Appeal from the Circuit Court of Sangamon County; the Hon.
CREEL DOUGLASS, Judge, presiding. Judgment adverse to defendant
affirmed as modified.
Rehearing denied October 18, 1966.
The sole question in this appeal is whether a sentence of not less than 5 nor more than 15 years in the penitentiary, following a plea of guilty to a charge of burglary with intent to commit a theft, is excessive.
The offense allegedly occurred in the early morning hours of January 28, 1965, in a building of Gainer Mills, a former employer of this 27-year-old defendant. He was arrested in the building after the clean-up man discovered the door forced open and phoned the police. He had in his possession a screwdriver, flashlight and pair of pliers; was not armed and no merchandise was taken. His car was found parked nearby.
Upon entering his plea he made application for probation. At the hearing on probation held on October 18, 1965, an employee of Gainer Mills, who had previously hired defendant, testified that the damage to the forced door was $117.62 and that it was his opinion that neither defendant nor his attorney should ask for probation. A police officer who had investigated the crime testified as to the details of the offense, that defendant had not been drinking, and made no recommendation concerning probation. A detective from the police department who had known defendant by sight for a "couple" of years recommended that defendant not be given probation. He was then asked for what reasons to which he replied that Defendant was involved in an investigation involving defendant's part in a holdup in Morgan County on August 11, 1965, whereupon defendant's attorney objected to evidence of anything after this occurrence because defendant had not been tried on such offense. The prosecutor urged that evidence of the August 11th occurrence was admissible to show defendant's activities since the arrest in the present case, and that the witness should have an opportunity to explain his recommendation. After the court twice stated that for such limited purpose the evidence would be proper, defendant's attorney agreed to its use for that limited purpose. The witness then recited that defendant was found by a police officer lying in the trunk of a car driven by another man, and that in the trunk were two loaded pistols and a large sum of money. He also testified that on that night defendant had on his person a driver's license of a party of the same surname whom the witness understood might be a cousin and that it was reported to him that defendant had been using this driver's license while his own was either suspended or revoked. The witness appeared to have no personal knowledge of the occurrences about which he testified.
The prosecutor next called defendant's wife who testified that she had no recommendation to make regarding probation whereupon she was asked about being the victim of a beating by defendant on September 13, 1965, which resulted in her being hospitalized, that a few days later she returned to defendant who then threatened her life with a gun, and then cocked it and shot it out the window, and that she had previous to that occasion been hospitalized as a result of beatings by defendant, one of which was in December of 1964. Defendant's wife's mother testified that defendant had threatened both her and her daughter during telephone calls to her, that she had taken the wife of defendant into her home and to the hospital after various beatings, including the one on September 13, 1965, and that she did not recommend probation.
Defendant presented no evidence in support of his petition for probation and the cause was continued on the court's motion to November 3rd.
On October 28, 1965, while the defendant was in jail on other charges alleged to have occurred on the previous day, the prosecutor filed a motion to increase bail from $3,000 to $25,000, alleging therein that a report of the probation officer recommending that probation be denied was on file, that defendant had been charged with the aggravated battery and attempted murder of two men in Springfield on the previous day, and that defendant had been indicted in Morgan County and was to have appeared for arraignment in Morgan County on the previous day. Defendant's attorney was advised of this motion by telephone by the prosecutor's office, and stated that he would appear if defendant requested him to appear. Defendant was brought before the court without his attorney, the bail was increased to $25,000, and defendant remanded to the custody of the sheriff. On the following day defendant's attorneys filed their motion to vacate the increase of the bail, pointing out that the statutory notice had not been given, *fn1 that the application for increase of bail had not been verified, that the application failed to state facts or circumstances which either constituted a breach or a threatened breach of the conditions of the bail bond previously furnished. On the same day defendant's attorneys filed a motion for a two-week continuance of the hearing on defendant's motion for probation wherein they stated that defendant was in custody, could not make bail and that preliminary matters on separate charges of different offenses, adversely affected his right to probation and that until he was given a preliminary hearing, he was severely handicapped and prejudiced in presentation of evidence to support his probation as well as in gathering evidence in mitigation. The motion to vacate the increase of bond was denied.
