NOVEMBER 3, 1971.
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
HENRY A. BROWN, DEFENDANT-APPELLANT.
APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITGERALD, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment revoking the probation of the defendant, Henry A. Brown, and sentencing him to serve not less than five nor more than eight years in the Illinois State Penitentiary for commission of the offense of burglary.
The defendant contends, on appeal, (1) that the sentence imposed was excessive and (2) that the court failed to conduct a proper hearing in aggravation and mitigation.
The events leading up to the revocation of probation and the imposition of sentence are undisputed, and we shall set them forth in chronological order. The defendant was charged in an indictment filed on October 16, 1968, with the offense of burglary in that on May 8, 1968, he allegedly entered a restaurant owned by Louis and John Djikas with intent to commit theft. After arraignment the defendant made a request for a pre-trial investigation which was granted. When the cause was called for trial on January 24, 1969, the defendant changed his plea from not guilty to guilty, and was placed on probation for a period of five years.
On December 15, 1969, a warrant was issued for defendant's arrest for violating probation, and a hearing on the issues of the probation violation was held on February 3, 1970. At the hearing, it was stipulated that on December 18, 1969, the defendant was found guilty of a robbery committed on May 23, 1969, (four months after the defendant was placed on probation) and sentenced to serve one to five years in the penitentiary. After the stipulation was entered, the State rested, and the court asked the defendant and his attorney, "Anything in mitigation?" and the defense counsel responded, "Nothing further, your Honor." The court then terminated probation and sentenced the defendant to serve five to eight years in the penitentiary for burglary.
It is principally contended that the sentence imposed was excessive and unwarranted by the record. In support of this contention it is initially argued that "the trial court imposed this severe sentence in that it would not prejudice the defendant as he would be in prison at the same time for a robbery sentence of one to five years." We have examined the proceedings in the Circuit Court and find nothing either in the statements of the court or in any other part of the record to substantiate this assertion which is based solely upon conjecture and speculation.
It is next argued that the sentence was not commensurate with the original crime of burglary and that "Since the defendant in our case was granted probation, the court felt this was adequate punishment for the crime of burglary, the court then should have imposed a minimum sentence or close to the statutory minimum and not the severe five to eight years sentence that was given." Once it is proved that a condition of probation has been violated, the court in the exercise of its discretion may alter the conditions of probation or imprison the probationer within the statutory limits of the offense for which the probationer was convicted. (See section 117-3(d) of the Code of Criminal Procedure of 1963, Ill. Rev. Stat. 1967, ch. 38, par. 117-3(d).) In the present case, the defendant plead guilty to burglary, and under section 19-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1967, ch. 38, par. 19-1(b)) the court could sentence the defendant to serve any indeterminate term with a minimum of not less than one year.
• 1, 2 The pre-trial investigation prepared on the defendant's request shows that the defendant was convicted on four occasions prior to the entry of his guilty plea on January 24, 1969; twice for assault with a deadly weapon, once for petit larceny, and once for drunken driving. The defendant was given an opportunity for rehabilitation and placed on probation in spite of this prior criminal record. However, once it was proved that the defendant violated probation by the commission of a criminal offense, the court, in imposing sentence properly took into account the defendant's past criminal record and gave a sentence in excess of the minimum permitted by statute. The sentence imposed was within the limits set by statute, and in view of the criminal record of the defendant was not excessive. See: People v. Brower, 124 Ill. App.2d 356, 260 N.E.2d 463, (10 to 20 year sentence for burglary after revocation of probation). People v. Thomas, 121 Ill. App.2d 422, 257 N.E.2d 480 (6 to 8 year sentence for burglary after revocation of probation), and People v. Land, 112 Ill. App.2d 345, 251 N.E.2d 92, (4 to 7 year sentence for burglary after revocation of probation).
The defendant cites and relies upon People v. Livingston, 117 Ill. App.2d 189, 254 N.E.2d 64. In that case Merle Livingston, when 18 years old, plead guilty to a charge of burglary which involved an entry to a gasoline station and a theft of $2.40 worth of oil. He was placed on probation for three years, and within the probationary period he was convicted of the misdemeanors of criminal damage to property and criminal trespass to a motor vehicle. Livingston's probation was revoked after a hearing, and the court in imposing sentence stated "I am sentencing this man to five to ten years for violation of my probation." The Appellate Court on review reduced the sentence for burglary from five to ten years to two to five years after considering the nature of the burglary offense and noting that the imposition of sentence for the violations of probation would constitute multiple punishment for the subsequent misdemeanors. The defendant herein, in contrast to Livingston had an extensive criminal record, and the sentence imposed was not excessive in view of that record.
• 3 It was finally argued that a sentence of five to eight years disregards the principles of rehabilitation. It is pointed out that the purpose of modern day penology is to rehabilitate and restore the offender to a useful place in society while at the same time protecting the public, People v. Donovan, 376 Ill. 602, 35 N.E.2d 54), and that rehabilitation is best achieved under a system giving great discretion to parole authorities, (People v. Brown, 60 Ill. App.2d 447, 208 N.E.2d 629). An indeterminate sentence was imposed as required by section 1-7(e) of the Criminal Code of 1961 (Ill. Rev. Stat. 1967, ch. 38, par. 1-7(e)), and under the facts and circumstances of this case it was well within the court's discretion.
• 4 The defendant contends that the court failed to conduct a proper hearing in aggravation and mitigation and argues that "The information available to the court in aggravation and mitigation for the probation violation was insufficient to permit the trial court to render an appropriate sentence." Prior to the entry of the defendant's guilty plea on the burglary charge on January 24, 1969, a pre-trial investigation was filed which contained information concerning the defendant's family, schooling, military experience, work history, social conditions, and criminal record. After the State rested the case at the hearing on the probation violation, the court asked the defendant and his counsel whether there was any matter to be presented in mitigation, and the defense counsel answered that there was nothing further. The failure to present evidence in mitigation after an opportunity to present such information was given constitutes a waiver of any right to a hearing in aggravation and mitigation. (See People v. Riso, 129 Ill. App.2d 356, 264 N.E.2d 236, and People v. Hicks, 125 Ill. App.2d 48, 259 N.E.2d 846.) In Riso the court without deciding whether a defendant is entitled to a hearing in aggravation and mitigation after the revocation of probation, held that the failure of the defendant, who was represented by counsel, to request a hearing in aggravation and mitigation constituted a waiver to any right to such a hearing. In Hicks the trial court after revoking the defendant's probation asked whether there was any evidence in mitigation, and defense counsel responded, "I don't at this time, Your Honor, care to offer anything further." It was held that the failure to bring information in mitigation before the court when given an opportunity to present such evidence constituted a waiver of a right to a hearing in aggravation and mitigation.
For the reasons set forth above the judgment of the circuit court is affirmed.
ADESKO, P.J., and DIERINGER, J., concur.
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