People v. Morrison

• Decision Date: 29 April 1983
• Docket Number: No. 82-620,82-620
• Parties: , 70 Ill.Dec. 512 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard P. MORRISON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 859

449 N.E.2d 859

114 Ill.App.3d 828, 70 Ill.Dec. 512

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard P. MORRISON, Defendant-Appellant.

No. 82-620.

Appellate Court of Illinois Third District.

April 29, 1983.

Rehearing Denied June 7, 1983.

Charles W. Hoffman, Asst. State Appellate Defender, Robert J. Agostinelli, Deputy State Appellate Defender, Ottawa, for defendant-appellant.

John A. Barra, State's Atty., Peoria, Gerry R. Arnold, John X. Breslin, State's Attys. Appellate Service Com'n, Ottawa, for plaintiff-appellee.

STOUDER, Presiding Justice.

The defendant, Richard Morrison, was convicted of residential burglary, sentenced to a term of incarceration and ordered to pay restitution. The defendant appeals his conviction, alleging that the State failed to prove the requisite intent. He also argues that the court committed error in denying him court appointed counsel and in ordering restitution. We affirm his conviction, but remand for a new sentencing hearing.

The defendant had in his possession property taken from the apartment leased by Jeffrey Loser. The defendant had lived with Loser in this apartment in 1981, but was not living there at the time of the theft. The defendant testified that he stopped by the apartment and saw a note ordering the tenants to vacate the apartment. He called out for Loser but Loser was not at home. The defendant got a van and returned to the apartment to remove clothing he had left there and some furniture belonging to his brother. As he retrieved his clothing and his brother's furniture, he also took the property that belonged to Loser.

The defendant argues that the State failed to prove beyond a reasonable doubt that he possessed the requisite intent. In order to sustain a residential burglary conviction, the State must prove that the defendant possessed the intent to commit a theft at the time of his unauthorized entry into the victim's dwelling. (People v. Vallero (3rd Dist., 1978), 61 Ill.App.3d 413, 19 Ill.Dec. 48, 378 N.E.2d 549.) The defendant contends that the facts of the case demonstrate that it was his intent only to retrieve his clothing and the furniture when he entered Loser's apartment.

"Where burglary with intent to steal is charged, the alleged intent may be shown by proof that a theft did occur on the premises entered." (People v. Kerestes (3rd Dist., 1976), 38 Ill.App.3d 681, 684, 348 N.E.2d 274, 276.) Whether the requisite intent existed is a question for the trier of fact. (People v. Blair (5th Dist., 1971), 1 Ill.App.3d 6, 272 N.E.2d 404, affirmed (1972), 52 Ill.2d 371, 288 N.E.2d 443.) The decision of the fact finder will not be overturned on appeal unless the evidence is palpably contrary to the verdict or so unreasonable, improper or unsatisfactory as to create a reasonable doubt of guilt. People v. Zuniga (1st Dist., 1981), 99 Ill.App.3d 396, 54 Ill.Dec. 877, 425 N.E.2d 1094.

We find sufficient evidence in the instant case to support the defendant's conviction. The defendant stated at trial that his intent in entering the apartment was to recover property belonging to himself and his brother. However, at the time of his arrest the defendant stated that he went to Loser's apartment to collect money Loser owed him. The defendant testified also that he had a van and intended to remove his brother's furniture from the apartment, but at the time of the incident, the defendant was in a body cast as a result of an accident at a railroad crossing. The defendant entered the apartment after determining that Loser was not at home. Finally, the defendant, while wearing articles of Loser's clothing, met Loser shortly after the burglary, but gave no explanation for his possession of Loser's clothing and made no offer to return these items.

The defendant's testimony was implausible and was substantially impeached. It cannot be said that the evidence was so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of the defendant's guilt. His conviction is therefore affirmed.

The defendant alleges as his second issue on appeal that the court erred in denying him appointed counsel. We agree. The State argues that the loan the defendant obtained in order to post bail bond was sufficient to find the defendant not indigent. The loan in question was secured by the defendant's only asset, a 1973 Ford Mach I. The defendant also had no income at the time of his hearing to determine indigency and was living with relatives.

