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People v. Reynolds

OPINION FILED JULY 15, 1983.

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

v.

DONALD REYNOLDS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County; the Hon. Charles R. Norgle, Judge, presiding.

PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Upon his plea of guilty, defendant was convicted of armed robbery of the "Long John Silver" restaurant in Westmont, Illinois, on October 3, 1980. In this connection, the State nolle-prossed an additional count of armed robbery, a count charging criminal damage to property and two counts of armed violence all arising from the same incident. (No. 82-86.) Defendant had previously been convicted, following a jury trial, of one count of armed robbery and one count of armed violence arising from a September 9, 1980, incident at the "Pizza Hut" in Lisle. (No. 82-87.) In a joint sentencing hearing, defendant was sentenced to concurrent 60-year terms of imprisonment on the convictions. In addition, defendant was convicted after a jury trial of two counts of armed robbery and two counts of armed violence in connection with the robbery of the "Burger King" restaurant in Lombard, on September 10, 1980, and received concurrent sentences of 25 years' imprisonment on each count. We have consolidated the appeals for opinion.

No. 82-86

1

• 1 As to the plea involving the October 3, 1980, armed robbery at the Long John Silver restaurant, defendant contends that he is entitled to a new sentencing hearing because the trial court in imposing sentence considered two prior convictions which have been reversed on appeal as aggravating factors. In support of his position, he asserts that one of the convictions listed in the presentence report was reversed in People v. Reynolds (1981), 96 Ill. App.3d 79. This conviction, however, did not appear in the presentence report and the trial court could not have considered it. The other conviction, however, was for escape and did appear in the presentence report. This conviction was vacated in a Rule 23 order on the basis that escape was a lesser-included offense of armed robbery, of which the defendant had also been convicted. (People v. Reynolds (1982), 106 Ill. App.3d 1160 (Rule 23 order).) The escape conviction was discussed by the prosecutor during the sentencing hearing in the present case. The trial court noted that it had considered all of the items in the presentence report, including the defendant's prior convictions. There is nothing in the record to indicate that the trial court, at the time of sentencing, knew that the escape conviction was a lesser-included offense of the armed robbery conviction.

Although we conclude that the sentence imposed was otherwise warranted in the light of the defendant's criminal background, we hold that the defendant's sentence must be vacated and this cause remanded for resentencing because the trial court considered, in fixing the extended-term sentence, the escape conviction which was later reversed. People v. Buckley (1977), 44 Ill. App.3d 1038, 1039.

In Buckley, the conviction of another crime considered in sentencing was later reversed and the cause remanded for a new trial. In support of the result we cited United States v. Tucker (1972), 404 U.S. 443, 30 L.Ed.2d 592, 92 S.Ct. 589. In Tucker, the United States Supreme Court reversed and remanded because two of the convictions considered were unconstitutional for an improper failure to provide counsel to the defendant. The court posed as the issue whether the sentence in the case before the Federal District Court would have been different if the sentencing judge had known that the previous convictions had been unconstitutionally obtained. (404 U.S. 443, 448, 30 L.Ed.2d 592, 597, 92 S.Ct. 589, 592.) While it is not clearly evident to us from the record that the trial court would have imposed a different punishment if he had known of the fact that one of the convictions indicated in the presentence report was, in fact, a lesser-included offense of another, we yet conclude that justice would be best served by vacating the defendant's sentence and remanding the cause for resentencing. In so doing we are not to be understood as creating a per se rule for vacation and remandment where the less than a constitutional question is involved, nor should the trial court on remandment construe our opinion as a mandate that upon resentencing a lesser sentence should be imposed. Rather, the sentencing judge should consider the matter anew without relying on the escape conviction. People v. Morton (1981), 102 Ill. App.3d 280, 282.

2

Defendant also argues that his 60-year extended-term sentence must be vacated because the trial court made no finding that the defendant's conduct in this cause "was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty." Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3.2(b)(2).

Section 5-8-2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-2(a)) provides in substance that an extended term may be imposed either where defendant is convicted of any felony after having been previously convicted in Illinois of the same or greater class of felony within 10 years, or if the defendant's criminal conduct is accompanied by "exceptionally brutal or heinous behavior indicative of wanton cruelty."

• 2 Defendant has waived any argument that the extended-term sentence was improper because the trial court did not state its reasons for the sentence on the record, as he failed to request a statement of reasons either at the sentencing hearing or in his post-trial motion. (See People v. Davis (1982), 93 Ill.2d 155, 162-63.) Moreover, the fact that the trial court did not expressly find or otherwise set forth in the record which of the two alternate statutory factors it relied upon in imposing the extended-term sentence does not support defendant's position. The trial judge stated that the extended-term statute applied and that he was taking into account in that regard, among other things, the defendant's prior convictions. The requirement that the trial court set forth the reasons for a sentence in the record (Ill. Rev. Stat. 1981, ch. 38, par. 1005-4-1(c); People v. Krug (1981), 97 Ill. App.3d 938, 941) does not obligate the court to recite and assign a value to each fact presented at the sentencing hearing. People v. Lucien (1982), 109 Ill. App.3d 412, 420.

Since we have previously concluded that the matter must be reheard by the court in a new sentencing hearing we will, however, state our conclusions that it was improper for the trial judge to consider criminal behavior directed against a victim in a case unrelated to the one now before the court and it would have been further erroneous to conclude that defendant's conduct in the present case was accompanied by the exceptionally brutal or heinous behavior indicative of wanton cruelty. It would seem that any armed robbery, either expressly or impliedly, carries with it a threat that a weapon will be used if the victim does not comply with the demands of the robber. This factor does not necessarily support a finding that the behavior is exceptionally brutal or heinous. The record in this case established only that the defendant committed an armed robbery with the use of a hand gun and that he put the gun to the head of the victim and asked her where the restaurant's money was located. There is no evidence in the record that the defendant inflicted either physical injury or emotional or mental trauma on the employees in the record.

We do not find that exceptionally brutal or heinous behavior indicative of wanton cruelty was present here. See, e.g., People v. Fieberg (1982), 108 Ill. App.3d 665, 669-71; People v. Lieberman (1982), 107 Ill. App.3d 949, 959.

This is not to say that on remand the trial court may not consider that the extended-term sentence was warranted under the provisions of section 5-5-3.2(b)(2). A few months prior to being convicted of the present armed robbery, the defendant was convicted of and sentenced on two counts of armed robbery and a charge of armed violence; a month before his conviction in this case he was again convicted of three counts of armed robbery and sentenced on those charges. The convictions occurred in Illinois, the sentences had already been imposed on them at the time the ...


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