APPEAL from the Circuit Court of Rock Island County; the Hon.
JAY M. HANSON, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Having entered a guilty plea to the charge of murder, the defendant, Raul Maldonado, was sentenced to a determinate term of imprisonment of 36 years. In this appeal the defendant challenges only the propriety of the sentence imposed.
As a factual basis for the guilty plea, it was determined that on October 26, 1978, the defendant was working on a section gang for the Burlington Railroad in Barstow, Illinois. At that time Maldonado's foreman, Mr. Dennis L. Bittner, came over to the defendant and told him he was working too slow and needed to step up his work. A heated argument ensued, witnessed by several other employees, and the defendant jumped up and grabbed Mr. Bittner and indicated he was going to kill him. The two men then began walking away from the gang, and Bittner advised the defendant he was fired. The defendant then walked approximately a half mile down the track to where his car was parked and drove back to within one-quarter mile of the section gang's location. The defendant was visibly upset, had words with Rudy Almaguer, the road master, and ultimately dislodged communication wires from Almaguer's truck radio. Upon returning to the area of the section gang the defendant went directly to Bittner, and, when he was approximately five to 10 feet away, engaged Bittner in another argument finally asking, "Is this the way you want it?" Shortly thereafter defendant pulled a gun from his stomach area and fired at Bittner as the latter was trying to get away. The bullet lodged in the back of Bittner's head causing his death. The shooting was witnessed by a number of other employees present on the scene. A struggle followed in which Almaguer tried to subdue the defendant. During the struggle another shot was fired, but no one was hurt. Several other men then assisted in an attempt to get the pistol away from the defendant. During this time the defendant was heard to say "I won't be happy until he [Bittner] ends up in the cemetery." In addition the defendant stated, "I wanted to get two or three other guys out here on the track."
Police subsequently arrived, and after being advised of his rights, the defendant made an admission to Trooper Darrell Bounds that he had, in fact, shot Larry Bittner. Another statement by defendant was later tape-recorded by Investigator Dick Fisher wherein defendant again admitted shooting Mr. Bittner. When the defendant was taken into custody and searched he was found to have 30 live rounds of pistol ammunition for the .32-calibre pistol he had had in his possession. Subsequent to the defendant's guilty plea, a hearing in aggravation and mitigation was held. Initially the defense counsel made a motion to strike certain portions of the presentence report for a variety of reasons. Portions of the report were specifically not considered by the trial court, while other portions the court found to be relevant and were accordingly given weight.
Over a defense objection the trial court considered a portion of a presentence report which indicated that Edward Loftus, the victim of an earlier robbery in which the defendant had been involved, had never fully recovered from a beating he sustained during the offense. Defense counsel's objection was to the effect that insufficient information was available for the defense to rebut the association between the robbery and the defendant or even to determine if it was true, since this portion of the report was merely a conclusion of the drafter of the report based on a quote from Clara Kimmel, a deputy sheriff of Whiteside County. Counsel concluded his objection by noting the extreme prejudice of the statement, asking that it be stricken and alternatively requesting the right of subpoenaing some of the records and people involved.
According to the presentence report, on February 20, 1961, defendant was charged with robbery. The charging instrument alleged that defendant violently assaulted one Edward Loftus, in an attempted escape from jail, and by force took a set of jail keys from him. It was learned through Deputy Clara Kimmel that Loftus never recovered from the beating he received from the defendant during the attempted escape. However, the defendant was tried and convicted only of robbery.
In response to the defendant's objection, the trial court stated:
"Now, as for Mrs. Kimmell's statement to the investigator I think that Mr. Chickris [defense counsel] should be given some time to look into that a little bit and I don't know what Mr. Teros might not want to also because I am interested in just what this alleged beating was of Edward Loftus and apparently Edward Loftus is now dead and if related to that, I think it is relevant considering what I have heard about the defendant's personality traits.
So, I would suggest this. That we go ahead with what we can today. Now, maybe that isn't possible, but, it may be difficult. I don't know. Or, maybe some phone calls would cover it. I don't know. But, I think we are down to this, if Mr. Chickris needs some time on this Whiteside County situation, I think he's entitled to it because I will frankly say that that is going to have a bearing on the sentence and if phone calls will do it, in an hour, if I could give you an hour, and see how that works out, that's fine with me, because we have reserved two hours for this sentencing.
If that doesn't work, I will give you more time because I know it will have a bearing and that's why I think I should do it that way."
Following a recess the State informed the court that Mrs. Kimmel had been contacted at the Whiteside County sheriff's department and related that there had been a jailbreak and robbery at Whiteside County jail and that Mr. Loftus was in fact beaten by the defendant and two other prisoners. She further indicated in the telephone conversation that Loftus never fully recovered, in that, after he was released from the hospital he was unable to perform his functions at the jail and was accordingly discharged. The defense counsel stipulated to the substance of the conversation with Mrs. Kimmel, but stood on his prior objections regarding its admissibility. The court later specifically considered this as one of the factors in aggravation.
The defense counsel also objected to a summary of a 1961 report from the Pontiac Correctional Center which stated:
"On March 30, 1961 he [the defendant] was transferred to the Pontiac Correctional Center (No. 24691). He had an extensive punishment record while at this institution. He was reprimanded for the following actions: fighting, contraband, yelling in isolation, fire in a cell and sexual activities with inmates. On October 2, 1963 he was warned that his good time would be taken away."
It was argued that there was no way to rebut the charges and no way to find out what the substance of those charges were. The points made in the report were not the result of convictions by a court but merely records of the institution. The court, however, found the ...