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06/26/87 the People of the State of v. Bart E. Wolfe

June 26, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

BART E. WOLFE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

510 N.E.2d 145, 156 Ill. App. 3d 1023, 109 Ill. Dec. 524 1987.IL.898

Appeal from the Circuit Court of Boone County; the Hon. Robert J. French, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

The defendant, Bart E. Wolfe, appeals from the judgment of the circuit court which denied his motions to withdraw his guilty plea and reduce his sentence. On appeal the defendant contends that: (1) the prosecutor breached a prior plea agreement when he failed to recommend a sentence of eight years' imprisonment at the hearing on the motion to reduce sentence and (2) the defendant's sentence is grossly disparate to that given his codefendant. For the reasons set forth below, we affirm.

On March 8, 1985, defendant was charged in a 10-count information with home invasion, armed robbery, residential burglary, aggravated battery, burglary and criminal damage to property arising out of incidents which occurred on February 22, 1985. A codefendant, Michael Slavik, was charged in a separate information with the same 10 counts.

On September 6, 1985, the codefendant, Slavik, agreed to plead guilty to the home invasion count. The court accepted Slavik's guilty plea, and the prosecution agreed to dismiss the remaining nine counts. The prosecution and Slavik made no agreement, however, as to sentencing.

On September 20, 1986, defendant agreed to plead guilty to the home invasion count. Pursuant to this plea agreement the prosecution agreed to dismiss the remaining counts against the defendant and also to recommend a sentence of eight years' imprisonment. The following forms the prosecution's factual basis at the time of the defendant's guilty plea.

Defendant and Slavik went to the home of the victim, Bonnie Harris, on the evening of February 22, 1985. At the time of the offense the defendant wore a ski mask. When Slavik and defendant entered the victim's home, defendant ran into the middle of the living room, crouched down, and pointed a gun at the victim. Defendant gave the gun to Slavik and searched the basement for other occupants. Thereafter, defendant returned to the living room, sat down on the couch next to the victim, and proceeded to remove a $20 bill from her purse. Defendant continued to search the purse and asked the victim, "Well, how about another twenty?" He then put the purse on the side of him and began to move closer to the victim. As the victim moved away, defendant continued to move closer and eventually was seated directly next to the victim.

When the victim's son returned, defendant ran towards him and grabbed him, and they both went outside. Slavik followed, put the gun away, and made the following statement, "Let's not be too big of an asshole." Slavik and defendant then left, and the victim called the police.

The court sentenced Slavik on October 31, 1985. The prosecution recommended a sentence of eight years, and the court imposed a sentence of seven years' imprisonment. When the court sentenced Slavik it noted that his psychological evaluation had shown that Slavik is "apparently a follower, that his conduct was induced by persons other than . . . or outside himself."

The court sentenced the defendant on November 14, 1985. At this hearing the codefendant, Michael Slavik, testified: (1) he had been convicted of home invasion in this case and sentenced to seven years' imprisonment; (2) he and defendant had gone to the victim's residence "maybe three times" on the evening in question; and (3) just prior to the final visit, defendant told Slavik, "I'm up for a piece; lets go rape Mrs. Harris." We note, however, that at his own sentencing hearing Slavik had stated, "We didn't have no intention of raping her. I think that was just brought up in our minds with the drugs we were doing that night."

Defendant also called the probation officer, Neil Magnuson. Magnuson testified that in preparation of the presentence report for the defendant's case, he had interviewed the victim and ascertained that at the time of the present offense she did not sense any sexual ...


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