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People v. McMann

June 11, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GREGORY A. MCMANN, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Sangamon County No. 96CF1028 Honorable Donald M. Cadagin, Presiding.

The opinion of the court was delivered by: Justice Cook

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

In November 1996, the State charged defendant, Gregory A. McMann, with stalking Diane S. Striplin for following and harassing her and, thereby, placing her in reasonable apprehension of future bodily harm. 720 ILCS 5/12-7.3(a)(2) (West 1996). In January 1997, defendant entered a negotiated plea of guilty to stalking Striplin and received two years' probation. As part of his probation, defendant was to have no contact with Striplin or her family. In December 1997, the State petitioned to revoke defendant's probation on a number of violations, including failure to pay fees and intoxication. The State then twice amended its petition to allege defendant battered Striplin in January 1998 in violation of his probation order. In February 1998, the trial court found by a preponderance of the evidence that defendant had battered Striplin and, therefore, revoked defendant's probation. In April 1998, the trial court resentenced defendant to three years' imprisonment and, the same month, denied defendant's motion to reconsider.

Defendant appeals, arguing that the trial court, by sentencing him to the maximum prison term permitted for stalking under the state statute, punished him for the conduct upon which his probation was revoked, rather than for the original offense. Defendant also argues the court was erroneously predisposed to impose a prison term upon defendant. We affirm.

BACKGROUND

The conduct that formed the basis of the stalking charge to which defendant entered a guilty plea included defendant's (1) keeping Striplin under surveillance for two to three days and (2) once beating on Striplin's door, threatening to blow up her apartment building when she refused to let him in, and then breaking bottles on Striplin's patio floor when these threats failed to gain him entrance. As it sentenced defendant to probation, the trial court admonished him to take the terms of his probation seriously and stated as follows:

"Sir, I just want to emphasize to you the seriousness of probation. I asked you if you understood the terms of probation[,] and you said yes[,] and the reason is, because I want to make sure that you clearly understand these because if you violate any of these terms of probation the State's Attorney's Office can file a petition to revoke your probation. We'd then have a hearing on it[,] and if I find that you have violated your probation, I guarantee you, sir, you're going to be going to jail."

The court continued:

"I consider this to be a very serious matter[,] and I want to explain this to you because I don't want to send you to jail. I don't want to see you back in here again facing these charges, so I want to emphasize to you how serious I consider probation to be because I want you to clearly understand if you violate the terms you're going to jail and I don't want to do that."

Defendant replied that he understood these admonishments.

At the hearing to revoke defendant's probation, Striplin testified she let defendant in her apartment the evening of January 7, 1998, after he came to her door saying he wanted to talk. Defendant smelled strongly of alcohol and proceeded to take off his clothes for Striplin to wash, donning a towel to cover himself. Striplin repeatedly told defendant to leave. When he refused, Striplin went across the hall to her neighbor's apartment to call her landlord. Striplin then returned to her apartment, where defendant knocked her over a chair, kicked her in the side, and struck her in her face and chest repeatedly with his fist and open hand, leaving Striplin with a bloodied face and fractured foot. Striplin's landlord then arrived, and defendant threw on his soaking wet clothes and raced out the door.

Striplin testified on cross-examination that defendant, whom she briefly dated in high school, had harassed her, her ex-husband, her children, and her guests and friends for almost two decades by, among other things, driving by her home repeatedly, knocking on her door, breaking her windows, and battering her in front of her children. Striplin said she blamed defendant for her losing her children to the State and was extremely afraid of him.

Mary Atterberry, who lived across the hallway from Striplin, testified that on the night Striplin was attacked Atterberry was able to look through Striplin's partially opened apartment door and saw defendant accost Striplin after Striplin returned from using Atterberry's portable telephone to call the landlord. Atterberry heard Striplin screaming, saw Striplin fly through the air and over a recliner, and then saw defendant jump on top of Striplin. Defendant fled as soon as the landlord arrived, leaving Striplin with blood on her face, a swelling foot, and unable to walk.

John Vaughn, Striplin's landlord, said Striplin called him that evening and requested his immediate presence at her apartment. He raced up the stairs to Striplin's apartment after receiving a 9-1-1 message from his tenant on his pager and heard screaming and hollering as he approached Striplin's apartment. He heard Striplin yell, "Stop it, you're killing me, you're hurting me." When Vaughn got to the door of the apartment, he saw defendant on top of Striplin hitting her repeatedly and saw Striplin bleeding from the face with blood on her hands. Defendant fled the apartment after Vaughn ordered him to stop hitting Striplin. Vaughn raced after him, ...


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