APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. PRESIDING JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Defendant, Willie Phinnizee, was convicted by a jury in the circuit court of St. Clair County for the offenses of rape, deviate sexual assault and indecent liberties with a child. Defendant was sentenced to a term of imprisonment for 15 years for rape, and a similar term was imposed for deviate sexual assault, the sentences to run concurrently. No judgment was entered on the indecent liberties charge. On appeal, defendant challenges the propriety of the sentences imposed, contending that they were based in part upon the trial court's consideration of prior convictions allegedly obtained in violation of defendant's constitutional right to counsel.
At the sentencing hearing the trial court considered a presentence investigation report compiled by the St. Clair County Probation Department. According to the report, defendant had prior convictions in Mississippi State courts> in 1957, 1958, and 1963. The 1957 conviction was for breaking and entering, and defendant's sentence on that charge consisted of one year at the county farm and a fine of $200. In 1958 defendant was convicted of grand larceny, and defendant was sentenced to six years imprisonment on such conviction. Defendant's 1963 conviction was for attempt rape, for which defendant received a sentence of life imprisonment. He had been paroled after serving 13 years. These convictions constituted the entirety of defendant's criminal record other than a 1977 Illinois traffic offense conviction for driving without a valid driver's license.
Before passing sentence, the trial court offered defendant an opportunity to speak in his own behalf. The following colloquy ensued:
"THE DEFENDANT: Yes, Sir, and prior sentences that I had that I didn't feel that I got justice on them, because I stood before the Judge without a lawyer and pleaded guilty to a life sentence.
THE COURT: That's called Mississippi justice. It's known as —
THE DEFENDANT: Each time by the same Judge.
THE COURT: — fairness, impartiality and stupidity. All right. I'm inclined to agree with you. I think possibly that's right."
The court then imposed the concurrent sentences of 15 years for the rape and deviate sexual assault convictions.
Defendant contends that the trial court's determination of sentence was strongly influenced by his prior convictions in Mississippi. Defendant asserts that these convictions are invalid under Gideon v. Wainwright (1963), 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792, because each was obtained while he was without benefit of counsel; and he argues that the opinion of the Supreme Court in United States v. Tucker (1972), 404 U.S. 443, 30 L.Ed.2d 592, 92 S.Ct. 589, prohibits a State court from considering prior convictions obtained in violation of Gideon when determining sentences. Defendant concludes that the trial court improperly considered the Mississippi convictions in violation of Tucker, as manifested by its statement at the sentencing hearing.
The State contends that defendant has not established the invalidity of his prior convictions and urges that other than defendant's allegation that he was without counsel, there is no other evidence in the record substantiating the claim that his right to counsel was abridged. Moreover, the State asserts that the trial judge's statement at the sentencing hearing that he believed the prior convictions to be invalid is proof that they were not considered for purposes of sentencing.
We reject the prosecution's assertion that the trial court did not consider defendant's prior convictions when imposing sentence. The record establishes that the court made the following statement at the time it imposed the sentence of imprisonment upon defendant:
"The reason for the sentence as imposed by the Court is that the defendant has a history of prior delinquency and criminal activity, that the sentence is necessary to deter others from committing the same crime."
Although the court had recognized the possible invalidity of defendant's prior convictions, it expressly indicated that they constituted at least a part of the ...