Appeal from the Circuit Court of Cook County; the Hon. Michael
P. Toomin, Judge, presiding.
PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Defendant was charged with murder, armed violence and concealment of a homicidal death in connection with the shooting death of Antonio Olmos on September 26, 1983. Following a bench trial in the circuit court of Cook County, he was found guilty as charged, but sentenced solely on the two murder counts (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), (a)(2)) to a determinate sentence of 40 years' imprisonment; the court also directed that this term be served consecutively to the 30-year term already imposed on defendant's prior conviction for attempted murder. *fn1 In this appeal defendant raises three issues relating to the propriety of the murder sentence.
The evidence adduced at trial shows that about 8 p.m. on September 26, 1983, deceased came to the apartment which defendant shared with two other persons and requested money for something to eat. Defendant gave him some cash, then told deceased that he liked his jacket and demanded that he hand it over to him. Deceased responded that he could not give him the jacket because it belonged to someone else, then went out and bought food and drink which he brought back to the apartment for himself, defendant and Aurelio Porrez.
During the course of their repast defendant went into the bedroom and brought out a gun which he showed to deceased. When deceased handed it back to him, defendant put three bullets in the chamber, demanded the jacket again and threatened to kill him. Deceased did not part with the jacket, and defendant pointed the gun to his head and fired. The autopsy performed on the deceased showed that he died from a gunshot wound to the left side of his head.
Porrez testified that he saw the smoking gun in defendant's hand, ascertained that deceased was dead, then left the apartment to speak with his brother. When he returned he helped defendant wrap the body in a blanket, and remained in the apartment that night. On the following morning the police forcibly entered the apartment, found the body and the gun, then arrested Porrez and defendant. Porrez was charged with theft and concealment of a homicidal death, but the State agreed to drop these charges in exchange for Porrez' testimony in the instant case.
No testimonial evidence was offered by the defense, and after closing arguments were heard, the court found defendant guilty as charged. Defense counsel's oral motion for a new trial was denied, and counsel inquired about the possibility of proceeding to sentencing at that time. The court asked if it would be necessary to order an updated presentence investigation report and specifically noted that defendant had been incarcerated since 1983. Counsel responded that he did not see any need for an updated report, and informed the court that he had spoken with defendant and his family prior to the day's proceedings and ascertained that nothing had changed since the last time.
This reference to the "last time" apparently pertains to the sentencing hearing which was conducted approximately six weeks before on March 1, 1985, after defendant was convicted of attempted murder and other lesser crimes. The record shows that the charges set forth in that case arose from a separate shooting incident which took place about six hours before the incident giving rise to the charges in the instant case, wherein the victim lost his sight. The sentencing hearing in the prior case was conducted by the same trial judge who presided in the case at bar, and the record shows that a presentence investigation report was prepared in conjunction with it.
At the sentencing phase of the proceedings in the case under consideration, the State asserted that defendant was a violent person, as evidenced by these two shootings, and argued that society needed to be protected from him. The State then recommended that defendant be sentenced to an extended term of imprisonment, and urged the court to direct that the sentence be served consecutively to the term imposed on defendant's attempted-murder conviction.
In mitigation, defense counsel informed the court that defendant was 30 years of age and had arrived in this country from El Salvador just a few months before these incidents occurred, and counsel pointed out that the victims were his partners in crime. Counsel did not attempt to excuse defendant's conduct, but argued that it was not the type of conduct which shocked "the consciousness," then informed the court of defendant's remorse over the incident as well as his expressions of religious conviction, and asked the court to consider a reasonable sentence.
Before announcing its decision, the court alluded to the facts involved in defendant's prior conviction of attempted murder, then addressed the situation in the instant case where defendant had killed a man over a jacket and demonstrated once again the worthlessness he attached to a human life. The court determined that a substantial sentence was necessary to deter others from committing this type of crime and to protect the public, and then sentenced defendant to a term of 40 years' imprisonment. Because of the court's view that it was necessary to protect society from any further criminal conduct on the part of defendant, the court directed that this sentence run consecutively with the term imposed on defendant's prior conviction for attempted murder.
Defendant now appeals from this judgment, contending first that the sentence must be vacated because no presentence report was ordered in the case. In support of that position defendant points out that although a presentence investigation report had been prepared about six weeks earlier for an entirely different incident, none was specifically prepared for this case. Defendant contends that because the court failed to order and consider a proper report in the instant case, and because there is no evidence in the record to indicate that the trial court actually considered the prior report, his sentence must be vacated. The State responds that the statutory right to a presentence investigation report had been fulfilled by the trial court's consideration of the report prepared about six weeks earlier; and, further, that defendant waived the right to an updated presentence report and has failed to show how he was prejudiced by the absence of a new report.
• 1 Section 5-3-1 of the Unified Code of Corrections provides that a defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court. (Ill. Rev. Stat. 1983, ch. 38, par. 1005-3-1.) The supreme court has held that this requirement is mandatory and cannot be waived except in accordance with the exception set forth in the statute regarding sentencing agreements. (People v. Youngbey (1980), 82 Ill.2d 556, 413 N.E.2d 416.) Defendant asserts that in enacting this provision the legislature intended that each prosecution have a separate ...