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06/01/89 the People of the State of v. Robert E. Jolliff

June 1, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ROBERT E. JOLLIFF, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

539 N.E.2d 913, 183 Ill. App. 3d 962, 132 Ill. Dec. 350 1989.IL.820

Appeal from the Circuit Court of De Witt County; the Hon. Donald R. Parkinson, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Defendant Robert E. Jolliff appeals the revocation of his probation and the imposition of concurrent prison sentences of 10 years for aggravated kidnapping (Ill. Rev. Stat. 1987, ch. 38, par. 10-2(a)(3)) and four years for aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12-4(a)). Defendant raises four issues for our consideration: (1) whether the trial court erred in sentencing defendant on aggravated battery, an included offense of kidnapping; (2) whether the revocation of defendant's probation was proved by a preponderance of the evidence; (3) whether reversible error was committed in the State's cross-examination of defendant at the probation revocation hearing; and (4) whether the trial court abused its discretion when it ordered defendant to reimburse the county for the services of a public defender. We affirm in part and reverse in part.

On January 29, 1987, defendant was charged by amended information with five counts of aggravated kidnapping (Ill. Rev. Stat. 1987, ch. 38, par. 10-2(a)(3)), one count of aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12-4(a)), and one count of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18-2). The charged offenses occurred on October 27, 1986, when defendant and another man, John Butts (Butts), were picked up by the victim in Peoria, Illinois. After travelling a short distance, defendant and Butts threatened the victim with a knife and demanded money. The three travelled farther in the victim's car, to Clinton, where the victim was repeatedly beaten and kicked, threatened again with a knife, and later left in an abandoned railroad car north of Clinton.

Prior to the commencement of a jury trial, defendant's court-appointed counsel withdrew as defendant's counsel and substitute counsel filed an appearance. The court-appointed counsel filed a petition for attorney fees pursuant to section 113-3(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 113-3(c)). This petition was granted on February 4, 1987.

On April 30, 1987, defendant was found guilty of one count of aggravated kidnapping and one count of aggravated battery. On June 17, 1987, defendant was sentenced to three years' probation, the first six months to be served in the county jail. The court also ordered defendant to reimburse the county for $850.60 in attorney fees paid to defendant's court-appointed counsel. No appeal was taken from defendant's convictions or sentence of probation or from the order directing defendant to reimburse the county.

On November 20, 1987, a petition for revocation of defendant's probation was filed. The petition alleged that on October 30, 1987, defendant, while incarcerated at the De Witt County jail, committed various criminal acts against another inmate, James Brewer. A hearing on the petition was held on January 29, 1988.

At the hearing, James Brewer testified to the events of October 30 and October 31, 1987, in the jail. Brewer, a victim of cerebral palsy, testified that the defendant and another inmate forced him, at knife-point, to perform various sexual acts, urinate into a cup and drink the urine, and eat ketchup, mustard, salt, and pepper. Brewer also stated defendant tied him to the cell bars and punched him in the stomach and chest with his fists. Brewer stated that the incident took place between 11 p.m. and 7 a.m. on the night of October 30, that no guards were in the area, and that he tried to call out for help and resist the attacks. On cross-examination, Brewer indicated other inmates were present in the cell block and observed the incident. During cross-examination, Brewer contradicted some of his testimony.

Steven Lenchner, a detective with the De Witt County sheriff's department, testified that he interviewed the defendant about the incidents shortly after October 30. Lenchner stated that defendant told him he was unaware of the incidents except he thought the other inmate was responsible for the urine incident. Lenchner stated that during the interview, defendant presented a joking demeanor. The defendant denied involvement in the incidents during the interview with Lenchner and later at the hearing on January 29, 1988. Defendant stated that the incidents occurred prior to his arrival in the cell on October 30, 1987.

The court found defendant violated his probation by the acts complained of by Brewer. Defendant's motion for reconsideration of the order revoking probation was denied on March 2, 1988. On March 23, 1988, a second sentencing hearing was held on defendant's convictions of aggravated battery and aggravated kidnapping. In aggravation, the State presented the other inmate involved in the incidents with Brewer, who admitted he was involved in some of the incidents but denied any knowledge of what defendant was doing at the time. The court found no mitigating factors and sentenced defendant to concurrent prison sentences of 10 years for aggravated kidnapping and four years for aggravated battery. The court again ordered defendant to reimburse the county for the attorney fees paid to his court-appointed counsel.

Defendant's first claim of error concerns the separate sentences imposed for aggravated kidnapping and aggravated battery at the second sentencing hearing. Defendant contends aggravated battery is an included offense of aggravated kidnapping and, ...


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