People v. Perruquet

• Decision Date: 25 August 1976
• Docket Number: No. 74--416,74--416
• Citation: 41 Ill.App.3d 543,355 N.E.2d 112
• Court: United States Appellate Court of Illinois
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph PERRUQUET, Defendant-Appellant.

Page 112

355 N.E.2d 112

41 Ill.App.3d 543

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph PERRUQUET, Defendant-Appellant.

No. 74--416.

Appellate Court of Illinois, Fifth District.

Aug. 25, 1976.

Stephen P. Hurley, Deputy State Appellate Defender, Fifth Judicial Dist., Thomas F. Sullivan, Asst. Public Defender, Mount Vernon, for defendant-appellant.

Robert H. Howerton, Williamson County State's Atty., Morion, for plaintiff-appellee.

GEORGE J. MORAN, Justice:

Defendant Joseph Perruquet appeals from the judgment of the circuit court of Williamson County sentencing him to a minimum of one year and a maximum of 20 years upon his plea of guilty to the crime of burglary.

The sole question for review is whether the trial court imposed an excessive sentence on the defendant.

The maximum sentence of 20 years for the crime of burglary is the highest sentence the trial court could have imposed for this Class 2 felony. (Ill.Rev.Stat.1973, ch. 38, §§ 19--1(b) and 1005--8--1).

An indeterminate sentence is a definite sentence for the maximum term provided by law for which the sentence is imposed. The People ex rel. Castle v. Spivey, 10 Ill.2d 586, 141 N.E.2d 321; The People v. Fowler, 14 Ill.2d 252, 151 N.E.2d 324.

The above law is clearly explained in 24B C.J.S. Criminal Law § 1993:

'An indeterminate sentence differs from a determinate sentence only in that the former imposes a minimum term; and an indeterminate sentence is one for the maximum period, subject to termination by the parole board or other agency at any time after service of the minimum period. Under an indeterminate sentence accused remains confined for the period defined by law, less 'good time,' or unless some duly and legally constituted agency, such as the board of parole intervenes.

The only time at which the prisoner may say that his debt to the state is satisfied as of right is at the expiration of the maximum period, less such good conduct time as may be allowed, or, as it is sometimes stated, the maximum term of punishment can be satisfied only by actual complete service unless remitted by some legal authority.

The 'maximum sentence' in an indeterminate sentence has been held to be the real sentence, whereas the 'minimum sentence' is merely a period at which, and not before, as a matter of grace and not of right, the prisoner may be allowed to serve the balance of his sentence outside of confinement.'

A footnote to this language points out on page 614 of the text that the

'(m)inimum sentence is merely administrative notice by court to executive department, calling attention to legislative policy that when such sentence is about to expire, question of grace and mercy should be considered and propriety of granting qualified pardon determined.'

The Illinois constitution provides that 'all penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.' Ill.Const. 1970 art. I, § 11. Since the maximum sentence is the 'real sentence,' the maximum sentence should be directly related to the nature of the offense.

Was the sentence of 20 years excessive in this case?

Prior to accepting the defendant's plea, the trial court explained the possible sentence the defendant could receive in the following language:

'All right, now, if you were found guilty of having violated this law you would be subject to be imprisoned for a term in the penitentiary for not less than one year nor more than 20 years. And in addition you could be fined any amount of money not to exceed $10,000. Or both fine and imprisonment.

So, the Court, if you were found guilty would have to set a penalty between one and 20, would have to fix a minimum and a maximum. And normally the maximum would be three times greater than the minimum. So you could receive a term of imprisonment of six years and six months to 20 years, six to 18, five to 15, four to 12 or one to three or three to nine. And that means if a person is sentenced he would have to serve the minimum with time off for good behavior and then he would be eligible for what we call parole. And if the Parole Board decided to let him out they could do so. If not, keep him in for the maximum.

In other words, if a term is three to nine the person would have to serve three years less time off for good behavior, which would be about two years, and he would be eligible for parole if the Parole Board would let him out, as long as he didn't violate any laws he would he all right. But if he violated any laws he would have to serve the maximum. Which would be nine years. So, any questions about the possible penalty?'

After being properly advised by the trial court of his right to an attorney, the defendant waived that right. The trial court then elicited from the defendant that he entered the building of a person named Ted Brown, removed or attempted to remove approximately 52 cartons of cigarettes, two new tires, and a battery. He and two accomplices were caught in the act.

After accepting the defendant's plea of guilty, the case was continued for a sentencing hearing. The defendant's family retained private counsel for the sentencing hearing. The state presented no evidence in aggravation and did not make a recommendation. The defendant and his wife testified in mitigation. The next day the trial court sentenced the defendant to a minimum of one year and a maximum of 20 years in the penitentiary, stating at the time '* * * I am going to set a maximum to where when you do come out of the penitentiary that either you are going to obey the law, on your own or else they are going to take you and virtually throw the key away.'

The summary of the presentence report submitted to the trial court is as follows:

'Joseph Perruquet was born September 3, 1952 in DuQuoin (Christopher) Illinois. He is approximately 5 9 tall, 150 pounds, has brown hair and hazel eyes. He has progressed through eight years of school and indicates that he doesn't know how to read and write. He does have records of attendance, according to him, in parochial (Catholic) school in Herrin, Illinois, St. Charles with the Illinois Youth Commission, and Washington Junior High in Joliet, Illinois. Joe was adjudicated as a delinquent in Williamson County in October 1966 and bounced around in their program until approximately August 1970 when he was discharged of both guardianship and custodianship. On August 19, 1970, Joe was given probation for one year for theft in Will County, Joliet, Illinois. There were also numerous complaints of other activity in the Joliet area, but apparently no criminal charges or dispositions.

In 1972 Joe moved back to Royalton, his home territory, and apparently was working until the company he was employed by (DuQuoin Packing Company) went on strike. From what I can determine from information received and included with this report, Joe hasn't appeared before the court since 1971. He currently has a case pending in Franklin County in which he is to appear September 11, 1974, and this case, 74--CF--78, in Williamson County.

Joseph is married, has one daughter approximately 20 months old, and another child (male) born September 5, 1974, he is presently at the Blackwell Conservation Corps at Laona, Wisconsin. He has finished his preliminary to training in the heavy equipment operators program and apparently will be able to enter depending on the decision of the Court.'

The defendant testified at the sentencing hearing that he was 21 years of age, that he went to the 8th grade in school, he didn't go any farther in school because he couldn't read; he still could not read, but he could sign his name. He was presently in the Job Corps training program, training to be a heavy equipment operator. Prior to entering the Job Corps, he had a job at a DuQuoin packing company and had worked there for two years without any trouble until the employees went on strike. When asked for an explanation of why he had committed the burglary, he said, 'I don't know, I needed some money. I couldn't find a job or nuthin'. We just went and did it, just broke in for some money.'

While the sole issue on appeal is whether the 20-year maximum is excessive, this case raises serious questions regarding the discretion of sentencing judges and the scope of appellate review of sentencing decisions. Proper resolution of the question on appeal, therefore, requires a...