APPEAL from the Circuit Court of Will County; the Hon. ANGELO
F. PISTILLI, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Defendant, Harlow Barto, was convicted of arson and involuntary manslaughter upon his plea of guilty. Pursuant to plea negotiations, defendant was sentenced to the penitentiary for a term of 6 to 20 years for arson, and 3 to 10 years for involuntary manslaughter, the sentences to run concurrently. Defendant contends on appeal that this cause be remanded because of the trial court's failure to have a sentencing hearing and that convictions on both charges cannot stand because both alleged offenses arose from the same conduct.
The record discloses that defendant placed at least one burning flare into the dresser drawer of a hotel room and left the room. The fire burned out of control, causing the death of one occupant, and completely destroying the hotel.
On April 25, 1973, defendant was indicted on one count of murder and one count of arson. Defendant's conduct was described in virtually identical language in both counts. On August 20, 1973, the State, without objection by the defendant, made a motion to nolle prosequi the murder count, and in its stead filed an information charging defendant with involuntary manslaughter. As a result of plea negotiations, defendant pled guilty to both arson and involuntary manslaughter.
Although the court fully admonished the defendant of his rights under Supreme Court Rule 402, the defendant was advised that by tendering the negotiated plea he waived a sentencing hearing and a presentence report:
"THE COURT: One further thing I have to advise you of, Mr. Barto, is that by the Court accepting a plea bargain such as this, you will not have a hearing in aggravation and mitigation and you will not have a presentence report where information about your background is presented to the Court and your attorney would be able to present matters to the Court that would affect any length of your sentence. Do you understand that?
Defendant was then sentenced to concurrent sentences of 6 to 20 years for arson and 3 to 10 years for manslaughter.
Defendant contends on appeal that a negotiated plea agreement cannot abrogate the requirement of a sentencing hearing, and that the trial court cannot impose a minimum sentence greater than the statutory minimum on the basis of the plea agreement. Defendant cites the sentencing procedure contained in the Unified Code of Corrections.
Section 5-4-1(a) of the Code (Ill. Rev. Stat., ch. 38, par. 1005-4-1) provides that a sentencing hearing be held, which is mandatory, even if the defendant does not request it. (Ill. Ann. Stat. ch. 38, § 1005-4-1, Council Commentary (Smith-Hurd 1973).) Section 5-8-1 (c) (3) requires the trial judge to consider the nature and circumstances of the offense and the history and character of the defendant before setting a higher than minimum term. Defendant contends that these two provisions taken together require the court to hold a sentencing hearing whenever a higher than minimum term is imposed, because it is only with the information which would be obtained at a sentencing hearing that a trial judge can make a proper evaluation of the factors required under section 5-8-1(c) (3) of the Code.
The Council Commentary explaining the purpose and intent of section 5-8-1 (c) (3) supports this view:
"The judge is required to take regard of the nature and circumstances of the offense and the history and character of the defendant before setting minimum terms above the norms established by the Legislature in the statute * * *." (Emphasis added.) Ill. Ann. Stat. ch. 38, § 1005-8-1, Council Commentary Smith-Hurd 1973).
The State contends that a defendant can knowingly and intelligently waive a sentencing hearing. The basic tenet of their argument is that the enactment of the Code of Corrections does not invalidate prior decisions which allowed waiver of a hearing in aggravation and mitigation. (People v. Louis, 112 Ill. App.2d 356, 251 N.E.2d 373 (1st Dist. 1969).) In People v. Mize, 9 Ill. App.3d 647, 292 N.E.2d 731 (4th Dist. 1973), the court approved a higher minimum term where the opportunity to offer evidence in aggravation and mitigation was given to both sides and voluntarily waived, and where the record shows an adequate background of the defendant to establish factual basis to allow sentencing.
Nothing in the record supports the State's contention that defendant knowingly and intelligently waived his right to a hearing. On the contrary, the record reveals that defendant did not even have the opportunity to waive the hearing. The trial court expressly stated that defendant waived such a hearing by virtue of the plea bargain. In People v. Matychowiak, 18 Ill. App.3d 739, 310 N.E.2d 394 (5th Dist. 1974), a sentence was vacated on similar facts. The court there said that "[n]owhere in the Code is there an indication ...