that Brown did not remove.the gun and was told to leave it there. He further stated that just prior to the initial finding a phone call was received relating that Marilyn McKenna had just signed a permission to search statement, “It was all so close together — I can’t really be positive, but right at approximately the time that the gun was found the. call was received, just prior to this 660 because I received the call * ” He stated that the permission to search was then delivered to the house and the gun was then taken from the ceiling and seized by the officers. Pauline May testified that she went to police headquarters to complain about the suspicious activities of defendant and her daughter. Marilyn McKenna testified that on March 6, 1972, she was. at police headquarters and signed a statement consenting to a search of her house. Gerald W. Hunk, a Decatur police officer, stated that the phone call relating that permission to search had been granted was received after the gun was first observed. Gerald Boehm, also a police officer, testified that he observed McKenna sign the permission to search form, and a call was then made from headquarters to the house informing the officers there of the signing. The court then denied the motion to suppress evidence seized at the house, including the gun, stating:

“Now I am not going to sit here and split hairs with a dueling knife on this time element. Clearly it was all one transaction. Coventry testified that everything happened all together, the finding of the gun, the consent, the call, the whole business * * 0 the record is quite clear that Marilyn McKenna was down at police headquarters, and the whole matter * * * was under discussion at the time * * * everything is a package here.
* # #
But I do not believe that when the consent emerges as the final bit of a whole set of circumstances that you can say at any precise instant during that period of time that there was or was not a consent ® 0 ° at the most we have a matter of forty-five minutes involved here and there is no indication that at any time she ever had any attitude different than go search.”

The jury was then recalled and Officer Boehm testified that he accompanied McKenna to her home.

“Q. Now what did you do, * * * and what did Mrs. Mc-Kenna do out at that residence?
A. She took items from the home that — went through the home picking up items giving them to us that were bought with the fruits' of crime, with the money.
Q. How do you know that?
A. She stated that.
Mr. BENNETT: I object, Your Honor, as to what Mrs. Mc-Kenna said.”

The court then overruled the objection and Boehm testified to numerous items taken from the house that McKenna allegedly stated were purchased from the proceeds of the union hall robbery.

Officer Dellert testified that he investigated the union hall robbery and extracted a .38-caliber bullet from the wall. Officer Coventry testified that he arrested defendant at the McKenna residence, and that a later search of the house revealed a .38-caliber pistol containing five shells hidden in a false ceiling. Officer Brown testified that he found the pistol.

Marilyn McKenna testified for the State that she lived at 644 E. Leafland, and that she saw defendant daily. She stated that defendant occasionally slept at her house and had some of his clothes there. She stated that she purchased the gun in question and that defendant had recently oiled and greased the gun for her. McKenna was later recalled as a court’s witness and was cross-examined by the State. She then denied pointing out various items of personal property and stating that they were purchased with money taken from the union hall robbery. She also denied making any statements to the police concerning the alleged robberies. She did state, however, that defendant knew the bartender at the union hall, and that around tire first part of March she purchased many new items, some of the money used to purchase these items coming from defendant.

At this point the State rested and defense counsel indicated to the court that against his advice he was calling defendant to testify. Defendant stated that he couldn’t recall his activity on March 2, 1972, but knew he wasn’t around the union hall. He denied committing the robbery, or knowing of the pistol at. McKenna’s residence, and stated that he has never lived with Marilyn McKenna although he was intimate with her, frequently "associated” with her at her residence, and kept a change of clothes at her house. After defendant’s testimony the court admitted evidence of defendant’s 1964 conviction for armed robbery over defendant’s remoteness objection. The jury then returned a verdict finding defendant guilty of the armed robbery. At a post-trial hearing on June 8, 1972, defendant gave a long colloquy on why he had been denied a fair trial, citing mainly alleged denial of the attorney of his choice.

A hearing in aggravation and mitigation was held on June 12, 1972. Defendant’s mother, Dorothy R. Davis, testified that her son has brain damage caused by a car accident at the age of 8. Defendant also testified that he has brain damage and was in the Menard asylum for the criminally insane three times. The trial judge then sentenced defendant to 12 to 20 years imprisonment.

Defendant first contends that the court abused its discretion in not ordering a competency hearing. Section 104 — 1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 104 — 1) stated:

“For the purposes of this Article, “incompetent” means a person charged with an offense who is unable because of a mental condition:
(a) To understand the nature and purpose of the proceedings against him; or
(b) To assist in his defense; * *

The statute goes on to state that if at any time during the course of the trial and before the pronouncement of sentence the court has “reason to believe” that defendant is incompetent to stand trial, the court shall conduct a competency hearing. The “reason to believe” standard has now been replaced by a “bona fide" doubt standard under the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 2—1). See also People v. Bender, 27 Ill.2d 173, 188 N.E.2d 682.

Defendant supports his argument by citing various instances during the course of the trial which should have given the court “reason to believe” defendant was incompetent or should have raised a “bona fide doubt” regarding defendant’s competency. Defendant cites defendant’s mother’s testimony that defendant has brain damage, defendant’s own testimony in that regard, defendant’s failure to cooperate with his counsel, defendant’s problems in securing counsel, defendant’s trading messages back and forth with spectators, and defendant’s statement after the trial concerning his dissatisfaction with not being able to choose his own counsel.

Whether or not to hold a competency hearing lies within the sound discretion of the trial court. (People v. Pridgen, 37 Ill.2d 295, 226 N.E.2d 598.) We note that in the instant case this issue was not raised in the trial court. However, we see nothing in the record or in the cited instances which would indicate that because of a mental condition defendant was unable to understand the nature and purpose of the proceedings against him or was unable to assist in his own defense or which would raise a bona fide doubt in that regard. Nevertheless, the trial judge who observed defendant throughout the course of the trial and heard the testimony of defendant’s mother is certainly in a better position to make a decision regarding defendant’s competency than is this court, and that discretion was clearly not abused here.

