People v. Berry, 2 Ill. App. 3d 760 (1971)

Dec. 28, 1971 · Illinois Appellate Court · No. 70-91

2 Ill. App. 3d 760

The People of the State of Illinois, Plaintiff-Appellee v. Charles O. Berry, Defendant-Appellant.

(No. 70-91;

Third District

— December 28, 1971.

STOUDER, J., dissenting.

Theodore A. Gottfried, of Ottawa, (John L. Barton, of counsel,) for appellant.

James N. DeWulf, State’s Attorney, of Rock Island, (F. Stewart Merdian, Assistant State’s Attorney, of counsel,) for appellee.

Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Defendant Charles O. Rerry was indicted (in separate counts) for the attempted murders of Charles McSparin, Larry Ridgeway, and Michael McGrath; with the kidnapping of Robert Pannell; with the robbery of a gun from McSparin; with the attempted armed robbery of Ridgeway; with the theft of a police squad car belonging to Rock Island County; and with criminal damage to property, i.e. the squad car. The defendant pleaded guilty to each of the charges, and was sentenced to terms of imprisonment as follows: (1) From five to fifteen years on each of the three counts of attempted murder; (2) From one to five years for kidnapping; (3) From one to ten years for robbery; (4) From two to ten years for attempted armed robbery; (5) From one to ten years for theft; and (6) Six months in the county jail for criminal damage to property. All of such sentences were designated to run concurrently.

On appeal in this Court, defendant contends that it was improper for the trial court to convict and sentence him for robbery, theft, attempted armed robbery, and criminal damage to property and that such convictions or sentence should be reversed because they are for lesser offenses arising from the same transaction, since defendant has been convicted and sentenced for the greater offense of attempted murder.

The facts as disclosed by the record made by the prosecutor and defense counsel prior to sentencing, indicate that defendant, on October 12, 1969, left him home in an inebriated and angry condition after a disagreement with his wife. He was next noted at a gasoline station near the outskirts of the City of Moline where he became involved in an “altercation” with Ridgeway, the station attendant, and “attempted to take funds”. While this was occurring, McSparin, a deputy sheriff, arrived at the station and in a scuffle between the deputy and defendant, defendant obtained the deputy’s gun. After he had done so, defendant fired two shots, one at tire deputy and one at Ridgeway, both of which missed. Defendant got into the deputy’s squad car and drove it away. A short time later, defendant drove the car onto a highway median strip, where it became stuck and damaged. When McGrath, a passing motorist, stopped to see if he could be of assistance, defendant shot him in the neck. Thereafter, defendant stopped another automobile being driven by Pannell, and, after ordering the other people out of the vehicle, forced Pannell at gunpoint to drive to the Police Station in Milan, Illinois. According to the record, defendant intended to obtain ammunition for the gun which he had taken from the deputy. When defendant arrived at the Milan station he was subdued and placed under arrest by police authorities who had converged on the area.

Defendant asserts that in People v. Stewart, 45 Ill.2d 310, and in People v. Whittington, 46 Ill.2d 405, paragraph (m) of Section 1 — 7 of the Criminal Code of 1961 (Ill. Rev. Stat. 1969, ch. 38, par. 1 — 7(m)), was construed as prohibiting sentences, even though concurrent, for lesser offenses which occurred as part of the same transaction in which a greater offense is involved upon which there is a conviction and sentence. Defendant contends that it was improper to convict and sentence defendant for crimes of robbery, attempted robbery, theft, and criminal damage to property, on the basis that these were all “part of defendant’s resistance to and flight from arrest”. Defendant contends that, as a consequence, only his covictions and sentences for attempted murder, the most serious of the offenses, were proper. The State has confessed in this Court that it was error to convict and sentence defendant on the charge of criminal damage to property, and we agree.

We cannot, however, agree with defendant’s interpretation of the Stewart and Whittington decisions. Those cases do follow the principle that the single sentence provision of Section 1 — 7(m) of the Criminal Code should be implemented so that a conviction and sentence should be imposed only on the most serious one of a series of criminal acts resulting from the same conduct or transaction. The cases, however, as a fundamental test to be applied in determining whether separate offenses can be said to have resulted from the same conduct or transaction, specify that the test is whether the offenses were “independently motivated” or “otherwise separable”. We have had occasion to consider some applications of these principles in People v. Garry, (Ill.App.2d), 268 N.E.2d 568, and People v. Lerch, (Ill.App.2d), 268 N.E.2d 901. If we apply the tests of independent motivation or separability, as outlined in the Stewart and Whittington opinions, it is apparent that defendant was properly convicted and sentenced for each of the offenses complained about on the appeal, with the exception of the charge of criminal damage to property and kidnapping.

