People v. Moore, 15 Ill. App. 3d 1041 (1973)

Dec. 4, 1973 · Illinois Appellate Court · No. 57205

15 Ill. App. 3d 1041

The People of the State of Illinois, Plaintiff-Appellee, v. Arthur Moore, Defendant-Appellant.

(No. 57205;

First District (2nd Division)

December 4, 1973.

James J. Doherty, Public Defender, of Chicago, for appellant.

Bernard Carey, State’s Attorney, of Chicago, for the People.

Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

After a bench trial defendant was convicted of the charges of rape and robbery and thereafter before the same trial court pleaded guilty to a separate charge of robbery and a charge of jumping bail. Defendant was concurrently sentenced to a term of two to four years on the robberies, one to three years on the bail jumping charge, and five to fifteen years on the rape charge.

The sole issue on appeal is whether the court erred in entering the foregoing sentences without a hearing in aggravation and mitigation. Defendant cites as authority Ill. Rev. Stat., ch. 38, §1 — 7(G)- and related cases.^*

The disposition of this contention is controlled by People v. Nelson, 41 Ill.2d 364, 243 N.E.2d 225, wherein the Supreme Court of Illinois held that the burden is upon defendant to present matters in mitigation and failure to do so is a waiver. (See also People v. Fuca, 43 Ill.2d 182, 251 N.E.2d 239.) All decisional authority cited by defendant predate the foregoing two cases, with the exception of People v. Knighten, 5 Ill.App.3d 640, 283 N.E.2d 738, which was contrary without citation of authority.

In view of the foregoing, the judgment is affirmed.

Judgment affirmed.

LEIGHTON and HAYES, JJ., concur.

* It is observed that under the new “Unified Code of Corrections” effective January 1, 1973 at Chap. 38, § 1005 — i—1, Smith-Hurd Annotated Statutes, (1973) the Counsel Commentaries state: "Former Illinois law provides for a hearing in aggravation and mitigation before sentencing, ch. 38 § 1 — 7(G) (repealed.) Section 1005— 4 — 1 clears up any ambiguity in case law and makes this hearing mandatory whether requested by the defendant or not. ABA sentencing standards § 5.1.”