People v. Burleson

• Decision Date: 18 July 1977
• Docket Number: No. 14041,14041
• Citation: 50 Ill.App.3d 629,365 N.E.2d 1162,8 Ill.Dec. 776
• Parties: , 8 Ill.Dec. 776 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles Edward BURLESON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1162

365 N.E.2d 1162

50 Ill.App.3d 629, 8 Ill.Dec. 776

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles Edward BURLESON, Defendant-Appellant.

No. 14041.

Appellate Court of Illinois, Fourth District.

July 18, 1977.

Richard J. Wilson, Deputy State Appellate Defender, Ann L. Carr, Asst. State Appellate Defender, Springfield, for defendant-appellant.

Roger W. Thompson, State's Atty., Lincoln, Robert C. Perry, Principal Atty., Ill. State's Attys. Assn., Statewide Appellate Assistance Service, Springfield, for plaintiff-appellee.

REARDON, Justice.

The defendant, Charles Edward Burleson, was charged in a two count information filed December 8, 1975, with conspiracy to commit armed robbery and attempt armed robbery, violations of sections 8-2(a) and 8-4(a) of the Criminal Code of 1961 (Ill.Rev.Stat.1973, ch. 38, pars. 8-2(a), 8-4(a)). The two offenses were alleged to have occurred on September 16, 1975. On April 21, 1976, a third count was added to the information charging the defendant with participating in a second conspiracy to commit armed robbery on September 13, 1975, another violation of section 8-2(a) of the Code (Ill.Rev.Stat.1973, ch. 38, par. 8-2(a)).

After being tried before a Logan County jury, the defendant was found guilty on all three counts contained in the information and judgments were entered on the three verdicts. At the sentencing hearing on June 20, 1976, the State's Attorney recommended that the defendant be concurrently sentenced only for the attempt committed on September 16, 1975, and for the conspiracy committed on September 13, 1975. Defense counsel stated that only one sentence could be imposed for the offenses of September 16, 1975, and that another sentence could be imposed for the conspiracy of September 13, 1975. Thereafter, the sentencing judge stated that he was imposing a 1 to 3 year sentence for the conspiracy of September 16, 1975, to run concurrently with a 1 to 5 year sentence for the attempt committed that same day. A written sentence order was entered which, however, recited that the defendant was sentenced to a 1 to 5 year sentence for the attempt of September 16, 1975, to run concurrently with a 1 to 3 year sentence for the conspiracy of September 13, 1975.

The facts pertinent to this appeal are reflected in the trial testimony of defendant's alleged co-conspirator, Bruce Brown. Brown testified that he and the defendant agreed to rob the Middletown State Bank. Pursuant to that agreement, the two "cased" the bank on September 11, 1975. They decided to use two cars in the robbery. One would be left on a rural road near Middletown with a change of clothing for each conspirator. From that location, the two would proceed to the bank wearing nylon stockings and stocking caps over their heads. The defendant agreed to secure a shotgun for use in the robbery and Brown agreed to secure the disguises and a container for the money they expected to remove from the bank. They also decided to commit the crime on Saturday, September 13, 1975.

On September 13, 1975, the conspirators initiated their plan, but decided not to rob the bank on that day because they noticed too many people in town and around the bank. Instead, they made a practice run of their approach to and escape from the bank after agreeing that they would try again on Tuesday, September 16, 1975.

On September 16, 1975, the defendant and Brown again parked their cars along a rural road, changed clothing and drove into the town of Middletown in a single car with a white suitcase, shotgun and disguises consisting of the nylon stockings and stocking caps. When they arrived in town, they drove to the Middletown State Bank, exited from the car and approached the bank's front door. Brown carried the suitcase and the defendant carried the shotgun. As the duo neared the front door, however, a man bolted the door from the inside. Thereafter, the defendant and Brown scrambled back into the car and returned to their second car which was still parked along the rural road where they had commenced their escapade. Within minutes, Brown was arrested after being chased by the police. The defendant was arrested a few days later.

On appeal, the defendant raises a single issue for our review: whether his conviction for the September 13, 1975, conspiracy to commit armed robbery should be vacated because the alleged conspiracy arose from the same course of conduct that formed the basis for his attempt armed robbery convictions.

