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People v. Kennedy

OPINION FILED DECEMBER 6, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ANDRE KENNEDY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Macon County; the Hon. JOSEPH C. MUNCH, Judge, presiding.

MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

We are concerned here with the propriety of a trial judge at sentencing considering mere charges against or arrests of the defendant for other offenses for which he has never been convicted nor proved to have committed.

After trial by jury in the circuit court of Macon County, defendant Andre Kennedy was convicted of the offense of unlawful delivery or possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1401(c)) and on January 31, 1978, sentenced to a single sentence of 2 to 10 years' imprisonment. Upon appeal his sole contention is that the trial court erred in considering at sentencing mere charges against him and arrests made for other unproved alleged offenses.

The instant offense occurred on December 5, 1973. The defendant was not indicted until 11 months later. Upon defendant's motion, the indictment was dismissed on the theory that delay had violated the defendant's right to a speedy trial. On appeal, we reversed and remanded ruling that the evidence was insufficient to show a denial of that right. As a result of the time consumed by these procedures, defendant was not tried and sentenced until more than 4 years after the offense. Defendant's conduct during this 4 year period was a key point of dispute during the sentencing hearing.

At the sentencing hearing, the court considered a report of presentence investigation which had been previously filed. It showed that defendant was then 22 years of age and that (a) in 1969 when he was 13 or 14 he had been placed on supervision for criminal damage to property, and (b) in 1971 when he was 15 or 16 he had been placed on juvenile probation for burglary and curfew violation. Attached to the report was a police "rap sheet" listing some 14 times that defendant had been arrested or charged with an offense since July 25, 1973, most of which involved minor misdemeanors. The only convictions listed were for (a) 7 traffic offenses, the most serious of which was for his driving while his license was revoked and (b) two liquor possession violations. The "rap sheet" had notations after most of the other items indicating that charges had not been filed or had been dismissed.

The other evidence at sentencing consisted of the testimony of the defendant and his girl friend who had borne him a child out of wedlock several years earlier. His attorney questioned him as to the "rap sheet." He stated that he had been charged with armed robbery in 1975 but that the charge was dismissed "because they found that [I] was not guilty." He also said that he had not been convicted of any other offenses than those listed. He told of his sporadic employment and said that while employed, he supported his child. He explained that he and his girl friend had not married because of the uncertainty of his status during the past 4 years. The girl friend's testimony did not bear upon the issues involved on appeal.

During the evidence, a dispute arose as to whether defendant had been diligent in reporting to the court's probation officer so that preparation of the presentence report could be initiated. The evidence was inconclusive as to the extent of the defendant's fault but it was apparent that he was unconcerned with the importance of promptness. In closing argument, defense counsel noted that the court might be concerned about the defendant's attitude but argued that the lengthy nature of the proceedings might be responsible. That counsel requested that the defendant be given probation or a short sentence, stressing that defendant had not committed a major crime since 1973. Defendant was then given an opportunity to speak which he used to argue that he was innocent.

Before imposing sentence, the trial judge stated that the jury had heard the evidence and found the defendant guilty and indicated that he felt that the defendant showed a lack of responsibility. The following colloquy then occurred:

"THE COURT: "On the question of what you have been charged with but haven't been convicted of, the court isn't required to act as if he doesn't know of the great volume of people who commit offenses without getting caught and getting caught and having enough legal evidence to prosecute are another factor. This is what you are emphasizing as your case. You haven't learned your lesson.

DEFENDANT: I haven't learned my lesson?

THE COURT: You have got a long ways to go. The world doesn't owe you a living."

• 1 Prior to January 1, 1973, the effective date of the Unified Code of Corrections (Ill. Rev. Stat. 1972 Supp., ch. 38, pars. 1001-1-1 to 1008-5-1), probation was not a sentence (Ill. Rev. Stat. 1971, ch. 38, arts. 117 and 118). Usually separate hearings were held on a request for probation and sentencing with a probation hearing being held only upon the request of a defendant. It is not disputed that at that time, under the case law, evidence as to the mere existence of charges against or arrests of the defendant for other offenses could be considered at a hearing on a motion for probation (People v. Moore (1971), 133 Ill. App.2d 827, 272 N.E.2d 270), but not at a sentencing hearing. People v. Riley (1941), 376 Ill. 364, 33 N.E.2d 872; People v. Jackson (1968), 95 Ill. App.2d 193, 238 N.E.2d 196.

The Unified Code made probation a sentence (Ill. Rev. Stat. 1972 Supp., ch. 38, par. 1005-5-3) and provided for a single sentencing hearing at which all permissible sentences including probation and imprisonment might be considered (Ill. Rev. Stat. 1972 Supp., ch. 38, par. 1005-4-1). Although the supreme court has never spoken on the issues, appellate courts> of various districts including this court have continued to rule that consideration of mere arrests or charges is permissible if limited solely to the question of whether the defendant be admitted to probation. People v. Taylor (1973), 13 Ill. App.3d 974, 301 N.E.2d 319; People v. Grau (1975), 29 Ill. App.3d 327, 330 N.E.2d 530; People v. Kelly (1976), 36 Ill. App.3d 476, 344 N.E.2d 50; People v. Profit (1976), 37 Ill. App.3d 918, 347 N.E.2d 67.

We conclude that this record demonstrates the unfairness and unworkability of the continuation of this rule permitting the ...


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