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The People v. Whittington

OPINION FILED OCTOBER 7, 1970.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

JAMES WHITTINGTON, APPELLANT.



APPEAL from the Circuit Court of Johnson County; the Hon. JACK C. MORRIS, Judge, presiding.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment of the circuit court of Johnson County dismissing, on motion, James Whittington's petition for post-conviction relief.

On October 13, 1967, petitioner, together with another prisoner, escaped from the Vienna Branch of the Illinois State Penitentiary where he had been serving sentences for forgery and armed robbery. In making their escape, the two commandeered an automobile owned by the State. Petitioner was captured on October 15, 1967, and on October 17 was brought into court and informed that he had been charged in a two count information with the crimes of escape by an inmate (Ill. Rev. Stat. 1965, ch. 108, par. 121) and theft of property having a value in excess of $150. (Ill. Rev. Stat. 1965, ch. 38, par. 16-1.) At that same time, counsel was appointed to represent him. On the following day, petitioner was brought into court and, after consultation with counsel, orally and in writing, waived grand jury proceedings, consented to be proceeded against by information, and pleaded guilty to both charges. He was sentenced to a term of from one to four years on the escape charge, which term was to be consecutive to all other terms then being served by him and he was sentenced to a term of from two to ten years on the theft charge to run concurrently with all other terms then being served.

In June 1968, petitioner filed a pro se post-conviction petition alleging violation of his constitutional rights in that the trial court did not inquire as to whether he understood the consequences of a plea of guilty, and that he was twice put in jeopardy by being convicted of two charges (escape and theft) which arose out of the same action and course of conduct. The State filed a motion to dismiss the petition, asserting there was no violation of petitioner's constitutional rights, and petitioner countered with a motion to strike the State's motion to dismiss. At some point in these proceedings, counsel was appointed for petitioner who then filed an amendment to the pro se petition. In this amendment it was charged that Whittington's constitutional rights were violated in that the trial court failed to inquire if petitioner understood the consequences of his plea of guilty to the charge of theft and that the trial court erred in "failing to obtain proper evidence of moral character, family, health, habits, etc., at the time of the hearing on aggravation and mitigation * * *." After a hearing on the motions, the trial court dismissed the petition for failure to set forth a substantial violation of petitioner's constitutional rights.

The transcript of the arraignment proceedings clearly indicates that defendant was informed of his rights, was properly admonished as to the consequences of a plea of guilty to the charge and understood those consequences. The court advised him with respect to count I (escape) that the penalty prescribed by statute was not less than one and not more than ten years, to be served in the penitentiary consecutively with any sentence then being served. He was advised of his rights to trial by jury, counsel, and to subpoena witnesses, and, when asked if he understood the admonition, petitioner replied: "Yes, I do." The court again repeated the admonition and, upon receiving an affirmative reply regarding petitioner's understanding thereof, accepted petitioner's plea of guilty to the escape charge. He was then informed with respect to count II (theft) that he had a right to trial by jury, and that he could be sentenced to the penitentiary for a term of not less than one nor more than ten years. He was again asked if he understood this admonition and petitioner replied: "Yes." The court repeated this admonition a second time and, petitioner persisting in his plea, was found guilty.

From the foregoing, it is evident that petitioner was properly advised of his rights and as to the consequences of a plea of guilty, and that he understood those admonitions. Accordingly, we find no error. See People v. Washington, 5 Ill.2d 58.

Petitioner argues that the court erred in not obtaining evidence of his moral character, family, health, habits, etc. at the time of the hearing in aggravation and mitigation. The record before us indicates that petitioner's counsel informed the court that petitioner desired to testify in mitigation regarding his attempt to surrender himself before his capture. This he did and the court took it into account when sentencing him. He argues "it was incumbent upon the court to proceed to become informed of the defendant's moral character, life, family, occupation and criminal record". In People v. Nelson, 41 Ill.2d 364, 367, we stated that "The burden of presenting mitigating circumstances in a record falls upon a defendant and it is he who must make a substantial showing in order to justify a reduction of sentence on review." We further stated, at page 369, that "To hold otherwise would permit a defendant to stand silent and, if not pleased with his sentence, later invoke the aid of an appellate tribunal to secure a reduction in sentence." Accordingly, it was incumbent upon petitioner and not on the trial court to set forth the evidence he now claims should have been adduced. Petitioner was represented by counsel and, with advice, only presented certain mitigating factors to the trial court. He may not now complain that his hearing was not full enough after being afforded the opportunity to present evidence.

Further, petitioner in this court claims for the first time that the "inordinate speed with which his case was dispatched" did not allow him sufficient time to prepare. We have reviewed this record with respect to this claim and find no error. Neither petitioner nor his counsel made any request for additional time. Counsel had conferred with him prior to the arraignment and discussed the pending matter with him. In People v. Wakeland, 15 Ill.2d 265, where defendant was indicted, arraigned, entered a plea of guilty and was sentenced on the same day the capias under the indictment was served upon him, the court, in finding no violation of rights, stated, at page 271: "The defendant was represented by the public defender at all stages of the proceedings, and they conferred prior to the entry of any plea. There is no suggestion that counsel was incompetent or that he did not fully perform his duties. After the conference, upon interrogation and admonition by the court, the defendant stated that his attorney had fully explained his rights to him." (See also People v. Richardson, 43 Ill.2d 318.) These same factors are present in this case. Petitioner was represented by counsel who consulted with him prior to arraignment and advised him of his rights, petitioner was fully interrogated and admonished by the trial court and yet he persisted in his plea. On the basis of the record before us, we cannot say petitioner's rights were violated.

Finally, petitioner claims that he should not have been convicted and sentenced on both charges because they arose out of the same course of conduct. Our review of the record reveals that petitioner stole the motor vehicle on prison grounds as part of his plan of escape. Accordingly, the theft was not "independently motivated or otherwise separable" from the conduct which constituted the offense of escape. (People v. Stewart, 45 Ill.2d 310; People v. Scott, 43 Ill.2d 135.) It was therefore improper for defendant to be sentenced on the theft charge. Cf. People v. Stewart; People v. Scott; People v. Schlenger, 13 Ill.2d 63.

The judgment entered upon the charge of escape is affirmed and the judgment entered upon the charge of theft is reversed.

Affirmed in part and reversed in part.

Mr. CHIEF JUSTICE UNDERWOOD, dissenting:

I do not agree with the majority's conclusion that the convictions for escape and theft cannot both stand.

The Criminal Code provides: "When a person shall have been convicted of two or more offenses which did not result from the same conduct, either before or after sentence has been pronounced upon him for either, the court in its discretion may order that the term of imprisonment upon any one of the convictions may commence at the expiration of the term of imprisonment upon any other of the offenses." (Ill. Rev. Stat. 1967, ch. 38, par. 1-7(m), (emphasis supplied).) "Conduct" is defined in the Code as: "An act or series of acts, and the accompanying mental state." (Ill. Rev. Stat. 1967, ch. 38, par. 2-4.) As discussed in Article 4 of the Code, "mental state" is the intent, knowledge, recklessness, or negligence with which a person acts in the commission of an offense. (Ill. Rev. Stat. 1967, ch. 38, pars. 4-3 to 4-7.) The purport of subsection 1-7(m) is ...


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