Appeal from the Circuit Court of Cook County; the Hon. FRANK
WILSON, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 8, 1970.
In three indictments defendant was charged with the sale and dispensing of narcotic drugs. On each indictment he pleaded guilty to the lesser charge of unlawful possession of narcotic drugs. A stipulation was entered into between the State, defendant and his counsel as to the facts and that the narcotic drug was marijuana. On each charge defendant was sentenced to two to four years, to be served concurrently.
On appeal defendant contends that he was not given a mitigation hearing, and that the three sentences should be vacated and the causes remanded to the trial court with directions that defendant be given an opportunity to offer evidence in mitigation prior to being resentenced, as provided for in chapter 38, § 1-7(g).
The record shows that on April 16, 1968, the trial court admonished defendant Strey as to the significance and consequences of his change of plea from not guilty to guilty and, after a recess for a "conference," the following took place:
THE COURT: Let the record show the defendant Strey has been advised of the consequences of his pleas of guilty to these three indictments and after being so advised persists in his plea. The pleas therefore will be accepted. There will be a finding of guilty in all three indictments as charged in the indictment.
After a recitation of the stipulated facts, the record shows the following:
MR. WARD: "In aggravation the defendants do not have any prior convictions of record. I would impress upon the Court the fact that the charge was sale of drugs and dispensing drugs, which carries the same penalty under the Code, ten to life. The State has accepted pleas on the lesser included offense of possession. Nonetheless the State must recommend, in the case of Mr. Strey recommend a term of years not less than two nor more than five in the Illinois State Penitentiary, Mr. Spietz, two to three years in the Illinois State Penitentiary, such terms to run concurrent."
THE COURT: "Do you wish, Mr. Lucas [defendant's counsel], to argue in mitigation on Thursday morning?"
THE COURT: "It was indicated in the conference Mr. Lucas wished time to argue in mitigation before sentencing."
THE COURT: "I will withhold judgment on the finding and aggravation and sentencing until 9:30 Thursday morning, April 18th."
On April 18th, the record shows the following:
THE CLERK: "People of the State of Illinois vs. Darryl Strey and Candice Spietz."
THE COURT: "There has been a judgment on the finding. The only thing left is sentencing, hearing in aggravation and mitigation."
MR. LUCAS: "If the Court please, I think I would like to ...