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05/03/89 the People of the State of v. Steve Jorgensen

May 3, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

STEVE JORGENSEN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

538 N.E.2d 758, 182 Ill. App. 3d 335, 131 Ill. Dec. 383 1989.IL.657

Appeal from the Circuit Court of Lake County; the Hon. William D. Block, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. LINDBERG and McLAREN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendant, Steve Jorgensen, along with several codefendants, was indicted by grand jury in case No. 87-CF-73 with home invasion, armed violence, attempted murder, conspiracy, residential burglary, and aggravated battery, and, in case No. 87-CF-97, with two counts of armed robbery. Pursuant to a plea agreement, defendant pleaded guilty to home invasion in No. 87-CF-73 and one count of armed robbery in No. 87-CF-97, and the other charges were dismissed. He was sentenced to concurrent prison terms of 20 years' imprisonment for home invasion and 22 years' imprisonment for armed robbery.

On appeal defendant raises three issues: (1) whether the State violated the plea agreement by presenting evidence going to a dismissed charge; (2) whether the trial court erred in considering in aggravation that defendant's conduct threatened serious harm and was brutal and heinous, and in considering that on a dismissed charge the victim's age was over 60; and (3) whether defendant's sentence was excessive. For the reasons stated below, we affirm.

The following evidence was introduced at the sentencing hearing. On May 3, 1985, defendant, along with August Zilisch and Troy Pencak, decided to rob the Scharlau home. Pencak, in his statement to police, said that all three had weapons, but Jorgensen denied having a weapon. Pencak stated that Jorgensen threw a rock through the bedroom window. Zilisch said in his statement that he threw the rock. Pencak and Zilisch climbed through the window while defendant stood watch. Mr. Scharlau arose from his bed and approached Pencak. A gunshot fired by Pencak hit Scharlau in the index finger and left cheek. Pencak and Zilisch then bound Mrs. Scharlau's hands and feet and looked around the house for a short time and left.

On March 17, 1986, defendant, Pencak, and Zilisch broke into the Hagopians' house while no one was home. All three were armed with sawed-off shotguns. Later, at about 8 p.m. when Mrs. Hagopian returned home, the three repeatedly beat her, asking her where she kept the money in the house. She was tied up and put in the basement, where she was covered with a mattress. Defendant kept watch over her in the basement. At about 11 p.m. Mr. Hagopian arrived home. He was hit and tied up and told that his wife would be shot unless he told them where he kept his money. The three left a short while later after taking the money in Mr. Hagopian's wallet.

In a statement to police, defendant admitted to committing at least 35 other burglaries.

In mitigation, defendant's wife testified. She stated that she had a two-year-old daughter from a previous relationship and that defendant treated her and her child extremely well. She felt that defendant had changed since he married her. A presentence investigation and a memorandum submitted by a private counseling group were also presented to the court. These documents revealed that defendant was 24, had no prior criminal record, had a stable employment record and strong family support. The presentence report also indicated defendant may have abused cannabis and alcohol during the time he committed the offenses.

Defendant first contends the State violated its plea agreement by presenting evidence at sentencing relating solely to facts underlying a dismissed charge. Under the plea agreement, defendant pleaded guilty to armed robbery against Mrs. Hagopian, 57, and the armed robbery charge against Mr. Hagopian, 64, was dismissed. At sentencing, the prosecutor presented evidence that detailed the armed robbery against Mr. Hagopian. Defendant contends this evidence violated the agreement because it was implicit in the agreement that the dismissed charge would be completely withdrawn from the proceedings. Defendant argues that it would make little sense for defendant to plead guilty to some charges in exchange for dismissal of others if the latter could be freely used by the State against him at sentencing.

It is well settled that where a guilty plea rests to any significant degree on the promise of a prosecutor, so that the promise is a component for the inducement of the plea, the promise must be fulfilled. (People v. Davis (1981), 94 Ill. App. 3d 809, 811; Santobello v. New York (1971), 404 U.S. 257, 262, 30 L. Ed. 2d 427, 433, 92 S. Ct. 495, 499.) In this case, however, the record fails to support defendant's contention that the plea agreement was based on the State presenting no evidence of the dismissed charges at sentencing. In return for his plea the State made the following promises: (1) defendant would be sentenced to concurrent terms only; (2) the remaining charges, which included armed violence, conspiracy, residential burglary, attempted murder and aggravated battery, would be dismissed; and (3) no charges would be brought for any other burglaries of which the State had knowledge connecting defendant. There is no mention that the State agreed not to present evidence at sentencing concerning the dismissed charges. Furthermore, if this were a case where the defendant was under the belief that the prosecutor would not present evidence concerning the dismissed charges, it would seem that the defendant's surprise would be reflected in the record by timely objections to the presentation of this evidence. Yet, at no point did defense counsel object to this evidence.

The cases relied on by defendant are easily distinguished. In People v. Cangelosi (1979), 68 Ill. App. 3d 489, the prosecutor promised defendant that his plea of guilty would not be used against him to find him in violation of probation. Subsequently, he was found in violation of probation not by the guilty plea but by the evidence relating to that plea. The appellate court held defendant's plea was not voluntary. The court found that the subtle distinction between using the guilty plea itself or the evidence going to the plea mattered little to the defendant, who was induced to plead guilty by the obvious understanding that he would not be found in violation of probation. (Cangelosi, 68 Ill. App. 3d at 498.) In People v. Davis (1981), 94 Ill. App. 3d 809, 811, the court found that the prosecutor breached his promise when he promised not to make a sentencing recommendation and then asked the court not to sentence defendant to probation. The case at bar, unlike Cangelosi and Davis, does not present ...


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