People v. Viens
| Decision Date | 20 October 1982 |
| Docket Number | No. 81-83,81-83 |
| Citation | 441 N.E.2d 660,65 Ill.Dec. 525,109 Ill.App.3d 1017 |
| Parties | , 65 Ill.Dec. 525 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Edward VIENS, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
G. Joseph Weller, John R. Wimmer, Asst. State Appellate Defenders, Elgin, for defendant-appellant.
J. Michael Fitzsimmons, State's Atty., Wheaton, Phyllis J. Perko, Marshall Stevens, State's Attys. Appellate Service Commission, Elgin, for plaintiff-appellee.
The defendant, Edward Viens, was charged in a 2-count indictment with the crimes of aggravated kidnapping with a deadly weapon (Ill.Rev.Stat.1979, ch. 38, par. 10-2(a)(5)), and armed violence (Ill.Rev.Stat.1979, ch. 38, par. 33A-2). He proceeded to a bench trial in the circuit court of DuPage County. During trial, the defendant entered and the court accepted a plea of guilty to the charge of aggravated kidnapping. Trial continued on the charge of armed violence and the defendant was convicted of this offense. He was sentenced to serve 30 years for the kidnapping and 60 years for the armed violence conviction, these terms to run concurrently.
On the morning of February 1, 1980, Janice Klank was on her way to work when her car stalled about 30 feet from a frontage road in Lombard, Illinois. As she tried to re-start the car, a brown car pulled up next to her. An individual, later identified as the defendant, got out of the brown car and offered Klank a ride. She declined, saying that her boyfriend worked down the street at National Controls and that she would go there. The defendant offered her a ride and after some hesitation, Klank accepted.
She got into defendant's car and as they were driving to National Controls, she heard the passenger door lock. Viens drove past National Controls. Klank testified that he pulled out a knife, opened it and held it about 12 inches away from her. She tried to unlock the car door but the lock came off in her hand. Klank testified that defendant told her to move over and put on the seat belt in the middle of the front seat. She did so. Defendant told Klank that he would not kill or harm her if she did as he told her.
Defendant drove onto a frontage road and stopped the car. At that time, he took out a bag of plastic restraints described by Klank as being similar to garbage bag ties. Defendant used these to tie her wrists together underneath her legs. Sometime later when Klank told him she was uncomfortable and wanted a cigarette, Viens removed the restraints.
Viens took Klank to an apartment located at 902 Ridge Square in Elk Grove Village. Viens once again restrained Klank and took her into the apartment. There, he removed the restraints and allowed her to call her mother and offered her food. Viens then told Klank that he was holding her as hostage to gain the release of his girlfriend who was in DuPage County Jail. Shortly thereafter he restrained her again, put her in the car and drove to defendant's place of employment. Defendant removed Klank's restraints and they left without entering the building. The next stop was a Clark station where defendant allowed Klank to buy cigarettes. Klank testified that defendant held a knife on her while they were at the gas station.
They returned to the defendant's apartment. Sometime after their arrival, defendant told Klank to go into the bedroom and lie face down on the bed. He then used the plastic restraints to tie her hands and feet to the bedposts. Later, he expressed concern that the restraints were painful, removed them, and retied Klank in a different position. He left the bedroom returning about half an hour later, and removed the restraints again. Klank and Viens both sat down in the living room. It was about 1:50 p.m.
About 40 minutes later Viens and Klank got back into the car and drove to defendant's place of employment. He restrained her again and went to see if anyone was in the building. Subsequently, he took Klank into the building's bathroom where he tied her to a shower railing.
Klank asked Viens to call Charlie Bruttie, her girlfriend, to tell her the location of her disabled car. She gave Viens Bruttie's name and office number, which he wrote down. A paper with the name and number was admitted as People's Exhibit 4. Viens told Klank he was unable to reach Bruttie. Viens told Klank that he would leave soon to make a phone call to the DuPage County Jail. He then made her go into the shower room and assume various positions so he could determine how to tie her up. He finally had her sit on a bucket, tied her wrists behind her back and tied her ankles to the bucket. He then placed a restraint around her neck and connected this to a restraint which was attached to the shower railing. He gagged the victim using two hankerchiefs. He then turned off the lights, shut the door and left. Klank testified that she heard a car start.
