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People v. Buford

JULY 29, 1970.




Appeal from the Circuit Court of Winnebago County, Seventeenth Judicial Circuit; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding. Judgment affirmed.


This case presents the narrow issue of whether the trial court erred in imposing upon the defendant a sentence of not less than two nor more than seven years in the penitentiary.

The defendant was arrested on May 29, 1968, and was charged with the offense of having cashed a forged check in the sum of $50 on December 1, 1967. After an indigency hearing, the Public Defender was appointed on June 11, 1968, to represent him. The next day the defendant waived a preliminary hearing, and he was indicted by the Winnebago County Grand Jury on October 17, 1968.

Upon arraignment, he entered a plea of not guilty, but subsequently, on November 19, 1968, changed his plea to guilty, waived jury trial, and was granted leave to file a petition for probation. The defendant does not question the propriety of the court's admonitions in connection with the waiver of jury trial or the entry of a plea of guilty. The sole issue before us is the propriety of the sentence. The defendant contends that it was too severe and should be reduced.

One of the purposes of the Criminal Code is to "Prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders." (Ill Rev Stats 1969, c 38, par 1-2(c).) This purpose affords the court a range of discretion in sentencing which permits a recognition of the rehabilitative possibilities of the individual offender. The law does not necessarily contemplate that the same penalty will be inflicted upon all persons who are guilty of the same offense.

In considering this subject, we stated in People v. Buell, 120 Ill. App.2d 367, 256 N.E.2d 845 (1970), at pages 371, 372:

"In imposing a sentence, the trial court has an obligation to the public as well as to the person found guilty of the crime. . . . Thus, in sentencing, the court must consider the punishment warranted under the circumstances of the particular case, the protection of the public, and the potential for rehabilitation of the party being sentenced. The circumstances of the case include the nature of the offense, the attending circumstances, the character and propensities of the offender, his family, work record, past delinquencies, his potential for rehabilitation, and all other pertinent matters."

At the hearing on the petition for probation, the defendant, a Catholic priest, and a Protestant minister, testified on behalf of the defendant. The priest had known him for four and one-half years, and had helped him financially, as well as spiritually. He knew that the defendant was a drug addict, and that he had turned himself in for traffic in drugs. The defendant had told him of his efforts to quit the use of drugs, his failures, and his aspirations.

The Protestant minister, Chaplain of the Council on Law Enforcement, related that he became acquainted with the defendant at a recent date when the local press carried a series of articles on drugs; that the defendant came to the church and talked with him about drugs and about his drug problem; that the defendant, as a former drug addict, made suggestions to him relative to combating the drug problem in this community. He believed that the defendant had leadership possibilities in connection with the operation of a Halfway House, or a similar facility, which could be dedicated to aiding former addicts.

The defendant, thirty-eight years of age, was employed at the time of the probation hearing. He was a high school graduate, and had been in the armed service of the United States on three occasions. He first enlisted when under the age requirement, and was discharged about a year later when his true age was discovered. Later he reenlisted, and was in the service in Korea from 1949 to 1952. He again enlisted in 1954, but was discharged when it was discovered that he had failed to notify the armed services that he was on probation at the time of enlistment. At the time of his last enlistment, he was on probation for forgery.

The defendant admitted that he had three felony convictions: one for forgery, one for possession, and one for the sale of narcotics. He stated that he had used drugs, and that he became an addict after being hospitalized for a service incurred wound. While hospitalized, he received morphine and later switched to other drugs. He served a Federal sentence at Leavenworth prison and used no drugs while there. Upon leaving Leavenworth, he voluntarily went to the Federal hospital at Lexington, Kentucky, for treatment. He later reverted to the use of drugs and voluntarily went to Covington, Tennessee, for treatment.

The defendant had taken courses in literature above the high school level, and started writing while in Leavenworth prison during the years of 1958 to 1963. His works were published under the name of D. Thomas Bond.

The probation report — the verity of which was acknowledged by the defendant — reflected the following:

"FAMILY STATUS: The defendant states he was born in Shelby County, Tennessee, June 30, 1930. His parents are separated, and his father, Estes Buford, lives at 2044 - 21st Lane, Milwaukee, Wis. His mother, Viola Hill, resides at 530 Symington, Covington, Tenn. He has four sisters and five brothers, and he states that one of his brothers, Estes Buford, resides with the defendant. He completed his high school education in 1963 while confined to Leavenworth Penitentiary. He states he was married at Milwaukee, Wis. March 13, 1953, and ...

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