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People v. Kirk

OPINION FILED MARCH 14, 1986.

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

v.

L.C. KIRK, A/K/A L.C. SHINES, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Kenneth L. Gillis, Judge, presiding.

JUSTICE MURRAY DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant, L.C. Kirk, a/k/a L.C. Shines, was convicted of the crime of aggravated battery and sentenced to a term of five years in the penitentiary. His term was to run consecutively to an unrelated two-year term for a conviction under indictment No. 82-12051 for theft.

The incident resulting in the conviction in this case occurred in the county jail on February 16, 1983. According to the trial testimony, Kirk, while an inmate in the jail, assaulted Robert Sawyer, a correctional officer, causing an eye injury.

Kirk's appeal is based on the following grounds: (1) a failure of the trial judge to comply with the sentencing requirements of the Illinois Uniform Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005-6-1(a)); (2) prosecutorial misconduct during final argument; (3) the exclusion of black jurors, allegedly violating Kirk's State and Federal constitutional rights to due process of law; and (4) an alleged error in making Kirk's five-year sentence for aggravated battery to run consecutively to the two-year term imposed in indictment No. 82-12051 upon Kirk's conviction for theft.

This court must affirm defendant's conviction and sentence.

• 1 Kirk's assertion that the trial court failed to follow the provision of the Illinois Unified Code of Corrections is based on a charged failure of the trial judge to mention Kirk's eligibility for probation during the imposition of his sentence. The Unified Code of Corrections provides in part at section 5-6-1(a) (Ill. Rev. Stat. 1983, ch. 38, par. 1005-6-1(a)):

"Except where specifically prohibited by other provisions of this Code, the court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstance of the offense, and to the history, character and condition of the offender, the court is of the opinion that

(1) his imprisonment or periodic imprisonment is necessary for the protection of the public; or

(2) probation or conditional discharge would deprecate the seriousness of the offender's conduct and would be inconsistent with the ends of justice."

Kirk contends that this section places a duty on a sentencing judge to state which exception he or she relied on in imposing a sentence other than probation or conditional discharge, citing People v. Cox (1980), 82 Ill.2d 268, 412 N.E.2d 541, and People v. Kuesis (1980), 83 Ill.2d 402, 415 N.E.2d 323.

The State contends that defendant waived the issue by failing to object at the sentencing hearing or by raising the issue in his post-trial motion. The State also asserts that the trial court complied with the requirements of section 5-6-1(a) by expressing a feeling of sympathy for defendant's plight and stating, "because your conduct is such that the protection of the public and further criminal conduct from you for the time being requires this sentence under section 584, so, this sentence will run consecutively to the sentence in No. 82-12051."

The holdings in People v. Cox (1980), 82 Ill.2d 268, 412 N.E.2d 541, and People v. Kuesis (1980), 83 Ill.2d 402, 415 N.E.2d 323, requires express compliance with the provision of the afore-cited Code in sentencing. However, they do not require any magical language. All that is required is substantial compliance. Substantial compliance may exist even if the court does not specifically state "imprisonment is necessary for the protection of the public," or that "probation or conditional discharge would deprecate the seriousness of the offender's conduct and would be inconsistent with the ends of justice." (People v. Cox (1980), 82 Ill.2d 268, 281, 412 N.E.2d 541, 548.) If the trial court record discloses a substantial compliance with the provisions of section 5-6-1(a), a reviewing court may alter the sentencing judge's disposition only upon a showing of an abuse of discretion. People v. Perruquet (1977), 68 Ill.2d 149, 368 N.E.2d 882.

• 2 Here, the record does expressly demonstrate that the trial judge substantially followed the provisions of section 5-6-1(a) of the Illinois Unified Code of Corrections ...


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