APPEAL from the Circuit Court of Kankakee County; the Hon.
JOHN F. MICHELA and the Hon. PATRICK BURNS, Judges, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
The defendant John Rush prosecutes this consolidated appeal from the denial of habeas corpus relief in People ex rel. John Rush v. William Scroggins and from his conviction and sentence of 30 years for armed robbery, following a jury trial in People v. Rush (noted in caption above). Two issues are raised in the appeal: (1) Whether the defendant was deprived of his constitutional rights when the initial charge against him was brought by complaint but where he was indicted prior to receiving a preliminary hearing; and (2) whether the court erred in imposing the maximum sentence for armed robbery.
The pertinent facts from the record indicate that the defendant committed an armed robbery of a Kankakee filling station on December 29, 1978. The following day the defendant signed a written confession indicating his participation in the armed robbery. A criminal complaint was filed on January 2, 1979, charging the defendant with armed robbery. The case was called for preliminary hearing that day, but was continued to allow the defendant to retain private counsel. On January 9, 1979, the defendant requested additional time to retain counsel and the preliminary hearing was continued again. On January 19, the day set for hearing, the defendant informed the court that he had been unable to retain counsel and he requested appointed counsel. The public defender was appointed as defense counsel and the matter was set for February 1, 1979. On February 1, 1979, counsel for the State and for the defense appeared for the scheduled hearing, but the State requested a continuance for the reason that one of their witnesses, the attendant at the filling station during the robbery, was not present. Defense counsel objected to any continuance, noting that the defendant had been imprisoned since December 29, 1979. He argued that the defendant was being denied his constitutional right to a prompt preliminary hearing. The objection of the defense was overruled and the matter was set for hearing on February 13. On that date, the matter was again continued, this time on the court's own motion. The parties stipulated that on February 13, the State was prepared to proceed with the preliminary hearing.
On February 14, 1979, the defendant filed his petition for habeas corpus relief, alleging a violation of his constitutional right to a prompt preliminary hearing. Evidence was heard by the court and the court found that February 1, 1979, was the first date that the defendant was reasonably entitled to a preliminary hearing. Therefore, the delay in holding a hearing was only 15 days, and there was no prejudice in such delay. In reaching that conclusion, the court determined that the previous continuances prior to February 1 had all been at the request of and for the benefit of the defendant. The court denied the habeas corpus relief, but it did order a preliminary hearing to be held on February 20, 1979, unless the defendant was indicted by that time. On February 20, 1979, the Kankakee County grand jury indicted the defendant for armed robbery. Arraignment and pleading followed. Prior to trial, the defendant filed a motion to dismiss the indictment on the grounds that he was denied his constitutional right to a prompt preliminary hearing. The motion was denied.
Trial was held and the jury returned a guilty verdict. At the sentencing hearing, the State brought forth that the defendant had prior armed robbery convictions in 1964 and 1970, that he had a prior robbery conviction in 1967, that he had jumped bail in 1968, that he had an aggravated battery conviction in 1970, and that he had a conviction for possession of a controlled substance in 1975. Based upon the defendant's prior history and the fact that serious harm was threatened during the robbery, the court sentenced the defendant to a maximum term of 30 years for the Class X felony of armed robbery. (Ill. Rev. Stat. 1979, ch. 38, pars. 18-2(b), 1005-8-1(a)(3).) The court also noted that it could have imposed an extended term of up to 60 years under the extended term provisions of the sentencing statute. (Ill. Rev. Stat. 1979, ch. 38, pars. 1005-8-2, 1005-5-3.2.) From the conviction and sentence defendant appeals.