Where the defendant has some assets or funds available, the determination of indigency is left to the sound discretion of the court. (People v. Wood (5th Dist., 1980), 91 Ill.App.3d 414, 46 Ill.Dec. 706, 414 N.E.2d 759.) To be considered indigent, a defendant need not be totally devoid of funds, it being sufficient if the defendant lacks the financial resources on a practical basis to retain counsel. (People v. Castile (1st Dist., 1979), 71 Ill.App.3d 728, 28 Ill.Dec. 259, 390 N.E.2d 426.) In People v. Whitney (3rd Dist., 1974), 24 Ill.App.3d 685, 321 N.E.2d 317, discussed by this court in People v. Valdery (3rd Dist., 1976), 41 Ill.App.3d 201, 354 N.E.2d 7, the defendant was a student with no source of income and only an old automobile and a small amount of cash as assets. In Whitney this court reversed the defendant's conviction because of failure to appoint counsel based on the defendant's financial status. The defendant in the instant case had no source of income and only a 1973 auto for assets.

The question of indigency in a case such as this presents a difficult situation for resolution by a trial court. However, the issue of appointment of counsel must be decided with an eye toward protection of the rights of the accused from any impairment. (People v. Cole (5th Dist., 1968), 97 Ill.App.2d 22, 239 N.E.2d 455.) We find that because the defendant was indigent, it was error for the trial court to deny him appointed counsel. However, the defendant was ably represented at trial by a private attorney. The error by the trial court is therefore irremedial and the issue of reimbursement is moot.

The defendant also asserts error in the failure of the trial court to determine the defendant's ability to pay restitution before ordering him to so pay. Section 5-5-6 of the Unified Code of Corrections (Ill.Rev.Stat.1981, ch. 38, par. 1005-5-6), provides:

"If restitution is part of the disposition, the defendant shall make restitution to the victim in accordance with the following: (a) A pre-sentencing hearing shall be held to assess the financial capacity of the defendant to make restitution as well as to determine the amount and conditions of payment at the court's discretion."

The decision to hold a separate and distinct sentencing hearing on the issue of restitution is discretionary. (People v. Johnson (3rd Dist., 1982), 106 Ill.App.3d 171, 62 Ill.Dec. 1, 435 N.E.2d 799.) Where a separate hearing is not held, a court must make a finding as to the defendant's financial status during the formal sentencing hearing. (People v. Johnson (3rd Dist., 1982), 106 Ill.App.3d 171, 173, 62 Ill.Dec. 1, 2, 435 N.E.2d 799, 800.) The record indicates that no finding was made as to the defendant's financial status during the formal sentencing hearing prior to the decision ordering defendant to pay restitution. That portion of the defendant's sentence mandating restitution must therefore be vacated and remanded for further proceedings. Should the court, after reconsideration, order that restitution be made by the defendant, the proper method of valuation of the articles stolen and not recovered is the fair market value of the articles at the time of the theft. In the Interest of F.D. (2nd Dist., 1980), 89 Ill.App.3d 223, 44 Ill.Dec. 834, 411 N.E.2d 1200.

For the foregoing reasons, we affirm the judgment of conviction and the four year term of imprisonment entered in the circuit court of Peoria County. We vacate and remand the order of restitution for the court's reconsideration consistent with the views expressed herein.

Judgment affirmed, sentence affirmed in part, and remanded in part.

SCOTT, J., concurs.

BARRY, J., dissents.

BARRY, Justice, dissents.

Defendant claims that he is entitled to reimbursement for the cost of retaining private counsel and that the basis for that claim is that he was erroneously held not to be indigent. However, it is undisputed in the record that defendant had title to a car with a bank evaluation of $1895, and that, using the car as collateral, he was able to obtain a bank loan of $1500 which he used to post a bail bond. By his own admission, the car and the cash were his own. Defendant has also indicated in the trial court that he had employment beginning four days after the indigency hearing and that he had counsel handling a claim for damages for a permanent disability resulting from being struck by a train. This, therefore, is a case where the defendant admittedly has assets, has no dependents, and has no room-and-board expenses.

The test in such circumstances has been stated as follows:

"[I]n cases where defendant has some assets available and, like defendant here, has some funds * * *, indigency for such persons becomes a matter of degree within the sound discretion of the trial court. We find no abuse...