So far as the charges involving the deputy are concerned, it is notable that the taking of the officer’s gun and the theft of the squad car were independently motivated. The first offense was prompted by an effort to resist arrest. The second, of taking the squad car, was motivated by an effort to escape. We likewise discern a separate and independent motivation when the defendant fired at the officer. Since he had disarmed the officer defendant had successfully resisted arrest, and was in control of the situation, making the attempt to murder the deputy unnecessary either to further resistance or for making good defendant’s escape. People v. Baker, 114 Ill.App.2d 450; People v. Lerch, supra.

In considering the entire course of conduct of defendant it appears that the unprovoked shooting of McGrath, who had simply stopped to help defendant, indicates that all of the attempted murders were motivated by an unaccountable anger directed at the intended victims, rather than simply by thoughts of escape. We also see the activities involving the station attendant, Ridgeway, i.e. the attempted armed robbery and the attempted murder, as necessarily requiring separate acts and involving a different intent or mental state on part of defendant. We, therefore, conclude that the separate convictions and separate concurrent sentences specified (with the exception of the charges of criminal damage to property and kidnapping) were proper and should be affirmed.

A specific contention is made by defendant, however, that he was not fully admonished as to the consequences of his plea of guilty to the charge of kidnapping, and that it was, therefore, erroneous of the trial court to accept and enter his plea to that offense. From an examination I of the record we have concluded that unquestionably the trial court failed to explain to defendant the punishment provided for such offense. The court is expressly required to do so by Supreme Court Rule 401(b) (Ill. Rev. Stat. 1969, ch. 110A, par. 401(b)), and, also, by Section 113 — 4(c) of the Code of Criminal Procedure (111. Rev. Stat. 1969, ch. 38, par. 113 — 4(c)). As construed and applied in People v. Terry, 44 Ill.2d 38 and People v. Mackey, 33 Ill.2d 436, the provisions of the Criminal Code require the trial court to make the admonition. The purpose of the admonishment is to inform defendant of fire consequences of his plea of guilty and to give him the right to withdraw such plea if, after hearing of possible penalties, he desires to be tried by a jury. A defendant must be fully and directly apprised of the possible punishment fixed by the law so that he can intelligently or understandingly make his choice.

The State contends that the trial court’s ommission was not fatal because it could be implied from other questions put by the court to defendant and that defense counsel had discussed the matter of sentencing with defendant. An affirmative answer was made to an inquiry by the court as to whether defendant’s counsel had kept him “posted” on sentences to be recommended by the State’s Attorney. An explanation of this type by counsel outside the record could not cure the trial court’s error. The rule and statute placed the duty of explanation on the court, and preservation of such admonition in the record. A comparable argument to that advanced by the State was rejected in People v. Washington, 5 Ill.2d 58, 63, where the court said:

“We see little or no merit to a contention that a defendant who enters a plea of guilty is chargeable with knowledge of matters de hors his own trial * * #. The very purpose of Rule 27A [Rule 401B when the instant cause was tried] is to provide a form of procedure eliminating any doubt that a plea of guilty was made with full knowledge and understanding and to avoid the method of procedure where a defendant’s knowledge and understanding were held to rest solely on implications arising from the common-law record. To this end the rule has carefully spelled out the information which must be conveyed to a defendant to give him full knowledge of the charge against him, and leaves little, if any, room for indulgence in presumptions.”

We must, therefore, conclude that defendant was not sufficiently admonished as to the consequences of his plea of guilty to the charge of kidnapping and that it was error for the trial court to accept and enter the plea.

Accordingly, the judgment convicting defendant of criminal damage to property is reversed; the judgment convicting defendant of kidnapping is reversed and that cause is remanded; and all other judgments from which appeal is taken are affirmed.

Reversed in part; reversed and remanded in part; and affirmed in part.

