People v. James

• Decision Date: 22 September 1970
• Docket Number: No. 41481,41481
• Citation: 46 Ill.2d 71,263 N.E.2d 5
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Edward JAMES, Appellant.
• Court: Illinois Supreme Court

Page 5

263 N.E.2d 5

46 Ill.2d 71

The PEOPLE of the State of Illinois, Appellee, v. Edward JAMES, Appellant.

No. 41481.

Supreme Court of Illinois.

Sept. 22, 1970.

Arthur M. Scheller, Jr., Chicago, for appellant.

William J. Scott, Atty. Gen., Springfield, and Edward V. Hanrahan, State's Atty., Chicago (James B. Zagel, Asst. Atty. Gen and Elmer C. Kissane and Michael Goldstein, Asst. State's Attys., of counsel), for the People.

UNDERWOOD, Chief Justice.

Defendant, Edward James, after a 1962 jury trial in the then criminal court of Cook County, was convicted of the offense of rape and sentenced to imprisonment in the penitentiary for a term of not less than 15 nor more than 25 years. On writ of error, the judgment of conviction was affirmed by the Appellate Court for the First District. (62 Ill.App.2d 225, 210 N.E.2d 804.) Subsequently, defendant filed a petition in the circuit court of Cook County under the provisions of the Post-Conviction Hearing Act (Ill.Rev.Stat.1965, ch. 38, par. 122--1 Et seq.), contending that certain of his constitutional rights were violated in connection with the mechanics of his sentencing. On motion of the State, the petition was dismissed, and this direct appeal is from that judgment of dismissal. 43 Ill.2d R. 651.

The record before us, which includes the report of proceedings of defendant's trial, indicates that the offense for which defendant stands convicted occurred on July 26, 1961, prior to the January 1, 1962, effective date of the Criminal Code of 1961. However, since defendant's jury trial occurred subsequent to the effective date of the Criminal Code, he was entitled, upon conviction, to be sentenced either under the law in effect at the time of the offense (Ill.Rev.Stat.1959, ch. 38, par. 801), calling for the fixing of the punishment by the jury as a part of its verdict, or the law at the time of the trial (Ill.Rev.Stat.1961, ch. 38, par. 1--7(e)), specifying a sentence for an indeterminate term to be fixed solely by the court upon the return of the jury's verdict finding the accused guilty of the offense charged. (See People v. House, 73 Ill.App.2d 345; Ill.Rev.Stat.1961, ch. 131, par. 4.) In this connection, insofar as it appears from the record of the proceedings which resulted in defendant's conviction, nothing was said during defendant's trial relating to the alternative sentencing procedures until after the jury had been discharged, which of course precluded defendant from being sentenced under the former law even if he so desired. Thus, only after the jury had returned a guilty verdict and been discharged did the court conduct an inquiry concerning defendant's preference as to sentencing procedure. The record shows that the court then advised defendant that under the law at the time of the offense 'the sentence was determinative,' whereas under the law at the time of trial it would be indeterminate. Defendant thereupon, and apparently after having consulted with his counsel, chose to be sentenced under the law in effect at the time of the trial. There is nothing in the record indicating that defendant was ever specifically advised that under the prior sentencing procedure, the extent of punishment was fixed by the jury.

Based on the foregoing circumstances defendant asserts that he was given no meaningful choice as to the manner of his sentencing; that he was unaware at the time of the trial that he could have been...