APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
545 N.E.2d 173, 189 Ill. App. 3d 17, 136 Ill. Dec. 649 1989.IL.1435
Appeal from the Circuit Court of Cook County; the Hon. Earl E. Strayhorn, Judge, presiding.
JUSTICE CAMPBELL delivered the opinion of the court. MANNING, P.J., and O'CONNOR, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL
Following a bench trial, defendant, Rudolph Williams, was convicted of attempted burglary (Ill. Rev. Stat. 1985, ch. 38, par. 8-4(a)) of an automobile and sentenced to five years in prison. On appeal, defendant contends that: (1) the State failed to prove him guilty of attempted burglary beyond a reasonable doubt; (2) the trial court erred in refusing to advise him of his right to elect treatment for drug addiction pursuant to section 22 of the Alcoholism and Substance Abuse Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 6322);1 and (3) the maximum sentence of five years' imprisonment was excessive under the circumstances of the offense. For the following reasons, the judgment of the circuit court is reversed.
The record sets forth the following facts relevant to this appeal. Aco Lazarevki, owner of the subject automobile, testified that on September 12, 1986, approximately 12:40 p.m., he was working at his brother-in-law's hotdog stand when he heard his car alarm go off. His car was parked on the corner near the stand. Aco immediately looked out the window and saw defendant standing next to his car with his hand on the trunk. Defendant then turned and started to walk away. Recognizing defendant from around the neighborhood, Aco ran up to him and asked him what he had done to the trunk. Defendant claimed he had not done anything.
When Aco tried to open the trunk of his car with his trunk key, he noticed that the emblem which covered the trunk key slot was moved off the slot and the trunk would not open. While Aco was examining his trunk, defendant continued to walk away. Aco then saw a police officer writing tickets nearby, asked him to come over to the car, and told the officer what had happened, pointing to defendant, who was walking away. The officer caught up with defendant, brought him back to the car and asked him what he had done to the car and how he had done it. Defendant said nothing.
According to Aco, defendant promised to give him the money to fix the trunk if Aco agreed not to press charges. Aco agreed and told defendant to get $70. Defendant left, promising to return in one-half hour. However, he never returned. Aco further testified that after defendant and the first police officer left, he spoke with Officer Opyt of the Chicago police department and told him what had happened.
Eight days later, Aco saw defendant walking across the street from the hotdog stand. He ran outside, flagged down a squad car, and had defendant arrested. According to Aco, defendant told him that he had not brought the cash because he had been in the hospital. On cross-examination, Aco stated that he had seen defendant's hand on the trunk, but had not seen anything in his hand. The State rested its case and defendant's motion for a directed verdict was denied.
Next, defendant testified on his own behalf that on September 12, 1986, approximately 12:40 p.m., Aco came up to him and asked him if he had gone into his car. Defendant told Aco he had not and started to walk away. Defendant stated that prior to Aco's questioning, he had been regurgitating a short distance away from Aco's car and had never even heard a car alarm. Approximately five minutes later, Aco approached defendant again, this time accompanied by a police officer who walked defendant back to Aco's car. Aco then handed defendant a key and asked him to try to get into his trunk. However, the trunk would not open.
Defendant further stated that Aco promised he would not press charges if defendant gave him $100. Defendant left to get the money, but never returned. On cross-examination, defendant denied ever having touched Aco's car and claimed that he had never seen anyone else touch it either.
Next, Officer Frank Opyt testified that on September 12, 1986, he investigated the alleged attempted burglary of Aco's car. In doing so, he first spoke to Aco, who told him that someone had broken into his trunk with a screwdriver. At that time, Aco told Opyt that he knew who the offender was and that the offender had promised to pay for the damages to the car. However, Opyt did not include this financial arrangement in his report.
Following defense counsel's closing argument, the trial court found defendant guilty of attempted burglary. Approximately two weeks later at the sentencing hearing, the trial court denied defendant's motion for a new trial. In aggravation, the State argued that defendant has numerous felony and misdemeanor convictions and has demonstrated little potential for rehabilitation. In mitigation, defense counsel stated that defendant had been out of prison since 1981, was currently employed, and lived with his parents. Defense counsel requested probation, noting that the probation department stated in its proposed plan for supervision that if the court sentenced defendant to probation, the department ...