Appeal from the Circuit Court of St. Clair County, Twentieth
Judicial Circuit; the Hon. HAROLD O. FARMER, Judge, presiding.
Judgment modified, and affirmed as modified.
Defendant appeals from a sentence of not less than three (3) years nor more than ten years in the Illinois State Reformatory for Women following her plea of guilty to a three-count charge of theft, a violation of chapter 38, section 16-1, Ill Rev Stats 1965. Defendant claims the trial court erred in denying her probation and relies upon Illinois Supreme Court Rule 615 (b), which provides:
"On appeal the reviewing court may:
"(1) Reverse, affirm or modify the judgment or order from which the appeal is taken;
"(2) Set aside, affirm or modify any or all of the proceedings subsequent to or dependent upon the judgment or order from which the appeal is taken;
"(3) Reduce the degree of the offense of which the appellant was convicted;
"(4) Reduce the punishment imposed by the trial court; or
"(5) Order a new trial if justice so requires."
The defendant, age 43 years, was indicted by the Grand Jury of St. Clair County, Illinois, on three counts charging theft of a (collective) sum of $4,986.04 from the Loren Mike Krause Construction Company, during a period between March 1 and July 15, 1965. On October 3, 1966, defendant, through retained counsel, entered a plea of guilty to the crime of theft and made application for probation. The State's Attorney remarked on this occasion; "Your Honor, we have a recommendation at this time. The defendant through her attorney has indicated that she has the capacity and desire to make restitution for the monies which were taken, which were in excess of $4,000. It appears that this is feasible if probation would be considered by the Court; they have represented to me that this will take place inside a twenty-four month period, if she is permitted to remain free."
The court then referred the case to the probation officer of the County for investigation, set a hearing on the matter for October 17, 1966, and commented to defendant; "Be here at that time with your attorney and if you can make restitution we will certainly look upon your probation with favor. . . ."
On October 17, 1966, defendant moved to set aside her plea of guilty which was promptly objected to by the State and denied by the Court. The Chief Adult Probation Officer submitted a written probation report to the court following an investigation of the defendant and her background. The substance of this report revealed that defendant was born and presently resides in East St. Louis, Illinois. Her mother and father were divorced when defendant was 14 years of age. She has five children, two of whom were minors, ages 11 and 7, at the instigation of these proceedings and living with defendant. A third minor child, age 12, was living with Mr. Harpole from whom defendant obtained a divorce in 1965. Defendant does not know where Mr. Harpole is residing and claims she has not received any support money for the two minor sons living with her. The report further showed that defendant held various positions of employment prior to her four-year period of work for the Loren Mike Krause Construction Company, but at the time of the report was unemployed, drawing unemployment compensation.
The officer noted that during the interview, defendant seemed to be vague regarding the proceedings concerning her since her attorney apparently had not clarified the possibilities of the investigation to her. The report concluded that in view of all the confusion and the difficulty in ascertaining the financial transactions involved in the case, the court would be best able to evaluate the facts pertaining to possible restitution. The Probation Department indicated it could not make a recommendation in the matter due to the unanswered problems connected with the investigation.
Following several continuances, on February 20, 1967, defendant's application for probation was denied and she was sentenced to the Illinois State Reformatory for Women for a term of not less than four (4) years nor more than ten (10) years. Defendant, through her attorney, filed a petition for rehearing upon the application for probation. This hearing was held on March 6, 1967, at which time defendant presented a written statement to the court relative to her application for probation. In this statement defendant indicated her confusion about the recent transpirings and suggested she was not well advised concerning the probation hearing by her attorney. Defendant related her business relationship with the construction company since 1961, showing that she had been a trusted and valuable employee. The corporate president taught defendant "everything he could about the construction business," and gradually increased her responsibilities to where she became a corporate officer by the end of her first year. The business, though corporate in form, was, according to defendant, operated relative to the personal needs and necessities of its president. Personal and corporate accounts were merged and salaries were paid pursuant to realized profits, the checks being charged to various business accounts. It was according to this method that defendant asserts certain checks came into her possession and others were appropriated by her after the decease of the company president.
Finally, defendant indicated that when the attorney for the State recommended probation indicating that she had agreed to make restitution "of what sounded to (her) like $4,000.00, (she) was dumbfounded at what (she) had pleaded guilty to." Defendant then attempted to withdraw her plea of guilty, and failing this, attempted to make restitution. She tried to reconcile the amounts charged as stolen in the indictment with "the real situation," but met with no cooperation on the part of the ...