People v. Morgan
| Decision Date | 27 November 1974 |
| Docket Number | No. 46193,46193 |
| Parties | The PEOPLE of the State of Illinois, Appellee, v. Frank MORGAN and Walter McCalvin, Appellants. |
| Court | Illinois Supreme Court |
James J. Doherty, Public Defender, Chicago (John X. Breslin and Thomas F. Finegan, Asst. Public Defenders, of counsel), for appellants.
William J. Scott, Atty. Gen., Springfield, and Bernard Carey, State's Atty., Chicago (James B. Zagel, Asst. Atty. Gen., and Patrick T. Driscoll, Jr., and Barry Rand Elden, Asst. State's Attys., of counsel, and John Joseph O'Malley, Senior Law Student), for the People.
During one evening, two 17-year-old defendants committed acts which resulted in three separate indictments in the circuit court of Cook County, charging them with murder, numerous counts of armed robbery, and burglary. In the case at bar, the defendants, after jury trial, were found guilty of the robbery of Michael Kroll, and each defendant was sentenced to not less than 10 nor more than 20 years in the penitentiary, said sentences to be consecutive to the sentences imposed in the other two indictments, as hereinafter set forth.
This case deals only with the charge of an armed robbery of Michael Kroll. The conviction on that charge was affirmed by the appellate court (14 Ill.App.3d 232, 302 N.E.2d 152), and we granted leave to appeal. At the time this case was called for trial the defendants had previously been found guilty of murder, of burglary, and of six specific counts of armed robbery and Judge Philip Romiti, who had tried indictments Nos. 70--1186 and 70--1187, after a finding of guilty by a jury, imposed the following concurrent sentences:
After these sentences were imposed, the defendants filed a motion for substitution of a judge, and this case was assigned to Judge Richard J. Fitzgerald.
Except for the circumstance that the various criminal acts under consideration took place on the same date, there is nothing in the record to establish that the series of offenses for which the defendants were charged, convicted and sentenced were committed as a part of a single course of conduct. To the contrary, each case involved different victims, and the place where the offense occurred in the case at bar differed from that of the other two indictments.
Before the jury had been selected, on defendants' motion a conference was held in the chambers of Judge Fitzgerald. The defendants indicated a willingness to plead guilty if the State would recommend a 2-year sentence to run concurrently with the sentences previously imposed in the other two indictments, but then expressed a desire to have the Mittimus stayed. When this motive or influencing factor became apparent, Judge Fitzgerald warned the defendants that any guilty plea must be voluntary and not based on any promise other than that the State agreed to recommend a sentence of 2 years.
The defendants contend that the sentences were improper in that they were a punishment for exercising their right to a trial by jury, and in that they were in excess of the sentences permitted under section 5--8--4 of [59 Ill.2d 280] the Unified Code of Corrections (Ill.Rev.Stat.1973, ch. 38, par. 1005--8--4).
The defendants contention that the sentences were punishment for exercising their right to a jury trial is based upon the colloquy during the plea-bargaining session in question. The jury had been sworn and the case ready for trial when the defendants indicated they would enter pleas of guilty.
At the conference in chambers between the counsel, defendants, and the court, the prosecutor indicated to the court that the State would recommend the statutory minimum sentence of 2 years to run concurrently with the existing sentences if the defendants were guilty and so pleaded, and the court indicated that it would follow the recommendation. At this point the defendants indicated that they wanted to stay the Mittimus for 30 days so that they could prepare a defense, and asserted that they were not guilty even though they wished to persist in their plea of guilty. The court said it would not accept a plea of guilty if the defendants were not in fact guilty, refused to accept the pleas, and then proceeded with the trial.
The defendants' reliance upon People v. Moriarty (1962), 25 Ill.2d 565, 185 N.E.2d 688, is misplaced. In Moriarty it was held improper to 'punish' a defendant by a heavy sentence merely because he exercised his constitutional right to a trial before the court or jury. The instant case is factually dissimilar to Moriarty in that here there is no basis for a conclusion that the sentences were imposed by the court to punish the defendants for exercising their constitutional right to be tried before a jury.
At the time of the plea bargaining the court was only advised that the defendants were under multiple sentences.
The testimony at the trial indicated that the defendants, armed with revolvers, entered the victim's apartment; that they took from his person a wallet containing approximately $150, identification and credit cards; and that during the search of the victim, one of the defendants cut him behind the neck for no apparent reason. The testimony further showed that the victim was then ordered to disrobe, to get into the bathtub and turn on the water. He was continuously threatened while in the bathtub; a knife was pressed against his throat and mouth; later he was taken to a bedroom, tied up, gagged, and further threatened with a gun. The defendants were in the apartment for approximately 2 hours, and in addition to the items they took from the person of the victim, they also took a television set and a hi-fi system.
During the course of the trial, the defendants were obstreperous, uttered obscenities to the court and witnesses, threw a shoe at the judge, threw a shoe over the heads of the jurors, and attempted to escape.
At the subsequent hearing in aggravation and mitigation, the State pointed out the viciousness of the crime in question, the absence of remorse and the defendants' lack of respect for the judicial system and its procedures, as demonstrated by their conduct during the trial, and detailed their criminal record, which had been only briefly presented to the court prior to the trial. The State recommended a sentence of not less than 10 nor more than 20 years, such sentence to run consecutive to the sentences heretofore imposed, and the court imposed such sentence. In this setting, it seems abundantly clear that the sentence...
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