APPEAL from the Circuit Court of Knox County; the Hon. U.S.
COLLINS, Judge, presiding.
MR. PRESIDING JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Defendant Richard E. Hills appeals from an order of the Circuit Court of Knox County revoking his probation and sentencing him to a term of two to six years in the penitentiary. Four errors assigned by defendant are: (1) that his confession was improperly admitted into evidence; (2) that he was denied effective assistance of counsel; (3) that his sentence was modified illegally eight days after imposition; (4) that the sentence was excessive.
Defendant was originally charged with possession of a controlled substance with intent to deliver after police intercepted a letter in which had been placed .2 grams of a white powder containing a drug known as MDA. The letter had been mailed by defendant to Michael Eades, a prison inmate at Vandalia, Illinois. After defendant pleaded guilty to the charge, he was sentenced to two years probation beginning January 5, 1976. In April of 1977, a petition to revoke defendant's probation was filed in Knox County alleging in count I that defendant committed a burglary of the London Mills Recreation Center on March 10, 1977, and in count II that he committed an attempt burglary of the London Mills Drug Store on March 14, 1977. Charges of burglary and attempt burglary had previously been filed against defendant in Fulton County where both crimes were allegedly committed. On April 12, 1977, the Circuit Court of Knox County appointed the public defender to represent defendant in the revocation proceedings.
At the probation revocation hearing on May 19, the public defender asked for a continuance and stated that he felt he could not adequately prepare a defense because he had not yet discussed the case with defendant. Counsel explained that after his appointment, defendant called to say that private counsel had been retained. When the public defender contacted the named attorney, he learned that private counsel would not represent defendant in Knox County but only in the Fulton County proceedings. By that time defendant was out on bond, and the public defender was unable to reach him to discuss the case. The State objected to the continuance because defendant was negligent in failing to contact the public defender after he knew that private counsel was not available and also because the State's witnesses from Fulton County were present in the courtroom. The court denied the continuance, and both parties then agreed to proceed with testimony from the State's witnesses who were present and to continue the case for the defense to a later date.
The State's witnesses testified that on the morning of March 10, the owners of the London Mills Recreation Center, which included a restaurant and pool hall, discovered that the Center had been broken into during the night and that items having a value of $200 to $250 were missing.
Among the stolen items were several pool cues, some boxes of candy bars, gum and cigarettes, and $90 in change. The thieves had entered by breaking a padlock on the door of an adjoining garage and then breaking through a connecting wooden door into the Center.
Gary Phillips, a criminal investigator with the Illinois State Police, testified that about 2 p.m. on the afternoon of March 14, he talked to defendant in the presence of another State policeman and the Fulton County State's Attorney and obtained a statement from defendant concerning the March 10 burglary at the Recreation Center in London Mills. According to this statement, defendant and two friends had been drinking beer and while driving through London Mills, they decided to break into the Center. One friend had passed out in the back seat of the car, so defendant and the other friend, Melvin Thomas, used a crowbar from the trunk of defendant's car to break the padlock on the garage door and to take the hinges off the connecting door. Once inside the Center, they helped themselves to five or six pool cues, cigarettes, gum and some change, all of which they took to the friend's apartment.
Defense counsel objected to the admission into evidence of defendant's statement on the ground that defendant was "laboring under the difficulty of intoxication," but the court denied the objection. According to previously adduced evidence, the statement was taken some 12 hours after defendant's arrest and thus 12 hours after the use of any intoxicants. Officer Phillips testified that defendant appeared to be sober but very tired at the time he gave the statement.
The State then rested its case as to count I and proceeded to introduce evidence concerning count II of the Revocation petition.
Walter R. Riley testified that about 1 a.m. on the morning of March 14, he was awakened by a loud noise. He got up and looked out the window of his upstairs apartment but saw no one. He heard the noise again so he went downstairs and outdoors where he stood behind a bush and observed a light across the street behind a wooden door between the London Mills Drug Store and Boden's Insurance Agency. Riley called the police, and later saw the policemen bring defendant and another man out from between the two buildings. Upon closer inspection of the premises, he saw a padlock broken off a storeroom door, and one off a basement door, and some wood trim from around a drugstore window on the floor. On cross-examination, defense counsel questioned Riley about a statement he gave to the police at 4:10 a.m. on March 14 in which he said he saw three men run around the drugstore building when he first looked out his window.
A Fulton County deputy sheriff described the arrest of defendant who was discovered crouched in a corner of the walkway separating the drug store from the insurance agency. The deputy said that defendant "was less than stable," but he did not smell any alcohol although he did find some pipes used for smoking cannabis. He also stated no one was inside the building.
At the close of the State's case the hearing was recessed until June 16, when defendant took the stand to testify in his own behalf as to count II. According to defendant, in the early morning of March 14, after becoming intoxicated while drinking beer with some friends, he and his friend Melvin Thomas were walking in a park in London Mills when a young man about defendant's age, who he did not know, came up to them and asked if they would like to buy some cannabis. After defendant said he had no money, the stranger invited them to try some anyway and took them to the area behind the drugstore where they smoked a pipe. The stranger saw a squad car and ran away, but when defendant and Thomas heard a gunshot, they became frightened and went back between the buildings where they stayed until they were arrested. Defendant denied trying to get into the drugstore, and stated that he was under the influence of alcohol that night.
In closing argument defense counsel stated that the result as to count I was a foregone conclusion but that, as to count II, defendant was telling the truth "because he does not wish to admit to doing something he didn't do having admitted already to something he did do and I am speaking now of Count I."
The trial court ruled that defendant was guilty of violating his probation as to both count I and count II. At the sentencing hearing on July 28, the court imposed a sentence of two to six years in the penitentiary with credit for time in custody. On August 5, all parties again appeared in court at the request of the trial judge for the express purpose of clarifying the record to show that defendant is not to receive credit for the 14 months he spent on probation. Defense counsel objected that this amounted to an illegal increase in defendant's sentence, but the trial judge persisted and called attention to the fact that because of his assignments to other counties, August 5 was the first time he had been able to return to Knox County to clarify the record. This appeal followed.
• 1 Defendant first contends that his confession was improperly admitted into evidence because the State did not produce all of the witnesses who were present at its taking. He cites People v. Armstrong (1972), 51 Ill.2d 471, 282 N.E.2d 712, where a conviction was reversed for improper admission of the defendant's confession. In Armstrong defendant filed a motion to suppress his confession, and at the hearing on the motion, defendant testified that his statement was made after he was repeatedly beaten by police while in custody and that he was not advised of his rights. Defendant's testimony was corroborated by several relatives. The State did not call all of the officers listed by defendant as participants in his arrest and interrogation and did not attempt to explain the absence of some of the officers. The Illinois Supreme Court reversed and restated the general rule that, when the voluntary nature of a confession is challenged by a motion to suppress, the State must produce all witnesses to the taking of the confession or must explain their absence. In relying on Armstrong and other cases where the issue of voluntariness was raised in the trial court, defendant ignores the rule that any question as to the voluntariness of a confession is waived if defendant does not raise the issue by motion to suppress or by objection at trial. ...