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The People v. Mccullough

OPINION FILED MAY 20, 1970.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

HOBLE MCCULLOUGH, APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS T. DELANEY, Judge, presiding.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

Defendant, Hoble McCullough, pleaded guilty to the charge of robbery in the circuit court of Cook County and was sentenced to the penitentiary for a term of from six to ten years.

He brings this direct appeal (see 43 Ill.2d R. 302), attacking the constitutionality of the process by which the trial court accepted his guilty plea, and, in the alternative, urges this court to reduce his sentence "because the trial Court failed to properly weigh the facts of defendant's record which should have been used in mitigation."

Defendant was indicted on December 15, 1967, for the knife-point robbery of Harry Furtkamp, a milk delivery man. The robbery occurred in an apartment building on the west side of Chicago. Two policemen, who had been investigating a series of truck-driver robberies, observed the victim's truck parked at the location. They saw defendant hurriedly leave the apartment building and discard a knife. They followed and apprehended him. Defendant was then brought to the victim who identified McCullough as his assailant.

Defendant was arraigned on December 26, 1967, at which time counsel was appointed to represent him, and a plea of not guilty was entered. Thereafter, on October 2, 1968, defendant appeared in court with counsel and requested leave to withdraw his previously entered plea of not guilty and to substitute a plea of guilty. Questioned by both his counsel and the court, defendant acknowledged his understanding of his right to a jury trial and that his entry of a plea of guilty would waive that right. He then executed a written jury waiver.

He was further questioned:

"THE COURT: Before accepting your plea, it is my duty to advise you that on a plea of guilty to this indictment charging you with armed robbery, I may sentence you to a term in the Illinois State Penitentiary of not less than two and for as long as the rest of your natural life; do you understand that, sir?

THE DEFENDANT: Yes, sir.

THE COURT: And knowing and understanding that, do you still persist in your guilty plea?

THE DEFENDANT: Yes, sir."

The court then accepted the plea, entered a finding of guilty and heard evidence in aggravation and mitigation.

The State recommended a sentence of from eight to fourteen years and introduced defendant's past record: In 1954, defendant was convicted of petty larceny and sentenced to one year in the House of Correction; in 1957, he pleaded guilty to three counts of armed robbery and was sentenced to the Illinois penitentiary for a term of from two to eight years; and, in 1964, he pleaded guilty to two counts of armed robbery and was sentenced to the penitentiary for a term of from four to eight years.

Defendant argued in mitigation that all of his previous convictions were primarily the result of his addiction to narcotic drugs, and that while in prison his conduct was "very good". He further established that immediately prior to the present offense, he had been gainfully employed, but that his parole officer had required him to undergo a series of tests to determine if he was using narcotics. The tests, which took a period of two weeks and which necessitated his absence from work, proved negative. However, because of the time off and his criminal record, defendant's employment was terminated. The defense suggested a sentence of from five to eight years. He was sentenced to a term of from six to ten years.

Defendant, relying on Boykin v. Alabama (1969), 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709, argues that his waiver of jury trial and his plea of guilty were not intelligently and voluntarily made. He also argues, somewhat anomalously that a "routine warning by the court that Defendant might receive a sentence of up to life imprisonment does not assure that the Defendant's entry of a plea of guilty is an intelligent one." After careful scrutiny of the plea proceedings in this ...


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