People v. Chellew
Decision Date | 20 June 1974 |
Docket Number | No. 73--81,73--81 |
Citation | 20 Ill.App.3d 963,313 N.E.2d 284 |
Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronald Dean CHELLEW, Defendant-Appellant. |
Court | United States Appellate Court of Illinois |
John O. Vogel, Glen Ellyn, for defendant-appellant.
John J. Bowman, State's Atty., Malcolm F. Smith, Asst. State's Atty., Wheaton, for plaintiff-appellee.
The defendant Ronald Dean Chellew was jointly indicted and tried for committing a deviate sexual assault upon a fellow prisoner while the defendant was incarcerated in the Du Page County jail for a prior similar offense allegedly committed against a minor female. In the instant case defendant was tried by a jury and found guilty. This is a post-conviction proceeding relating to the sentence of the defendant.
In the prior case, People v. Chellew (1968), 104 Ill.App.2d 100, 243 N.E.2d 49, the defendant appealed to this court and the conviction was reversed because of the prosecution's comment upon the failure of the defendant to testify. However, in that case we held:
(104 Ill.App.2d at p. 103, 243 N.E.2d at p. 51).
The matter was remanded to the trial court for a new trial because of prosecution's comment but the matter was never retried.
In the case before us the trial court in the sentencing of the defendant, after the judgment of guilty by the jury, considered the prior conviction and also considered the fact that the defendant was on parole for burglary at the time of the commission of the instant offense.
The sole contention in the post-conviction case before us is that a constitutional issue is raised in that upon sentencing the defendant, the trial court considered a prior conviction which was subsequently reversed by this appellate court. As authority for this contention the defendant has cited United States v. Tucker (1972) 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592. Tucker is most similar to the factual situation of the case before us. In Tucker the trial court considered two convictions of the defendant in determining the sentence and it was further ascertained that the defendant was without counsel in those convictions. The Supreme Court held that 'the federal case might have been different if the sentencing judge had known that at least two of the respondent's previous convictions had been unconstitutionally obtained.' The court then remanded the case for reconsideration of the respondent's sentence. We will agree that the consideration by the trial court of a conviction subsequently set aside as indicated above does in fact present a constitutional question. We will further agree that the trial court imposing the instant sentence had knowledge of the prior conviction for a comparable sex act prior to the incarceration of the defendant.
The sentence imposed herein was well within the statutory limitation at the time of the imposition thereof. The term of a sentence does not present a constitutional question...
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