APPEAL from the Circuit Court of Tazewell County; the Hon.
IVAN L. YONTZ, Judge, presiding.
MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
In this appeal following his conviction for robbery, the defendant, Robert S. Roper, challenges only the propriety of the six-year term of imprisonment imposed upon him. The defendant argues that the imposition of this sentence was an abuse of discretion in that the sentence is excessive. However, to determine whether an abuse of discretion occurred, the facts of the case must be reviewed.
The defendant was charged by information with armed robbery and robbery on November 26, 1979, based on an incident at the High View Hills Country Club. This case was assigned No. 79-Y-2446. A true bill of indictment was later returned on the same charges. Subsequently, the defendant was charged with home invasion and related misdemeanors arising out of an incident occurring on or about December 12, 1979, which case was given No. 79-Y-2577.
The defendant filed, on December 20, 1979, a notice of possible insanity and incompetence defense and motion for continuance. A hearing was held on December 28, 1979, and Mortimer Beck, M.D., was ordered to examine the defendant for the purposes of determining his sanity and fitness to stand trial. Subsequently, the trial court entered an order that T.W. Matthews, clinical psychologist, was also to examine the defendant for the purpose of determining his fitness to stand trial.
On February 13, 1980, a hearing was held to determine the defendant's fitness to stand trial. At that time, both parties stipulated to the admission of the reports of Dr. Beck and Mr. Matthews into evidence. Additional evidence at the time of the hearing was presented by way of the testimony of Sergeant Dennis Schultz of the Tazewell County Sheriff's Department. At the conclusion of the hearing the State indicated that they would concur that the defendant was hampered in his ability to assist in his own defense and would not, therefore, oppose the motion. The trial court found the defendant unfit to stand trial at that time.
However, on May 23, 1980, the defendant was returned to the trial court and after a brief hearing was found, at that time, fit to stand trial. Thereafter, on August 7, 1980, the defendant filed a notice of insanity defense with the circuit court. The trial court entered, on motion of the parties, an order that the defendant be released from custody, on his own recognizance, to voluntarily submit himself to the Department of Mental Health at the Zeller Zone Center. The court so ordered, and the recognizance bond was issued. The defendant was subsequently returned to the custody of the sheriff after being released from in-patient care.
On October 14, 1980, the parties presented to the trial court a partially negotiated plea agreement. The defendant pleaded guilty to the charge of robbery. The armed robbery count in case No. 79-Y-2446, as well as all charges in case No. 79-Y-2577, were dismissed.
The factual basis for the guilty plea follows. Richard S. Belcher would testify that on November 24, 1979, he was the manager of the High View Hills Country Club at 2217 High View Road in near East Peoria, Tazewell County, Illinois. On that evening he was on duty as the manager and at approximately 9 p.m. the defendant came into the club, which is a tavern. The defendant was admitted after paying a cover charge and was in the club for approximately an hour when he was asked to leave by another employee. The defendant returned at approximately 10:45 p.m. and entered the tavern with a blue steel automatic pistol in his hand, stuck the weapon in Belcher's face, and demanded money. Belcher handed the defendant $40 or $50, whereupon the defendant backed out of the lobby. As he was exiting through the outside door he pulled the trigger of the weapon twice. It made a clicking sound which showed it was not loaded. Belcher and some patrons then caught and subdued the defendant, who was injured and later hospitalized as a result of being apprehended.
Detective Mark Williams would testify that on the 12th day of December 1979, he was employed as a Tazewell County deputy sheriff and that at approximately 5 a.m. on that date he had a conversation with the defendant at the Tazewell County Jail. Prior to that conversation, the defendant was advised of his Miranda rights. Nevertheless, the defendant admitted he was in fact the person who had gone into the High View Hills Country Club with the weapon. The weapon was not loaded, and the defendant only intended to get the money back that he had paid for the cover charge. The People would call additional witnesses at trial who would testify to essentially the same facts.
After accepting the defendant's guilty plea, a presentence report was ordered and a sentencing hearing was set for November 20, 1980. At the sentencing hearing the State called witnesses to testify as to the occurrence which resulted in the indictment given No. 79-Y-2577, relating to events which transpired on or about the 12th of December, 1979. The first witness, Gloria Antonini, stated that in the early morning hours she was awakened by the defendant in her home. He was wearing a helmet on his head, had a knife in one hand and a hatchet in the other. When she started to scream, the defendant dropped the knife and hatchet, came at her, knocked her down and began choking her. However, the only injury she received was some scratches on her neck. There was no evidence showing that the defendant either threatened to use or attempted to use the weapons in his possession at any time during the incident.
Gloria Antonini additionally testified that the defendant tore some phones out, then, in response to her questions, indicated that if she would "give his instruments" back he would leave. She gave the "instruments" to him and he left. She testified further that the defendant was in her home approximately 20 minutes. She further testified that the defendant was dressed in a plaid jacket with a necktie and that his hair was longer and he was thinner at the time of the incident than at the time of the sentencing hearing.
Mollie Antonini, Gloria's mother-in-law, was also called as a witness in aggravation. She substantially confirmed the testimony of Gloria Antonini in regards to the events that took place. According to Mollie, her daughter-in-law was turning blue as a result of defendant choking her. She did, additionally, indicate that she too was involved in a scuffle with the defendant during which she struck him with a broom and he knocked her against a wall. Mollie also observed that before leaving the defendant pulled two telephones out of the wall.
Defendant called witnesses to testify as to mitigating factors and circumstances. Two of those witnesses were Roy Roper and Margaret Roper, the parents of the defendant. Margaret testified that she became aware of a significant change in the defendant's personality sometime after he received a crushing injury to his pelvic area. This injury resulted in a possibility of permanent organic impotence to the defendant and required a protracted period of medical help by way of surgeries following the incident. In response to a question concerning what he was like prior to the accident, she indicated that "he was highly religious and easy to get along with and helped on the farm a lot." His father indicated that he had previously been a hard worker.
Dennis Shultz, a sergeant with the Tazewell County Sheriff's Department, was also called as a witness by the defendant. Sergeant Shultz, in his testimony, indicated that he was presently a jail administrator and had, over the period of time he was so employed, come into contact with the defendant. At the time of his first contact with the defendant, he was behaving in a very "spooky" fashion. Sergeant Shultz had testified at the previous hearing to determine the defendant's fitness to stand trial. In response to a question concerning what, if any, changes had been noticed in the defendant's condition and attitudes after his return from Chester ...