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People v. Harden

OPINION FILED JUNE 20, 1986.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

JIMMIE HARDEN, APPELLANT.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Cornelius Houtsma, Jr., Judge, presiding.

JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Following a bench trial in the circuit court of Cook County, the defendant, Jimmie Harden, a/k/a Mayo Turner, was convicted of armed robbery, a Class X felony, and sentenced to an extended term of 60 years (Ill. Rev. Stat. 1981, ch. 38., pars. 18-2, 1005-5-3.2(b)(1)). The appellate court, in affirming, held that the defendant did not preserve for review his contention that the trial court erred in imposing an extended-term sentence. (130 Ill. App.3d 1158.) We granted the defendant's petition for leave to appeal (94 Ill.2d R. 315).

On March 11, 1982, after finding the defendant guilty of armed robbery, the trial court considered a petition filed by the State for imposition of a mandatory life sentence under provisions of the habitual criminal statute (Ill. Rev. Stat. 1981, ch. 38, par. 33B-1(a)). That statute in part provides:

"Every person who has been twice convicted in any state court or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class X felony or murder, and is thereafter convicted of a Class X felony or murder, committed after the two prior convictions, shall be adjudged an habitual criminal." (Ill. Rev. Stat. 1981, ch. 38, par. 33B-1(a).)

To support its petition the State introduced evidence of six convictions of the defendant in the circuit court of Cook County in 1966 for robbery, and a certified copy of the defendant's judgment of conviction in 1975 in the United States District Court for the Northern District of Illinois. The State submitted the Federal conviction as one for armed robbery, although the judgment of conviction literally stated that the defendant was convicted of "knowingly, wilfully and unlawfully by force, violence and intimidation robbing a bank * * * in violation of Title 18, United States Code, Section 2113(d) and (e) as charged in counts 1 and 2." The defendant did not object to the admission of the certified copy or to the State's characterization of the Federal conviction as one for armed robbery. Rather, in contending that the requirements of the habitual criminal statute had not been satisfied, the defendant declared that his criminal record contained only one Class X felony, "the conviction of bank robbery in 1975." The trial court denied the State's petition, stating that the 1966 convictions were for robbery and not armed robbery, and thus were not convictions of Class X felonies. The court also noted that the Federal judgment did not refer to the conviction as one for armed bank robbery.

The trial court then conducted a hearing in aggravation and mitigation to determine the sentence to be imposed. The court received in evidence a presentence report. Clearly the report had been examined by the defendant, as he requested a minor deletion which is not relevant here. That was the only objection by the defendant to the report's contents. The court, in reviewing the report, observed that the defendant's criminal record showed a Federal conviction for "Armed Bank Robbery."

Section 5-5-3.2(b)(1) of the Unified Code of Corrections provides that a sentence for an extended term of years may be imposed "[w]hen a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years * * *." (Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3.2(b)(1).) The court determined that the statute was applicable, as the Federal offense and the robbery of which the defendant had just been convicted were committed with a deadly weapon, and sentenced the defendant to an extended term of 60 years. As has been stated, the appellate court held that the defendant waived any question regarding the extended term, and affirmed the sentence.

The defendant makes several contentions which are reducible to three claims: (1) the appellate court erred in holding there was a waiver of the question whether the Federal conviction was for armed bank robbery; (2) due process was violated when he was sentenced on what were untrue assumptions of his criminal record; and (3) his contention regarding the Federal conviction should be reviewed on the merits under the plain-error doctrine or because of his attorney's incompetent representation at his sentencing.

We consider that the appellate court correctly held that the defendant waived any question on the propriety of the imposition of an extended-term sentence based upon his Federal conviction.

During the trial court's consideration of the State's petition for imposition of a life sentence under the habitual criminal statute, the defendant admitted that the Federal conviction in 1975 was a Class X felony; in fact, he stated that the Federal conviction was the only Class X felony to consider under the habitual criminal statute. Too, during the hearing in aggravation and mitigation, the defendant, except for a request for a minor deletion, did not object to the admission of the presentence report, nor to its reference to the defendant's having had a Federal conviction for armed bank robbery. Finally, the defendant made no objection when, in reviewing factors in aggravation, the trial court judge described the Federal conviction as one for armed robbery and on that ground imposed the extended-term sentence. By not objecting to the characterization of the Federal conviction as armed robbery, and maybe more strongly, by admitting it was a Class X offense, the defendant did not preserve for review the contention he makes here. See People v. Godinez (1982), 91 Ill.2d 47, 56-57 (where objection to the consideration of a co-defendant's statement contained in a presentence report was held to be waived when, as here, the defendant failed to object to inclusion of the statement despite acknowledgment of receiving the report and objecting to the inclusion of other materials in it); People v. Burdine (1978), 57 Ill. App.3d 677, 688 (where inaccuracies as to the defendant's prior criminal record made during the sentencing hearing were held to be waived by the defendant's failure, as here, to point out the error in the presentence report and to object to the assistant State's Attorney's reference to the conviction as one for armed robbery when the police report indicated a conviction for robbery).

The defendant next argues that we should consider his contentions under the doctrine of plain error. That provides that plain errors or defects, although not objected to and brought to the attention of the trial court, may be noticed and considered "where the evidence is closely balanced or the error so egregious that a denial of a fair trial or sentencing hearing resulted." (People v. Neal (1985), 111 Ill.2d 180, 196-97; 87 Ill.2d R. 615(a).) The defendant contends that he was sentenced on the basis of materially false information. Claiming that his Federal conviction was for robbery, not armed robbery, he notes that in denying the State's petition for imposition of a life sentence under the habitual criminal statute, the trial court, referring to the Federal conviction, stated that it "[d]oesn't say anywhere in there it's Armed Bank Robbery." This, the defendant contends, shows that he was not convicted of armed robbery and an extended-term sentence should not have been imposed.

The defendant's contentions are not persuasive. Although it is not explicitly stated in the Federal judgment and commitment order that the defendant was convicted of an armed robbery, the order does state that he was convicted of violating sections 2113(d) and (e) of the United States Code (18 U.S.C. § 2113(d), (e) (1970)). A reading of section 2113(d) shows that the defendant was convicted of armed bank robbery. It provides:

"(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section [offenses concerning bank robbery], assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more ...


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