SCOTT, J., concurs.

Mr. JUSTICE STOUDER

dissenting:

I disagree with the majority of the court. In my opinion the result reached and the interpretation of applicable rules are inconsistent with prior decisions and fair sentencing procedures. Multiple convictions and concurrent sentences therefore would appear to be and have been subjects of little interest until relatively recent times. Increasing attention has been devoted to problems of punishment by the legislature, by legal scholars and by the judiciary in an effort to improve its function as a technique of social control. In the past I have concurred in such decisions as People v. Garry, (Ill.App.2d), 268 N.E.2d 568 and People v. Lerch, (Ill.App.2d), 268 N.E.2d 901 (Petition for Leave to Appeal granted), cited in the majority opinion, but it appears to me upon reflection that the approach taken in such cases i.e. an effort to harmonize divergent views, is contrary to the goals and purposes of punishment. In particular I believe that the approach taken is inconsistent with a primary goal which should be to make judicial determinations as meaningful as practical.

Nearly every discussion of sentencing in the recent cases and current literature has as its major premise that the punishment should represent the results of a consideration of all relevant facts and circumstances. The appropriate punishment does not depend merely upon a particular offense but includes a consideration of at least all related conduct including conduct which might constitute other offenses. That an offender should not be punished twice for the same offense or the same conduct is a statement of fundamental fairness. According to the principle enunciated in the 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 cases this rule is applicable where the conduct is not “independently motivated” or “otherwise separable”. In this context it appears to me that acts which are reasonably contemporaneous in time and place and which have continuity of intent, motive or purpose are not independently motivated. Conversely for acts to be independently motivated or otherwise separable it appears to me that the acts must be so separated by circumstances of time and place that a period of reflection intervenes sufficient to warrant the conclusion that further or additional acts are the result of deliberate intention. Such I a view is I believe consistent with the general sentencing principles that the punishment should adequately take into account all related circumstances. Such a rule does not preclude multiple convictions and either concurrent or consecutive sentences where the acts of the offender were not related.

Two general arguments have been advanced in support of multiple sentences both concurrent or consecutive. First, it is insisted that a person should be punished for each offense which he has committed or conversely that he should not escape punishment for each offense committed. Secondly, it is argued that if related or lesser offenses are not punished then a prospective offender will not be deterred from committing other less serious offenses while committing a serious offense.

Undoubtedly the foregoing are appropriate criteria in determining the proper punishment but I submit that the principles are included in the general sentencing principle and do not necessarily require multiple concurrent sentences to carry them into effect.

In suggesting a rationale for supporting a single sentence where the conduct is not independently motivated an initial consideration arises from the manner in which multiple charges usually arise. I refer to the discretion of the State’s Attorney to bring multiple charges, to decide in his discretion whether the charges should be prosecuted and the discretionary recommendations concerning sentencing on such multiple charges. I do not suggest that tire State’s Attorney’s discretion is improper but rather that the discretionary basis or origin of multiple charges and prosecutions decreases if not eliminates the significance of the form in which the conduct of the offender is presented to the court. Often the procedure and prosecution of multiple offenses is a matter of pleading rather than one of substance. In other cases indictments or counts may be multiplied for reasons having little relation to tire seriousness of the underlying conduct.

Even though multiple offenses may be charged and prosecuted the trial judge in the assessment of punishment does not consider each offense in isolation. He determines the appropriateness of the sentence for the more serious offense as it is related to defendants other conduct and then denominates lesser sentences in relation to the most serious offense and sentence.

If multiple concurrent sentences have as their purpose additional punishment, it appears to me they are at best ambiguous and at worst meaningless. If the punishment on the most serious offense takes into account all related conduct why is more punishment either necessary or appropriate? If more incarceration is required how do concurrent sentences meaningfully contribute to such objective? Multiple convictions and concurrent sentences do not have a definable additive effect so far as the amount of punishment is concerned. While it may be conceded that multiple concurrent sentences create additional aversive pressures on the defendant i.e. may affect his parole or his criminal record after release, the intended effect is not clear.

