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People v. Berry

DECEMBER 28, 1971.




APPEAL from the Circuit Court of Rock Island County; the Hon. JOHN L. POOLE, Judge, presiding.


Defendant Charles O. Berry was indicted (in separate counts) for the attempted murders of Charles McSparin, Larry Ridgeway, and Michael McGrath; with the kidnapping of Robert Pannell; with the robbery of a gun from McSparin; with the attempted armed robbery of Ridgeway; with the theft of a police squad car belonging to Rock Island County; and with criminal damage to property, i.e. the squad car. The defendant pleaded guilty to each of the charges, and was sentenced to terms of imprisonment as follows: (1) From five to fifteen years on each of the three counts of attempted murder; (2) From one to five years for kidnapping; (3) From one to ten years for robbery; (4) From two to ten years for attempted armed robbery; (5) From one to ten years for theft; and (6) Six months in the county jail for criminal damage to property. All of such sentences were designated to run concurrently.

On appeal in this Court, defendant contends that it was improper for the trial court to convict and sentence him for robbery, theft, attempted armed robbery, and criminal damage to property and that such convictions or sentence should be reversed because they are for lesser offenses arising from the same transaction, since defendant has been convicted and sentenced for the greater offense of attempted murder.

The facts as disclosed by the record made by the prosecutor and defense counsel prior to sentencing, indicate that defendant, on October 12, 1969, left him home in an inebriated and angry condition after a disagreement with his wife. He was next noted at a gasoline station near the outskirts of the City of Moline where he became involved in an "altercation" with Ridgeway, the station attendant, and "attempted to take funds". While this was occurring, McSparin, a deputy sheriff, arrived at the station and in a scuffle between the deputy and defendant, defendant obtained the deputy's gun. After he had done so, defendant fired two shots, one at the deputy and one at Ridgeway, both of which missed. Defendant got into the deputy's squad car and drove it away. A short time later, defendant drove the car onto a highway median strip, where it became stuck and damaged. When McGrath, a passing motorist, stopped to see if he could be of assistance, defendant shot him in the neck. Thereafter, defendant stopped another automobile being driven by Pannell, and, after ordering the other people out of the vehicle, forced Pannell at gunpoint to drive to the Police Station in Milan, Illinois. According to the record, defendant intended to obtain ammunition for the gun which he had taken from the deputy. When defendant arrived at the Milan station he was subdued and placed under arrest by police authorities who had converged on the area.

Defendant asserts that in People v. Stewart, 45 Ill.2d 310, and in People v. Whittington, 46 Ill.2d 405, paragraph (m) of Section 1-7 of the Criminal Code of 1961 (Ill. Rev. Stat. 1969, ch. 38, par. 1-7(m)), was construed as prohibiting sentences, even though concurrent, for lesser offenses which occurred as part of the same transaction in which a greater offense is involved upon which there is a conviction and sentence. Defendant contends that it was improper to convict and sentence defendant for crimes of robbery, attempted robbery, theft, and criminal damage to property, on the basis that these were all "part of defendant's resistance to and flight from arrest". Defendant contends that, as a consequence, only his covictions and sentences for attempted murder, the most serious of the offenses, were proper. The State has confessed in this Court that it was error to convict and sentence defendant on the charge of criminal damage to property, and we agree.

• 1 We cannot, however, agree with defendant's interpretation of the Stewart and Whittington decisions. Those cases do follow the principle that the single sentence provision of Section 1-7(m) of the Criminal Code should be implemented so that a conviction and sentence should be imposed only on the most serious one of a series of criminal acts resulting from the same conduct or transaction. The cases, however, as a fundamental test to be applied in determining whether separate offenses can be said to have resulted from the same conduct or transaction, specify that the test is whether the offenses were "independently motivated" or "otherwise separable". We have had occasion to consider some applications of these principles in People v. Garry, (Ill. App.2d), 268 N.E.2d 568, and People v. Lerch, (Ill. App.2d), 268 N.E.2d 901. If we apply the tests of independent motivation or separability, as outlined in the Stewart and Whittington opinions, it is apparent that defendant was properly convicted and sentenced for each of the offenses complained about on the appeal, with the exception of the charge of criminal damage to property and kidnapping.