On November 1 the motion for continuance was renewed, at which time the court was advised that the preliminary hearing on the aggravated battery and attempted murder charge would be held within the next day, and the motion denied. Upon a motion to defer sentencing the court asked the defendant to produce his evidence on the probation application, defendant rested without presenting any evidence, and the court advised that it would rule on the probation matter and the matter of sentencing on November 5th. On November 2, on oral motion of defendant's attorneys, bond was reduced to $10,000 and defendant was released from custody upon posting bond approved by the court. *fn2
On November 23 the cause was called for hearing on the petition for probation, a motion to file affidavits on behalf of defendant was taken under advisement, bond was increased to $25,000, defendant was remanded to the custody of the sheriff upon failure to post bond, and the cause was continued to November 26. On that date, *fn3 defendant moved for a change of venue prior to sentencing on the theory the defendant had received adverse publicity in this proceeding concerning more serious charges and that as a result the sentence which he would receive would not be commensurate with the acts to which he had entered his plea of guilty. The motion was denied, whereupon the prosecution moved that the evidence heard on the petition for probation be considered in mitigation and aggravation. To this defendant objected, particularly objecting to the testimony of defendant's wife being used. The court held that the evidence of defendant's wife was to be excluded, and the remainder of the evidence from the probation hearing would be used. Neither the People nor defendant presented any evidence, and after hearing defendant's attorney, the People urged that in imposing sentence the court take into consideration the evidence presented on the probation hearing and pointed out that the court was entitled to receive evidence as to moral character, life, family, occupation, and criminal record of the offender *fn4 and may consider such evidence in mitigation and aggravation; further arguing that the court was not limited strictly to only the facts of the offense itself, but must necessarily include other factors and evidence, which had come to the court's attention. The prosecutor then recited that the court should not consider the aggravated battery and attempted murder charges, and that the State's Attorney recommended a sentence of not less than 10 nor more than 20 years. Thereupon the court sentenced defendant to not less than 5 nor more than 15 years in the penitentiary.
On December 3, 1965, defendant's attorneys filed a motion for reduction of sentence pointing out that the only matters in aggravation properly presented had been the circumstances surrounding the burglary to which he had pled, and the testimony of his wife's mother that he was cruel and abusive to his wife and not deserving of probation. The motion further pointed out that, although the State had agreed that evidence of other unrelated charges was to be excluded in determining sentence, they had been injected into this case as a basis for increasing bond, and that the court gave credence to such charges in increasing the bond. The motion was accompanied by the affidavit of a business acquaintance and a former employer, to the effect that defendant was a conscientious and trustworthy employee, and to their knowledge had never caused any trouble.
On November 8th, the motion was heard and taken under advisement, the prosecutor having orally moved that the motion be dismissed. On the same date defendant moved that a previous order forfeiting bond be vacated. Such order was entered. The motion to dismiss the motion of reduction of sentence was filed on December 8, and was allowed on December 10th, at which time sentence was reaffirmed.
The People have filed in this court a Motion to Suggest Diminution of the Record which has been taken with the case. The motion states that the record is incomplete in that it does not contain the report of the probation officer and certain proceedings had on November 5th, and that the Clerk of the Court inadvertently omitted them from this record. Defendant has filed objections thereto pointing out he has filed no designation of portions of the trial court record to be included, and that the portions constituting the record on appeal are specifically enumerated by Supreme Court Rule 27(8), and do not include the probation report; further that the report of the probation officer, although marked filed on September 30, 1965, was not available as a part of the files prior to sentence and was not made available to defendant or his counsel; that the People did not request that the court consider the information in the probation report as a matter in aggravation, and if they had, objecting would have been forthcoming with a request for disclosure. Further pointing out that section 1-7(g) (supra) prescribes what evidence the court shall consider in determining sentence, and that by virtue of section 204-4 of chapter 38 such report is designed to confidentially advise the court as to the suitability of a defendant for probation, and not as a presentencing report; *fn5 that defendant has not raised the issue of denial of probation in this appeal; and further that the suggested diminutions, are "accretions" and that any additional portions desired to be designated by the State as a part of this record should have been so designated to the clerk of the trial court in accordance with Rule 27(8) 11.
We agree with the contentions of defendant as set out in his objections and accordingly deny the motion suggesting diminution of the record. Upon its review, we can only conclude that the motive for its presentation is consistent with the prosecutor's efforts as shown by this record to prejudice those charged with the ...