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January 6, 1994


Appeal from the Circuit Court of Lake County. Nos. 91-CF-2542, 91-CF-2543, 91-CF-2544, 91-CF-2662. Honorable Michael J. Fritz, Judge, Presiding.

Released for Publication February 8, 1994. Petition for Leave to Appeal Allowed April 6, 1994. Petition for Leave to Appeal Allowed April 6, 1994.

Inglis, McLAREN, Colwell

The opinion of the court was delivered by: Inglis

PRESIDING JUSTICE INGLIS delivered the opinion of the court:

Defendant, Douglas Coleman, pleaded guilty to one count of first-degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(a)(2) (now 720 ILCS 5/9-1(a)(2)(West 1992))) and three counts of armed robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18-2(a) (now 720 ILCS 5/18-2(a) (West 1992))). The court sentenced defendant to an extended term of 85 years' imprisonment on the murder conviction and to extended terms of 50 years' imprisonment on the armed robbery convictions. The court ordered the sentence for murder to run consecutively to the sentences for armed robbery, which were to run concurrently with each other.

On appeal, defendant argues that: (1) the trial court abused its discretion in sentencing him to a total of 135 years' imprisonment; and (2) the trial court exceeded its authority in imposing extended-term sentences for armed robbery, as the statute allows an extended-term sentence only on the conviction of murder, which is a more serious class of offense than armed robbery. We agree with defendant that the extended-term sentences for armed robbery were improper. We hold that the trial court did not otherwise abuse its discretion. Therefore, we affirm defendant's convictions and the sentence imposed on the murder conviction. However, we reduce defendants' remaining sentences from 50 years apiece to 30 years apiece, the maximum nonextended term for armed robbery.

Each of defendant's convictions was based on a separate incident involving a separate victim. Defendant pleaded guilty to the armed robberies of the following victims: Onelo Relayson on November 25, 1991 (case No. 91-CF-2544); Wilfred Crater on November 25, 1991 (case No. 91-CF-2662); and George F. Hill on December 3, 1991 (case No. 91-CF-2543).

Defendant pleaded guilty to murder under an accountability theory. The murder victim was Shaquita Lewis, who died on December 7, 1991, when a firebomb was thrown into the house in which she, her father, and her three siblings lived. The resultant fire killed Shaquita, injured her father and siblings, and destroyed the house.

There is no dispute that the firebombing was premeditated, that defendant assisted his codefendants, David Bryant and Tyrone Davidson, in assembling the weapon, and that he drove them in his van to a site around the corner from the Lewis home. Whether defendant himself threw the firebomb was at issue at both the hearing on the guilty pleas and the sentencing hearing. At the sentencing hearing, defendant testified that Bryant and not he threw the firebomb. He stated that he believed that Bryant, who was angry at a member of the Lewis family, intended only to set a car on fire. Defendant did not know the Lewis family and had no personal grievance against any of them, although he willingly assisted Bryant in the attack.

The State's factual basis for the guilty plea included testimony from Latrese Friar, a neighbor of the Lewises, that the man who threw the firebomb bore a physical resemblance to defendant but not to Bryant. At the sentencing hearing, Waukegan police officer Walter Cybulski testified that Friar gave him a description of the man who threw the firebomb and that this description was consistent with that of defendant. When Cybulski showed Friar a photograph of defendant that was taken shortly after defendant was arrested, Friar stated that the man in the photograph wore a mask similar to that worn by the man who had thrown the firebomb. However, Friar never viewed a lineup and never identified the person who threw the bomb.

Detective Luis Marquez, who observed defendant and two other men exit the van shortly after the bombing, would testify that defendant matched the description given by Friar, whose home was across the street from where defendant parked his van directly before the incident. Detective Donald Meadie, who interviewed defendant after the incident, would testify that defendant admitted knowing that Bryant intended to set fire to the Lewis house. Defendant told Meadie that Bryant, not defendant, threw the bomb. Meadie acknowledged that defendant was the first of the three suspects to give a statement in the case and that defendant's statement helped the police to apprehend Bryant and Davidson.

The Waukegan police took a statement from Clarence Evans, who was in jail on pending controlled substance charges. Evans stated that, on the night of December 7, 1991, Bryant came to Evans' house and complained that his brother had just been "rolled on" at a party. Evans gave Bryant a gun. Bryant and defendant left, returning a half hour later; Bryant told Evans someone had shot at Bryant. Defendant and Bryant again left. An hour later, they returned. Evans asked what had happened. Defendant replied, "it's been done," which Evans explained referred to "a fire a [sic] cocktail." Bryant gave Evans a rock of cocaine to give to defendant. Evans inferred that defendant was being paid for starting the fire.

According to the presentence investigation report, defendant had been on parole from Menard Correctional Center for less than four months when he committed the offenses at issue in this appeal. His most recent prior felony conviction was for the unlawful possession of a controlled substance. He also had convictions of the unlawful possession of a firearm by a felon, the unlawful use of a weapon, armed robbery, and four burglaries. As a juvenile, he had been adjudicated a delinquent based on a conviction of burglary. While defendant was incarcerated in 1990, he received three disciplinary reports which resulted in the loss of four months' credit for good behavior.

As of the time of sentencing, defendant had been a substance abuser for 10 years. He was addicted to cocaine and used cocaine as often as he could. He committed the armed robberies on appeal here to get money for drugs. Defendant admitted that he had never participated in any drug ...

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