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06/02/88 the People of the State of v. Jose Estrella

June 2, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOSE ESTRELLA, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

524 N.E.2d 707, 170 Ill. App. 3d 292, 120 Ill. Dec. 677 1988.IL.870

Appeal from the Circuit Court of Kane County; the Hon. John L. Nickels, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. INGLIS and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Defendant, Jose Estrella, entered a plea of guilty in the circuit court of Kane County to an indictment charging him with the offense of armed violence based on his possession of a dangerous weapon and his commission of aggravated battery by causing great bodily harm (Ill. Rev. Stat. 1985, ch. 38, par. 33A-2) and was sentenced to a 14-year term of imprisonment.

The sentencing issues raised on appeal are (1) whether the trial court erred in allowing the victim to testify at the sentencing hearing concerning the impact of defendant's conduct on the victim and other matters in aggravation where the statements were not first prepared in writing pursuant to section 5-4-1(a)(6) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-4-1(a)(6); and (2) whether the trial court improperly considered as an aggravating factor that a weapon was involved in the commission of armed violence. Defendant seeks a new sentencing hearing and, alternatively, requests that we reduce his sentence.

Following defendant's plea of guilty to armed violence and attempted murder, the latter charge being subsequently dismissed, the court held a sentencing hearing. The State called two witnesses, including the victim, James Olson, who both testified under oath regarding the incident which led to the charges against defendant. Essentially, this testimony was that on the evening of July 20, 1986, defendant and Olson were yelling across the street at each other. When Olson, who did not have a weapon, came across the street, defendant pulled out a pistol and shot him once in the chest. After Olson fell to the ground, defendant walked up and shot him twice in the head. Olson was intoxicated at the time. Olson further testified that the bullets still remain in his head, that he is blind in his right eye, that he is partially blind in his left eye, and that he is partially paralyzed on his left side. Defendant cross-examined both witnesses.

Defendant objected to Olson's testimony on the basis that he had not been furnished a written statement of Olson's proposed testimony, pursuant to section 5-4-1(a)(6) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-4-1(a)(6)). Defendant also objected on the ground that he had entered a plea of guilty and the evidence was therefore irrelevant. The court overruled the objections, finding that this evidence was part of the State's evidence in aggravation of the sentence. See Ill. Rev. Stat. 1985, ch. 38, par. 1005-4-1(a)(3).

In his sentencing pronouncement, the trial Judge found, as factors in aggravation, that defendant caused permanent, serious harm to the victim, that the act of shooting the victim twice in the head as he lay wounded was wanton cruelty, and that there was a weapon involved.

Defendant's first contention is that a written version of any statement concerning the impact on the victim and any other evidence offered in aggravation or mitigation by the victim must be prepared before any oral presentation is made by the victim at the hearing. He relies on the provision contained in subsection 6 of section 5-4-1(a) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 1005-4-1(a)(6)) in arguing that because the victim, James Olson, failed to submit such a written version of his testimony and was allowed to testify over defendant's objection, he is entitled to a new sentencing hearing in conformance with the statute.

Section 5 -- 4 -- 1(a)(6) of the Code, in relevant part, provides:

"(a) Except when the death penalty is sought under hearing procedures otherwise specified, after a determination of guilt, a hearing shall be held to impose the sentence. . . . At the hearing the court shall:

(6) afford the victim of a violent crime . . . the opportunity to make a statement concerning the impact on the victim and to offer evidence in aggravation or mitigation; provided that the statement and evidence offered in aggravation or mitigation must first be prepared in writing in conjunction with the State's Attorney before it may be presented orally at the hearing. Any sworn testimony offered by the victim is subject to the defendant's right to cross-examine. All statements and evidence offered ...


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