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People v. Wilfong





APPEAL from the Circuit Court of Will County; the Hon. ANGELO F. PISTILLI, Judge, presiding.


Defendant William Wilfong appeals from a conviction of burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19-1) in a jury trial in the Will County Circuit Court and from a consequent sentence of 6 2/3 to 20 years in the penitentiary.

On appeal, defendant contends (1) that there was insufficient evidence in the record to justify the jury finding him guilty of burglary since he lacked the intent to commit a theft in the victim's home; (2) that defendant was denied his constitutional rights to equal protection and due process of law and his statutory right to an election of sentences on the contention that the trial court did not inform the defendant, before sentencing, as to exactly what his sentence would be under the new act as well as under the old act from which he was to make an election; and, (3) that defendant was denied his statutory right to a proper sentencing hearing for the reason that the trial judge failed to specify in the record the reasons for the sentence imposed.

Defendant was charged with burglary by information under sections 19-1(a) and 16-1(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, pars. 19-1(a) and 16-1(a)(3)). The burglary count charged defendant with knowingly and without authority entering a Rockdale home on May 30, 1977, with the intent to commit therein a theft. A theft count, on which the jury found defendant not guilty, charged defendant with stealing Mary Williams' Chevrolet at the premises. Mary Williams and her son, Harry Thomas Williams, lived in the house with an unattached garage in Rockdale, Illinois. From May 22 to June 3, 1977, they were both in California and Mary Williams left her Chevrolet Caprice in the locked garage and left the car keys in a dresser drawer in her bedroom. The keys were on a ring which also contained a key to the house and a "little round thing" on which the Lord's prayer was printed. Mary Williams also left a packed green suitcase in her living room.

Prior to their California trip, Mary asked a friend to watch and check her house and gave that friend a key. That friend checked the house at 8 a.m. on May 30, 1977, and found everything in order and found the Chevrolet in the garage. He locked both the house and the garage before leaving.

When the friend who was to watch the house, returned to the house at 4 p.m. on the same day, accompanied by a companion, they noticed that the garage door was open and saw the Chevrolet inside it. The friend of Mary Williams also noticed that the padlock to the garage was gone and that a basement window was broken. As the friend was about to open the front door to the house with his key, defendant Wilfong came to the door and said, "Nobody is going in and nobody is going out." Defendant had the key ring with the Lord's prayer on it in his hand. The friend and his companion talked to the defendant Wilfong at the front door for almost 10 minutes. Defendant then stated that Mary Williams had, earlier that day, hired him to look after the house.

A neighbor who lives east of the Williams house saw the two friends of Williams talking to someone and saw the two men leave. The neighbor walked over to the Williams house thereafter and as she approached the house, a man came to the door. From a 40-foot distance the neighbor asked if Mary Williams was home and the response was "no." Because the man's back was to the neighbor she did not see the face of the man but saw the color of his hair and the clothes he was wearing. Approximately 45 minutes later the neighbor saw the Williams car being driven from the house down the street.

When the friend who had been requested to watch the house returned to his home, he received a call from Mary Williams. After she heard what her friend had just seen, she told the man to take the police to her house. The friend of Mary Williams returned after talking with the police officer and found the window in the door from the basement to have been broken and that some drawers in the bedroom were open and a frying pan, plate and silverware were piled in the kitchen as if someone had eaten a meal. Only the Ford automobile remained in the garage.

When Mary Williams returned to the home on June 3, she found that the suitcase that she had left in the living room was in her bedroom. The car keys were gone from her dresser drawer. The Chevrolet was found abandoned on Interstate 80 on May 31. The automobile keys were not in the car. Harry Williams found defendant's eyeglasses in the glove compartment of the Chevrolet and he recognized these as belonging to defendant, since he had helped defendant put rubber bands on them. The glasses had not been in the compartment before Williams went west on the trip. The brakes on the Chevrolet were burned out and the front end of the Chevrolet was out of alignment resulting in $500 in payments from the insurance company. There was no outward damage to the automobile.

Mary Williams and Harry Williams knew defendant prior to May 30, 1977. Defendant had been to the Williams house quite a few times to wash windows and repair cracked floors. Defendant had also used the Williams Chevrolet on two occasions prior to May 30. Mary Williams had last seen defendant four or five months prior to May 30, and Harry Williams had last seen him seven or eight months before that date. Mary Williams testified that the defendant did not have permission to use the car or to check the house, car or garage while the Williamses were in California. The post-trial motion following the trial was denied.

For the reason that defendant was convicted of committing an offense before February 1, 1978, but was not sentenced until after that date, he had a right to elect whether he desired to be sentenced under the old or new sentencing acts, under the provisions of section 8-2-4(b) of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1008-2-4(b)). During the sentencing hearing, the judge discussed the new sentencing act in the light of defendant's prior record. He stated the range of potential determinate sentences defendant could receive under the new act. Defendant's attorney stated that defendant wished to proceed under the old act.

The judge then began to question the defendant about his understanding of the election or choice which he had as to sentences. The judge explained the possible indeterminate sentences defendant could receive under the old act, but defendant stated he did not want to hear further explanation of the election. As a result, the judge queried defense counsel, who said that he had conferred with his client and that the client had elected to be sentenced under the old act. Counsel also stated that defendant indicated that he was aware of the differences between the old and the new sentencing act. The sentence was imposed under the old act.

The first issue raised by defendant is the contention that the State failed to present sufficient evidence to prove beyond a reasonable doubt that defendant intended to commit a theft in the Williams house at the time he broke into and entered the house. In the instant case, the defendant unlawfully broke and entered into a building which contained personal property which could be the subject of a larceny. The Supreme Court of Illinois held in People v. Johnson (1963), 28 Ill.2d 441, 443, 192 N.E.2d 864, 866, that:

"* * * in the absence of inconsistent circumstances, proof of unlawful breaking and entry into a building which contains personal property that could be the subject of larceny gives rise to an ...

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