People v. Dimond

• Decision Date: 08 November 1977
• Docket Number: No. 76-542,76-542
• Citation: 54 Ill.App.3d 439,12 Ill.Dec. 96,369 N.E.2d 593
• Parties: , 12 Ill.Dec. 96 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lawrence E. DIMOND, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 593

369 N.E.2d 593

54 Ill.App.3d 439, 12 Ill.Dec. 96

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lawrence E. DIMOND, Defendant-Appellant.

No. 76-542.

Appellate Court of Illinois, Third District.

Nov. 8, 1977.

Mark Burkhalter, Robert J. Agostinelli, Deputy State App. Defender, Third Judicial Dist., Ottawa, for defendant-appellant.

John X. Breslin, James E. Hinterlong, Principal Atty., Ill. State's Attys. Assn., Ottawa, William D. Henderson, State's Atty., Macomb, for plaintiff-appellee.

ALLOY, Presiding Justice:

This is an appeal from a conviction of burglary in the McDonough County Circuit Court of Lawrence E. Dimond, following a bench trial. Defendant Dimond was sentenced to a term of 4 to 12 years imprisonment to be served consecutively to two other terms of imprisonment, based on prior convictions, which defendant was then serving. On appeal to this Court, defendant argues (1) that the trial court erred in refusing to consider the merits of defendant's motion to dismiss on the ground that at the time of his arrest defendant was denied his statutory and constitutional rights to communicate with an attorney and (2) that the sentence imposed by the trial court is excessive.

The record discloses that defendant was arrested on May 31, 1976, and was charged by information on June 1, 1976. The Grand Jury of McDonough County subsequently returned an indictment charging defendant with the offenses of burglary, in violation of par. 19-1 of the Criminal Code of 1961 (Ill.Rev.Stat.1975, ch. 38, par. 19-1) and attempt (theft) in violation of par. 8-4 of the Criminal Code (Ill.Rev.Stat.1975, ch. 38, par. 8-4). On June 1, 1976, the trial court appointed counsel to represent defendant and on June 3, 1976, defendant's appointed counsel filed a motion for a change of venue, alleging as grounds therefor, prejudicial pre-trial publicity.

On September 22, 1976, prior to trial, defendant filed a motion to dismiss the charges against him, and alleged that at the time of his arrest he had been denied his right to communicate with an attorney and that defendant's bond was set at an excessive amount.

Following a hearing on the motion, the trial court denied the motion to dismiss, and found that the motion was untimely and that the court lacked power to rule on the merits of the motion because the motion was not based on any of the grounds enumerated in par. 114-1 of the Code of Criminal Procedure (Ill.Rev.Stat.1975, ch. 38, par. 114-1). Defendant then waived his right to a trial by jury, and the cause proceeded as a bench trial.

Evidence at the trial showed that on May 31, 1976, defendant was apprehended by police in the library building of Western Illinois University campus at a time when the building was closed to the public. At the time of his arrest, defendant was apparently dressed in a ski mask and dark clothing, and was attempting to drag a money-changing machine from the library premises. Following presentation of the evidence and closing arguments, the trial court found defendant guilty of both burglary and attempt (theft). The trial court subsequently vacated the attempt (theft) conviction on the ground that the one act-one crime doctrine applied.

At the sentencing hearing in this cause, the presentence report showed that defendant had two prior felony convictions (for aggravated battery and burglary) and that defendant was then serving concurrent sentences on those convictions (both sentences of 1 to 3 years). The State presented no evidence in aggravation at the hearing. Defendant testified at the sentencing hearing, and requested a sentence which would allow him to remain at Vandalia, i. e., a minimum sentence of no more than 4 years concurrent time and no more than 1 year consecutive time to the sentences which defendant was already serving. At the conclusion of the hearing, the trial court sentenced defendant to a term of from 4 to 12 years imprisonment, to be served consecutively to sentences which defendant was then serving based on prior convictions.

The first issue argued by defendant on this appeal is the contention that the trial court erred in refusing to consider the merits of defendant's motion to dismiss on the ground that defendant was denied his right to communicate with counsel. We have noted that the trial court denied the motion to dismiss on the ground that it did not state any of the grounds set forth in par. 114-1 of the Code of Criminal Procedure and that the motion was not timely made. Par. 114-1 of the Code of Criminal Procedure provides in part:

"(a) Upon the written motion of the defendant made prior to trial or after a plea has been entered the trial court may dismiss the indictment, information or complaint upon any of the following grounds: * * *

(b) The court shall require any motion to dismiss to be filed within a reasonable time after the defendant has been arraigned. * * * ."

The ground set forth in defendant's motion for dismissal and urged in this Court, to the effect that defendant was denied his right to communicate with counsel, is not specifically enumerated in par. 114-1. The Illinois Supreme Court in a recent case, People v. Lawson (1977), 67 Ill.2d 149, 10 Ill.Dec. 478, 367 N.E.2d 1244, considered whether a trial court is authorized to dismiss a criminal charge for reasons other than those explicitly stated in par. 114-1, and stated at p. 478 of 10 Ill.Dec., at p. 1243 of 367 N.E.2d:

" * * * we believe that on the basis of the reasoning of our past decisions and that of the appellate courts and on the basis of the reasoning of the United States Supreme Court, we must conclude that a trial court does have an inherent authority to dismiss an indictment in a criminal case where there has been a clear denial of due process even though that is not a stated ground in section 114-1."

With a view to the observation made in People v. Lawson and our analysis of the instant case, we note that defendant's motion to dismiss alleged that at the time of his arrest, defendant was denied his right to communicate with an attorney. We note that defendant was arrested on May 31, 1976, and that counsel was appointed to represent defendant on June 1, 1976. We also note that the appointed counsel filed a motion for a change of venue on defendant's behalf on June 3, 1976. Under such circumstances, we are unable to discern any substantial prejudice resulting from the alleged inability to communicate with counsel to such an extent as to constitute a clear denial of due process. We conclude that the trial court did not err in its disposition of defendant's motion.

We also note that under par. 114-1(b) of the Code of Criminal Procedure it is provided that the trial court may require a motion to dismiss to be filed within a reasonable time after arraignment. Defendant here was arraigned on June 1, 1976, and defendant did not file his motion to dismiss until September 22, 1976. We believe that the trial court also properly denied the motion to dismiss as untimely made.

Defendant also contends that the sentence of 4 to 12 years imprisonment to be served consecutively to the sentences defendant was already serving is excessive. As we have stated in People v. Thomas (3d Dist. 1976), 38 Ill.App.3d 689, 692, 348 N.E.2d 285, 288:

"The imposition of a sentence is a matter of judicial discretion and the sentence imposed by a trial court...