People v. Gum

• Decision Date: 20 June 1980
• Docket Number: No. 15734,15734
• Citation: People v. Gum, 407 N.E.2d 806, 85 Ill.App.3d 298, 41 Ill.Dec. 308 (Ill. App. 1980)
• Parties: , 41 Ill.Dec. 308 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jimmy Dean GUM, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 806

407 N.E.2d 806

85 Ill.App.3d 298, 41 Ill.Dec. 308

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jimmy Dean GUM, Defendant-Appellant.

No. 15734.

Appellate Court of Illinois, Fourth District.

June 20, 1980.

Richard J. Wilson, Deputy State App. Defender, David Bergschneider, Asst. App. Defender, Springfield, for defendant-appellant.

Nolan S. Lipsky, State's Atty., Petersburg, Martin N. Ashley, Deputy Director, State's Attys. App. Service Commission, Raymond F. Buckley, Jr., Staff Atty., Mount Vernon, for plaintiff-appellee.

WEBBER, Justice:

Defendant was tried to a jury which found him guilty of one charge of arson, four charges of burglary, two charges of criminal damage to property over $150 and one charge of theft over $150. The circuit court of Menard County entered judgment on all eight verdicts. After a sentencing hearing the court imposed five concurrent extended terms of imprisonment of 12 years each on the one count of arson and the four counts of burglary. No sentences were imposed on the criminal damage and theft convictions.

On appeal defendant has not contested any of the factual matters leading to the convictions and sentences but contends (1) that the trial court erred in entering judgment on both the arson and one criminal damage verdicts since they arose out of the same act; (2) that the trial court erred in imposing extended terms where both factors set forth in section 5-5-3.2(b) of the Unified Code of Corrections (Ill.Rev.Stat., 1978 Supp., ch. 38, par. 1005-5-3.2(b)) were not present; and (3) alternatively, that section 5-5-3.2(b) is unconstitutional as a deprivation of equal protection.

In its brief the State has partially conceded defendant's first issue but also asks us to remand for the imposition of a sentence on the criminal damage and theft convictions.

A brief recitation of the facts is necessary in order to understand how the parties arrive at their conclusions. Defendant and an accomplice went to the Petersburg Elementary School where they broke a window and entered the building. They went to the principal's office where defendant broke the door lock with a hammer and screwdriver. After going through a desk and finding no money which was their apparent objective, they next went to the school's kitchen where defendant forced open a door to a storage room. Money was again the objective but none was found. They then set two fires in the school and there was evidence that these fires caused approximately $88,000 in damage.

Later, the two went to the Menard Bowl where defendant used a hammer to break a window and a door. They entered, broke into a safe and removed $200 in currency, $75 in coinage and some checks.

Next they proceeded to the Lucky Lady Laundromat where they kicked in a door, entered and took $1.25 and some coins from a soft drink machine.

Lastly they went to Juergens' Laundromat. There they broke a window and entered but were unable to find any money.

In tabular form, all this criminal activity yielded this
                Count I     Arson                 School building
                Count II    Criminal Damage over  School building
                              $150
                Count III   Burglary              School building
                Count IV    Burglary              Menard Bowl
                Count V     Theft Over $150       Menard Bowl
                Count VI    Criminal Damage over  Menard Bowl
                              $150
                Count VII   Burglary              Lucky Lady
                                                    Laundromat
                Count VIII  Burglary              Juergens'
                                                    Laundromat
                

As indicated above, the jury returned guilty verdicts on all eight counts and the trial court entered judgment on all verdicts. However, sentences were imposed only on the arson and burglary counts.

Defendant's first contention is that the trial court erred in entering judgment on both counts I and II since they arose from the same act. The State concedes this, but argues that this court may reduce the degree of the offense; that is, the damage to the school by reason of the fire might have merged into the arson but there still remain the separate acts of breaking the window, the principal's door and the storage door. There being no proof of value as to the latter acts, the State argues that criminal damage under $150, a Class A misdemeanor, is appropriate. Ill.Rev.Stat.1977, ch. 38, par. 21-1.

