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People v. Wilson

OPINION FILED AUGUST 25, 1980.

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

v.

MARK WILSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Tazewell County; the Hon. SAM HARROD, III, Judge, presiding.

MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

On December 6, 1978, defendant Mark Wilson was charged in a five-count indictment with five separate burglaries occurring in the fall of 1978. The public defender was then appointed to represent defendant, and a plea of not guilty was entered. The State elected to proceed on count III of the indictment first. Sometime prior to January 5, 1979, defendant retained attorney Mark Rose to represent him. On that date defendant filed a motion for substitution of judge. The motion was granted, and the case was assigned to Judge Samuel Harrod III of the Eleventh Judicial Circuit, who was sitting in the Tenth Judicial Circuit on special assignment. On May 22, 1979, an order was entered setting the jury trial on June 27, 1979. The order required that all pretrial motions be filed on or before June 14, 1979, the date of the final pretrial hearing.

On Wednesday, June 27, 1979, the date set for jury trial, the case was called, and the trial court stated he had been advised that defendant desired to enter a guilty plea. Defendant, however, moved for a continuance so that Rose could withdraw from the case and attorney Dick Williams could enter his appearance. Rose acknowledged that the motion had not been filed by June 14, 1979, as required by the pretrial order. He informed the court that he was not aware of defendant's desire to substitute counsel until the beginning of that week. Rose stated he had spoken to Williams, who indicated he was willing to represent defendant. According to Rose, Williams was out of town on that date. Judge Harrod, noting that he was sitting in Tazewell County on special assignment and that the case had been set for jury trial for quite some time, denied the motion.

Defendant then entered a blind plea of guilty to count III. As a factual basis for the plea, the prosecutor stated that defendant had confessed to the November 4, 1978, burglary of the home of Jack Bloomfield, in which several guns were taken. In open court defendant admitted participating in the burglary along with Ron and Brian Pfahl. Defendant said Brian Pfahl initiated the burglary.

Prior to the sentencing hearing attorney Dick Williams entered his appearance on defendant's behalf, and Rose withdrew. A presentence report was prepared which included a statement by defendant concerning the offense. According to the statement, defendant and the two others took some shotguns from Bloomfield's home and hid them in the woods. They used them for target shooting until the ammunition was gone. The guns subsequently disappeared from the place they were hidden. Defendant did not know what happened to them but suspected that Ron Pfahl might have sold them.

The report also indicated that defendant, who was 18 years old at the time of the offense, had no criminal record. He had begun to have problems in school in the 7th and 8th grades. His attendance record in high school was very poor, and he eventually dropped out. As a result of his problems with school, his parents obtained psychological and psychiatric treatment for him. Reports of various mental health professions were included in the report, some of which indicated defendant lacked motivation for treatment.

A report from the coordinator of the Early School Leavers Program at Illinois Central College indicated that defendant had enrolled in the program in the fall of 1978 but was expelled because of poor attendance. He enrolled again in the spring after the indictment was returned. The coordinator noted an improved attitude, and defendant obtained his G.E.D. According to the presentence report, defendant obtained employment as a laborer for a construction firm in June of 1979 at a wage of $4.50 per hour.

At the sentencing hearing Jack Bloomfield testified for the State that the value of the stolen guns was $1,391.64, and that he had recovered $873.19 from his insurance company. In mitigation, defendant's employer testified that he would continue to employ defendant who had been a good and punctual worker. Defendant testified, expressing remorse over the incident. He acknowledged that he was indebted to Bloomfield for the stolen guns and stated he intended to make restitution if able. In his argument defense counsel stated:

"[Defendant] is ready to make payment for whatever he did."

The judge then extensively reviewed the factors in aggravation and mitigation set forth in sections 5-5-3.1 and 5-5-3.2 of the Unified Code of Corrections. (Ill. Rev. Stat. 1979, ch. 38, pars. 1005-5-3.1 and 1005-5-3.2.) He expressed skepticism over defendant's improvement after the indictment was returned, stating, "Everybody is good when they're facing the music." He then imposed a 3-year sentence of imprisonment and ordered defendant to make restitution in the amount of $518.45 to Bloomfield and $873.19 to his insurance company. (The written order subsequently entered erroneously sets the amounts of restitution at $500.45 to Bloomfield and $1,391.64 to his insurance company.) As much restitution as possible was ordered deducted from defendant's $750 bail deposit after reduction of costs. The balance of the restitution was ordered due 5 years after sentencing or 1 year after defendant's release from prison, whichever is sooner.

Following the denial of defendant's motion to vacate guilty plea, he entered a negotiated plea of guilty to count I. Pursuant to the agreement, the remaining counts of the indictment were dismissed, a concurrent 3-year sentence of imprisonment was imposed, and defendant was ordered to make restitution to the victim of count I and to the victims of the counts that were dismissed.

I. THE FIRST GUILTY PLEA

Defendant first contends he should be permitted to withdraw his plea of guilty to count III because he was denied his constitutional right to counsel of his choice when the trial court denied his motion for a continuance for substitution of counsel. We disagree.

In People v. Friedman (1980), 79 Ill.2d 341, 403 N.E.2d 229, our supreme court, faced with a similar question, summarized ...


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