Defendant next contends that the court erred in refusing to suppress the gun because it was seized in a warrantless search of the Mc-Kenna residence before consent. We do not agree. McKenna admitted consenting to the search of her house, and after the hearing on the motion to suppress the court specifically found that the consent was obtained from McKenna at approximately the same time that the search was conducted. The testimony of Officer Coventry supports this assertion. The court’s decision' in this regard is then clearly not against the weight of the evidence. We further note the propriety of third-party consents in situations such as the present one where there was evidence in the record that defendant either lived with McKenna or, at least, as McKenna’s paramour, shared the apartment on some type of continuing basis. See People v. Stacey, 58 Ill.2d 83, 317 N.E.2d 24.

Defendant further contends that defendant’s conviction should be reversed because allegedly prejudicial hearsay testimony was admitted. We do not agree. Officer Boehm testified that he accompanied McKenna to her house in the early morning hours of March 7, 1972. When asked what happened at the residence, Boehm stated that McKenna went through the house picking out items that were purchased with the fruits of the crime. The court then overruled defense counsel’s objection as to what McKenna said. Boehm then proceeded to testify that McKenna pointed out various items of personal property which she said were purchased from the union hall robbery. McKenna was later called as a court’s witness by the State and substantially denied stating to police that the items were purchased with money taken from the union hall or making any statements whatsoever.

Assuming that these statements by Officer Boehm were hearsay, we find them to be harmless beyond a reasonable doubt when read in the context of the record as a whole. The identification of defendant as the robber by Grunden, a customer in the union hall, was positive and credible. He stated that he could see the robber’s skin from the top of his eyelids to his hair, and that he was certain of his identification because the robber had two little knots on his forehead and because he could see the robber’s eyes through his sunglasses whenever he turned to the side. He further stated that the lighting conditions were good, and that he stared at the robber through the whole period of the robbery. He also called the police when he recognized defendant as the robber while defendant was playing bingo at the union hall on the evening following the robbery, and clearly identified defendant at a police line-up the following week. His positive identification was corroborated by other evidence. Although his identification wasn’t positive, Tappendorf, another customer in the hall, also identified defendant as the robber at a police line-up. Furthermore, there was evidence that defendant knew the bartender, Erlenbusch, and, indeed, the robber referred to him by his first name. There was also a .38-caliber pistol found in the McKenna residence loaded with five shells and, in fact, a .38-caliber bullet was accidentally discharged by the robber during the course of the robbery. The record shows that defendant was either living with McKenna or, at least, sharing the house on some type of continuing basis. McKenna testified that she saw defendant daily, that defendant occasionally slept there, and that defendant kept some clothes there. Defendant admitted that he was intimate with McKenna, that he frequently “associated” with her, and that he kept a change of clothes at her residence. McKenna further testified that defendant knew of the gun and had recently oiled it for her. Therefore, an examination of the entire record indicates there to be more than sufficient other evidence to sustain defendant’s conviction.

Defendant also argues that defendant was not proven guilty beyond a reasonable doubt. We clearly do not agree and refer to our discussion in the previous paragraph. The identification of the robber by Grunden was quite positive and credible, and he had ample opportunity to view defendant under good lighting conditions. It is well established that a positive identification by a single credible witness can sustain a conviction. (People v. Miller, 30 Ill.2d 110, 195 N.E.2d 694; People v. Guyton, 114 Ill.App.2d 394, 252 N.E.2d 665.) Furthermore, the Grunden identification was corroborated by the other evidence described above. Defendant’s testimony was highly unbelievable and partially contradicted in several respects by McKenna. Therefore, we see no reason to disturb the jury verdict, and defendant was clearly proven guilty beyond a reasonable doubt.

During his closing argument the State’s Attorney stated:

‘We believe that after you have considered all of the evidence in its totality and analyzed the witnesses and their credibility— now when they are up there they have taken an oath to tell the truth, it’s for you, the jury, to sort out what the truth is, to determine where it went awry, and who wasn’t telling the truth, because there is a truth, and I submit you didn’t hear it from the stand when you listened to Marilyn McKenna or Cedric Nicks, and we have presented a case to you in which this defendant did commit this robbery, and we ask you to find him guilty.”

Defendant contends that these comments represented the prosecutor’s personal belief that defendant was lying, was prejudicial, and denied defendant a fair trial. This argument is without merit. We first note that these statements were not objected to by defense counsel. Nevertheless, there is certainly nothing to prohibit a prosecutor from commenting on matters that are based on the evidence presented at trial. (See People v. Provo, 409 Ill. 63, 97 N.E.2d 802.) In the instant case the prosecutors comment that defendant was lying is clearly based on the evidence. Defendant’s testimony was highly unbelievable and contradicted in several respects by Marilyn McKenna.

Defendant next contends that the trial court erred in admitting into evidence for credibility purposes defendant’s 1964 conviction for armed robbery. This argument also is without merit. The only objection at trial to this evidence was that of remoteness, yet the conviction here was clearly within the time limitations established by People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695, and we do not see that any of the other requirements of Montgomery are offended by the introduction of this conviction.

