APPEAL from the Circuit Court of Du Page County; the Hon.
HELEN C. KINNEY, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
The defendant, Stephen L. Galati, was convicted of one count of theft over $150 and one count of theft under $150 in a jury trial. He elected to be sentenced under the 1973 Unified Code of Corrections and was sentenced to 2-6 years in the penitentiary. He appeals, contending that the trial judge enhanced his sentence based upon her belief that he had committed perjury in the trial; and also improperly required him to elect sentencing either under the laws that existed at the time of this offense or under the law in effect after the 1977 amendment to the Unified Code of Corrections (Ill. Rev. Stat. 1978 Supp., ch. 38, par. 1008-2-4(b)), without advising him of the particular sentence which the court would impose under each act.
Defendant does not deny that he was advised of his right to elect, but argues that fundamental fairness requires that his decision be reasonably comprehensible and that this requires the court to advise the defendant of the sentence which would be imposed under either act so that the defendant can make an informed election. We disagree.
The record shows a full explanation by the judge, of the range of sentences possible under both acts. Following this she asked whether the defendant had any question about the differences in the permitted sentences and the record shows that the defendant responded that he did not.
1 We have recently held that the sentencing judge is not required to disclose, in advance, the particular sentence which he would impose following a defendant's election. (People v. Kelly, 75 Ill. App.3d 695 (1979).) Thus, there is no requirement of law that the defendant be given two sentences from which to choose but merely a choice between the right to be sentenced under the law in effect at the time of the commission of the crime or that in effect at sentencing. See also People v. Dozier, 67 Ill. App.3d 611 (1979); People v. Wilford, 54 Ill. App.3d 706 (1977).
Whether the sentencing judge improperly enhanced the sentence because of her belief that defendant had committed perjury at trial requires a review of the record.
Galati was charged with the theft together with co-defendants Anthony Panariella, James Rogers, and Phillip Leonardi. As a result of severance motions Panariella and Galati were jointly tried, while Rogers and Leonardi were each tried separately. In defendant's trial an officer testified that the car in which the four co-defendants were riding was observed by a foot patrolman to have license and taillight violations. When the car was later intercepted it was off the road with its lights off and engine running. Two of the men were out of the car "working on" the subject of the thefts, a tandem bicycle and a Mo-Ped. Galati was in the front passenger seat and could not produce an identification; but informed the policeman that they had picked up the tandem bicycle from a friend and that they had previously been in a bar in Chicago drinking. The officer testified that Galati "appeared very tired and had glassy eyes" but that he walked "normally" and appeared "neat." On further investigation it was noted that the rear-wheel assembly of the bicycle had been partly disassembled. Other officers arriving at the scene found a Mo-Ped license plate on the floor of the open trunk. All four were then placed under arrest and informed of their Miranda rights. It was later learned that the bicycle and Mo-Ped had been stolen.
At the police station Galati informed the officers that the car in which they were riding was owned by a friend of Galati's and had been taken with permission; that he had fallen asleep after leaving the bar and had no knowledge of the alleged theft. At a later time Galati called the station seeking the release of the car and his personal belongings located in the trunk. The officer testified that defendant told him at that time that the Ford was owned by him.
Leonardi testified at Galati's trial that all four had been at a bar drinking; that after they left the bar they were driving to a friend's house; that defendant and the others fell asleep on the way; that Leonardi then decided to "make some money" and drove through the neighborhood until he saw the bikes in an alley. He said that as he was putting the tandem bicycle in the back seat of the Ford, Panariella woke up and tried to pull the bicycle out of the car but that Leonardi resisted, and at that moment the squad car pulled up. According to Leonardi, Galati was sleeping in the car along with Panariella during the theft and was not aware of Leonardi's intentions.
Galati testified that he fell asleep in the car, having become intoxicated while in the bar and did not wake up until Officer Rehling began approaching the car. He denied that he told Rehling that he owned the car.
In rebuttal, an officer testified that Leonardi told him on the night of the theft that all four defendants were involved, with Galati acting as a lookout as the other three took the items. Another officer testified in corroboration of this conversation.
In the sentencing hearing the court had before it a probation department report in which the defendant had continued to state that he had been sleeping throughout and brought in the additional information that in addition to the drinking he was using heroin that evening and that he planned to enroll in a detoxification program after he was arrested for the theft. The probation report concluded that the defendant "wished to appear cooperative but was, in fact, somewhat manipulative and misleading." Examples were given as to several statements made by the defendant as to his work record and relations with his family and friends which, on investigation, were found to be false. In arguing that defendant should not be admitted to probation, the prosecutor emphasized the report heavily. He stated that defendant consistently lied during bond hearings, to the probation officer, and in his trial. Before passing sentence the trial judge said that she agreed with the evaluation of the probation officer and stated:
"I observed your testimony at the trial. I didn't believe it at the time you testified, and I do not regard it now as true, and the most important thing, you are a person I think that probation is not suitable because this offense was committed while the Defendant was on probation for delivery of a controlled substance. My view of your approach to life at the moment is that I don't think probation would do anything for you or for the community."
She then committed the defendant to the Illinois Department of Corrections to serve a sentence of not less than two ...