We agree. The breaking and damage are not lesser included offenses of arson or burglary and therefore a separate conviction can stand. (People v. King (1977), 66 Ill.2d 551, 6 Ill.Dec. 891, 363 N.E.2d 838.) Our authority to reduce a sentence is contained in Supreme Court Rule 615(b) (73 Ill.2d R. 615(b)). Accordingly, defendant's conviction on count II Criminal Damage to Property, is reduced to a Class A misdemeanor.

Defendant's second and third contentions are disposed of by prior opinions of this court. In People v. Warfel (1979), 67 Ill.App.3d 620, 24 Ill.Dec. 408, 385 N.E.2d 175, we held that either, or both, of the factors set forth in section 5-5-3.2 of the Unified Code of Corrections would support an extended term. Accord, People v. Butler (1979), 78 Ill.App.3d 809, 33 Ill.Dec. 650, 396 N.E.2d 1374.

Recently in People v. Hamilton (1980), 81 Ill.App.3d 297, 36 Ill.Dec. 637, 401 N.E.2d 318, we held section 5-5-3.2 not unconstitutional.

The State's request for remand for imposition of sentences on the counts on which judgment has been entered is more troublesome. It relies on People v. Dean (1978), 61 Ill.App.3d 612, 18 Ill.Dec. 784, 378 N.E.2d 248. In Dean the Fifth District, relying on People v. Scott (1977), 69 Ill.2d 85, 12 Ill.Dec. 736, 370 N.E.2d 540, remanded for imposition of sentences under circumstances similar to those in the case at bar and said:

"(D)efendant attempts to distinguish Scott from the instant facts on the basis that in Scott, the defendant had sought a reversal of the judgment of conviction at issue, whereas here, defendant only seeks relief from the trial court's order denying his motion to withdraw the guilty pleas and vacate judgment. We find this reasoning unpersuasive. It is premised on the theory that the propriety of a remanding order for entry of sentence is dependent on the defendant's purpose in originally bringing the appeal. To the contrary, however, we view the thrust of Scott to be that such a remanding order is appropriate whenever the judgment of the reviewing court acts to affirm the incomplete judgment of conviction of the trial court. A trial court lacks authority to impose a sentence less than the statutory minimum on a judgment of conviction. (People v. Gardner, 22 Ill.App.3d 203, 317 N.E.2d 316, aff'd following remand, 52 Ill.App.3d 386, (10 Ill.Dec. 49,) 367 N.E.2d 437.) It follows then, that a trial court equally lacks authority to fail to impose any sentence on a properly entered judgment of conviction. (See generally People v. King, 66 Ill.2d 551, (6 Ill.Dec. 891,) 363 N.E.2d 838.) Hence, where the judgment of the reviewing court is an affirmance of a trial court's judgment of conviction, but that judgment remains incomplete because no sentence had been entered thereon, the reviewing court must order the judgment to be made final by the imposition of a sentence." 61 Ill.App.3d 612, 619, 18 Ill.Dec. 784, 790, 378 N.E.2d 248, 254.

We do not read Scott as broadly as do out brethren of the Fifth District, the posture of the appeal is very significant.

In Scott, the defendant had been convicted of five offenses, but the trial court had sentenced him on only four of the counts because it thought that two offenses had merged into one. The defendant appealed only the conviction for which a sentence had not been entered; the supreme court affirmed the conviction and remanded for sentencing. In the instant case defendant has put before this court only one of the three convictions upon which he did not receive a sentence, namely, count II Criminal Damage to Property (the school). He did so by appealing the entry of judgment on count II, a situation almost precisely parallel to Scott. We therefore hold that count II is properly before us for review.

Counts VI and VII are in a very different posture. Defendant has not appealed these counts and we do not believe that the State can appeal in this situation. Scott specifically left unanswered the question: "(W)hether absent an appeal by defendant the People could have sought review of the order 'merging' the aggravated kidnapping conviction and the failure to impose sentence on that count." 69 Ill.2d 85, 87, 12 Ill.Dec. 736, 738, 370 N.E.2d 540, 542.

Supreme Court Rule 604(...