Defendant finally contends that the sentence imposed by the trial court of 12 to 20 years for armed robbery is excessive and should be reduced by this court. We do not agree. Armed robbery is always a dangerous crime and in the instant case defendant’s gun was discharged, which even though accidental could still have caused great harm. We further note that defendant had previously been declared delinquent and had a prior conviction for armed robbery for which he received a sentence of 2 to 20 years imprisonment, but for which he spent nearly 7 years in prison. Furthermore, the present offense was committed within a year of his parole from that offense. Since arrqed robbery is a Class 1 felony, a sentence need not conform to the one-third of the maximum ratio mandated for Class 2 and 3 felonies under the Unified Code of Corrections. See Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1, and People v. Tiffin, 16 Ill.App.3d 367, 306 N.E.2d 325.

Accordingly, for the reasons stated above the judgment and sentence imposed by the circuit court of Macon comity is hereby affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Stephen Dye et al., Defendants-Appellants.
    (No. 73-127;
    Second District
    November 7, 1974.
    Ralph Ruebner and Adam Lutynski, both of State Appellate Defenders Office, of Elgin, for appellants.

      Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Defendants Stephen Dye and Carl D. Prater were found guilty of armed robbery after a jury trial and each sentenced to 10-30 years in the penitentiary. Defendants contend on appeal that the court erred in allowing evidence of Prater’s prior conviction by reading from an unauthenticated court file; and erred in instructing the jury as to the effect of prior convictions over defendants’ objections. Alternatively, they contend that their sentences are excessive and should be reduced.

The charges against defendants arose from the robbery of a jewelry store on May 30, 1972, at 11 A.M. Both employees in the store identified defendant Prater as the man with the gun. One clerk recognized him from having seen him previously in the store as a customer; the other remembered him as a school classmate. Police who answered a call from a silent alarm system saw both men from distances ranging from a few feet to eight blocks from the store. Dye was arrested within a few minutes after the robbery, Prater within a half hour. Prater was carrying a bag which contained items taken from the store; and Dye had keys from a locked showcase in the store. The gun was found in the parking lot of the store.

Prater testified at trial and explained that he was in the area looking for a job; that he went to a phone booth and was handed a bag by a man who placed a gun at his side and told him to ran with it. Dye testified at trial that he was in the area to sell his gun, noticed a detective observing him and dropped the gun under a car, fearing arrest for carrying a concealed weapon. He testified that he had never seen the keys to the showcase. Both defendants denied knowing each other prior to the arrest.

At the close of the evidence the prosecutor offered in evidence what he said “purports to be” the entire court file in a Lake County Circuit Court case entitled People v. Carl D. Prater (designated as 68 CF 1057), including the docket sheet. Over objection he related to the court in the presence of the jury that the file reflected that on April 22, 1968, the defendant Prater was convicted of burglary.

Defendant Prater argues that there are only two proper methods of impeachment by a showing of a conviction of a prior infamous crime: either by the introduction of a certified copy (citing People v. Humphrey (1970), 129 Ill.App.2d 404), or by the testimony of the particular court clerk (citing People v. Smith (1965), 63 Ill.App.2d 369). The State answers that since a certified copy is merely evidence of what is in the file, the original file should be admissible. It argues that the defendant’s conviction of a prior felony may be shown to affect his credibility by offering the record of his conviction or an authenticated copy thereof (citing People v. Flynn (1956), 8 Ill.2d 116; People v. Halkens (1944), 386 Ill. 167); that a court may take judicial notice of its own acts and records (citing Secrist v. Petty (1883), 109 Ill. 188); and that even if the method here used should be considered error by this court it is an error which is harmless beyond a reasonable doubt in view of the overwhelming evidence of guilt in the record.

In civil cases the conviction of any crime may be shown for the purpose of affecting the credibility of the witness and may be proved like any other fact in the record either by cross-examination of the witness, by testimony of another witness cognizant of the facts or by any other competent evidence. (See Ill. App. Ct. Rev. Stat. 1971, ch. 51, par. 1.) In criminal cases conviction of any crime may be shown for the purpose of affecting the credibility of a witness (Ill. App. Ct. Rev. Stat. 1971, ch. 38, par. 155 — 1), but there is no comparable provision relating to the method of proof. However, case law has developed to encourage a defendant to take the stand by avoiding the prejudicial effect of the proof of the prior conviction coming from a defendant’s own testimony on cross-examination and requiring the State to prove the conviction by the record. See Cleary, Handbook of Illinois Evidence § 9.5, at 138 (2d ed. 1963).

The introduction of a certified copy of the prior conviction of a defendant who is a witness in a criminal case is a proper way of introducing the impeaching record. (People v. Humphrey, 129 Ill.App.2d 404, 414.) All of the other cases cited by the parties address themselves to the possibility of reversible error where the State brings out the prior record in the course of cross-examination (e.g., People v. Squires (1963), 27 Ill.2d 518, 521; People v. Flynn, 8 Ill.2d 116, 120-121; People v. Halkens, 386 Ill. 167, 177). In People v. Smith, 63 Ill.App.2d 369, 381, cited by defendant, this court held on the basis of prior authority (People v. Squires, 27 Ill.2d 518, 521; People v. Neukom (1959), 16 Ill.2d 340, 348) that cross-examination of a defendant as to prior convictions, while not approved, was not reversible error in a case which was not close on its facts when the record was also admitted as proof of the conviction. In Smith, the record was introduced by the testimony of the clerk of the court as tire keeper of the records. From this defendant infers in his argument that authentication of the record must be made in this manner only. The argument overlooks the statement in the Smith opinion at page 381, “This is no less proper than the introduction of the physical record itself into evidence * *

Here the impeachment was not by the way of cross-examination and thus did not contain the possibility of prejudice which the cases have guarded against. The matter is therefore reduced to an issue of the authentication of the record. Defendant argues that the State’s Attorney’s characterization of the evidence as a “purported” record indicates the failure of authentication, but we do not agree. The court file was before the court and offering it in evidence in effect merely directed the attention of the court to its own records in another case. While Secrist v. Petty, 109 Ill. 188, cited by the State, deals with judicial notice of a court’s acts and records in the same case, a court may also take judicial notice of the authenticity of the record in another case in the same court when it is directed to its attention. (See Taylor v. Adams (1886), 115 Ill. 570, 574. Cf. In Re O’Malley (1949), 404 Ill. 257, 258-259; People ex rel. McDonough v. Chicago, M. St. P. & P. R. R. Co. (1933), 354 Ill. 438, 442.) No objection was made below or here that the record was a false one and we conclude that the court did not err in its ruling on the impeaching evidence.

