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08/03/96 PEOPLE STATE ILLINOIS v. LARRY STRICKLAND

August 3, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
LARRY STRICKLAND, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Livingston County. No. 94CF76. Honorable G. Michael Prall, Judge Presiding.

As Corrected September 13, 1996.

Justices: Honorable James A. Knecht, J., Honorable John T. McCULLOUGH, J., Honorable Rita B. Garman, J. Justice Knecht delivered the opinion of the court: McCULLOUGH and Garman, JJ., concur.

The opinion of the court was delivered by: Knecht

JUSTICE KNECHT delivered the opinion of the court:

Defendant Larry Strickland appeals his sentences of 9 years' imprisonment for aggravated battery (a Class 3 felony), a violation of section 12-4(b)(6) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-4(b)(6), (e) (West 1992)), and 25 years' imprisonment for unlawful possession of a weapon by a person in the custody of a Department of Corrections (DOC) facility (a Class 1 felony), a violation of section 24-1.1(b) of the Criminal Code (720 ILCS 5/24-1.1(b),(d) (West 1992)), with the terms to run consecutively. We affirm.

After a trial before a Livingston County jury, defendant was convicted of unlawful possession of a weapon by a person in the custody of a DOC facility and aggravated battery based on a battery to correctional officer Anthony Harvey. On October 20, 1994, defendant was an inmate at the Pontiac Correctional Center. While en route to an outdoor exercise room with other inmates, defendant managed to slip off his handcuffs and stab another inmate with a homemade knife. He refused to release his weapon or submit to correctional officers at the scene, so several correctional officers wrestled defendant to the ground. During the struggle, one officer received a cut on his right hand, but he was unsure how he received the cut. He also received a cut on the right side of his face. He was unsure whether that cut was caused by defendant's left fist or the knife, but was certain the right side of his face was struck by defendant's left fist while that hand was holding the knife.

The presentence report stated defendant had several prior convictions. In 1985, he was convicted of murder, two counts of attempt (murder), two counts of armed robbery, and three counts of aggravated kidnapping. In 1991, he was convicted of aggravated battery and unlawful possession of a weapon by a person in the custody of DOC. The following convictions were reported by the Cook County State's Attorney's office, but were not verified by Cook County: a 1974 conviction for murder, a 1981 conviction for unlawful use of a weapon by a felon, and a 1984 conviction for obstructing a police officer. His DOC disciplinary record showed the following violations: 17 disobeying a direct order, 13 assaults, 13 intimidations and threats, 7 unauthorized movements, 7 dangerous contraband, 5 unauthorized property, 2 drugs and drug paraphernalia, 1 attempt (assault), as well as "other less severe violations." From the bench, the trial court declared:

"I've reviewed the presentence report investigation and report here. Specifically the most -- obviously the most striking point of the presentence investigation report is the number of prior offenses and the seriousness of those offenses. The -- there's no question here the conduct threatened serious harm, albeit the officer wasn't seriously injured it could have taken place given the nature of the weapon involved. There is a prior history of serious criminal activity. A sentence in my opinion should be imposed that will deter others in [defendant's] circumstances, that is people incarcerated in . For that reason I believe the extended[-]term sentence should be imposed in these cases having regard to the nature and circumstances of the offenses, the history and character of the defendant, I believe the sentences -- well, the two sentences I impose should be consecutive. By law they're consecutive to his sentence that he's already serving."

The trial court sentenced defendant to an extended term of 25 years' imprisonment for unlawful possession of a weapon by a person in the custody of DOC, and an extended term of 9 years imprisonment for aggravated battery, with the terms to run consecutively. Defendant now appeals his sentence.

Defendant first asserts the trial court erred in sentencing defendant to extended terms on both counts because, he contends, both arose from the same incident. Section 5-8-2(a) of the Unified Code of Corrections (Code) states:

"A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5-8-1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5-5-3.2 were found to be present." 730 ILCS 5/5-8-2(a) (West 1992).

Our supreme court has interpreted section 5-8-2(a) of the Code to mean, when a defendant has been convicted of multiple offenses, an extended-term sentence may be imposed only for the conviction within the most serious class. People v. Jordan, 103 Ill. 2d 192, 205-06, 469 N.E.2d 569, 575, 82 Ill. Dec. 925 (1984).

After Jordan, appellate courts divided on the issue whether this rule prohibiting the imposition of extended-term sentences in different classes of offenses applies also to offenses in different classes which are charged separately and arise from unrelated courses of conduct. This court, in People v. Britt, 265 Ill. App. 3d 129, 152, 638 N.E.2d 282, 298-99, 202 Ill. Dec. 636 (1994), held it does not. In Britt, the defendant was convicted of attempt (robbery) and aggravated arson. He and an accomplice entered the home of an elderly couple, Warren and Delores Johnson. They threatened to set Delores, who was physically handicapped and could not walk without assistance, on fire unless Warren gave them money. When Warren refused, the defendant set Delores' nightgown on fire, knocked Warren unconscious, barricaded the couple inside their house with old tires, and set the tires on fire. The couple died from fire and smoke inhalation. Several days later, defendant returned to the residence and burglarized it. Somewhere around the same date, defendant stole copper wire from a nearby transportation company. For these acts, defendant was convicted of attempt (robbery), aggravated arson, residential burglary and felony theft. The trial court imposed an extended-term sentence on each offense. Defendant appealed, noting the extended-term statute permits the imposition of an extended sentence only on the most serious class of offense.

This court affirmed the trial court's sentence, holding "where separate convictions involve unrelated conduct, the trial court can properly impose extended-term sentences on each." Britt, 265 Ill. App. 3d at 152, 638 N.E.2d at 298. The residential burglary and theft offenses were each unrelated to any of the other ...


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