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People v. Bush

APRIL 16, 1968.




Appeal from the Circuit Court of Cook County, Criminal Division; the Hon. NATHAN M. COHEN, Judge, presiding. Judgments affirmed.


Defendants, Luther W. Miller (age 19) and John L. Bush (age 25), join in a consolidated appeal from their convictions, upon pleas of guilty, for the offense of armed robbery predicating their theory solely upon the excessiveness of the sentences imposed upon them by the trial court. They offer in support thereof the contention that the trial judge acted summarily and without aid of a hearing in aggravation and mitigation of the offense as was required of him by section 1-7(g) of our Criminal Code. Defendants request accordingly that, pursuant to the powers available to this court by virtue of Supreme Court Rule 615, their sentences be vacated and the cause remanded with directions to conduct such a hearing, or alternatively, that their sentences be reduced on the record before us as arbitrary and harsh.

In response the State submits that the practical consequence of the post-conviction proceeding conducted by the court below was, among other purposes, to in fact provide defendants with a full and formal hearing in aggravation and mitigation of their crime. The State also takes the position that inasmuch as the sentences entered were within the limits prescribed by the governing statute, the imposition of same by the trial judge must be deemed, absent a contrary showing, as within the legitimate bounds of sound judicial discretion, particularly in view of the gravity of the offense involved.

The facts giving rise to the instant cause concern themselves with the armed robbery of approximately $34,000 in cash from two Brinks guards in the process of making a money delivery to the R.R. Donnelly Company in the City of Chicago on August 19, 1966, at which establishment it appears that defendant Bush had been formerly employed. Defendants were apprehended by the authorities the very next day and identified in separate lineups as the offenders. Prolonged police investigations, however, succeeded in recovering but approximately $22,000 of the secreted proceeds.

Defendants were jointly indicted and arraigned upon the charge of armed robbery, each entering his respective plea of not guilty by counsel. Thereupon, the cause was set down and proceeded to trial on December 2, 1966. On that date, at the requests of counsel for defendants, Philip Basvic (privately retained counsel for Bush) and Jerome Wexler (Assistant Public Defender representing Miller), an impromptu pretrial conference of unknown duration was conducted off the record for the subsequently acknowledged purpose of negotiating pleas of guilty to the charge, and as a prelude to which the trial judge admonished defendants in the following manner:

". . . [do] you understand that in this conference which your attorney, . . . has requested, that we will learn all about you; that is, I will, from your attorney and from the State's Attorney, I will learn about your background, about your record, if you have any, and about the facts in this case. Do you understand that?"

Answers: "Yes."

The conference being adjourned, defendants returned to open court and announced their respective pleas of guilty to the offense in question.

Immediately following, the court ordered further proceedings to ascertain the precise factual context for the commission of the crime itself as well as in regard to the subsequent events culminating in defendants' arrests and acquisition of the money. This necessary material was supplied to the court by means of certain stipulations between counsels, offers of proof and the testimony of several witnesses, including that of defendants themselves. It was at this point that the court rendered formal findings of guilt, ordering that judgments be entered on his findings. Sentencing however was continued until further hearing on December 22nd, on the court's own motion, to facilitate additional investigation into the apparent and unexplained absence of in excess of $12,000 of the robbery proceeds. The judge advised defendants that the stay would similarly provide them with an extended opportunity to inquire into and verify their purported lack of knowledge as to the whereabouts of the missing funds, the court remarking:

"And depending upon the outcome of my determination of those facts will depend on the severity, or lack thereof, of the sentence I am going to impose upon these two defendants. You are both going to the penitentiary, you know that."

Contrary to defendants' suggestions however, it would appear from our examination of the Report of Proceedings of December 22, 1966, that such hearing was not as limited in scope of inquiry as that comment from the bench would alone indicate. Notwithstanding that hearing's otherwise ostensible purpose, we think it can be fairly concluded that defendants were afforded therein full and ample opportunity to present matters in mitigation of their conduct.

The material portions of the applicable statute (Ill. Rev Stats (1965) c 38, par 1-7 (g)) provides in this regard:

"For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the offender and may consider such evidence in aggravation or mitigation of the offense." [Emphasis supplied.]

In aid of our construction of the statute, we have no quarrel with defendants or their authorities to the extent that a trial judge cannot foreclose upon a legitimate attempt to introduce matters in mitigation, nor single out from the statute's requirements an offender who has pled guilty to his particular crime, as the fundamental duty remains incumbent upon the court to apprise itself of that ...

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