The defendants next urge that it was error to give People’s Instruction No. 10.

“Evidence of a defendant’s previous conviction of a crime is to be considered by you only insofar as it may affect his credibility as a witness, and must not be considered by you as evidence of his guilt of the crime with which he is charged.” (IPI — Criminal 3.13)

They argue that the Committee Comments to IPI — Criminal, section 3.13, direct that the instruction be given only at the request of the defendant. It is clear from the record that defense counsel’s objection to the instruction was a continuation of his argument that the only way of impeaching defendant Prater was to introduce the record of conviction in a different manner than the method used by the State. Absent a specific objection to the instruction on the basis now urged we conclude that the court could exercise its supervisory power to insure a fair trial in the particular circumstances by the protective instruction. People v. Harter (1972), 4 Ill.App.3d 772, 777.

Defendants also contend that their sentences are excessive and merit reduction pursuant to the power granted by Supreme Court Rule 615(b)(4) (Ill. Rev. Stat. 1971, ch. 110A, par. 615(b)(4)). They reason that the minimum term for a subsequent conviction of armed robbery is set at 8 years in the statute (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 2) and that this evidences a legislative policy to provide for a lesser term for the first offense. However, while neither defendant had been previously convicted of armed robbery, defendant Dye’s record included an attempt to commit robbery in 1967 and numerous less serious offenses; and defendant Praters record included burglary with a follow-, ing violation of probation. The previous records of the defendants, together with the serious nature and circumstances of this armed robbery, justify the sentence of 10-30 years which is within the limits of the Code of Corrections for the Class 1 felony involved. Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(b)(2), (c)(2).

For the reasons stated we affirm the judgments of conviction below.'

Affirmed.

T. MORAN, P. J., and RECHENMACHER, J., concur.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gwendolyn Wilson, Defendant-Appellant.
    (No. 73-221;
    Third District
    October 31, 1974.

      James Geis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Michael M. Mihm, State’s Attorney, of Peoria, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

On December 14, 1972, the defendant, Gwendolyn Wilson, was indicted for the offense of theft of property having a value over $150. On March 12, 1973, the defendant, as a result of plea negotiations, entered into a negotiated plea which covered the theft charge as well as several prostitution charges. She plead guilty to the charges and, pursuant to the agreement, was sentenced by the Circuit Court of Peoria County to a term of imprisonment of from IV2 years to 4% years for theft and a period of 6 months each for the other offenses, all of the terms to be concurrent.

Defendant contends on this appeal that: (1) the record is insufficient in furnishing a factual basis for the plea in that it fails to show how she accomplished the theft, and that it fails to show that she intended to commit the offense and; (2) that she was never admonished concerning the mandatory parole term which is now provided for in the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001 — 1—1 et seq.). She concedes that all other requirements of Rule 402 were properly met.

Illinois Supreme Court Rule 402 provides in pertinent part:

“In hearings on pleas of guilty, there must be substantial compliance with the following:
# # s
(c) Determining Factual Basis for Plea. The court shall not enter final judgment on a plea of guilty without first determining that there is a factual basis for the plea.” Ill. Rev. Stat. 1973, ch. 110A, par. 402.

The opinion in People v. Hudson, 7 Ill.App.3d 800, contains a particularly interesting discussion of the procedure the judge may use to comply with subparagraph (c) of the rule.

“The requirement of Rule 402(c) is met when it appears on the record that there is a basis for reasonably concluding that the defendant actually committed the acts with the intent (if any) required to constitute the offense to which the defendant is pleading guilty. It is not necessary that it appear on the record beyond a reasonable doubt or even by a preponderance of the evidence that the defendant committed the offense. (See ABA Standards Relating to Pleas of Guilty, Par. 1.6, Approved Draft, 1968). All that is required to appear on the record is a basis upon which the judge could reasonably reach the conclusion that there is a connection between the defendants acts and the intent with which he acted and the acts and intent (if any) required to constitute the offense to which the defendant is pleading guilty.” People v. Hudson, 7 Ill.App.3d 800, 803.

A factual basis may be demonstrated by having the prosecuting attorney summarize the testimony he could present to show the defendant committed the crime. People v. Bowers, 47 Ill.2d 585.

