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People v. Polk

June 30, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
LARRY POLK, DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of Cook County. Honorable Henry R. Simmons, Judge Presiding.

[7] The opinion of the court was delivered by: Presiding Justice O'mara Frossard

[8]  Following a bench trial, defendant Larry Polk was found guilty of the Class X felony of armed robbery and the Class 2 felony of burglary. The trial court found that the burglary charge merged into the armed robbery conviction, and sentenced defendant to a prison term of nine years for armed robbery. 720 ILCS 5/18-2(a)(1), 18-2(b), 19-1 (West 2002); 730 ILCS 5/5-8-1(a)(3) (West 2002). On appeal, defendant contends that he was not properly admonished pursuant to revised Illinois Supreme Court Rule 605(a). Official Reports Advance Sheet No. 21 (October 17, 2001), R. 605(a), effective October 1, 2001. Defendant argues that the trial court failed to admonish him that, inter alia, he had a right to file a motion to reconsider his sentence and that sentencing errors would be waived if they were not raised in a written motion to reconsider the sentence within 30 days of sentencing.

[9]  Carl Griffin, Jr., testified that he was the loss prevention supervisor for Jewel-Osco at 1220 South Ashland Avenue. At approximately 7:15 a.m. on May 9, 2002, Griffin saw defendant enter the store. Griffin had seen defendant during the previous month and recognized him. Griffin followed defendant and saw him take three hair clippers off the shelf and put them into a leather bag that was strapped around his shoulders. Griffin confronted defendant after he had passed the last register. When Griffin identified himself, defendant pulled back, produced a knife, and told Griffin to back up or he would stab him. Griffin then pulled back and allowed defendant to leave the store with the hair clippers. When police arrived, Griffin provided the officers with a picture of defendant. Police officers subsequently showed an array of five photographs to Griffin, and Griffin identified defendant as the offender. On May 10, 2002, Griffin identified defendant in a lineup. A videotape of the incident was shown in court.

[10]   During cross-examination, Griffin testified that defendant previously had been caught stealing and that the knife was not visible on the videotape.

[11]   Chicago police officer James Hall testified that the photograph of defendant that Griffin provided bore the name "Pork" instead of "Polk," and a photographic array was used as a "safety measure." When Hall arrested defendant on May 10, 2002, he recovered a knife, a jacket, and a black leather bag, all of which Griffin subsequently identified as the items used by defendant. After Hall administered Miranda warnings to defendant and informed defendant that he was under arrest for robbery, defendant told Hall that it was not a robbery, it was a theft. When Hall informed defendant that the use of the knife made the crime an armed robbery, defendant replied that it was not an armed robbery, it was a forcible theft.

[12]   The parties stipulated that defendant was identified in a lineup, and that defendant orally told Assistant State's Attorney Yoon and Detective Fujaro that he had a knife in his bag, that he took three hair clippers, that he did not take the knife out of the bag, that he pushed the security guard out of the way, that he sold two of the hair clippers, and that the third was stolen.

[13]   During the sentencing hearing, the assistant State's Attorney emphasized defendant's criminal history in aggravation. The trial court observed that it was looking at pages 3 and 4 of the presentence investigative report, which listed defendant's prior convictions. In mitigation, the assistant public defender argued that defendant maintained he had committed a theft, that the guard was never touched even though he was threatened, that no knife was visible on the videotape, that the case did not involve injuries or a firearm, that clippers were taken, that defendant was a high school graduate with no gang affiliations, that he worked when he was not incarcerated, that he had no history of substance abuse, and that he was involved in sports and athletics. During allocution, defendant apologized and stated that he did not intend to hurt anyone.

[14]   The trial court stated that it had considered all of the facts, defendant's age (33), the presentence investigative report, the matters in aggravation and in mitigation, the arguments of the attorneys, defendant's statement, and his rehabilitative potential. The trial court then imposed a nine-year prison sentence for armed robbery.

[15]   At the conclusion of the sentencing hearing, the trial court admonished defendant as follows:

[16]   "And do you [sic] have the right to appeal the fact that you were found guilty.

[17]   You have a right to file a notice of [a]ppeal within 30 days. It must be in writing; free lawyer will be provided, free trial transcript, as well.

[18]   You understand you have a right to appeal the fact that I found you guilty and in fact that I have just sentenced you?"

[19]   On appeal, defendant argues that the trial court's admonishments were inadequate because the trial court did not tell him that he had a right to file a motion to reconsider the sentence and that a motion to reconsider the sentence was required to preserve sentencing errors for appeal. Defendant states that his sentence was greater than the minimum sentence despite significant mitigating evidence that he never touched or injured anyone during this crime, that his prior convictions were for nonviolent crimes, that he expressed remorse and said he never intended to hurt anyone, that he was a high school graduate, that he had a history of employment, and that he had never been in a gang. Defendant argues that if he had been given the opportunity to file a motion to reconsider the sentence, he would have highlighted the mitigating factors and could have convinced the trial court that the sentence was excessive. Defendant maintains that the inadequate admonishments deprived him of the opportunity to have his sentence reconsidered. Defendant maintains that the cause should be remanded to the trial court to issue proper admonishments pursuant to Rule 605(a), and to afford him an opportunity to file a motion to reconsider the sentence.

[20]   The State acknowledges that the trial court's admonishment did not strictly comply with Rule 605(a), but the State contends that there is no need for remandment. According to the State, defendant did not allege a sentencing error on appeal, and defendant was not prejudiced or deprived of real justice by the lack of strict compliance with Rule 605(a). The State maintains that the trial court did not compromise or limit defendant's ability to raise a sentencing issue on appeal. The State argues that the trial court heard about defendant's background, including three prior convictions for possession of a controlled substance with intent to deliver, one prior conviction for possession of a controlled substance, two prior convictions for theft, and one prior conviction for burglary. The State argues further that the trial court also heard the mitigating factors: that defendant admitted he had committed a theft and had threatened the guard, no one was injured, no firearm was involved, only hair clippers were stolen, defendant was a high school graduate, defendant was not in a gang, defendant worked when he was not incarcerated, defendant does not have a history of substance abuse, defendant was involved in sports and athletics, and defendant expressed remorse during allocution. The State argues that the trial court said it had considered the presentence investigative report, the factors in aggravation and in mitigation, defendant's statement in allocution, and defendant's rehabilitative potential. The State also argues that the nine-year ...


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