Appeal from the Circuit Court of Williamson County; the Hon.
William A. Lewis, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant was charged with armed robbery, armed violence, intimidation, theft over $150 and unlawful use of weapons. The case was submitted to a jury on the armed robbery and armed violence charges only, and the jury returned a guilty verdict on each. Judgment and sentence were entered on the verdict, the defendant receiving a sentence of 25 years. Defendant raises four issues in this appeal: (1) whether the court committed error in applying collateral estoppel to deny him a hearing on his motion to suppress evidence, (2) whether the armed violence conviction must be reversed because based on the same act as the armed robbery conviction, and, upon vacation, whether sentencing is required, (3) whether resentencing is required because the trial court improperly considered as an aggravating factor that serious bodily harm was threatened although there was no more harm threatened than in most armed robberies, and (4) whether the sentence is excessive in light of defendant's youth, his remorse and rehabilitation potential, and his prior record which has been acquired in a short span of time.
Defendant was charged with two armed robberies committed in two counties during the same evening. The first was of the attendant of the Martin Oil Company service station in Marion, Williamson County, Illinois, at about 8:05 p.m. on November 16, 1980. The second was of the attendant of the Handee Mart in DeSoto, Jackson County, Illinois, in the early morning hours on November 17, 1980. A short time after the Handee Mart incident, a car occupied by defendant and his two brothers was stopped by Jackson County sheriff's officers and items taken in the two armed robberies were found in the car. Defendant and his brothers were taken to the Jackson County sheriff's office and questioned. Defendant gave the officers a statement shortly following his arrest on November 17, and made another statement on December 1, 1980, in which he admitted participating in both armed robberies.
The instant prosecution is that in Williamson County for the armed robbery of the Martin Oil Company station. Prior to trial, defendant filed a motion to suppress his confessions given on November 17 and December 1. The basis of his challenge was that the November 17 statement was not voluntary because of his drugged or intoxicated condition at the time and that the December 1 statement was not voluntary because of promises of leniency made to him in the absence of his attorney and not fulfilled. The State filed a motion to strike defendant's motion to suppress on the grounds that the issues had already been litigated in Jackson County.
Prosecution of defendant for the Jackson County armed robbery of the Handee Mart had occurred prior to this one. In his defense of that case defendant filed a motion to suppress the November 17 and December 1 statements that was substantially the same as the motion to suppress filed in this case. A hearing was held on the motion. In support of the motion defendant's wife testified that on the day of the armed robberies defendant had drunk half or more than half of three cases of beer and had shared in the smoking of four "joints" of marijuana. She also testified that on December 1 two sheriff's officers told her and the defendant that if he would give them a statement, they could get the judge to "make it concurrent," that they could get some of the charges dropped and "get defendant lesser time." The court denied the motion to suppress, and the defendant subsequently entered a plea of guilty to the Jackson County armed robbery charge.
At the hearing on the motion to suppress held in Williamson County, the State filed certified copies of the transcripts and orders from the Jackson County hearing in support of their motion to strike. Because he had not testified at the Jackson County hearing, defendant made an offer of proof in which he stated that on the day preceding the two evening robberies he had drunk 1 1/2 to two cases of beer and had smoked about an ounce of marijuana. He further stated that he remembered being arrested but did not remember being interviewed afterward because he was drunk and "could barely stay awake."
The court took the matter under consideration and subsequently announced that he found the ruling of the court in Jackson County to be proper and that it had had before it evidence of defendant's drunk and drugged condition similar to that contained in defendant's offer of proof. The court found that the decision of the court in Jackson County on defendant's motion to suppress constituted a collateral estoppel to the Williamson County motion and granted the State's motion to strike. Defendant was later found guilty of both charges by a jury and was sentenced to 25 years in prison on each charge, the sentences to run concurrently with each other and with the sentence imposed in Jackson County.
• 1 Defendant attacks the use of collateral estoppel to deny him a hearing upon his motion to suppress because he had additional evidence to present, his own testimony, that was not available to the Jackson County court and because the propriety of the ruling of the Jackson County court was insulated from judicial review by defendant's subsequent plea of guilty.