The following exchanges between the court, the prosecuting attorney, defense attorney and the defendant are relevant:

“The Court: And, Mr. Solomon [prosecuting attorney] the Court would inquire of you as to what the evidence would show in reference to the Defendant’s guilt if there were a trial in these cases to which she has entered a plea of guilty?
Mr. Solomon: .As to the felony Count of Theft, 72CM3837, the evidence would show through the presentation of testimony, that on Nov. 1st, 1972, the Defendant went to D. Schaffer South, Inc., located at 244 S.W. Jefferson in the City and County of Peoria and State of Illinois and did obtain and exert unauthorized control over a pants suit, the property of D. Schaffer South, Inc., with the intent to permanently deprive the owners of the use and benefit of said property, said defendant not being authorized at that time to obtain such property from D. Schaffer South, Inc.
The Court: And in the felony charge of Theft, what would the evidence show the value of the property taken to have been at the time of the taking?
Mr. Solomon: The value of the suit at the time of its taking Nov. 1, 1972 would be $200.00.
The Court: Mr. Covey [defense attorney] would you agree that if there had been a trial in each of these cases, that the evidence would have substantially shown what Mr. Solomon has stated?
Mr. Covey: Yes, your Honor.
The Court: And, Miss Wilson, do you — are you stating to this court that you know what you have been charged with doing in each of these cases to which you have entered a plea of guilty?
Defendant: Yes.
The Court: And were you guilty and are you guilty of that which you are charged with doing?
Defendant: Yes.
The Court: Have the record show that the Court finds and determines, as a result of these proceedings, that there is a factual basis for the Defendant’s plea of guilty * *

It is first urged that this record is insufficient in furnishing a factual basis for the plea in that it fails to show how the defendant accomplished the theft. The basic facts of what had taken place on the date alleged were furnished to the court and agreed to by defendant and her attorney. Defendant has totally misinterpreted a statement made in People v. Morris, 8 Ill.App.3d 232, 233, i.e., “the total lack of any reference to how or if this was done is ground for reversal,” The court there was referring to “how” the trial court satisfied itself that a factual basis for the plea existed. Further, the method by which unauthorized control is obtained or exerted is immaterial. Committee Comments to section 16 — 1 (theft), S.H.A., ch. 38, par. 16 — 1 (1970).

It is further urged that there was no factual indication that defendant intended to commit the offense. We do not agree. The element of intent in the crime charged is the intent to deprive the owner permanently of the use or benefit of his property. (Committee Comments, supra; People v. De Stefano, 2 Ill.2d 427.) In the instant case such intent was shown and agreed to by defendant and her attorney.

We believe there was sufficient substantial compliance with the requirements of Rule 402(c) to ascertain the existence of a factual basis for the plea.

' The last issue raised by defendant poses the question; must she be informed of the provision for a mandatory parole term before accepting her guilty plea to felony theft? Section 5 — 8—1 of the Unified Code of Corrections provides that a sentence of imprisonment for a felony shall be an indeterminate sentence and that every indeterminate sentence shall include as though written therein a parole term in addition to the term of imprisonment.

Defendant was allowed to add this issue after the opinion of the Fourth District Appellate Court in People v. Wills, 23 Ill.App.3d 25, 319 N.E.2d 269. The Wills court stated that they would vacate the plea for the failure to inform the defendant of the consequences of the mandatory parole term if not for the fact that they held the statute to be constitutionally infirm.

Since Wills, however, the supreme court in People v. Krantz, 58 Ill.2d 187, 195, 317 N.E.2d 559, spoke on the exact question, stating. “As we have just noted, we do not consider that substantial compliance with Rule 402(a)(2) requires such admonitions.”

For reasons given the judgment of the Circuit Court of Peoria County is affirmed.

Judgment affirmed.

SCOTT, P. J., and STOUDER, J., concur.


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    The People of the State of Illinois, Plaintiff-Appellee, v. Jewell Griffen, Defendant-Appellant.
    (No. 73-16;
    Third District
    October 31, 1974.

      Thomas A. Dunn, of Dunn, Stefanich, McGarry & Kennedy, of Joliet, for appellant.
    George S. Bellas, Assistant State’s Attorney, of Joliet, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The defendant, Jewell Griffin, was charged with the offense of armed robbery. After a bench trial he was found guilty and sentenced by thé Circuit Court of Will County to not less than 5 years nor more than 15 years.

From this conviction defendant appeals contending: (1) that the trial court erred in the admission of evidence of flight, (2) that the court erred in the admission of evidence which tended to prove other crimes, (3) that there was error in receiving evidence of statements of accused, (4) that testimony of an “eavesdropper” should not have been admitted and (5) the State’s use of identification procedure violated due process.

During the course of defendant’s trial the State introduced testimony which indicated that on December 24, 1971, some time after the commission of the offense, the defendant was observed standing in the doorway of a store by Officer Breen then in plain-clothes. The officer testified that he recognized the defendant and when the defendant saw the officer signal to another plain-clothed officer, the defendant ran from the area. At this time there was a warrant outstanding for the arrest of the defendant. The officer further testified that he was a uniformed policeman for 40 months prior to December 24 and that defendant had seen him while he had been in uniform and he assumed the defendant knew him to be a policeman. The only objection raised at the trial was that since the crime occurred on November 12, the occurrence on December 24 was too remote. The trial court properly overruled the objection since evidence of flight is generally admissible regardless of time. 22A C.J.S. Criminal Law § 625b (1961); People v. Wright, 30 Ill.2d 519.

It is defendant’s position on appeal that to show flight from arrest there must be independent foundation evidence showing that he had knowledge that he w'as suspect and, apparently, conclusive proof that he knew the officer to be a policeman. The argument is founded on People v. Cox, 74 Ill.App.2d 342, where there was no evidence in the record that the defendant knew or should have known that he was a suspect. Cox was based on People v. Harris, 23 Ill.2d 270, and People v. Herbert, 361 Ill. 64.

Flight in criminal law is defined as the evading of the course of justice by voluntarily withdrawing oneself in order to avoid arrest or detention, or the institution or continuance of criminal proceedings. The term signifies in legal parlance, not merely a leaving, but a leaving or concealment under a consciousness of guilt and for the purpose of evading arrest. Such consciousness and purpose is that which gives to the act of leaving its real incriminating character. Herbert, supra, at 73; 14A I.L.P. Criminal Law § 270 (1968).

