People v. House

• Decision Date: 28 July 1981
• Docket Number: No. 80-424,80-424
• Citation: 424 N.E.2d 412,53 Ill.Dec. 777,98 Ill.App.3d 304
• Parties: , 53 Ill.Dec. 777 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James Scott HOUSE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 412

424 N.E.2d 412

98 Ill.App.3d 304, 53 Ill.Dec. 777

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James Scott HOUSE, Defendant-Appellant.

No. 80-424.

Appellate Court of Illinois, Fifth District.

July 28, 1981.

John H. Reid, Deputy State Appellate Defender, Mount Vernon, for defendant-appellant; Jean Marie Reyes, Mount Vernon, of counsel.

Martin N. Ashley, Deputy Director, State's Attys. Appellate Service Commission, Mount Vernon, Terrence J. Hopkins, State's Atty., Benton, for plaintiff-appellee.

JONES, Justice:

Following a trial by jury in the circuit court of Franklin County defendant, James Scott House, was convicted of burglary and sentenced to four years probation, conditioned upon 18 months periodic imprisonment and a restitution payment of $3,000 to the victim of the burglary. On appeal defendant contends the sentence was improper because: (1) it was excessive in view of the non-violent nature of the offense and defendant's youth and lack of substantial prior record; (2) the order of restitution was erroneous since defendant was convicted only of burglary and was acquitted of the underlying theft charge which gave rise to the victim's loss; and (3) the order of restitution was improper without conducting a presentence hearing to determine defendant's financial capacity to make such payments.

The burglary for which defendant was convicted occurred at the home of Ronald Baker in rural Benton at approximately 2 p. m. on October 9, 1979. Baker testified that on that date no one was home and at that time an unauthorized entry into his home was gained by breaking through a large window at the rear of the house. Baker stated that several items were taken, and during the trial he identified both a remote control color television and a gold coin and chain, which had been recovered by police. Baker estimated the value of the gold coin and chain to have been $1,000 at the time of the burglary and the value of all stolen jewelry to have been $10,000.

Defendant was linked to the burglary of Baker's home primarily through the testimony of Frank and Scott Dunbar, two cousins who testified in substantially similar terms. They each admitted their own involvement in the crime, stating that on the afternoon in question they were driving around in Scott Dunbar's car when they decided to pick up their friend, the defendant, for a trip to Benton Lake. However, since it was raining, Scott Dunbar instead drove the three of them to the Baker residence, which, according to the Dunbars, the trio agreed to burglarize after defendant stated no one was home. Both Dunbars testified that defendant and Frank Dunbar went to the rear of the house and entered it after throwing a gas can through a bedroom window. They then let Scott Dunbar into the house. Scott Dunbar and defendant searched the premises while Frank Dunbar carried a television set to the car. According to the Dunbars all three of them participated in removing items from the Baker residence. The Dunbars stated that several of the stolen items were sold by them and several more were stored at a friend's residence. The items stored at the friend's residence were recovered by police and identified by the Dunbars at trial. Even though the Dunbars were admittedly involved in the crimes they received immunity from prosecution in exchange for their testimony against defendant. During cross-examination both boys testified that their fathers had served as Illinois State Policemen. In addition they shared an uncle who was a Franklin County deputy sheriff. Despite these admissions both Dunbars denied receiving so much as a hint that they had been granted immunity because of their family's law enforcement ties.

The jury convicted defendant of burglary but acquitted him of theft, and a sentencing hearing was held. At the sentencing hearing Ronald Baker and his wife, Cybil, testified on behalf of the State, and defendant testified on his own behalf. Each of the Bakers expressed the fear that had been felt by their family because of defendant's continued presence in the neighborhood during the pendency of this litigation. She stated that her three children were especially fearful of defendant when their paths crossed because defendant had spoken to their daughters in an intimidating manner. Ronald Baker testified as to the extent of their losses. He stated that he was only partially indemnified by insurance coverage. Baker admitted receiving insurance indemnification of approximately $2,700, which covered the damage done to his home and the loss of household items. Baker stated that he had received no indemnification for jewelry losses, which he put at $9,750.

Defendant stated that he was only 19 years old and expressed his remorse for becoming involved in the burglary. According to defendant, before he knew what was happening Scott Dunbar pulled his car into the Baker's driveway and Frank Dunbar got out of the car and threw the gas can through the window. Defendant admitted entering the home after the break in but denied removing any items from the home, stating that he spent most of his time quieting a barking dog.

Defendant expressed a desire to complete high school and to seek professional counseling. He also indicated that he would make restitution if he were able to do so, but he was currently unemployed though he had worked steadily in the past. Defendant admitted being late for the first day of trial because of a delay in returning from Houston, Texas. Although defendant had gone to Houston without the permission of the court which had granted him bail, it was undisputed that he had returned voluntarily. Following defendant's testimony the trial court fined defendant $1,000 and sentenced him to four years probation conditioned upon payment of $3,000 restitution and 18 months periodic imprisonment. The terms of periodic imprisonment were that defendant was to be released from prison from 6 a. m. to 6 p. m. on weekdays and from 6 a. m. to noon on Saturdays, if employed, but if not employed he would be released only from 7 a. m. to 1 p. m. on Mondays, Wednesdays and Fridays.

According to the undisputed presentence report defendant's only prior problem with the law had been a 1979 misdemeanor conviction for battery. In view of defendant's insubstantial criminal record and in view of his youth and the non-violent nature of the burglary offense, defendant contends that his sentence was excessive.

The courts of this State have long recognized that a trial court has great discretion in imposing sentence upon even a youthful offender. (People v. Perruquet (1977), 68 Ill.2d 149, 11 Ill.Dec. 274, 368 N.E.2d 882.) This was a senseless crime which directly contributed to the large pecuniary loss suffered by the Bakers. In addition, even though defendant's previous criminal record consisted of a single misdemeanor conviction, that conviction had occurred only a few months prior to the present burglary. Under similar circumstances penitentiary sentences have been approved on appeal. (People v. Kail (1975), 28 Ill.App.3d 244, 328...