APPEAL from the Circuit Court of Tazewell County; the Hon.
IVAN L. YONTZ, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
After a jury trial, in which Brown was found guilty of attempt burglary, the trial court sentenced Brown to a term of four years' imprisonment. On appeal, the defense argues that the conviction should be reversed because: (1) the evidence established only mere preparation for, and not a substantial step toward, the commission of the offense; (2) the evidence established that the defendant was not acting as a principal and that he did withdraw from the burglary and prevent its completion; and (3) the evidence established that the defendant voluntarily abandoned his criminal activity and purpose. The defense also seeks a reversal or reduction in the degree of the offense or sentence, based upon the trial court's asserted abuse of discretion in sentencing. The final issues concern the failure to have the closing arguments transcribed. The defense argues that such failure requires a reversal, or alternatively, a finding that the defendant received ineffective assistance of counsel, also requiring a reversal.
All the evidence in the record came from the State's four witnesses. Assistant State's Attorney for Tazewell County, William Brown, was the key witness for the State. According to State's Attorney Brown, the defendant Barry Brown (no relation) had asked to speak to an attorney in the State's Attorney's office in the early morning hours of September 5, 1979, after he and two other persons had been arrested by police, while they were in a pick-up truck, on property next to Hillside Motors in Creve Coeur. The back door of Hillside Motors had been kicked in during the early morning hours of September 5. According to William Brown, defendant Brown told him that on the night of September 4, 1979, he and another man, Randall Schultz, had been driving around Peoria in Schultz' truck. They had picked up Maxwell Babcock, another young man, whom defendant Brown had not previously known. While in Peoria, Babcock suggested that they steal a car and go out and wreck it. He said he knew a place where they could steal a car.
Defendant Brown informed attorney Brown that he and Schultz didn't really want to commit the burglary but that they went along to Hillside Motors in Creve Coeur, the place where the theft was to occur. When they arrived there, Babcock told the two to go around to the back of the building and kick the door in, while he stood lookout in front. Babcock, according to his plan, was then to enter the building, take keys and money, while the other two stood lookout in front. Following the plan, Brown and Schultz went around to the back of the building and Brown kicked at the door twice, but it did not open. Schultz kicked once and it came open. At this point, Brown told the Assistant State's Attorney, he got "scared" and decided to end his participation in the crime. He and Schultz, without entering the building at all, went to the front of the building to Babcock. They told him that they were leaving, that the burglary was "bullshit" and that they were taking their truck with them. Babcock did not want to leave, but the other two told him they were going and the truck was, too. Babcock then got in the truck with Brown and Schultz.
As they were leaving the parking lot of the service station, next to Hillside Motors, the police arrived and stopped them. That was the substance of Assistant State's Attorney Brown's testimony. The two officers who arrived to find the three young men in the pickup truck testified to that fact. It was they who, at defendant Brown's request, delivered him to the Assistant State's Attorney. The only other witness to testify was the owner of Hillside Motors, who testified that the back door was kicked in during the early morning hours of September 5, 1979. He also stated that nothing was missing. The case went to the jury which returned a verdict of guilty of attempt burglary against defendant Barry Brown.
At the sentencing hearing, the defense argued that Brown's age, 19, his problems with alcoholism, and his voluntary abandonment of the burglary were strong mitigating factors in support of a minimum sentence of 2 years. The State, pointing to the defendant's criminal history, urged the maximum of 5 years. Defendant Barry Brown was put under court supervision in 1976, as a juvenile, for shoplifting theft. In 1977, he was sentenced to probation after a conviction for unlawful restraint. The probation was later revoked due to a subsequent 1977 theft charge. His other conviction for the traffic offense of attempting to elude resulted in a 120-day stay at the penal farm at Vandalia. The trial court, nothing this history and that the defendant had committed the attempt burglary and had done nothing to rectify it, sentenced the defendant to four years' imprisonment. Section 8-4(c) provides that for attempt to commit a Class 2 felony (burglary), the sentence is the sentence for a Class 3 felony. (Ill. Rev. Stat. 1979, ch. 38, pars. 8-4(c), 19-1(b).) The sentence for a Class 3 felony "shall not be less than two years nor more than five years." (Ill. Rev. Stat. 1979, ch. 38, pars. 1005-8-1(6).) The defendant appeals from his conviction and sentence.
