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People v. Nicholson

October 06, 1998


The opinion of the court was delivered by: Justice Green


Appeal from Circuit Court of McLean County No. 96CF1171

Honorable G. Michael Prall, Judge Presiding.

On October 24, 1996, defendant Harry Nicholson was charged in the circuit court of McLean County in a seven-count complaint. After a trial by jury, the court entered judgment on verdicts on March 26, 1997, finding defendant guilty of (1) count I, armed robbery, (2) count II, armed robbery; (3) count III, armed robbery; (4) count IV, attempt (armed robbery); and (5) count VI, aggravated battery. Verdicts of not guilty were returned in regard to count V, theft of a firearm, and count VII, aggravated battery involving Faye Sonntag.

The court imposed concurrent sentences of imprisonment of 30 years on the three armed robbery convictions, 15 years on the attempt conviction and 5 years for the aggravated battery conviction. The court found that in regard to the count I conviction for armed robbery, defendant had inflicted great bodily harm on a victim and, accordingly, he would be required under section 3-6-3(a)(2)(ii) of the Unified Code of Corrections (Code) (730 ILCS 5/3-6-3(a)(2)(ii) (West 1996)) to serve 85% of his sentence because of the "truth-in-sentencing" aspect of that legislation.

Defendant has appealed, contending (1) his trial attorney was ineffective because he failed to (a) file a motion to sever the charges, (b) object to the prosecutor's request that defendant comment on the veracity of the witnesses, (c) proffer jury instructions on the affirmative defense of compulsion, and (d) object to the admission of improper hearsay from one of the victims regarding his injuries; (2) the "truth-in-sentencing" provision violates the "single subject rule" of the Illinois Constitution of 1970 (Ill. Const. 1970, art. IV, §8 (d)); and (3) the truth-in-sentencing provision violates the equal protection clause of that constitution.

We summarily reject the contention that the truth-in-sentencing provisions deprive convicts of equal protection. The provisions have the rational basis of treating those who have committed more serious offenses more severely. The instant legislation did away with credits from constitutionally valid sentences that were provided for by the legislature to give incentives to certain types of convicts to behave during their incarceration. See People v. Burton, 100 Ill. App. 3d 1021, 427 N.E.2d 625 (1981).

We do not agree defense counsel was ineffective in failing to seek a severance. Defendant should have objected to the prosecutor's request that defendant comment on the veracity of certain witnesses, but we do not find any substantial prejudice to defendant resulted from this. The failure of counsel to object was not incompetence. We also hold that testimony of Jon Trivedi that he had suffered a skull fracture during the course of the armed robbery charged in count I was not improperly admitted and the failure to object to it was not incompetence of counsel. Finally, we hold that the truth-in-sentencing provision included was not invalid. Accordingly, we affirm.

Count I alleged that on August 6, 1996, defendant took money and other property from Jon and Urnailaben Trivedi at the L & L Motel by the use or threat of force while armed. Count II alleged that on September 1, 1996, defendant took money, a pizza and a pizza warmer from Gail Kimbrough by the use or threat of force while armed. Count III alleged that on September 2, 1996, defendant took a checkbook and credit cards from Faye Sonntag by the use or threat of force while armed. Count IV alleged that on September 3, 1996, defendant intended to commit the offense of armed robbery and took a substantial step toward that offense by entering a grocery store while armed. Count VI alleged that on September 1, 1996, defendant caused a bump on the head of Gail Kimbrough by hitting her with a glass bottle.

At trial, Urnailaben Trivedi testified that she and her husband were the owners of the L & L motel in Bloomington and were robbed in the early morning hours of August 6, 1996, by three men, including a heavy-set man, who was about 6 feet tall and carrying a knife, and a thin man carrying a bat. She did not see the third person.

Jon Trivedi testified that he was in the back room of the motel when he heard his wife scream. He opened the door to the office, was hit on the head with a bat, blacked out briefly, and fell to the floor. He did not see what the assailants looked like. He testified that he suffered a skull fracture from the incident.

Gail Kimbrough testified that she was a pizza delivery person for Domino's, at approximately 2 a.m. on September 1, 1996, when she was attempting to deliver pizza to a Bloomington address. She said she saw a tall, heavy-set black man under a tree and approached him to ask about the address. A second black man, who was approximately 6 feet 5 inches and very thin, approached her from behind, and a third man hit her in the head with a vodka bottle. The men kicked her and demanded money. She said she did not see the third man, because he remained behind her. She saw them run to a light-colored car.

Faye Sonntag testified she was stopped at an automatic teller machine (ATM) on September 2, 1996, at approximately 9:15 p.m. to make a deposit. As she was sitting in her van, two men approached her with a gun. The men attempted to force her to withdraw money, but the machine would not dispense any. The men then grabbed her checkbook and credit cards and hit her across the face.

Stephanie Smith testified she was working at a grocery store in the early morning hours of September 3, 1996, when a man came in to buy cigarettes. Shortly thereafter, she saw a second man dressed in black, wearing a black ski mask, bent down near the office. When the man told Smith to "hold it," she "took off running." The police later brought these two men back to the store for identification by Smith.

Co-defendant Maurice Betts testified concerning the incidents and his involvement in them. He said he, James Heard, Roy Alexander, and defendant were involved in robbing Kimbrough and Sonntag. Betts testified that he participated in the robbery of Sonntag because Alexander held a shotgun to his head and he was afraid Alexander would kill him.

Defendant does not dispute that he was involved, at least peripherally, in the various incidents. He testified as follows: (1) he, Alexander, Parrish Mayberry, and Dallas Long were at Alexander's house on August 6, 1996, when Alexander decided to throw a party at a motel; (2) they all went to the L & L motel, and Alexander stated they were going to rob the owners; (3) Alexander gave knives to Mayberry and Long, and he took a baseball bat; and (4) defendant decided to leave, because Alexander was on some "stupid stuff," and defendant did not want to be involved. Defendant said he did not participate in any robbery at the L & L Motel.

Defendant further described the incident on September 1, 1996, when Gail Kimbrough was robbed of money and a pizza. Defendant testified Alexander hit Kimbrough with a vodka bottle and Betts grabbed the pizza. Defendant admitted he was present but ...

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