Section 8-2(a) of the Criminal Code of 1961 provides in pertinent part:

"A person commits conspiracy when, with intent that an offense be committed, he agrees with another to the commission of that offense. No person may be convicted of conspiracy to commit an offense unless an act in furtherance of such agreement is alleged and proved to have been committed by him or by a co-conspirator." (Emphasis added.) (Ill.Rev.Stat.1973, ch. 38, par. 8-2(a).)

Section 8-4(a) of the Code provides:

"A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense." (Ill.Rev.Stat.1973, ch. 38, par. 8-4(a).)

Both of the quoted sections are contained in that part of the Code which concerns inchoate or anticipatory offenses. Another of those sections, section 8-5 of the Code provides that "(n)o person shall be convicted of both the inchoate and the principal offense." Ill.Rev.Stat.1973, ch. 38, par. 8-5.

In Illinois, in order for a defendant to be convicted for the offense of conspiracy, the State must establish three elements beyond a reasonable doubt: (1) that the defendant intended to commit an offense; (2) that the defendant and another person entered into an agreement to commit the offense; and (3) that one of the co-conspirators committed an act in furtherance of the agreement. (Ill.Rev.Stat.1973, ch. 38, par. 8-2(a).) In order for a defendant to be convicted for the offense of attempt, the State must only establish two elements beyond a reasonable doubt: (1) that the defendant intended to commit an offense; and (2) that the defendant took a "substantial step" toward committing that offense. (Ill.Rev.Stat.1973, ch. 38, par. 8-4(a).) In comparing these two sections of our Criminal Code, we note that the conspiracy provision requires a lesser step to fulfill the act requirement, while the attempt provision requires "a substantial step" toward the commission of the offense. In each situation, as in situations involving other inchoate offenses, the law makes possible some preventive action by the police and courts before a defendant has come dangerously close to committing the intended crime. LaFave & Scott, Criminal Law, § 59 at 426.

Although section 8-4(a) does not define "substantial step," Illinois courts have attempted to make the term more precise. In People v. Woods (1962), 24 Ill.2d 154, 158, 180 N.E.2d 475, 477, our supreme court stated that the mere preparation to commit a criminal offense does not constitute a "substantial step" for purposes of the attempt statute. In People v. Lonzo (1974), 59 Ill.2d 115, 117, 319 N.E.2d 481, 483, the court considered the case of a defendant charged with attempt theft after he was alleged to have attempted to exert unauthorized control over bicycles in a bicycle storage area. Initially, the court noted that it is not possible to charge an inchoate offense with the same particularity as a completed offense. The court then held that the record adequately established the defendant's guilt because he was apprehended inside an enclosure which he had unlawfully entered in order to commit the offense of theft. In People v. Delk (1976), 36 Ill.App.3d 1027, 1033, 345 N.E.2d 197, 202-203, the court held that entering a tavern while armed constituted a substantial step toward the commission of an armed robbery.

Analysis of these cases would seemingly lead one to suspect that the "substantial step" requirement, in order to amount to more than mere preparation, requires some sort of entry into an enclosure or structure for the purpose of committing a crime. We note, however, that section 5.01(2) of the Model Penal Code contains a list of behavior constituting a "substantial step" which is strongly corroborative of the actor's criminal purpose. Noted on that list is:

" * * * possession * * * of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession * * * serves no lawful purpose of the actor under the circumstances * * *." Model Penal Code § 5.01(2)(f) (Proposed Official Draft, 1962).

Here, the defendant and Brown did not enter the bank building on September 16, 1975, although they were in possession of a shotgun, suitcase and disguises which were in place when they approached the bank building. We find these acts sufficient to constitute a "substantial step" toward the commission of an armed robbery in the bank.

In this case, the defendant was also charged with membership in two conspiracies having as their objects the armed robbery of the Middletown State Bank on two separate dates, September 13 and 16, 1975.

In People v. Perry (1961), 23 Ill.2d 147, 177 N.E.2d 323, our supreme court stated:

"A conspiracy once formed is presumed to exist whenever and wherever one of the conspirators does some act in furtherance of its purpose. Since the overt act is a renewal of the conspiracy, the offense is continuous so long as overt acts in furtherance of its purpose are done." (23 Ill.2d 147, 155, 177 N.E.2d 323, 328.)

Perry, however, does not say that an individual cannot be convicted, under proper circumstances, for being a member of two conspiracies where the elements of a conspiracy are present in two separate courses of conduct in which the individual has been engaged. In cases where an individual enters into an agreement or agreements with another to commit an offense with the...