People v. Finley
| Decision Date | 17 March 1980 |
| Docket Number | No. 78-2069,78-2069 |
| Court | United States Appellate Court of Illinois |
| Parties | , 37 Ill.Dec. 767 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Leroy FINLEY, Defendant-Appellant. |
James J. Doherty, Public Defender of Cook County, Chicago (Marc Fogelberg, Asst. Public Defender, Chicago, of counsel), for defendant-appellant.
Bernard Carey, State's Atty., Chicago (Marcia B. Orr, Myra J. Brown, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.
Leroy Finley (hereinafter defendant) brings the present appeal from a conviction for unlawful use of weapons after a jury trial. (Ill.Rev.Stat.1977, ch. 38, par. 24-1.) The defendant urges that the seven-year sentence imposed by the trial court was erroneous because: (1) the prohibition against ex post facto laws barred the trial court from sentencing him to an extended term under the 1977 Amendments to the Unified Code of Corrections 1 (Ill.Rev.Stat.1978 Supp., ch. 38, par. 1005-8-2); and (2) the sentence imposed by the trial court violated his equal protection rights.
We affirm.
The following facts are relevant to an understanding of the issues raised in this appeal. The defendant was arrested on November 20, 1977, and charged with two counts of unlawful use of weapons: (1) possession of a loaded firearm within five years of release from the Illinois State Penitentiary; and (2) possession of a loaded firearm within the Chicago city limits. (Ill.Rev.Stat.1977, ch. 38, pars. 24-1(a)(10), 24-1(b).) This was a class 3 felony. At the jury trial, it was stipulated that on October 27, 1975, the defendant pled guilty to robbery and was sentenced to term of from two to six years at the Illinois State Penitentiary. It was further stipulated that the defendant was released on parole on July 7, 1977. Based on these stipulations and the testimony at the trial, the jury returned a verdict of guilty.
At the sentencing hearing, the trial court informed the defendant of his right to be sentenced either under the law in effect on the date of the offense (Ill.Rev.Stat.1977, ch. 38, par. 1005-8-1) or under the law in effect on the date of sentencing. (Ill.Rev.Stat.1978 Supp., ch. 38, par. 1005-8-1.) The trial court also informed the defendant that the difference between the two sentencing alternatives was that under the prior law, this offense was punishable by an indeterminate term of from one to ten years plus one year mandatory parole, while under the amended code, the offense was punishable by an exact sentence of between two and five years. The trial court also explained that the defendant would be eligible for an extended term under the amended code because of his commission of a felony within 10 years. If this provision was applied, the defendant's minimum sentence would be five years with a maximum term of ten years. The defendant elected to be sentenced under the amended code and was subsequently sentenced to a term of seven years.
The defendant contends that his extended term sentence under the Amended Code was improper because as he would not have been eligible for an extended term at the time the offense was committed, therefore, his sentence was based upon an ex post facto application of the extended term provision.
In support of this argument, the defendant relies upon People v. Wyckoff (1969), 106 Ill.App.2d 360, 245 N.E.2d 316, for the proposition that the constitutional prohibition against ex post facto laws bars sentencing a defendant under a law where the punishment for an offense has been increased after the offense has been committed. In Wyckoff, the defendant was sentenced under the misapprehension of all involved that a particular law was in effect at the time the offense was committed. The mistake altered the possible sentence range for the offense from a term of from one to twenty years to a term of from four to twenty years. On this basis, the Appellate Court found the sentence to be ex post facto in nature and modified the sentence to reflect the trial court's apparent intent in sentencing.
The defendant argues that Wyckoff is factually analogous to the case at hand because in each case the minimum sentence available under the new law was higher than under the law in effect at the time the offense was committed. The State maintains that the defendant's argument ignores the defendant's election to be sentenced under the Amended Code. We agree. Under Illinois law, a defendant who has been charged with an offense, which is later amended prior to sentencing, must be given notice of his right to elect to be sentenced under the law in effect at the time of the offense or the law in effect at the time of sentencing. (Ill.Rev.Stat.1978, ch. 38, par. 1008-2-4; People v. Hollins (1972), 51 Ill.2d 68, 280 N.E.2d 710; People v. Gunner (1979), 73 Ill.App.3d 533, 29 Ill.Dec. 608, 392 N.E.2d 165; People v. Dozier (1979), 67 Ill.App.3d 611, 24 Ill.Dec. 388, 385 N.E.2d 155.) A trial court is under no obligation to inform the defendant of his sentencing alternatives prior to the election because this burden is placed upon the defendant's attorney. (People v. Gunner; People v. Warfel (1979), 67 Ill.App.2d 620, 24 Ill.Dec. 408, 385 N.E.2d 175.) Nor is a trial court required to inform the defendant of the exact sentence that he would be given under the sentencing alternatives in order for the defendant to make a knowledgeable election. (People v. Galati (1979), 75 Ill.App.3d 860, 30 Ill.Dec. 708, 393 N.E.2d 744.) Moreover, it is well recognized that a defendant may not complain of the consequences of an unambiguous sentencing election. People v. Wilford (1977), 54 Ill.App.3d 706, 12 Ill.Dec. 459, 370 N.E.2d 82; People v. Speller (1977), 46 Ill.App.3d 208, 4 Ill.Dec. 780, 360 N.E.2d 1155; People v. Davis (1976), 36 Ill.App.3d 904, 344 N.E.2d 736.
In Davis, the defendant claimed, as did the defendant here, that the trial court set a higher sentence, under the elected sentencing law, than was possible under the statute in effect at the time the offense was committed. It was uncontested that the defendant received the counsel of his attorney in making his election. This court concluded that the defendant had to be given the opportunity to elect under which law he wished to be sentenced, but once this decision had been made, he could not object that the sentence was improper. Unlike the defendant in People v. Wyckoff (1969), 106 Ill.App.2d 360, 245 N.E.2d 316, the defendant here was given the opportunity to elect the law under which he would be sentenced. The record clearly indicates that the trial court more than exceeded its duty to the defendant of giving notice of his right to elect. The court carefully informed the defendant of the...
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