In Illinois, evidence of an accused’s flight has long been admissible as a circumstance from which an inference of guilt may be drawn. It is evidence of a consciousness of guilt and thus probative of guilt itself. Card, Illinois Evidence Manual, Rule 55 (1972 Supp.); People v. Smith, 127 Ill.App.2d 199; People v. Rossini, 25 Ill.2d 617.

Direct proof that accused had actual knowledge of his possible arrest is not necessary to render admissible evidence of flight, particularly where there is evidence in the case from which such fact may be inferred. (22A C.J.S. Criminal Law § 625a (1961).) If the circumstances were such as to give the defendant “reason to know” that Breen was an officer, the trier of fact would be warranted in drawing the inference of actual knowledge. Further, when a crime has been committed on the person, as here, the other facts and circumstances in the case may be considered to draw an inference that defendant knew or should have known that he was accused or suspected of the crime.

We believe that the evidence of defendant’s flight was properly allowed into evidence by the trial court.

During Officer Breen’s testimony it was brought out that on December 24 he had been assigned to a special shoplifting unit thus accounting for his presence in plain clothes. Defendant contends that this is proof of other crimes by innuendo. We cannot agree that this either shows or tends to show that accused has committed another crime wholly independent of, and unconnected with, that for which he was on trial. The testimony was not evidence of other crimes and there is no merit to defendant’s contention. Further, evidence of .flight is admissible even though it tends to show other offenses against the criminal law.

After the defendant was eventuaUy arrested he gave a statement. Officer Breen testified that prior to any questioning the defendant “was advised of his constitutional rights of a person in custody and a standard form of our department was used, made, filled out, and signed by Mr. Griffin.” No objection as to the propriety of this foundation for the introduction of the statement was made, and the statement was admitted without objection. Defendant now contends that it was error to admit the statement without a specific detailing of the commands of Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. It is true that a knowing and intelligent waiver of a defendant’s rights cannot be assumed on a record which is silent. This record is not silent and further, the exact point was raised in People v. Hicks, 44 Ill.2d 550. There, as here, defense counsel neither requested a preliminary hearing, nor objected to the testimony. The court said, “In light of these failures, defendant cannot complain on appeal.”

Defendant contends that the trial court erred in allowing the State to introduce testimony as to a telephone communication made by defendant while he was in custody. At the trial defendant objected on the ground that he had a right of privacy while phoning friends. Officer Wagoner testified that while on duty as a jailer, the defendant asked to use the telephone and was aUowed to do so. The jailer overheard the defendant tell the person on the other end of the line to tell defendant’s lawyer that he was with the defendant on the night of the robbery. The telephone used was on the jailer’s desk and he sat about 4 feet from the defendant while the conversation took place.

The facts of this situation do not indicate any expectation of privacy at any time on the part of defendant. The statements overheard were not elicited by interrogation by or on behalf of the police and are thus excluded from the application of the Miranda holding. (People v. Brooks, 51 Ill.2d 156, 161.) Once the defendant has been informed of his Miranda rights as here and indicates that he understands these rights as here it would seem that his choosing to speak and not requesting a lawyer is sufficient evidence that he knows his rights and chooses not to exercise them. (Brooks, supra, at 164.) Defendant now, however, contends that Massiah v. United States, 377 U.S. 201,12 L.Ed.2d 246, 84 S.Ct. 1199, and Johnson v. New Jersey, 384 U.S. 719, 16 L.Ed.2d 882, 86 S.Ct. 1772, would bar the admission of defendant’s statements since they were made without the presence of counsel. In interpreting Massiah our supreme court has followed an interpretation which would exclude “** * * post-indictment incriminating statements of an accused to government agents in the absence of counsel even when not deliberately elicited by interrogation or induced by misapprehension engendered by trickery or deception.’” (Emphasis added.) (People v. Milani, 39 Ill.2d 22, 27; People v. Halstrom, 34 Ill.2d 20.) However, in the instant case the statement was made prior to indictment and therefore Massiah has no application. Johnson v. New Jersey simply held that the Escobedo and Miranda decisions were applicable only to those cases in which trial began after the decisions were announced. It has no application to the instant case.

Barbara Fried testified that she and her husband were the managers of Motel 6 which was robbed on November 12, 1971, at about 8:30 P.M. She positively identified the defendant as being one of the perpetrators. About a week after the robbery she saw the defendant again at the Motel —she told her husband, but he didn’t believe her.

Elaine Johnstone, an employee of the Motel, also positively identified the defendant as the one who held a sawed-off shotgun on Marvin Fried.

Marvin Lee Fried testified also as to the events of that night and he positively identified the defendant as the robber who held the gun on him. During cross-examination the witness stated that he had seen the defendant later in his motel but did not immediately recognize him until his wife called his attention to defendant. He immediately called the police, but when they arrived the defendant had fled.

On December 5, 1972, each of the identification witnesses selected defendant’s picture from an assortment of police photos. Officer Lukancic testified that he showed the pictures to Mrs. Fried and after, she identified the defendant, Mr. Fried then identified the defendant. Although no objection was raised at the trial, defendant now contends that Mr. Fried’s identification of defendant was impermissibly suggestive.

The practice of permitting victims óf a crime, when an identification is attempted, to view a line-up in the presence of each other has been criticized. (See United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926; People v. Burbank, 53 Ill.2d 261.) But we need not make a determination whether the identification procedure was improperly suggestive. This is because even if it were so determined, the in-court identification by the witness would be admissible if it were based on a source independent of and uninfluenced by suggestive pretrial procedure and was not affected by the latter. People v. Johnson, 55 Ill.2d 62; People v. Blumenshine, 42 Ill.2d 508.