• 1, 2 The defense's first argument is that the defendant's acts in kicking the door were mere preparation and did not constitute a substantial step toward the commission of the burglary. By this argument, the defense seeks to counter the State's contention that the attempt burglary was completed once the door was kicked in by defendants Brown and Schultz. We find, without difficulty, that the kicking in of the door was not merely preparation to the burglary but that it was a substantial step towards its completion. Once the door has been opened, the only step remaining is the entry into the building. To sustain a conviction for attempt burglary, the State must show that the defendant, with the intent to commit a specific offense, did an act which constituted a substantial step toward knowingly entering the building with the intent to commit a felony or theft therein. (People v. Fletcher (1978), 72 Ill.2d 66, 377 N.E.2d 809; Ill. Rev. Stat. 1979, ch. 38, pars. 8-4, 19-1.) The evidence supports a jury finding that a substantial step was taken with the kicking in of the door. With regard to the intent necessary, it is held that one who aids or abets another in the commission of an offense may be charged with the intent of the principal. (People v. Krouse (1975), 30 Ill. App.3d 446, 333 N.E.2d 17; People v. Barnes (1971), 2 Ill. App.3d 461, 276 N.E.2d 509; Ill. Rev. Stat. 1979, ch. 38, par. 5-2.) While we shall return to the question of the weight and sufficiency as to Brown's intent later in this opinion, we conclude that the evidence presented was sufficient for the jury to have concluded that Brown was chargeable with Babcock's intent under the principles of accountability. The evidence, in the form of Brown's admissions on the night of the crime, indicated that he had kicked at the door, knowing at the time that Babcock intended to enter the premises to commit theft. That evidence is minimally sufficient for Brown to be charged with Babcock's intent to enter and commit a theft. Thus, there was evidence to show attempt burglary.
The defense counterargument is that even if the evidence was sufficient to show attempt burglary, the conviction should not have been entered because of the fact that defendant Brown was not acting as a principal and because he effectively withdrew from the criminal enterprise, while at the same time preventing its completion. Reliance is thus put upon the accountability statute (Ill. Rev. Stat. 1979, ch. 38, par. 5-2), which states in pertinent part:
"A person is legally accountable for the conduct of another when:
(c) Either before or during the commission of an offense, and with intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. However a person is not so accountable, unless the statute defining the offense provides otherwise, if:
(3) Before the commission of the offense, he terminates his effort to promote or facilitate such commission, and does one of the following: wholly deprives his prior efforts of effectiveness in such commission, or gives timely warning to the proper law enforcement authorities, or otherwise makes proper effort to prevent the commission of the offense."
The defense argues the applicability of the withdrawal provision of subsection (c)(3) to the defendant's conduct in this case. It is argued that the uncontradicted evidence indicates that prior to completion of the burglary, defendant Brown, along with Schultz, terminated participation in the crime and made a proper effort to prevent the commission of the offense, the latter by informing Babcock that they were leaving and taking the truck with them. Based upon the withdrawal, the defense contends that the defendant ought not to have been convicted of attempt burglary. The State, for its part, relies upon a recent decision in the First District, People v. Davis (1979), 70 Ill. App.3d 454, 388 N.E.2d 887, wherein the court stated:
"[T]he weight of authority appears to be that once the elements of criminal attempt are complete, abandonment of the criminal purpose will not constitute a defense to the charge of attempt." (79 Ill. App.3d 454, 456.)
The State contends that the defendant's withdrawal has no effect upon his responsibility for the offense of attempt burglary because that offense, as opposed to the burglary offense, was completed prior to his withdrawal. It is argued that the requirements of subsection (c)(3) of the statute were not satisfied in that the withdrawal did not come "before the commission of the offense."
• 3 There are two lines of inquiry to be pursued in addressing the parties' arguments on this issue. The first is whether the withdrawal provisions of the accountability section are applicable here and operate to negate the defendant's conviction for attempt burglary. The second is whether in Illinois, abandonment of the criminal purpose, coupled with efforts to prevent the commission of the crime already begun, will operate as a defense to the charge of attempt. We turn initially to the accountability section and its withdrawal provisions. Under subsection (c), a person is accountable for the acts of another if, before or during the commission of an offense, and with intent to promote the commission, he aids and abets the other in the planning or commission of the offense. Under this provision, as noted, Brown may be held accountable for Babcock's actions and intent because of his aid prior to and during the commission of the offense. However, subsection (c)(3), as already noted, removes accountability if before the commission of "the offense" (emphasis added), the person terminates his efforts to promote such commission and makes a proper effort to prevent the commission of the offense. The withdrawal provision speaks in terms of withdrawal from the commission of "the offense." Clearly, from the context of its use, the referent for "the offense" is set forth in subsection (c), being that offense in which the defendant aids or abets another. So, the question of withdrawal must focus upon the offense or offenses which the defendant aided or abetted "in the planning or commission of." In the factual context of the instant case, both burglary and attempt burglary are possible referents under the statute. Babcock and Schultz and Brown planned both the attempt burglary, that is the kicking in of the door, and the burglary, the subsequent entry and theft. The planning of the burglary necessarily encompassed planning of the lesser offense of attempt. Thus, "the offense" in subsection (c)(3) has two referents with respect to withdrawal, burglary and attempt burglary. As to the burglary offense, Brown's withdrawal would have been ...