People v. Hobbs

• Decision Date: 30 September 1981
• Docket Number: No. 54419,54419
• Citation: 427 N.E.2d 558,56 Ill.Dec. 363,86 Ill.2d 242
• Parties: , 56 Ill.Dec. 363 The PEOPLE of the State of Illinois, Appellant, v. Cecil Leon HOBBS, Appellee.
• Court: Illinois Supreme Court

Page 558

427 N.E.2d 558

86 Ill.2d 242, 56 Ill.Dec. 363

The PEOPLE of the State of Illinois, Appellant, v. Cecil Leon HOBBS, Appellee.

No. 54419.

Supreme Court of Illinois.

Sept. 30, 1981.

Tyrone C. Fahner, Atty. Gen., Chicago, and Thomas J. Difanis, State's Atty., Urbana (Robert J. Biderman, Deputy Director, and Garry W. Bryan, Staff Atty., both of the State's Attys. Appellate Service Commission, Springfield, of counsel), for the People.

Daniel D. Yuhas, Deputy Defender, and Karen Munoz, Asst. State Appellate Defender, Springfield, for appellee.

UNDERWOOD, Justice:

Defendant, Cecil Leon Hobbs, was convicted in a Champaign County circuit court jury trial of theft with a prior theft conviction, a Class 4 felony (Ill.Rev.Stat.1979, ch. 38, par. 16-1(e)). His appeal to the appellate court resulted in an affirmance of the conviction, but a reversal of the extended-term sentence of 6 years which that court held to constitute an abuse of the sentencing judge's discretion. (90 Ill.App.3d 587, 46 Ill.Dec. 14, 413 N.E.2d 454.) We allowed the State's petition for leave to appeal.

The property stolen was five bottles of whiskey which defendant and another took from an Eisner food store on September 16, 1979. Although the State's evidence of nonpayment for the whiskey was largely circumstantial and, defendant contends, insufficient to establish his guilt beyond a reasonable doubt, we believe that issue was rightly resolved by the appellate court. Defendant also urges error occurred when the trial judge did not specifically offer him an opportunity to make a statement personally prior to the imposition of sentence as provided in section 5-4-1(a)(5) of the Unified Code of Corrections (Ill.Rev.Stat.1979, ch. 38, par. 1005-4-1(a)(5)). In this connection he notes, too, that the court was sufficiently displeased with defense counsel, who had apparently been significantly late in appearing for the sentencing hearing, that the judge indicated, at the conclusion of that hearing, his intention to request the State's Attorney to file a petition asking that defense counsel be found in contempt and assign that matter to a different judge for hearing and disposition. In addition the judge stated: "And as far as I'm concerned, it's up to the State's Attorney and Judge Townsend to do whatever they wish to do about the matter. That it doesn't and hasn't affected this case, and will not affect other cases." We do not understand defendant to argue that the 6-year sentence resulted from the judge's displeasure with counsel but, rather, that in this circumstance defendant's right of allocution assumed increased importance. We note, however, that counsel was present during the sentencing hearing and spoke at length on defendant's behalf, and that defendant did not request an opportunity to speak. In these circumstances we agree with the appellate court opinions in this and other cases which have held similar omissions to be formal, but not reversible, errors. People v. Jones (1977), 56 Ill.App.3d 600, 14 Ill.Dec. 97, 371 N.E.2d 1150; People v. Darling (1977), 46 Ill.App.3d 698, 5 Ill.Dec. 121, 361 N.E.2d 121; People v. Spiler (1975), 28 Ill.App.3d 178, 328 N.E.2d 201.

Defendant had an unusual record of prior convictions, including both a misdemeanor theft conviction in April 1978 and a felony theft conviction in October of that year. Count I of the information in this case alleged the prior misdemeanor conviction, and count II the earlier felony conviction. While the court took judicial notice of both, the jury was informed of only the felony.

Defendant now urges that using the 1978 felony theft conviction to enhance the 1979 offense from the misdemeanor which it would otherwise have been to the felony which it is (Ill.Rev.Stat.1979, ch. 38, par. 16-1(e)), and again using it to extend the penalty (Ill.Rev.Stat.1979, ch. 38, par. 1005-5-3.2(b)) is not consistent with the legislative intent. Section 16-1(e) provides in relevant part:

"(e) Sentence.

(1) Theft of property, other than a firearm, not from the person and not exceeding $150 in value is a Class A misdemeanor. A second or subsequent offense after a conviction of any type of theft, including retail theft, other than theft of a firearm, is a Class 4 felony. " (Ill.Rev.Stat.1979, ch. 38, par. 16-1(e).)

A Class 4 felony is punishable by imprisonment for not less than 1 nor more than 3 years. (Ill.Rev.Stat.1979, ch. 38, par. 1005-8-1(a)(7).) The pertinent portion of section 5-5-3.2(b) is as follows:

"(b) The following factors may be considered by the court as reasons to impose an extended term sentence under Section 5-8-2 upon any offender who was at least 17 years old on the date the crime was committed:

(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series...