In the instant case each witness viewed the defendant at close range for several minutes during the robbery. The lighting, provided by three 100-watt bulbs plus two 100-watt neon tubes, was excellent. There was no impediment to complete observation. We conclude that there was clear and convincing evidence that each of the three witnesses’ identifications of the defendant had an origin independent of what, for the purposes of this argument, we have assumed to have been a suggestive and improper procedure, and was properly received in evidence. People v. Connolly, 55 Ill.2d 421, 427.

For reasons stated herein, the judgment of the trial court is affirmed.

Affirmed.

SCOTT, P. J., and ALLOY, J., concur.

       Defendant later testified that he did in fact know the officer to be a policeman and that he knew the police were looking for him but he did not know it was for this crime.


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    The People of the State of Illinois, Plaintiff-Appellee, v. William C. Robinson, Defendant-Appellant.
    (No. 12393;
    Fourth District
    November 14, 1974.

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

delivered the opinion of the court:

Defendant, William C. Robinson, appeals from his conviction pursuant to a guilty plea of the offense of theft over $150 in violation of section 16 — 1 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par.. 16 — 1) and from a sentence imposed of 1 to 5 years’ imprisonment.

Defendant raises the following issues for resolution by this court:

(1) Whether defendant understood the nature of the charge.

(2) Whether there was a sufficient factual basis for the plea.

(3) Whether defendant was properly admonished of the maximum sentence prescribed by law.

(4) Whether defendant was properly admonished of the minimum sentence prescribed by law.

(5) Whether defendant was denied equal protection of the law because he was not afforded the protection of a juvenile.

Ort December 5, 1972, defendant was charged by information with the offétisés of burglary and theft over $150. On January 4, 1973, defendant was indicted for the burglary. No action was taken by the grand jury on the theft charge. On March 16, 1973, defendant stated that he wished to plead guilty to theft over $150 pursuant to plea negotiations with the State. Defendant then waived his right to a grand jury indictment, but in the process of explaining to defendant his right to such an indictment the court stated:

“s * « This theft over is connected with the offense already charged of burglary, in that it says instead you committed burglary of the Ambassador Inn, in the theft over, reading, Count II, as on file, it says that you — reading—knowingly exerted unauthorized control over one General Electric colored [sic] television set, serial number so and so, belonging to the Ambassador Motor Inn of Decatur, setting forth the address of the Ambassador at 141 South Main Street, with the intent to deprive said owner permanently of the use and benefit of said property, the value of said property exceeding $150.00 in value * *

The court later stated in regard to the nature of the charge:

“The Court: * a * and we have to be sure you understand what you’re charged with. In a nutshell you’re charged with stealing a colored [sic] television from the Ambassador Motor Inn. Do you understand that?
Defendant Robinson: Yes.
The Court: Any questions in that we have gone over this several times — do you understand what you’re charged with?
Defendant: Yes.
The Court: And you are also charged that that television was worth more than $150.00 in value. Do you understand that?
Defendant: Yes.”

The court then stated in regard to sentencing:

“The Court: And then we have to point out what the sentence could be and we told you that a while ago when we talked about grand jury waiver. If you’re convicted of this, you could get a sentence of one to ten years, with one year the least and ten years the longest. You understand that?
Defendant Robinson: Yes, sir.”

The State then advised the court that two police officers would testify that in the process of a stakeout they saw defendant enter the motel in question and, shortly thereafter, come running back outside. It was also stated that three other witnesses, employees of the motel, would identify the defendant as being at the scene of the incident. It was further stated that additional evidence would be presented that defendant was going to break in and pick up a color television set which had been taken earlier by a co-defendant from a room in the motel and placed in the basement. The defendant’s counsel supplemented the State’s presentation by stating that the evidence would show that defendant was not involved with the events earlier in the day when the set was taken from the room and placed in the basement, and that defendant’s only involvement was returning later in the evening to pick up the set. The court then entered judgment on the plea. On March 22, 1973, defendant was sentenced to 1 to 5 years in the penitentiary.

The defendant first contends that the court did not properly admonish defendant of the nature of the charge as required by Supreme. Court Rule 402(a)(1). We find no merit to this contention. In relating to defendant his right to a grand jury indictment the court read to defendant the information charging the offense of theft over $150 and containing the elements of the offense, i.e., knowingly exerting unauthorized control over the property of another and intending to deprive the owner permanently of its use and benefit. It was then explained to defendant that “You’re charged with stealing a colored [sic] television set from the Ambassador Motor Inn.” Defendant replied that he understood this. The record also shows that the assistant State’s Attorney in the presence of defendant and his counsel gave a recitation stating defendant’s criminal conduct and detailed the evidence that would be presented should the case proceed to trial. We note that defendant did not object to any part of the prosecutor’s recital. The entire record indicates that defendant did, in fact, understand the nature of the charge and that the trial judge went beyond what is now required to sufficiently admonish a defendant in that regard. See People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559.

Defendant next contends that the court did not sufficiently establish a factual basis for the plea in violation of Supreme Court Rule 402(c). We, likewise, find no merit to this contention. The State related to the court that two police officers would testify that they saw defendant enter the motel and come running back outside, that three employees of the motel would identify defendant, and that additional evidence would show that defendant was going to break in and pick up a television set that had earlier been taken by a co-defendant from a room and placed in the basement. Defendant’s counsel stated that defendant was only involved in the later attempt to break in and pick up the set. The requisite mental state necessary to prove the offense is clearly inferable from the facts stated, and the factual basis for the plea was sufficiently established.

