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04/07/89 the People of the State of v. Geraldine Colter

April 7, 1989





536 N.E.2d 1372, 181 Ill. App. 3d 392, 130 Ill. Dec. 161 1989.IL.491

Appeal from the Circuit Court of Henry County; the Hon. Jeffrey W. O'Connor, Judge, presiding.


JUSTICE SCOTT delivered the opinion of the court. WOMBACHER, P.J., concurs. JUSTICE HEIPLE, Dissenting.


After trial by jury in the circuit court of Henry County, Geraldine Colter was found guilty of two counts of theft of property having a value in excess of $300. The defendant was sentenced to two concurrent terms of imprisonment of two years.

The defendant from January 1981 through October 1984 was employed as a secretary-bookkeeper by the Geneseo Good Samaritan Center. In such capacity she received funds in payment for care received by the residents of the facility. Through various ruses used by the defendant when depositing the funds, she siphoned from the funds for her own use an amount not less than $32,330 or more than $38,000.

Coexistent with the criminal proceedings against the defendant was a civil action filed against her by the Good Samaritan Center, which sought judgment in the approximate sum of $38,000. The civil action was settled by a stipulated judgment order whereby the defendant agreed to pay the center $30,000 within one year from the date of such order.

In mitigation of sentence the defendant argued that she was 55 years of age, has no criminal record and that during the course of her criminal prosecution she was hospitalized by a stroke and will be taking stroke-preventive medication for the remainder of her life. She also expressed her willingness to make amends for her conduct by making restitution in the sum of $30,000, which is the amount of the civil judgment against her. The trial court listed restitution as a mitigating factor but stated that the court would give such factor little if any weight and opined that restitution in the case was "speculative."

The trial court continued the sentencing (to June 23, 1987) in order to permit the defendant to make a showing that she had the ability to make restitution. At this hearing the defendant testified concerning arrangements she had made which would enable her to pay $30,000, the sum stipulated to in the judgment order. The substance of the defendant's testimony was that her husband had agreed to give her a quitclaim deed as to his interest in the family home. That such transfer would be made was a certainty, since the husband's interest was to be transferred to the defendant pursuant to a legal separation agreement. The property was encumbered by a $3,500 home-improvement loan. The defendant further testified to the effect that if the sale of the property did not provide sufficient funds, her husband would make up the difference by withdrawing funds from his Individual Retirement Account.

All the information relating to restitution was adduced at the sentencing hearing, but as heretofore noted, the trial Judge stated that "the compensation that is forthcoming is one of a speculative nature." The defendant was then sentenced to the terms of imprisonment.

At a subsequent hearing on defendant's motion to reduce sentence, the matter of the restitution was again raised. The defendant testified that her house was listed with a realtor and that a contract for sale, supported by earnest money, had been entered into. The purchaser had a loan application pending, and if this sale was not consummated, the realtor had two other purchasers for the house. The motion to reduce sentence was denied and again on the ground that restitution was too speculative.

We doubt not the trial court's sincerity in considering restitution as speculative. However, subsequent events proved that the Judge was incorrect. In less than two months after the hearing on the motion to reduce sentence, the defendant paid the $30,000 judgment to the Good Samaritan Center.

In the instant case, after examining the statutory factors to be considered, this court finds it difficult to justify the terms of imprisonment imposed on the defendant. Directing our attention to the Constitution of our State, we find that it mandates that "[all] penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." (Ill. Const. 1970, art. I, ยง 11.) We do not deprecate the seriousness of the defendant's offense, but there are a number of statutory factors which ...

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