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12/27/94 PEOPLE STATE ILLINOIS v. ROZENE BURRAGE

December 27, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ROZENE BURRAGE AND ALLEN REDMOND, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. No. 89 CR 4662. Honorable Christy S. Berkos, Judge Presiding.

Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice McCORMICK delivered the opinion of the court: Scariano, J., concurs. DiVITO, P.j., specially concurs.

The opinion of the court was delivered by: Mccormick

JUSTICE McCORMICK delivered the opinion of the court:

Defendants Rozene Burrage and Allen Redmond were arrested and charged with attempted first degree murder, armed violence and two counts of aggravated battery. After a joint bench trial, they were found guilty of attempted first degree murder and armed violence. The trial court sentenced Burrage to 22 years' imprisonment and Redmond to 20 years' imprisonment.

Both defendants appeal their convictions and sentences. Redmond contends that: (1) his conviction for attempted first degree murder must be vacated because (a) the attempted first degree murder offense is based onthe same physical act as the armed violence offense, (b) attempted first degree murder is a lesser included offense of armed violence, (c) the trial court erred in finding him accountable for the actions of his codefendant Burrage, and (d) he did not possesss the specific intent to murder the victim; and (2) he was not proven guilty of attempted first degree murder and armed violence beyond a reasonable doubt. Burrage contends that: (1) the judgment of conviction on the armed violence count must be vacated because it is based on the same physical act as the attempted first degree murder count; and (2) she was denied a fair sentencing hearing because the trial court considered improper factors in aggravation. Both defendants argue that they are entitled to a resentencing hearing because the trial court may have been influenced in determining their sentences by both convictions. For the reasons set forth below, we affirm in part and vacate in part.

On January 25, 1989, at approximately 9:30 p.m., Kimberly Hinton was in the kitchen of her apartment at 1533 West 51st Street, Chicago, Illinois. Kimberly and other adults were playing cards. After hearing gunshots ring out, Kimberly hurried to her living room to check on the safety of children who were watching television. Upon entering the living room, Kimberly observed her nephew, three-year-old Donte Hinton, sitting on a couch holding his head. Donte was bleeding from a gunshot wound. Subsequently, Donte required brain surgery for the removal of a bullet.

Solomon Hicks and Curtis Hicks both testified at trial that on January 25, 1989, shortly after 9:30 p.m., they were walking with a friend southbound on Justine Street towards 51st Street. They heard a gunshot and looked in the direction of the sound. They observed Burrage on the west side of Justine Street, about two or three houses south of an alley facing north. Burrage fired two or three shots in the direction of Andre, also known as Dre, who was standing in a stairwell of the 1533 West 51st Street building that faced Justine.

A few seconds later, Redmond drove an automobile out of an alley and stopped in the middle of Justine Street. Redmond positioned himself on the window sill of the driver's side of the automobile and fired three shots toward the building. Thereafter, Redmond drove the automobile south on Justine, Burrage entered the automobile and Redmond drove away from the scene.

Redmond first argues that his conviction for attempted first degree murder must be vacated because it arises out of the same physical act as the offense of armed violence and it is a lesser included offense of armed violence. The State argues that Redmond waived the issue of multiple convictions for one act by failing to raise the issue before the sentencing court (see People v. Clark (1987), 160 Ill. App. 3d 877, 513 N.E.2d 937, 112 Ill. Dec. 328) and failing to seek reconsideration of his sentence (see People v. Macke (1992), 224 Ill. App. 3d 815, 587 N.E.2d 1113, 167 Ill. Dec. 498). The State further argues that the trial court did not sentence Redmond for the armed violence offense; hence, there is no final judgment on that offense and there can be no appeal. (See People v. Flores (1989), 128 Ill. 2d 66, 538 N.E.2d 481, 131 Ill. Dec. 106, cert. denied (1990), 497 U.S. 1031, 111 L. Ed. 2d 799, 110 S. Ct. 3291.) Lastly, the State arguesthat attempted first degree murder is not a lesser included offense of armed violence.

Notwithstanding Redmond's failure to raise these issues at his sentencing hearing, a reviewing court may review an issue not properly preserved if it involves an error affecting a substantial right of the defendant. ( People v. Enoch (1988), 122 Ill. 2d 176, 199, 522 N.E.2d 1124, 119 Ill. Dec. 265, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Sentencing issues are regarded by courts as matters affecting a defendant's substantial rights and, thus, have been excepted from the doctrine of waiver. ( People v. Lindsay (1993), 247 Ill. App. 3d 518, 527, 617 N.E.2d 389, 187 Ill. Dec. 181, appeal denied (1993), 153 Ill. 2d 557, 624 N.E.2d 812.) We further observe that prior to the Supreme Court's decision in People v. Lewis (1994), 158 Ill. 2d 386, 634 N.E.2d 717, 199 Ill. Dec. 664, the courts in this district were divided on the issue of whether a defendant's failure to file a post-sentencing motion pursuant to section 5-8-1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-1(c) (now 730 ILCS 5/5-8-1(c) (West 1992)) resulted in a waiver of the alleged error for appeal purposes. Lewis, however, overruled People v. Macke (1992), 224 Ill. App. 3d 815, 587 N.E.2d 1113, 167 Ill. Dec. 498, relied on by the State in support of its waiver argument; Lewis held that the statutory provisions giving defendants 30 days to move for reconsideration of a sentence is permissive, rather than mandatory, and should not be viewed as a prerequisite to an appeal of matters relating to sentencing. ( Lewis, 158 Ill. 2d at 390.) Accordingly, Redmond cannot be said to have waived this issue.