Another aspect of the problem which has received little attention is what might be characterized as the unrestricted interchangeability of concurrent or consecutive sentences. If consecutive sentences could be imposed then alternatively concurrently sentences could be imposed and vice versa. For example if the acts are deemed independently motivated as the majority holds in this case, then either consecutive or concurrent sentences could have been imposed. There is no existing principle which could be applied to hold that the trial court erred if it had done so in declaring the sentences imposed for the offenses in the case at bar to be consecutive rather than concurrent except the general principle regarding excessiveness of a sentence. Neglecting for the moment the anomaly of consecutive indeterminate sentences since each of the multiple sentences was within the range provided by statute for the offense and since each sentence was near the minimum, how can it be said that the consecutive sentences were excessive? If each offense is entitled to be considered separately then the consecutive imposition of sentences would be immaterial. So far as excessiveness of sentence is concerned where concurrent sentences have been proposed only the most serious sentence is of any particular concern. Even though it may not be presently possible to resolve all of the paradoxes inherrent in multiple sentences a view which tends to minimize their propriety contributes to the overall fairness of the sentencing procedure.

When it comes to considering the precedents and legislation regarding this subject it seems to me that there is a line of cases culminating in People v. Whittington, 46 Ill.2d 405, 265 N.E.2d 679, which generally recognize that there are and should be limitations on the imposition of multiple sentences. The early cases referred to “transaction” as a basis for considering the propriety of multiple convictions and sentences. In People v. Stingley, 414 Ill. 398, 111 N.E.2d 548, consecutive sentences for offenses arising from a transaction were held improper although in accord with People v. Griffin, 402 Ill. 247, 83 N.E.2d 746, and People v. McMullen, 400 Ill. 253, 79 N.E.2d 470, concurrent sentences for offenses arising from a transaction were not prejudicial and hence not unfair. Our differences in interpreting the propriety of multiple sentences arise in large measure from how we may view the court’s decision in People v. Schlenger, 13 Ill.2d 63, 147 N.E.2d 316. As a departure from prior decisions the Schlenger case may be deemed to have been the first case considering the effect of multiple concurrent sentences concluding first that multiple sentences could be prejudicial and unfair and were so if arising from one transaction. In its effect on later decisions and as analyzed by subsequent commentators, each aspect of the Schlenger case has been emphasized or discounted depending upon a point of view. It should be observed that when the language in Stingley, 414 Ill. 398, 111 N.E.2d 548 and Schlenger, supra is compared and combined the net effect is to place consecutive and concurrent sentences on the same footing, a conclusion which was realized and approved by the drafting committee in its comments to Sec. 1 — 7 (m), ch. 38, Ill. Rev. Stat. 1969.

The facts in Schlenger create a somewhat narrow issue regarding what may be considered a transaction and the opinion relies in part on rules relating to double jeopardy. However the opinion does not purport to limit its application to factual situations where the double jeopardy doctrine would be applicable but on the contrary foreshadows the extension of its particular result to a broader principle. The Criminal Code of 1961 (Ill. Rev. Stat. 1961, ch. 38) adopts this broader view by requiring that all offenses arising out of the same conduct should be tried at the same time unless justice requires otherwise. (Sec. 3 — 3, Subsections (a) & (b), Ill. Rev. Stat. 1961, ch. 38.) These sections recognize the fundamental unfairness of rules which resulted in People v. Ciuici, 8 Ill.2d 619, 137 N.E.2d 40. These provisions reject the former limitation based on rules applicable to double jeopardy and give broader scope to rules of fairness where conduct is related. See People v. Golson, 32 Ill.2d 398, 207 N.E.2d 68.

It seems to me that the majority opinion in Whittington and the cases cited therein represent an evolution from single act to conduct not independently motivated in response to the statutory changes and more critical examination of fundamental fairness as applied to this problem. In this respect I agree with the minority opinion in the Whittington case that People v. Johnson, 44 Ill.2d 463, 256 N.E.2d 343, is contrary to the view expressed by the majority and in my opinion the Johnson case represents a departure from the developing authority. Johnson seems to adopt the dicta in People v. Richie, 36 Ill.2d 392, 222 N.E.2d 479, which dicta dismisses the effect of the Schlinger case with the observation that only a single act was involved. Whether the dicta in the Richie case would have the weight of persuasive authority depends on whether the view prevails that the propriety of multiple convictions and sentences depends upon the rules applicable to double jeopardy or whether such propriety depends on broader principles.