OCTOBER 20, 1971.
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
LUIS CORRAL SILVA, A/K/A CORRAL LUIS SILVA, DEFENDANT-APPELLANT.
APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. PRESIDING JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:
The defendant, Luis Corral Silva, was indicted for murder. The defendant pleaded guilty to the lesser included offense of voluntary manslaughter. The trial court sentenced him to not less than eight, nor more than ten years, in the Illinois State Penitentiary. On appeal the defendant's contentions are:
(1) That the trial court failed to inform the indigent defendant of his right to appointed counsel;
(2) That the trial court failed to conduct a full and proper hearing in aggravation and mitigation; and
(3) That the trial court imposed an excessive sentence.
The facts are as follows:
In February, 1969, the defendant was indicted for murder. He pleaded not guilty and on May 2, 1969, his trial and jury selection commenced. The defendant was represented by private counsel of his own choosing. Eight jurors were selected and sworn in and the case was continued to the following Monday, May 5, 1969. On Monday, May 5, 1969, the defendant changed his plea to guilty of voluntary manslaughter and the eight selected jurors were dismissed.
An official interpreter and a private interpreter were present at the trial since the defendant had some difficulty with English. After admonishing the defendant of the consequences of his plea, the trial court found him guilty of voluntary manslaughter.
The stipulated facts were that the defendant fatally shot Hector Enrique Herrera, who was unarmed, five times in both the chest and through the back. A young girl, who was a bystander, was struck in the arm by one of the bullets. After a hearing in aggravation and mitigation, the defendant was sentenced.
• 1 The first contention raised by the defendant on appeal is that the trial court failed to inform the indigent defendant of his right to appointed counsel. The defendant bases this argument on his statement to the court that "he will accept it (guilty plea) because he hasn't got any money to continue fighting his case." In his brief, however, the defendant totally ignored his attorney's reply:
"Well, your Honor, if the Court please, I want to represent to the Court that the fee has been paid in full, has been paid for some time, I have not asked Mr. Silva or members of his family for any more money either directly or by inference."
The court passed the case at the Assistant State's Attorney's suggestion so that the defendant, his attorney, the interpreter, and the defendant's family could get together and clarify the situation. The court informed the defendant of his right to appeal:
"Now, Mr. Silva, I must advise you of your right to appeal and of your right, if indigent, if you cannot afford it, to be furnished without cost to you the transcript of the proceedings and with an attorney to handle your appeal. Mr. Farina, (the defendant's attorney) I want to confer with Mr. Silva as to whether or not he wants to appeal, if he wants to file a notice of appeal with the clerk he may do so, you have thirty days to determine whether or not you want to appeal. Confer with Mr. Silva and advise the court what you want to do."
The contention that the trial court failed to inform the defendant of his right to appointed counsel is not supported by the record. At the trial, the defendant was represented by private counsel and had two interpreters present. We are not persuaded that the defendant was not meaningfully represented.
• 2 The second contention raised by the defendant is that the trial court failed to conduct a full and proper hearing in aggravation and mitigation. The record reflects that there was a full and proper hearing in aggravation and mitigation.
THE COURT: "We will now have a hearing in aggravation and mitigation to determine what the punishment will be."
The Assistant State's Attorney stated that the defendant did not have a prior record since he came to this country. Mr. Farina, the defendant's attorney said:
"* * * By way of mitigation, your Honor, we could produce testimony to show that the defendant is a married man, has five children, married to Mrs. Silva who is in court here today.
"As the State indicated, he has never been in any difficulty with the law either by arrest, trial or conviction.
"I think that there was considerable provocation for the events that took place on January 14th. I think that there was a background of bad blood between the defendant and the victim and I think it developed into a situation where there was considerable provocation for the shooting that took place on the night in question.
"I think that once this person, Mr. Silva, begins doing his time and at such time when the parole board feels that he is ready to return to society, I think he is an excellent risk, I don't think this man will ever be involved in any trouble again and I think that his sentence should be the minimum under the circumstances."
The court conducted a proper hearing, heard all the relevant evidence and properly sentenced the defendant under the law.
• 3 The third and final contention raised by the defendant is that the trial court imposed an excessive sentence. The defendant argues that the small spread between the eight year minimum and the ten year maximum forcloses any effective function of the parole system.
In People v. Lillie (1967), 79 Ill. App.2d 174, 223 N.E.2d 716, the court stated at page 178:
"Adequacy of the punishment should determine the minimum sentence, with the maximum dependent upon the court's divination as to the length of time required to achieve rehabilitation."
It must be remembered that the defendant shot an unarmed man five times through the back and chest, causing his death, and had wounded a girl. In view of the violent nature of the crime, the sentence was not excessive. The maximum sentence of ten years was not inappropriate for rehabilitation and parole.
The defendant needlessly and violently took the life of an unarmed man. A minimum sentence of eight years and a maximum sentence of ten years is not excessive.
For the reasons given, the judgment of the circuit court of Cook County is affirmed.
BURMAN and DIERINGER, JJ., concur.
© 2002 VersusLaw Inc.