APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
513 N.E.2d 87, 159 Ill. App. 3d 1070, 111 Ill. Dec. 841 1987.IL.1208
Appeal from the Circuit Court of Cook County; the Hon. Stephen A. Schiller, Judge, presiding.
JUSTICE LINN delivered the opinion of the court. McMORROW, P.J., and JOHNSON, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN
Defendant, Christopher Moore, was convicted of one count of armed violence predicated on voluntary manslaughter and one count of concealment of a homicidal death. He was sentenced to 12 years for armed violence and seven years for the concealment of a homicidal death, both sentences to be served concurrently. On appeal, the armed violence conviction was vacated and the cause remanded for resentencing. People v. Moore (1984), 128 Ill. App. 3d 505, 516-18, 470 N.E.2d 1284, 1293.
On remand, the trial court sentenced Moore to 12 years for voluntary manslaughter and five years for concealment of a homicidal death, to be served concurrently. He appeals, contending that (1) the trial court erred in imposing an extended term of 12 years for voluntary manslaughter because of its finding that Moore committed the homicide under the belief, although unreasonable, that he was acting in self-defense; (2) the extended term for voluntary manslaughter was "impermissible since defendant received a greater sentence upon resentencing than the sentence imposed at his original sentencing"; and (3) the sentences are per se invalid because a new presentence report was not produced before resentencing.
The facts brought out during Moore's trial are detailed in the opinion arising out of Moore's original appeal. (People v. Moore (1984), 128 Ill. App. 3d 505, 470 N.E.2d 1284.) In brief, Moore and two other men were in the home of Albert Wooden on the night of December 12, 1980, sitting in the kitchen drinking beer. When they heard noises from someone attempting to enter the house, they turned off the lights and waited for the person to enter. A 14-year-old neighborhood boy entered the living room. Moore and the other men ran in and began beating the boy. The boy fled to a basement, where he attempted to hide behind a furnace. The men pursued him and beat him to death with their fists, a hammer, a knife, a table leg with a nail protruding from its base, a shoe, and a stick. The injuries to the boy included a gaping 6-inch by 4-inch wound on the side of his head, through which much of his brain had spilled out. There were four other lacerations on his head, as well as multiple abrasions and bruises, and the cause of death was determined to be cranial cerebral injury due to beating. Afterwards the men pulled the lifeless body out and wrapped it in thick plastic. They put the body on the trunk of a car and attempted to drive it away. Each time, the body rolled off the car. The men finally left the body lying in the alley.
After a bench trial, Moore was found guilty of armed violence, voluntary manslaughter, and concealment of a homicide. He received 12- and 7-year sentences for armed violence and for concealment of the homicide, respectively. We vacated the armed violence conviction to conform to the Illinois Supreme Court's holding in People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48, which prohibits the predication of an armed violence conviction on voluntary manslaughter, and remanded for resentencing.
After the resentencing hearing, during which the court considered the presentence report prepared for the bench trial, the court imposed a 12-year, extended-term sentence for voluntary manslaughter and a five-year term on the concealment charge.
Voluntary manslaughter was classified as a Class 2 felony at the time of the offense. (Ill. Rev. Stat. 1979, ch. 38, par. 9-2(c).) As such, it carried a prison term of up to seven years (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1(a)(5)), unless factors in aggravation justified imposition of an extended term, in which case a possible maximum term of 14 years could be imposed. (Ill. Rev. Stat. 1979, ch. 38, pars. 1005-5-3.2, 1005-8-2(a)(4).) These factors include "exceptionally brutal or heinous behavior indicative of wanton cruelty." In this case the court found that Moore's actions "in terms of circumstances of the victim's death, were perhaps the most gruesome [one] could possible [ sic ] imagine." Although Moore was found to have killed under an unreasonable belief that he was acting in self-defense, the court specifically found that his acts were heinous and extremely and ...