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People v. Adkisson

OPINION FILED NOVEMBER 12, 1980.

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

v.

RICKY L. ADKISSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Knox County; the Hon. DANIEL J. ROBERTS, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This court has previously entered an opinion in this case which reversed the convictions of the defendant, Ricky L. Adkisson, for two offenses of attempt murder. (People v. Adkisson (1979), 78 Ill. App.3d 923, 397 N.E.2d 922.) The reversal was predicated on a determination that plain error was committed when prior to the disposition of the defendant's case before the trial court, during a hearing on a Rule 604(d) motion (Ill. Rev. Stat. 1977, ch. 110A, par. 604(d)) there was a failure to properly admonish or inform the defendant as to the requisite mental state which must be alleged to support the offense of attempt murder. The supreme court in reversing our decision remanded the case to this court for the consideration of additional issues presented in defendant's appeal and which were not determined. People v. Adkisson (1980), 83 Ill.2d 1.

The factual situation which resulted in this appeal is set forth in detail in this court's opinion of 1979 and our supreme court's opinion of 1980, both citations which we have heretofore set forth in this opinion.

The defendant in his brief raised the issue that he was denied effective assistance of counsel. In our previous opinion we determined that he had not been denied effective assistance of counsel, and with that determination our supreme court agreed.

• 1 The defendant also assigned as error the trial court's admonition regarding the minimum sentence for attempt murder. The trial court did err in advising the defendant that attempt murder was a Class I felony with a required four-year minimum term of imprisonment when in fact the minimum may be less than four years. Even though erroneously advised, the defendant does not suggest that he would not have entered pleas of guilty had he known that the sentence for attempt murder was less than he was told to expect. The defendant complains about an erroneous admonishment that could benefit rather than prejudice him. (See People v. Whitlow (1980), 86 Ill. App.3d 858, 411 N.E.2d 1354.) That a technical mistake occurs in advising a defendant as to possible maximum and minimum sentence which can be imposed does not constitute reversible error where no prejudice results to the defendant. People v. Hrebenar (1971), 131 Ill. App.2d 877, 266 N.E.2d 733.

The defendant further asserts that he was improperly advised by the trial court that he had a choice between a hearing in aggravation and mitigation or having the trial judge read the presentence report. The record reflects that at the sentencing hearing the following colloquy ensued:

"THE COURT: Alright. Mr. Adkisson, you are entitled to have a hearing at which time your counsel could present witnesses and the State could present any matters they wanted to in aggravation and you could present anything in way of mitigation. I also have before me a presentence investigation report, which I have not read, and I don't know what is in it. You have a choice. If you want to, you can let me read the report and decide from the report what to do or you can bring in witnesses and have a hearing, at which time I would decide from the evidence the witnesses offered in the courtroom. Do you understand the difference between the two procedures?

THE DEFENDANT: Yes, sir.

THE COURT: Which procedure do you want to follow, Mr. Adkisson?

THE DEFENDANT: Go ahead and get this over with.

MR. STOFFEL: We are willing to waive a hearing in mitigation and aggravation.

THE COURT: Are you willing to waive your right to have a hearing in mitigation and aggravation?

THE DEFENDANT: Yes."

• 2 This court is cognizant of the statutory provision in our Criminal Code which provides that at a sentencing hearing a judge is required to consider both any presentence reports and any evidence offered in aggravation and mitigation besides allowing the defendant to speak in his own behalf. (Ill. Rev. Stat. 1975, ch. 38, par. 1005-4-1(a).) As stated in our first opinion in this appeal, the defendant was improperly advised by the trial court at the sentencing hearing. From the colloquy between the court, the defendant and his counsel it is to be noted that a hearing in aggravation and mitigation was waived. Further, this issue is being raised by the defendant for the first time in this appeal, and consequently there has been a waiver by the defendant of any alleged error. (See People v. Tannenbaum (1980), 82 Ill.2d 177; People v. Foster (1979), 76 Ill.2d 365, 392 N.E.2d 6; and our supreme court's opinion in the instant case, People v. Adkisson (1980), 83 Ill.2d 1.) The salutory purpose of a waiver rule is to encourage timely objections to trial court ...


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