APPEAL from the Circuit Court of Rock Island County; the Hon.
L.E. ELLISON, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 30, 1976.
Defendant Larry Gott appeals from a judgment of conviction of robbery and a consequent sentence of one to three years' imprisonment. The judgment of conviction was based upon defendant's plea of guilty which followed plea negotiations.
On appeal in this court, defendant asserts that the trial court erred in denying his motion to vacate sentence and withdraw his plea of guilty and alleges that the prosecution did not adhere to the plea agreement and, also, that there was certain evidence presented at the sentencing hearing which was not tendered to defendant prior to the guilty plea. Defendant also contends that the trial court abused its discretion in denying him probation and in sentencing him to the one- to three-year penitentiary term.
From the record it was disclosed that five young men were involved in an armed robbery of a young girl who was in attendance at the Mr. Fresh store in East Moline. Three or four of the young men entered the store, and one threatened the girl with a knife and the rest emptied the cash register. Defendant did not enter the store, but acted as a lookout for the others. All five wore ski masks or nylon stockings over their heads. Defendant later received approximately $20 from the proceeds of the robbery as his share.
Defense counsel in the trial requested discovery of statements made by co-defendants and police reports concerning the case pursuant to Supreme Court Rule 412 (Ill. Rev. Stat. 1975, ch. 110A, par. 412). The State supplied all written materials it had available.
The prosecutor and defense counsel then entered into plea negotiations and ultimately it was agreed that the charge of armed robbery would be reduced to simple robbery and that the State would make no recommendation as to sentencing. Defendant's plea was accepted.
A presentence investigation was conducted, which showed that defendant had no prior criminal record, but had two disorderly conduct violations for which he paid small fines. Defendant was 17 years of age at the time of the trial. When he was 15 years old he was adjudged a minor otherwise in need of supervision, in that it was determined that he was beyond the control of his parents. He was placed in the home of his brother for about nine months and then returned to the custody of his mother. At the time of the presentence report, defendant was still on juvenile probation. The report also indicated that two of the other co-defendants were sentenced to the Illinois Youth Farm, and another, age 18, was sentenced to a two- to six-year term of imprisonment.
At the sentencing hearing, defendant put on several witnesses in mitigation, including neighbors, friends, teachers, and his mother. Defendant also testified as to his version of the robbery. The prosecutor advised the court and defense counsel that he was reserving the right to offer evidence to rebut the testimony of defendant. After defendant's testimony the State called investigating officer Freeman. That officer testified as to statements made to him by the co-defendants. Some of the testimony offered by Officer Freeman as to statements of the co-defendants was not included in either the transcripts of statements given by the co-defendants or in the police report filed by Officer Freeman and had not theretofore been given to defense counsel in discovery, and presumably was also unknown to the prosecutor prior to Freeman's testimony.
In the closing statement made to the court on the sentencing hearing, the prosecutor made a number of comments which are the basis of defendant's argument that the prosecutor violated the agreement not to make a recommendation on sentencing. At one time the prosecutor said:
"Now, another circumstance that I would like the court to consider here is the fact that, with the possible exception of Scott Schultz, everyone else involved in this crime has served some time * * *."
Defense counsel objected on the grounds that the statement violated the plea agreement. The trial court commented that the statutes authorized the court to be made aware of the disposition of co-defendants, and that the information as to the disposition of the co-defendants was in the presentence report in any event, and that the court had not heard enough of the argument to know whether it was a violation of the plea agreement.
The prosecutor then went on in his argument and stated:
"* * * And in this way, it is different from some more serious crimes such as murder, because they are often crimes of passion, on the spur of the moment. There is evidence that this thing was planned earlier in the evening, they met somewhere and went up there. I would ask the court to consider the premeditation involved in this type of offense. I would also ask the ...