Defendant next contends he was not informed of the maximum sentence prescribed by law under Supreme Court Rule 402(a)(2) in that he was not informed prior to acceptance of his plea of the existence of the mandatory parole term written into every indeterminate sentence under section 5 — 8—1(e)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(e)(2)). We find our decision in People v. Wills, 23 Ill.App.3d 25, 319 N.E.2d 269, to be dispositive of this issue. In Wills we held that failure to admonish in regard to the mandatory parole term was not error. Also see People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559.

Defendant also contends that he was not informed by the trial judge prior to the acceptance of his guilty plea of the minimum sentence prescribed by law under 402(a)(2) because he was not informed of the sentencing alternatives under the Unified Code. We find our decisions in People v. Butchek, 22 Ill.App.3d 391, 317 N.E.2d 148, and People v. Wills, 23 Ill.App.3d 25, 319 N.E.2d 269, to be dispositive of this issue. In Butchek we held that a trial judge need not inform a defendant of periodic imprisonment to fully comply with Supreme Comt Rule 402(a)(2). In Wills we held that the rationale of Butchek was equally applicable to probation and conditional discharge, and that a trial judge also need not inform a defendant of these sentencing alternatives to fully comply with the Rule. Also see People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559.

Defendant finally contends that this defendant, 17 years of age at the time of the offense, was denied equal protection of the law because he was not afforded the same protections under the Juvenile Court Act as would be afforded a 17-year-old female defendant. The recent Supreme Court decision in People v. Ellis, 57 Ill.2d 127, 311 N.E.2d 98, is dispositive in this regard, and defendant was not deprived of equal protection in such circumstances.

Accordingly, for the reasons stated above the judgment of the circuit court of Macon County is hereby affirmed.

Judgment affirmed.

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


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    The People of the State of Illinois, Plaintiff-Appellee, v. Marty Baxter, Defendant-Appellant.
    (No. 12495;
    Fourth District
    November 6, 1974.
    John F. McNichols and Daniel D. Yuhas, both of State Appellate Defender’s Office, of Springfield, for appellant.
    James R. Burgess, Jr., State’s Attorney, of Urbana (Robert G. Frederick, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant, Marty Baxter, appeals from his conviction for the offense of escape in violation of section 31 — 6 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 31 — 6), and from a sentence imposed of 8 months. Defendant raises the following issues for resolution by this court: Whether the trial court substantially complied with Supreme Court Rule 402(a)(1) in informing defendant of the nature of the charge; and whether the trial court substantially complied with Supreme Court Rule 402(a)(2) in not explaining to defendant the minimum sentences prescribed by law.

On' September 27, 1973, defendant appeared in the circuit court of Champaign County to enter á guilty plea to a complaint charging him with the offense of escape. Prior to accepting the plea the trial judge stated to defendant:

“The Court: Mr. Baxter, you are charged in this complaint with the offense of escape, wh'ch is designated on the face of the complaint as a Class “A” misdemeanor, in Champaign County, Ill'nois, on the 9th day of April, 1973, in that you did knowingly and while, in the lawful custody of an Urbana peace officer in the . Urbana Police Department, intentionally escaped from said custody by running out of said police station. Do you understand ' what you are charged with?
Mr. Baxter: Yes, I do.
The .Court: I .advise you that this being a Class' “A” misdemeanor, that upon conviction of this offense that the Court could impose confinement up to one year and a fine not to exceed $1,000. Do you understand that?
Mr. Baxter: Yes.”

Defendant was subsequently advised of his various other rights. The trial judge then entered judgment on defendant’s plea. On October 31, 1973, a hearing in aggravation and mitigation was held after which defendant was sentenced to 8 months’ imprisonment.

Defendant first contends that the trial judge did not sufficiently inform defendant of the nature of the charge as required by Supreme Court Rule 402(a)(1). We do not agree. In the present case before acceptance of the plea the trial judge informed defendant that he had been charged with the offense of escape “in that you did knowingly and while in the lawful custody of the Urbana Police Department, intentionally escape from said custody by running out of the police station.” The quoted statement was a verbatim reading by the trial judge of the complaint. The defendant then indicated to the court that he understood the nature of the charge. The record also shows that the assistant State’s Attorney in the presence of defendant and his counsel gaye a recitation stating defendant’s criminal conduct and detailing the evidence that would be presented should the case proceed to trial. We note that defendant did not question any part of the prosecutor’s recital. The entire record clearly establishes that defendant did, in fact, understand the nature of the charges and that, the trial judge went beyond what is now required to sufficiently admonish a defendant in that regard. See People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559.

Defendant also contends that the trial court erred in not explaining to defendant the minimum sentences prescribed by law tinder Supreme Court Rule 402(a)(2) because he was not informed of probation, conditional discharge and periodic imprisonment. We find our decisions in People v. Butchek, 22 Ill.App.3d 391, 317 N.E.2d 148, and People v. Wills, 23 Ill.App.3d 25, 319 N.E.2d 269, to be dispositive of this issue. In Butchek we held that a trial, judge need not inform a defendant of the possibility of periodic imprisonment to fully comply with Supreme Court Rule 402(a)(2). In Wills we held that tbe rationale of Butchek was equally applicable to probation and conditional discharge, and a trial judge, likewise, need not inform a defendant of these alternatives to fully comply with Supreme Court Rule 402(a)(2). Also see People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559.

Accordingly, for the reasons stated above the judgment of the circuit court of Champaign county is hereby affirmed.

Judgment affirmed.

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