The first issue raised by the defense is whether the defendant John Rush was denied a constitutional right to a preliminary hearing in this case. As noted previously, the defendant was initially charged by complaint, but prior to the time a preliminary hearing was held, the grand jury returned an indictment for the same offense, and no preliminary hearing was thereafter held. The defense, relying principally upon Justice Barry's special concurrence in People v. Kirkley (1978), 60 Ill. App.3d 746, 377 N.E.2d 450, argues that once a charge is brought by other than indictment, then the Illinois Constitution requires that a preliminary hearing be held to determine probable cause, regardless of the fact that the grand jury returns an indictment for the same offense and conduct. 60 Ill. App.2d 746, 753-54. See also People v. Hendrix (1973), 54 Ill.2d 165, 170-73, 295 N.E.2d 724 (Mr. Justice Ward, dissenting.)
The Hendrix case, and several other cases, however, argue persuasively for the State's position herein: that there is no constitutional right to a preliminary hearing in the circumstances presented, and that the constitutional requirement is to a prompt determination of probable cause, either by preliminary hearing or by indictment. (People v. Hendrix (1973), 54 Ill.2d 165, 295 N.E.2d 724; People v. Kent (1972), 54 Ill.2d 161, 295 N.E.2d 710; People v. Howell (1975), 60 Ill.2d 117, 324 N.E.2d 403; People v. Grew (1979), 69 Ill. App.3d 663, 387 N.E.2d 926; People v. Franklin (1979), 80 Ill. App.3d 128, 398 N.E.2d 1071; People v. Arbogast (1976), 41 Ill. App.3d 187, 353 N.E.2d 434.) At issue is article 1, section 7 of the Illinois Constitution, which provides, in part:
"No person shall be held to answer for a crime punishable by death or imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause."
In People v. Kent, the Illinois Supreme Court construed this language and stated:
"The constitutional reference to a right to a preliminary hearing is new. As we read the provision before us, it appears to be designed to insure that the existence of probable cause will be determined promptly either by a grand jury or by a judge." (54 Ill.2d 161, 163.)
Subsequently, the Illinois Supreme Court decided People v. Hendrix. In Hendrix the defendant had been initially charged by complaint with theft. Within two weeks from the issuance of the complaint the defendant was brought before the circuit court, and the court ordered a preliminary hearing to be held. However, the following day the defendant was indicted by the grand jury for the theft offense. No preliminary hearing was ever held. The defendant filed a motion to dismiss the indictment arguing that such dismissal was required, since no preliminary hearing had been held following his charge by complaint. The trial court granted the defendant's motion to dismiss. The Illinois Supreme Court reversed the trial court and held there had been no constitutional violation as a result of the lack of preliminary hearing. (54 Ill.2d 165, 169.) Justice Ward dissented and argued that the majority opinion rendered meaningless the provision for a "prompt preliminary hearing to establish probable cause." (54 Ill.2d 165, 170.) Ward indicated that he would hold that there was a constitutional right to a preliminary hearing where a person is initially charged by other than indictment.
• 1 Again, in People v. Howell (1975), 60 Ill.2d 117, 324 N.E.2d 403, the Illinois Supreme Court discussed article 1, section 7 of the Illinois Constitution:
"Thus under this constitutional provision the defendant held on a criminal charge punishable by imprisonment in the penitentiary must be afforded a prompt probable-cause determination of the validity of the charge either at a preliminary hearing or by an indictment by a grand jury. People v. Kent, 54 Ill.2d 161; People v. Hendrix, 54 Ill.2d 165." (60 Ill.2d 117, 119.)
Thus, the Supreme Court of Illinois has clearly established that there is no constitutional requirement of a preliminary hearing, but that the requirement is for a prompt probable cause determination, either at a preliminary hearing or by an indictment by the grand jury. This was recognized by the Second District in People v. Arbogast (1976), 41 Ill. App.3d 187, 191, 353 N.E.2d 434, relying upon Kent, Hendrix and Howell. Similar conclusions were stated by the First District, relying again on Kent, Hendrix and Howell, in People v. Grew (1979), 69 Ill. App.3d 663, 667, 387 N.E.2d 926, and in People v. Franklin (1979), 80 Ill. App.3d ...