We next observe that the parties' confusion over whether the trial court entered final judgment (including the imposition of a sentence) on the finding of guilty on Redmond's armed violence offense arises from the court's rulings at trial and the sentencing hearing. Specifically, at trial the judge stated: "I find both defendants were guilty of the charges of attempt murder and also armed violence and I will enter judgment on Count One [attempted first degree murder] and Two [armed violence]. Counts Three and Four [aggravated battery] will merge with Counts One and Two." At the sentencing hearing the court stated only that it was sentencing Burrage and Redmond to 22 and 20 years' imprisonment, respectively; the court did not specify at the hearing or in the common law record half-sheet entries as to which offense the sentence was imposed. However, as argued by the State, the trial court's order of sentence and commitment clearly indicates that Redmond was sentenced only on the attempted first degree murder offense. Nevertheless, the fact that Redmond was not sentenced on the armed violence offense does not preclude the appeal of that conviction. Generally, absent theimposition of a sentence, a judgment of guilty in a criminal case cannot be appealed. An exception to this rule exists where, as in the case at bar, there is a proper appeal from the final judgment of another offense. Under these circumstances, a reviewing court may also review an appealed conviction of an offense for which no sentence was imposed. People v. Frantz (1986), 150 Ill. App. 3d 296, 300, 501 N.E.2d 966, 103 Ill. Dec. 649.

It is well settled that a defendant cannot be convicted and sentenced for more than one offense arising out of the same physical act. ( People v. Mack (1984), 105 Ill. 2d 103, 137, 473 N.E.2d 880, 85 Ill. Dec. 281; People v. King (1977), 66 Ill. 2d 551, 561, 363 N.E.2d 838, 6 Ill. Dec. 891, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273; People v. Lilly, (1974), 56 Ill. 2d 493, 495, 309 N.E.2d 1.) We agree with Redmond that the charges of attempted first degree murder and armed violence were based on one physical act and that convictions for both cannot stand. ( Lilly, 56 Ill. 2d at 496; People v. Massey (1991), 219 Ill. App. 3d 909, 913, 579 N.E.2d 1259, 263 Ill. Dec. 445.) We disagree with Redmond, however, that attempted first degree murder is a lesser included offense of armed violence and that he should be sentenced on what he asserts to be the "greater offense of armed violence."

"Section 2-9 of the Criminal Code of 1961 [citation], which defines 'included offense', has been interpreted to mean that an offense is a lesser included offense only if the greater offense charged contains all of the elements of the lesser included offense plus some additional elements." ( People v. Howard (1979), 78 Ill. App. 3d 858, 862, 397 N.E.2d 877, 34 Ill. Dec. 205.) In the case at bar, the indictment for attempted first degree murder states:

"They, without lawful justification with intent to commit the offense of first degree murder, intentionally and knowingly attempted to kill Donte Hinton by shooting him in the ear with a handgun, in violation of Chapter 38, Section 8-4

The indictment for aggravated battery, the underlying felony of the armed violence charge which must be proved to convict defendant of armed violence (see Howard, 78 Ill. App. 3d at 862-63), states:

"They, intentionally and knowingly without legal justification caused bodily harm to Donte Hinton while using a deadly weapon by shooting him in the ear with a gun, in violation, of Chapter 38, Section 12-4-B(1) of the Illinois Revised Statutes 1985 as amended, * * *."

In light of the above, attempted first degree murder is not a lesser included offense of armed violence. The elements necessary to prove attempted first degree murder are not contained in the underlyingaggravated battery felony of the armed violence charge; attempted first degree murder requires an intent to kill and is a specific intent crime, whereas aggravated battery requires intent to cause bodily harm and is a general intent crime. Accordingly, attempted first degree murder cannot be a lesser included offense of armed violence based upon aggravated battery. Both attempted first degree murder and armed violence, therefore, represent separate offenses arising out of the same physical act; one is not a lesser included offense of the other. When more than one offense arises from the same physical act, a judgment of conviction and sentence should be imposed on the more serious offense. ( People v. Donaldson (1982), 91 Ill. 2d 164, 170, 435 N.E.2d 477, 61 Ill. Dec. 780; see also Massey, 219 Ill. App. 3d at 913; People v. Sass (1979), 73 Ill. App. 3d 554, 392 N.E.2d 399, 29 Ill. Dec. 842.) Because attempted first degree murder constitutes the more specific offense, it is the more serious offense upon which judgment and sentence should be entered. ( Massey, 219 Ill. App. 3d at 913.) In the instant case, therefore, the trial court properly entered judgment and sentence on Redmond's conviction for attempted first degree murder. However, because the armed violence charge was based on the same physical act as the attempted first degree murder charge, the armed violence conviction must be vacated. Lilly, 56 Ill. 2d at 495-96.

We briefly note that People v. Howard (1979), 78 Ill. App. 3d 858, 397 N.E.2d 877, 34 Ill. Dec. 205, relied on by Redmond in support of his lesser included offense argument, is factually distinguishable from the instant case. In Howard, the defendant was convicted of unlawful use of weapons, reckless conduct, attempted murder and armed violence for firing two shots into the victim's kitchen window. The evidence at trial established that during one evening the defendant called the victim four times, asking the victim to meet him at a tavern. The victim refused. Later that evening, the defendant parked ...


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