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March 17, 1995


Appeal from Circuit Court of Calhoun County. Nos. 85CF12, 85CF13. Honorable Michael R. Roseberry, Judge Presiding.

As Corrected July 19, 1995.

Justices: Honorable James A. Knecht, P.j. Honorable Frederick S. Green, J. Honorable Robert J. Steigmann, J. Presiding Justice Knecht delivered the opinion of the court: Green and Steigmann, JJ., concur.

The opinion of the court was delivered by: Knecht

PRESIDING JUSTICE KNECHT delivered the opinion of the court:

Defendant Linda Sue Bradney appeals from the trial court's dismissal of her second petition for post-conviction relief. We affirm.

After a January 1987 bench trial, defendant and her codefendant husband, Bruce Curtis Bradney, were found guilty of residential burglary, a Class 1 felony (Ill. Rev. Stat. 1985, ch. 38, par. 19-3 (now 720 ILCS 5/19-3 (West 1992))), and theft over $300, a Class 3 felony (Ill. Rev. Stat. 1985, ch. 38, par. 16-1 (now 720 ILCS 5/16-1 (West 1992))). The offenses were committed on June 8, 1985, in Calhoun County. The residence burglarized was the home of a married couple.

A joint sentencing hearing for defendant and her codefendant husband occurred on January 23, 1987. Ralph Moses, one of the victims, testified both he and his wife, the other victim, were over the age of 60 at the time of the offense. On the day of the sentencing hearing, he was age 72, and his wife was age 66. Also, the presentence report revealed defendant had several prior convictions, including two Class 1 felonies: a 1982 conviction of five counts of indecent liberties with a child (Ill. Rev. Stat. 1981, ch. 38, par. 11-4(a)(2)) and a 1986 Madison County conviction for residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-3). The State argued defendant should receive an extended term of imprisonment based on the age of the victims and her prior felony convictions. Defendant's counsel asserted an extended term of imprisonment was inappropriate based on the age of the victims because Moses was "one of the most healthiest 72[-]year[-]old" persons he had "ever seen." Defendant's counsel did not, however, address her prior convictions. The trial court declared from the bench:

"O.K. The Court has heard the case, the evidence introduced in the trial at the bench, of a presentence investigation report, the evidence and information that counsel has offered in aggravation and mitigation, heard the victim's impact statement--evidence by Mr. Moses, heard arguments, heard the statements by the Defendants, themselves. The Court would note that the Defendant, Linda Bradney, has two previous Class 1 offenses. One, of course, which is for burglary--residential burglary within a 10[-]year period." The trial court next discussed Bruce's prior convictions, and then continued:

"The Court notes that due to the previous convictions[,] Class 1 felonies within the past 10 years, that the parties are eligible for consideration for an extended term. Now, the victims of the burglary in this case [were] Mr. and Mrs. Moses, both of whom are over 60 years of age at the time. I'm not sure, however, that this is the type of an offense where the age of the victim triggers an extended term, but in any event, the previous conviction of residential burglary does. Normally my sentences--many of them are minimum--minimum times. This is based upon the proposition that you [defense counsel] said. The people in the penitentiary--they're coming back. They aren't going to stay all that long. They're going to come back into the community and you have to deal with them, and therefore, you have the idea for rehabilitation and I would suppose that perhaps in sentencing, we should focus maybe on both ends of the spectrum and the other end is when it's necessary to protect the public; and it seems to me as if that's what we're getting into. We have previous offenses --residential burglary perhaps in the same time frame--other offenses. A husband and wife would note--As husband and wife, I will note Mr. Bradney was released from the Department of Corrections, and the Court would further note that both were on supervised release at the time or parole, as you might say. [Defendant] had-- was on it. So it would seem to the Court that the main thrust of a sentence in this case should be for the protection of the public. The Court believes that for the most affective [sic] protection of the public, an extended term should be imposed." (Emphasis added.)

The trial court then sentenced defendant to an extended term of 25 years' imprisonment for residential burglary, and to 3 years' imprisonment for theft over $300, with terms to run concurrently.

Defendant appealed and this court affirmed, and upheld the extended-term sentence, stating:

"We need not consider whether the circuit court improperly relied on the ages of the Moses as an aggravating factor, for it is undisputed both Bruce and Linda Bradney were convicted of Class 1 felonies within the 10 years preceding their burglary of the Moses' residence, which was also a Class 1 felony. [Citation.] That factor alone was a proper basis for imposition of extended-term sentences on the Bradneys." ( People v. Bradney (1988), 170 Ill. App. 3d 839, 867-68, 525 N.E.2d 112, 130-31, 121 Ill. Dec. 306, citing Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2(b)(1).)

This court then discussed whether the trial court abused its discretion in sentencing defendant to 25 years' imprisonment:

"Linda committed three rather serious offenses--the present residential burglary and theft and the residential burglary in Godfrey--while on parole as a result of previously being found guilty of serious offenses. Linda's convictions of aggravated incest and indecent liberties with a child did result from offenses of a different nature from that of residential burglary and theft, but her participation in the burglary and theft of property from the Moses' residence indicates an inability on her part to abide by the norms of socially acceptable conduct. The circuit court could therefore have reasonably concluded fairly lengthy ...

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