Appeal from the Circuit Court of Du Page County; the Hon. Carl
L. Henninger, Judge, presiding.
JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:
Defendant, Michael DeSimone, appeals from the imposition of two extended sentences of 60 years each for attempt (murder) (Ill. Rev. Stat. 1979, ch. 38, par. 8-4(a)) and armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)) to be served consecutively.
Briefly stated, the factual background of this matter reveals that on April 18, 1980, at about 1:30 in the afternoon, an unmasked man carrying a gun entered the medical offices of Dr. Robert C. Lynch. The man, who was identified at trial as defendant, pointed the gun at the nurse, Mrs. Stefenhagen, announced a robbery and ordered the nurse and Laurie Lansman, a patient waiting in the anteroom, to the back of the office complex. At that point a second man, wearing a mask, walked in.
Dr. Lynch was in the main office, bent over his brief case, looking for his glasses, when a loud explosion like cherry bombs going off in his ears occurred. He felt a terrible pain and turned to find defendant, Michael DeSimone, holding a gun in his face. Dr. Lynch had been shot in the back of the head at the base of the skull and was bleeding very badly. Defendant ordered Dr. Lynch down the hall with the others. Dr. Lynch, Nurse Stefenhagen and Laurie Lansman were ordered to lie down. Their hands and ankles were bound with tape.
Defendant ordered one of Dr. Lynch's employees, Margaret Callahan, to open the cash register in the main office. She later discovered $70 was missing from that cash register. Laurie Lansman found $60 missing from her purse. As the intruders left, Dr. Lynch asked them to call an ambulance. They answered with an obscene remark. Dr. Lynch freed himself after a few minutes and called the police.
The jury found defendant guilty of attempt (murder) (Ill. Rev. Stat. 1979, ch. 38, par. 8-4(a)), aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(b)(1)), armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)) and armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2), all relating to Dr. Lynch. Defendant was found not guilty of charges for armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)) and armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2) relating to Margaret Callahan and Laurie Lansman. Motion for a new trial was argued and denied.
In sentencing, the court found that no mitigating factors were present (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.1) and that the following aggravating factors were present: infliction of serious bodily harm, a prior history of delinquency and crime including a prior murder conviction, the receipt of compensation for the crimes in the form of the robbery proceeds and the necessity to deter others. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(a).) The court found that extended terms of 60 years each for armed robbery and attempt (murder) were necessitated by the exceptionally brutal and heinous behavior of the defendant in shooting Dr. Lynch at close range from behind. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(b)(2).) Citing section 5-8-4 of the Unified Code of Corrections (hereinafter cited as Corrections Code), the court further found that consecutive sentences were appropriate because the defendant caused severe bodily harm during his commission of a Class X felony and, based on the nature of the conduct and defendant's history, consecutive sentences were required to protect the public from further criminal conduct by the defendant. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-4.) This appeal was timely filed.
• 1 As stated above, the trial judge did include in his enumeration of the aggravating factors which he found to be present the receipt of compensation for the crimes in the form of the robbery proceeds. Defendant contends that this was error, and we agree. (People v. Conover (1981), 84 Ill.2d 400, 405.) In Conover, the sentences imposed were for burglary and theft over $150, and it appears evident that in Conover the trial court did give weight to the erroneous consideration of receipt of compensation as an aggravating factor under section 5-5-3.2 of the Corrections Code. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2.) The supreme court concluded that, since they could not determine the weight which the trial court had accorded to that factor, it was necessary to remand the cases for resentencing.
A review of the total circumstances of the present case, particularly the trial judge's remarks at the time of sentencing, leads us to conclude that, while this factor was erroneously included by the trial court as an aggravating factor, its presence was of no significance in the trial judge's determination of the sentence to be imposed on defendant. The court considered each of the mitigating factors set forth in section 5-5-3.1 of the Corrections Code (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.1) and found not only that the evidence failed to show the existence of any mitigating factors but also that, with reference to a number of them, the evidence was to the contrary. In addition, the court found that the defendant had inflicted serious bodily harm or injury to another person, that the defendant had a history of serious prior delinquency and criminal activities including a prior murder conviction and that the sentence was necessary to deter others from committing the same crime. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2.) The record further discloses that the defendant did not show any remorse but rather demonstrated a deliberate and calculated attitude of contempt for the judicial system.
Having concluded that the weight given by the trial judge to the factor of receipt of compensation for the commission of the crime was insignificant and did not lead to the imposition of a more severe sentence, we determine the error to be harmless. See People v. Hicks (1981), 101 Ill. App.3d 238, 244. But see People v. Hunt (1981), 100 Ill. App.3d 553, 557-58; People v. Teague (1981), 101 Ill. App.3d 993, 996.
Defendant next contends that the trial court erroneously concluded that the offense of attempt (murder) was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty and the resultant sentence for that offense, taken together with the judge's imposition of consecutive sentences, constituted an abuse of discretion by the sentencing judge.
• 2 Defendant suggests that, based on decisions of other jurisdictions, there must be evidence that defendant's conduct incorporated some idea of torture or the unnecessary infliction of pain upon the victim to cause defendant's conduct to fall within the meaning of the phrase "exceptionally brutal or heinous behavior indicative of wanton cruelty." (State v. Clark (La. 1980), 387 So.2d 1124, cert. denied (1981), 449 U.S. 1103, 66 L.Ed.2d 830, 101 S.Ct. 900; Williams v. State (Fla. 1980), 386 So.2d 538.) Such a requirement was rejected by the Illinois Supreme Court in People v. La Pointe (1981), 88 Ill.2d 482, 501, and by this court in People v. Winston (1982), 106 Ill. App.3d 673, 687-88. The supreme court in La Pointe stated:
"`Heinous' is defined by Webster's Third New International Dictionary (unabridged) as `hatefully or shockingly evil: grossly bad: enormously and flagrantly criminal'; `brutal' includes `grossly ruthless,' `devoid of mercy or compassion: cruel and cold-blooded.' Clearly, in our opinion, the statute does not limit the imposition of a sentence of natural life imprisonment [on the basis of `exceptionally brutal or heinous behavior indicative of wanton cruelty'] to only those murders involving torture or the infliction of unnecessary pain." (88 Ill.2d 482, 501.)
The court in La Pointe further stated that an extended sentence was not an abuse of discretion where the defendant convicted of murder "acted with premeditated, cold-blooded deliberation * * *." (88 Ill.2d 482, 501.) In La Pointe the decedent had been shot twice in ...