So far as the charges involving the deputy are concerned, it is notable that the taking of the officer's gun and the theft of the squad car were independently motivated. The first offense was prompted by an effort to resist arrest. The second, of taking the squad car, was motivated by an effort to escape. We likewise discern a separate and independent motivation when the defendant fired at the officer. Since he had disarmed the officer defendant had successfully resisted arrest, and was in control of the situation, making the attempt to murder the deputy unnecessary either to further resistance or for making good defendant's escape. People v. Baker, 114 Ill. App.2d 450; People v. Lerch, supra.

In considering the entire course of conduct of defendant it appears that the unprovoked shooting of McGrath, who had simply stopped to help defendant, indicates that all of the attempted murders were motivated by an unaccountable anger directed at the intended victims, rather than simply by thoughts of escape. We also see the activities involving the station attendant, Ridgeway, i.e. the attempted armed robbery and the attempted murder, as necessarily requiring separate acts and involving a different intent or mental state on part of defendant. We, therefore, conclude that the separate convictions and separate concurrent sentences specified (with the exception of the charges of criminal damage to property and kidnapping) were proper and should be affirmed.

• 2, 3 A specific contention is made by defendant, however, that he was not fully admonished as to the consequences of his plea of guilty to the charge of kidnapping, and that it was, therefore, erroneous of the trial court to accept and enter his plea to that offense. From an examination of the record we have concluded that unquestionably the trial court failed to explain to defendant the punishment provided for such offense. The court is expressly required to do so by Supreme Court Rule 401(b) (Ill. Rev. Stat. 1969, ch. 110A, par. 401(b)), and, also, by Section 113-4(c) of the Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, par. 113-4(c)). As construed and applied in People v. Terry, 44 Ill.2d 38 and People v. Mackey, 33 Ill.2d 436, the provisions of the Criminal Code require the trial court to make the admonition. The purpose of the admonishment is to inform defendant of the consequences of his plea of guilty and to give him the right to withdraw such plea if, after hearing of possible penalties, he desires to be tried by a jury. A defendant must be fully and directly apprised of the possible punishment fixed by the law so that he can intelligently or understandingly make his choice.

• 4 The State contends that the trial court's ommission was not fatal because it could be implied from other questions put by the court to defendant and that defense counsel had discussed the matter of sentencing with defendant. An affirmative answer was made to an inquiry by the court as to whether defendant's counsel had kept him "posted" on sentences to be recommended by the State's Attorney. An explanation of this type by counsel outside the record could not cure the trial court's error. The rule and statute placed the duty of explanation on the court, and preservation of such admonition in the record. A comparable argument to that advanced by the State was rejected in People v. Washington, 5 Ill.2d 58, 63, where the court said:

"We see little or no merit to a contention that a defendant who enters a plea of guilty is chargeable with knowledge of matters de hors his own trial * * *. The very purpose of Rule 27A [Rule 401B when the instant cause was tried] is to provide a form of procedure eliminating any doubt that a plea of guilty was made with full knowledge and understanding and to avoid the method of procedure where a defendant's knowledge and understanding were held to rest solely on implications arising from the common-law record. To this end the rule has carefully spelled out the information which must be conveyed to a defendant to give him full knowledge of the charge against him, and leaves little, if any, room for indulgence in presumptions."

We must, therefore, conclude that defendant was not sufficiently admonished as to the consequences of his plea of guilty to the charge of kidnapping and that it was error for the trial court to accept and enter the plea.

Accordingly, the judgment convicting defendant of criminal damage to property is reversed; the judgment convicting defendant of kidnapping is reversed and that cause is remanded; and all other ...

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