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People v. Swiercz

OPINION FILED JANUARY 22, 1982.

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

v.

MILO SWIERCZ, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES L. HARRIS, Judge, presiding.

JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

JUSTICE MEJDA delivered the opinion of the court:

Defendant Milo Swiercz was charged with obstructing a police officer pursuant to section 31-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 31-1). Following a bench trial, defendant was found guilty and was sentenced to a term of periodic imprisonment of 18 weekends. After a hearing on post-trial motions, the trial court reduced the term of periodic imprisonment to 10 weekends and denied motions for a new trial and to arrest judgment. Defendant's application for probation was also denied. On appeal defendant contends that: (1) the police officer was not performing an "authorized act" for the purposes of section 31-1; (2) he was not proved guilty beyond a reasonable doubt; (3) he did not receive effective assistance of counsel; and (4) the sentence imposed was excessive in view of the circumstances.

The State's evidence revealed that on March 3, 1980, Oak Lawn police officer Robert Ruger responded to a radio dispatch regarding a disturbance at an apartment building at 9317 South Harlem Avenue, Oak Lawn. Upon arriving at the building Officer Ruger was told by Mrs. Wyatt that she had been hit by her husband, who, she explained, had afterwards walked to apartment 9B across the hall, where he remained with a friend. Mrs. Wyatt told the officer that apartment 9B did not belong to this friend but that it belonged to his girlfriend.

Officer Ruger, dressed in his police uniform, then went across the hall to apartment 9B and identified himself. Defendant opened the door and asked the officer, "What do you want?" Officer Ruger responded, "Would you ask Carl Wyatt to please come out. I want to talk to him." The officer explained to defendant that he was seeking Wyatt because he had hit his wife. The defendant responded, "Carl Wyatt is not here and you are not coming in." Officer Ruger then repeated that he wanted to see Carl Wyatt.

As Officer Ruger was speaking, the defendant attempted to close the door but the officer placed his foot in the threshold to prevent the door from closing. Defendant meanwhile repeatedly asserted that the police had no right to enter the apartment. Defendant then attempted a second time to close the door, but the officer's foot remained in the threshold. Officer Ruger then opened the door with his hand and entered the apartment, walking around defendant. The defendant then stood in front of two additional police officers who were also responding to the radio call and who had just arrived at the scene.

At this moment Officer Ruger announced that defendant was under arrest. Then, from his vantage in the foyer, Officer Ruger saw a man sitting in a kitchen area to the right. The officer asked, "Carl Wyatt?" The man responded, "Yes." Officer Ruger then placed Carl Wyatt under arrest for battery.

Defendant testified that on March 3, 1980, he had been given the key to apartment 9B by his girlfriend at her place of employment. The rent to this apartment was being paid by both defendant and his girlfriend. Defendant was at the apartment in the company of someone known to him only as "Corky" when he heard someone beating on the door. Defendant opened the door and a police officer asked if Carl Wyatt was there. Defendant responded, "Who?" The officer stated that he was coming in. Defendant asked the officer if he had a warrant, to which the officer replied, "No." At this time Officer Ruger walked around defendant and placed him under arrest.

Defendant further testified that he never intended to prevent the officer from making a lawful arrest. He explained his actions by stating that he did not know that "Corky" was in fact Carl Wyatt; the hallway into the apartment was very narrow; and everything happened in less than a minute which left him "fuddled and confused."

The trial court found defendant guilty and ordered a presentence investigation. On August 12, 1980, defendant was sentenced to a term of periodic imprisonment of 18 weekends. Then, on August 19, 1980, defendant filed several post-trial motions including his motion for a new trial, motions to arrest judgment, to reduce sentence, and for a stay of mittimus. At the hearing on September 26, 1980, the trial court reduced the sentence to a period of 10 weekends and denied all other motions; defendant filed his notice of appeal on the same date.

OPINION

The State initially challenges the jurisdiction of this court to consider this appeal on the grounds that defendant has not timely filed notice of appeal.

Illinois Supreme Court Rule 606(b) (73 Ill.2d R. 606(b)) governs the time for filing criminal appeals. It reads in pertinent part:

7"[T]he notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from or if a motion directed against the judgment is timely filed, within 30 ...


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