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04/12/94 PEOPLE STATE ILLINOIS v. FREDDY MAGNUS

April 12, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
FREDDY MAGNUS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable John E. Morrissey, Judge Presiding.

Released for Publication June 7, 1994.

Hartman, Divito, McCORMICK

The opinion of the court was delivered by: Hartman

JUSTICE HARTMAN delivered the opinion of the court:

Defendant appeals his consecutive, extended-term thirty year sentence for second degree murder, raising as issues for review whether the circuit court erred in (1) sentencing him to an extended-term; and (2) sentencing him to consecutive terms for first and second degree murder.

On July 3, 1990 at 9:45 p.m., Kimberly Richards and Gerri Gilmore met their respective boyfriends, Garland Darnell Grant and Derrick Lofton, at Bessemer Park on Chicago's south side. The park is located in a neighborhood in which the Latin Kings street gang assert "control." The Latin Kings are part of an umbrella group known as "People." Grant and Lofton belonged to a rival gang, the Disciples, who are associated with a larger group called "Folks." Shortly after meeting, the two couples decided to walk to a restaurant located at 91st and Commercial.

While walking down 90th Street, Grant's hat was turned to the right, signifying his association with the "Folks." As they walked, they twice heard a voice call out "straighten your hat." The speaker, later identified as defendant's brother Ernest, stepped out from the shadow of a tree, said "you must be Folks," and again ordered Grantto straighten his hat. Grant removed his hat after Ernest pushed him and when the couples attempted to leave, Ernest blocked their path.

Defendant, who was 16 years old, came out of an alley, approached the group with his hand under his shirt, and asked Ernest if they were "Folks." Ernest then punched Grant in the jaw and when Grant stepped back with his fists raised, defendant pulled a gun from his waistband and fired two shots at him from a distance of eight to ten feet. Grant was struck in the back by one of the bullets and collapsed. Defendant then shot Lofton once in the chest and pointed the gun at Gilmore, but fled after she begged for her life. Grant and Lofton were taken to Christ Hospital where they were pronounced dead.

Defendant testified that when he approached the group, Grant punched his brother in the face. Defendant then saw Lofton "reach for something" and move toward his brother. Fearing for his brother's safety, defendant took out his pistol and shot the victims.

On cross-examination, defendant admitted that he never saw either victim with a weapon. He also testified that he never told an assistant state's attorney that he heard his brother order Grant to straighten his hat or that he told his brother to "move on them." Prior to closing arguments, the parties stipulated that an assistant state's attorney would testify that defendant had made those statements.

After a bench trial, the court found defendant guilty of first degree murder for shooting Lofton and imposed a sixty year sentence. The court also found defendant guilty of second degree murder for shooting Grant, imposed an extended-term sentence of thirty years, and ordered consecutive sentences to protect the public from "a dangerous young man." The court reasoned that consecutive sentences were justified because "although the offenses were committed generally as part of a single course of conduct, * * * the defendant made a choice separated by at least seconds to fire the gun at two separate individuals." Defendant appeals, challenging the propriety of his sentence.

I.

At oral argument, the parties were directed to submit supplemental briefs addressing the issue of whether the circuit court lacked inherent power to impose these sentences. Of particular interest is whether the circuit court was statutorily required to sentence defendant to natural life imprisonment for two murders of differing degrees.

Defendant submits that our exploration of this issue is barred by Supreme Court Rule 604 (134 Ill. 2d R. 604) which prohibits theState from appealing the propriety of his sentence. Where the court orders a lesser sentence than is mandated by statute, however, that sentence is void. ( People v. Wade (1987), 116 Ill. 2d 1, 6, 506 N.E.2d 954, 107 Ill. Dec. 63.) A void judgment, order or decree of a court will be reversed on appeal whenever brought before the court by any means possible in the particular case. ( Moffat Coal Company v. Industrial Commission (1947), 397 Ill. 196, 201, 73 N.E.2d 423.) The duty to vacate a void judgment is based upon the inherent power of the court to expunge from its records void acts of which it has knowledge. ( Irving v. Rodriquez (1960), 27 Ill. App. 2d 75, 79, 169 N.E.2d 145.) Defendant's argument is without merit since this issue was raised sua sponte by the court in fulfillment of our duty to vacate void judgments.

Accordingly, at issue is whether subsection 5-8-1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1991, ch. 38, par. 1005-8-1(a)(1)(c) (now 730 ILCS 5/5-8-1(a)(1)(c) (West 1992)) (subsection 5-8-1(a)(1)(c))) requires a sentencing court to impose a natural life term when a defendant has been convicted of a first degree as well as a second degree murder. The State posits that the plain language of the statute mandates a life sentence when a defendant is convicted of two murders of either degree. Defendant insists that the legislative history and well-established ...


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