APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
517 N.E.2d 1207, 164 Ill. App. 3d 480, 115 Ill. Dec. 521 1987.IL.1992
Appeal from the Circuit Court of Lake County; the Hon. John L. Hughes, Judge, presiding.
JUSTICE DUNN delivered the opinion of the court. WOODWARD and UNVERZAGT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN
The defendants, Raymond and Paul Centanni, appeal from the order of the circuit court which sentenced them, after a negotiated guilty plea, to 30 years' incarceration for having committed the offense of home invasion in violation of section 12-11 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 12-11). In this consolidated appeal the defendants contend that the court erred when it sentenced them to 30 years, the maximum incarceration for the offense charged. Specifically, they argue that the court: (1) failed to use proper standards when it sentenced them in that it noted that their conduct carried extended-term sentencing potential, and, further, the court failed to recite which aggravating factors, if any, justified imposition of the maximum term; (2) erred when it denied the defendants' motion in limine and allowed evidence to be elicited concerning the facts of a separate offense; and (3) denied the defendants due process in view of the six-year sentence which the court gave a codefendant. Initially, however, we must first address the jurisdictional issue raised herein by the failure of each of the defendants to file a motion to withdraw his plea of guilty and vacate judgment pursuant to Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)). Because of counsel's ineffective assistance in failing to file a required Rule 604(d) motion, defendants request that we nevertheless determine the substantive issues raised concerning the sentence.
From our examination of the record, it is evident that the trial court properly advised defendants in accordance to Supreme Court Rule 605(b) upon their pleas of guilty, including the requirement to file within 30 days a motion to withdraw the plea of guilty and the consequences of a failure to file the motion. It is clearly evident in the record that defendants wished to appeal from the denial of their motions for reconsideration of the sentence, and a notice of appeal was filed on behalf of each of the defendants on the same day of the denial of their motions for reconsideration of the sentence. Under these circumstances, where the desire of a defendant to appeal is evident on the record, this court has held that the failure of counsel to file the required Rule 604(d) motion constitutes ineffective assistance of counsel and, thus, jurisdiction of the appeal would not be denied. (People v. Leidtke (1987), 154 Ill. App. 3d 604, 605-07, 506 N.E.2d 984.) We so hold here.
On October 7, 1985, the defendants, Raymond and Paul Centanni, were charged in Lake County with commission of home invasion, residential burglary, theft, and unlawful restraint. On March 19, 1986, the defendants pleaded guilty to home invasion pursuant to a plea agreement, and the State dismissed the remaining three counts. In addition, the defendants offered to testify before the Lake County grand jury about another individual's participation in the home invasion. Both the State and the defendants agreed that each side would present evidence in aggravation and mitigation at the sentencing hearing. They also agreed that the State would not request an extended sentence.
Prior to sentencing, the defendants filed a motion in limine which sought to preclude the State from offering evidence in aggravation which related to their participation in an alleged home invasion in Northbrook. In support of their motion, the defendants called Northbrook detective John Flynn, who testified that he assisted Cook County State's Attorney Babbit when Babbit took a statement from Raymond Centanni with regard to the defendants' involvement in a Northbrook home invasion. Flynn testified that Raymond's statement included his acknowledgment of an agreement whereby the defendant was assured that by cooperating any sentence in the Northbrook case would run concurrently with the sentence imposed in a separate case pending against him in Chicago. The defendants argued that if the court allowed the State to use evidence of these statements in aggravation, the voluntariness of the defendant's statements would be negated and, furthermore, the defendants would be subject to enhanced penalties based on the evidence. The trial court denied the defendants' motion. Specifically, the court noted that: (1) the strict rules of evidence do not apply at sentencing hearings; (2) the State's Attorney is not precluded from presenting testimony by witnesses as to what happened during the alleged Northbrook home invasion; and (3) the court would entertain anything showing the extent of the defendants' criminality.
Thereafter, at the sentencing hearing, Deerfield police officer Ennis testified that he responded to a burglary on October 13, 1984, at the home of Mr. and Mrs. Simon. He acknowledged that he remained at the scene for four hours and that neither Mr. nor Mrs. Simon, who were present during the burglary, required hospitalization.
Joy Simon testified that after arriving at her home on October 13, 1984, three or four men accosted her, took her bracelets and necklace, and proceeded to tie her legs and arms together. She also testified that she heard these men threaten her husband with a gun and that one threatened to cut her ear off if she did not cooperate. She indicated that she heard these men rummaging through her personal belongings after she told them where she kept certain items. Before the men left, Mrs. Simon stated that one repeatedly told her that he was going to kill her. After the men left she testified that she surmised her husband had freed himself and set off the burglar alarm. She also indicated that both she and her husband had been able to free themselves from their bonds.
Howard Simon testified that on October 13, 1984, the men entered his house, bound him, and blindfolded him. He indicated that the defendant Raymond threatened him with a gun and ordered him to divulge the location of the safe. On cross-examination, Simon indicated that both he and his wife were able to free themselves from their bonds. He also stated that a third defendant, Floyd Reed, threatened to cut off Mrs. Simon's ear.
Deerfield police investigator Thomas Sheahan testified that in addition to the defendants, Floyd Reed, Tim Pilskowski, and Thomas Barret were also implicated in the incident. He also testified that Reed had pleaded guilty and received six years' incarceration. He indicated that as a result of both the Centannis' cooperation, the police were able to arrest and charge Barret. The Centannis also described other criminal activities of which they were aware. Finally, Sheahan acknowledged that the defendants never fired any weapons in the subject transactions.
Lorraine Keyser, a victim of a home invasion which occurred at her home on September 5, 1983, testified that she was subdued by men in masks and her hands and legs bound. She testified that the men threatened her with bodily harm if she did not tell them where her money and other possessions were hidden. She indicated that she was able to free herself from the bond 10 to 15 minutes after the defendants had exited her home.
John Green testified that he had become acquainted with the defendants in August 1983. He indicated that it was his responsibility to turn off the alarm at the Keyser residence. He stated that a storm triggered the alarm at the home and that he and the defendants left the area. Green testified that he did not return. Finally he ...