Defendant assumes, as he must, that the doctrine of collateral estoppel, which bars relitigation of a decided question, applies in criminal cases as well as in civil cases. (People v. Williams (1975), 59 Ill.2d 557, 322 N.E.2d 461.) The supreme court in the Williams case set forth a definition of the collateral estoppel rule and, with appropriate citations, told of its acceptance in criminal cases by the United States Supreme Court. Those facets of the rule need not be further discussed here. An often cited case of the Illinois Supreme Court, People v. Hopkins (1972), 52 Ill.2d 1, 284 N.E.2d 283, succinctly states the rule: "The fact that the same item of evidence may be relevant in several trials involving a defendant does not, without more, entitle him to repeated hearings as to the validity of the arrest and search which produced the item." (52 Ill.2d 1, 3-4, 284 N.E.2d 283, 284; also see People v. Armstrong (1973), 56 Ill.2d 159, 306 N.E.2d 14.) The collateral estoppel rule is applied in criminal cases whether the litigated question arises in separate trials (People v. Hopkins; People v. Armstrong) or at different stages of the same trial. People v. Holland (1974), 56 Ill.2d 318, 307 N.E.2d 380.
Exceptions to a universal application of the collateral estoppel rule in criminal cases have been developed because of constitutional due process requirements. The supreme court described the exceptions in People v. Armstrong (1973), 56 Ill.2d 159, 161, 306 N.E.2d 14, 15, as follows:
"In that case [People v. Hopkins], after discussing the considerations pro and con, we held that the doctrine of collateral estoppel bars the relitigation of an order sustaining the validity of a search, in the absence of additional evidence or peculiar circumstances * * *."
• 2 Defendant's argument in this appeal is addressed to the "additional evidence or peculiar circumstances" aspect of the rule. The additional evidence he wished to present at the hearing on the motion in Williamson County consisted solely of his own testimony as exemplified in his offer of proof, and the exceptional circumstances are found in the fact that he was unable to appeal the ruling of his motion by the court in Jackson County because of his plea of guilty there. Defendant relies upon People v. Mordican (1976), 64 Ill.2d 257, 356 N.E.2d 71, People v. Sampson (1980), 86 Ill. App.3d 687, 408 N.E.2d 3, and People v. Stiles (1981), 95 Ill. App.3d 959, 420 N.E.2d 1204. In the Mordican case the supreme court held that the "peculiar circumstances" referred to in People v. Hopkins and People v. Armstrong were found when a defendant was acquitted of charges in a first trial. Such acquittal prevented the defendant from seeking review of the court's denial of his motion to suppress. The inability of the defendant to seek review of the order denying his motion to suppress was held to be sufficient to entitle defendant to a new hearing on his motion to suppress, even in the absence of any claim of additional evidence. Upon the basis, then, of People v. Mordican we find that the trial court in the instant case committed error in refusing to grant defendant a hearing on his motion to suppress.
In addition to the argument based upon the Mordican case, defendant asserts that the court in Williamson County erred in denying him a hearing on his motion to suppress because he had additional evidence to produce. That new evidence, as we have noted, consisted of defendant's own testimony that he had chosen to withhold at the hearing in Jackson County. As disclosed in his offer of proof, defendant's testimony was a reiteration of the testimony given by his wife in Jackson County. Defendant cites People v. Stiles and People v. Colletti (1978), 61 Ill. App.3d 289, 377 N.E.2d 1276.
The Stiles case presented both exceptions to the application of the collateral estoppel rule. After denial of his motion to suppress made during his first trial, the defendant entered a plea of guilty. This, the Stiles court held, precluded review of the suppression hearing and invoked the rule of the Mordican case. We have done likewise in the case under review. The court in Stiles went beyond the Mordican rule, however, to hold that the defendant's representation by incompetent counsel in his first trial had resulted in a failure to present crucial evidence regarding probable cause to make an arrest and conduct a search and seizure without a warrant. The court was obviously concerned with apparent improper police procedures which incompetent counsel failed to develop. Thus was disclosed the additional evidence ...