NOVEMBER 3, 1971.
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
LAWRENCE PHILIP CARPENTER, DEFENDANT-APPELLANT.
APPEAL from the Circuit Court of Cook County; the Hon. MEL R.
JIGANTI, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
This is an appeal from judgments entered in the circuit court of Cook County. The defendant was indicted in 1965 on four indictments, all charging him with armed robbery. After originally pleading not guilty, he entered pleas of guilty to each indictment and was sentenced to serve a term of imprisonment of three to ten years concurrently on each indictment. Subsequently, he obtained new trials on each indictment by post-conviction relief.
He was re-tried on the four indictments in two separate trials. On indictment 65-506 he was found guilty and sentenced to a term of seven to twelve years. At a second trial he pleaded guilty to the remaining three indictments and received sentences of seven to twelve years to run concurrently with each other and with the sentence in indictment 65-506.
Carpenter has already appealed the second conviction of indictment 65-506, and now in the case before us he appeals from the judgments entered in the other three indictments. He contends first that he was not adequately admonished as to the maximum penalties he could receive on his guilty pleas because the trial judge did not inform him that the sentences could be imposed consecutively. He was sentenced to concurrent terms, not consecutive, therefore there is no merit in this contention, and we shall not discuss it further.
Secondly, he contends the concurrent sentences of seven to twelve years is a violation of due process since he had previously pleaded guilty to the same indictments and received sentences of only three to ten years, and the record does not indicate any conduct subsequent to the first sentences to justify the increased punishment. In reviewing the conviction of indictment 65-506 (People v. Carpenter, Case No. 53687, decided December 14, 1970), this court considered the same argument and held the defendant was denied due process when his sentence was increased. This court said:
"The Supreme Court held [in Pearce v. North Carolina, 395 U.S. 711] that the second sentence cannot be more severe than the first unless the reasons therefor affirmatively appear of record and unless those reasons are based on `identifiable conduct' of the defendant occurring after the time of the original sentencing, and secondly, that the time actually served on the first sentence must be credited to the sentence imposed upon the retrial. The Supreme Court further pointed out that vindictiveness against a defendant for having successfully attacked his prior conviction must play no part in the sentence he receives after the new trial."
The court then determined that the standards of Pearce had not been met, and that the sentence should be reduced to the original term of three to ten years.
In the case before us there was no "identifiable conduct" upon which to base the increased sentence as the record shows:
"THE COURT: There will be a finding, and judgment will be entered on the finding in each indictment in manner and form as charged in the indictment.
Are there any matters in aggravation?
MR. ONESTO: Yes, sir.
The defendant is presently incarcerated under Indictment No. 65-506 wherein he was found guilty in a trial by jury for the crimes of armed robbery and attempt with the intent to commit murder. Based upon this prior conviction, your Honor, and the remaining indictments, the State would recommend incarceration in the Illinois State Penitentiary for a term of not less than seven nor more than twelve years.
THE COURT: Are there any matters in mitigation, counsel?
THE COURT: I sentence the defendant to a term in the penitentiary on each indictment, a term of not less than seven nor more than twelve years, said indictments shall be concurrent with one another and concurrent with Indictment 65-506. The defendant shall receive credit for the time he spent awaiting trial and including any good time credits that he has earned in the Cook County Jail awaiting trial."
The State cites the case of People v. Bernette (1970), 45 Ill.2d 227. In that case the defendant was sentenced to a term of imprisonment of 75 to 150 years, and on retrial was sentenced to death. The Supreme Court of Illinois held the defendant was not deprived of any constitutional rights, but it carefully followed the Pearce standards:
"The present case presents a clear situation where an increased sentence upon retrial does not violate defendant's right to due process of law. There is nothing in this record to indicate that the court, in imposing the death penalty, was prompted by any sense of vindictiveness. On the contrary, the trial court merely acted upon the affirmative recommendation of the jury that the death penalty be imposed, a factor not present in the first trial. Also, important in this contest is that in the case at bar Tajra elected to testify in his own behalf, wherein at the first trial he did not do so. The jurors were therefore in an eminently better position to judge his credibility and complicity in the crime."
In the instant case there are no allegations of affirmative conduct by the defendant which would support a more severe sentence. Neither are there reasons advanced to indicate the court was in a better position to judge the defendant. Consequently, this court must agree with the court in Case No. 53687 that the sentences should be reduced to the original sentences of three to ten years, to run concurrently with each other and with the sentence in indictment 65-506, Appellate Case No. 53687.
For these reasons the judgment of conviction is affirmed and the part of the judgment imposing the sentences is reversed and the cause is remanded with directions to reduce the sentences in accordance with these views.
Judgment affirmed in part and reversed in part and remanded with directions.
ADESKO, P.J., and BURMAN, J., concur.
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