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09/28/89 the People of the State of v. Paul Diaz Et Al.

September 28, 1989





545 N.E.2d 399, 189 Ill. App. 3d 473, 136 Ill. Dec. 875 1989.IL.1530

Appeal from the Circuit Court of Cook County; the Hon. Earl Strayhorn, Judge, presiding.


JUSTICE JOHNSON delivered the opinion of the court. JIGANTI, P.J., and LINN, J., concur.


After a bench trial, defendants Paul Diaz, Anthony Allcala, Eddie Rodriguez, and Anthony Virgilio were found guilty of multiple counts of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, pars. 12-4(a), (b)(1), (b)(8)). Defendants were each sentenced to serve an extended term of 10 years in the Illinois Department of Corrections. Defendants Diaz and Allcala appeal, seeking reversal of their convictions and remandment of their causes for a new trial or, in the alternative, vacation of their sentences and remandment of their causes for resentencing. Defendants Rodriguez and Virgilio appeal, seeking vacation of two of their convictions for aggravated battery and reversal and remandment of this cause for a new sentencing hearing or, in the alternative, for reduction of their sentences to nonextended terms, not to exceed five years.

Rodriguez raises the following issues for review: (1) whether the trial court improperly relied on the infliction of great bodily harm as an aggravating factor in imposing his 10-year extended-term sentence; (2) whether the trial court properly considered him as an individual in determining the appropriate sentence; and (3) whether the trial court erred in entering judgment and imposing sentence on three counts of aggravated battery.

Diaz and Allcala raise the following issues for our review: (1) whether they were denied their constitutional right to be personally present during all stages of their trial, and (2) whether they were denied a fair sentencing hearing.

Virgilio raises substantially the same issues as his codefendants. Specifically, he joins Rodriguez in his questioning of the trial court's reliance on the infliction of great bodily harm in imposing his 10-year sentence and in the imposition of three counts of aggravated battery. He joins Diaz and Allcala in questioning the fairness of the sentencing hearing.

We affirm.

At trial, the evidence established that between 6:15 and 6:40 a.m. on September 2, 1984, Marion Glazebrook and his wife, Judy Glazebrook, heard noises coming from the front of their neighbor's house. Upon investigation, the Glazebrooks noticed that their neighbor, Alfredo Martinez, was engaged in a dispute with several individuals. Mrs. Glazebrook began taking pictures of the people involved while Mr. Glazebrook got dressed to assist his neighbor.

Once outside, Mr. Glazebrook began taking pictures. He noticed that there were more people down the street from his house. As he walked toward the area in which these people were gathered, he continued to take pictures. A group of approximately 20 people then began to approach him, making gestures with their hands and speaking Spanish. One of the members of this group called him a punk in Spanish. Two of the individuals picked up 2- by 4-inch boards of wood. At some point in time, Glazebrook told his wife to call the police.

Five individuals then surrounded Glazebrook. Rodriguez allegedly swung his radio at Glazebrook. Subsequently Glazebrook was felled by someone swinging one 2- by 4-inch board. The group then began to beat him with rocks and boards. Glazebrook was able to take refuge under a nearby car. When Mrs. Glazebrook saw that this group of individuals was beating someone on the ground, she ran toward them. The group dispersed as Mrs. Glazebrook approached. Mr. Glazebrook was then taken to the hospital by ambulance for treatment of the injuries he sustained.

On September 4, 1984, Mr. Glazebrook, while in the hospital, identified the various defendants from photograph books brought by the police. Mrs. Glazebrook and Alfredo Martinez picked out Robert Walker (not a party to this appeal), Rodriguez, Diaz, Allcala, and Virgilio from photograph books at the police station.

The defendants herein were subsequently arrested. Pictures of the scene and the 2- by 4-inch boards were offered into evidence. Defendants were charged with attempted murder, armed violence, aggravated battery, and residential burglary.

At trial, Walker testified that he was not at the scene; he was baby-sitting at his girl friend's house. He was acquitted of all charges. Defendants Rodriguez, Diaz, Allcala, and Virgilio were each found guilty of three counts of aggravated battery.

On June 16, 1986, a sentencing hearing was conducted where counsel for the various parties argued aggravating and mitigating factors. After hearing counsel's arguments, each defendant was sentenced to an extended term of 10 years. Defendants now appeal the court's decision.

The first issue Rodriguez and Virgilio present for review is whether the trial court erred in imposing their 10-year extended-term sentences. They contend that the trial court improperly relied on the infliction of great bodily harm as a factor in imposing the extended-term sentence.

A trial court's decision in the sentencing of a defendant is entitled to great weight and deference. (People v. La Pointe (1981), 88 Ill. 2d 482, 492-93.) Absent an abuse of discretion, the trial court's decision will not be disturbed. (People v. Perruquet (1977), 68 Ill. 2d 149, 153.) A court of review will not substitute its judgment for that of the trial court merely because it would have imposed a different sentence. Perruquet, 68 Ill. 2d at 156.

The State initially maintains that the issue as to the excessiveness of the extended-term sentences was waived since it was not raised at sentencing. Where a defendant fails to object to deficiencies in sentencing proceedings and fails to raise the same issues in his post-trial motion, defendant has waived such issues on appeal. (People v. Howard (1984), 121 Ill. App. 3d 938, 953.) Even assuming, arguendo, that this issue was not waived, we do not find that the trial court abused its discretion in imposing the extended-term sentences.

The trial court in imposing the extended terms stated:

"Although the court is certain that the evidence is replete in the guilt of each defendant, either directly or by accountability . . ., the court has examined the statute with reference to [an] extended term, that statute being Chapter 38, Section 1005--8--2 which requiresbefore an extended term can be imposedthat the court look at and examine and find one or more of the aggravating factors set forth in Chapter 38, Section 1005--5--3.2 as being in existence before there can be the imposition of any extended term.

The court will impose an extended term in this case, and the basis upon which the court will impose the extended term is that the conduct of all of these defendantsalong with their henchmen who are not present in this courtroom and who were not arrested and chargedcaused great and serious harm, serious bodily harm to Turk Glazebrook, serious emotional harm to all of the citizens of the community . . ..

Not only that but each of these defendants has a history of prior criminal activity. That is replete in the report of the Adult Probation Department concerning their criminal history and background."

Defendants argue that the court solely relied on the aggravating factor of serious bodily harm as a basis for the extended terms. We disagree that this was the sole basis for the court's sentencing decision. Further, we are not persuaded that it was error for the court to consider serious ...

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