Viens returned after about 20 minutes, clipped the restraint which was attached to the shower railing and the ones on Klank's wrists and ankles, but left the restraint around her neck. He told her to turn around so that he could remove that restraint. When she had turned he told her to take her top off. Klank reminded him that he had said he would not hurt her. He repeated his demand and tightened the restraint around her neck. Klank complied.
Viens then told her to remove her pants and underpants. She again stated that he'd said he would not hurt her. Defendant replied that he had lied to Klank all along. Klank removed her pants and underwear. Defendant tied her hands behind her back, tied her ankles together and sat her on the floor. He then left the room. While he was gone, Klank broke one of the ankle restraints.
When he returned and noticed the broken restraint, defendant became angry. He retied Klank, this time with her wrists behind her back and secured to her ankles.
Defendant left the room, and Klank managed to break her restraints. She left the building clad only in her jacket. Defendant was in his car and when he saw Klank leave the building he drove toward her, missing her by about a foot.
Klank ran toward a railroad track. The defendant ran after her and caught her about 150 feet from the building. Viens took her back to the office, told her to get dressed, and then left the building. While he was outside, Klank called the operator and asked for help. She hung up when defendant returned. Within minutes there was a call for Klank. Defendant allowed Klank to take the call, warning her not to give anything away. The caller identified himself to Klank as a police officer and she replied, "Oh, what's the use, I'm about to be killed or raped." At this, the defendant hung up the phone. The phone rang again, distracting defendant, and Klank was able to escape to a loading dock where several men escorted her into a building and called the police.
During trial, defendant pleaded guilty to aggravated kidnapping and moved to dismiss the armed violence count as a lesser included offense. The court stated that it would not accept the guilty plea if it was conditioned upon the dismissal of the armed violence. Defense counsel stated that it was not. The court admonished defendant and accepted the plea.
Trial continued on the armed violence count. Evidence was heard and the State submitted the transcript of the defendant's plea of guilty to aggravated kidnapping as a judicial admission.
The defendant was found guilty of armed violence and a sentencing hearing was held. The court stated that it found no factors in mitigation. In aggravation the court noted that defendant's conduct caused or threatened serious harm, that defendant had a history of prior delinquency or criminal activity, and that the sentence was necessary to deter others from committing the same crime. The court further found that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty and sentenced defendant to the maximum extended term for each offense.
Subsequently, defendant asked the court to appoint a different attorney to represent him. The court did so, and the newly appointed attorney filed a "Post-Trial Motion and Motion to Withdraw Guilty Plea." After a hearing wherein defendant testified that prior counsel had spoken to defendant only twice during the pre-trial period, that he had failed to contact the attendant at the Clark station, and that he had misinformed defendant as to the effect of his guilty plea, the motion was denied. This appeal resulted.
The State and defendant are in agreement that one of the convictions in this case must be vacated pursuant to the supreme court's opinion in People v. King (1977), 66 Ill.2d 551, 6 Ill.Dec. 891, 363 N.E.2d 838, , that multiple convictions cannot stand where more than one offense is carved from a single physical act. They also agree on the general rule that the conviction for the more serious of the offense is to be upheld. (People v. King; People v. Walton (1981), 94 Ill.App.3d 903, 50 Ill.Dec. 387, 419 N.E.2d 495.) The controversy centers upon which of the two offenses is the more serious. The defendant claims that aggravated kidnapping is the more serious offense. The State disagrees.
Our supreme court recently considered this problem in People v. Donaldson (1982), 91 Ill.2d 164, 61 Ill.Dec. 780, 435 N.E.2d 477, where the court considered multiple convictions of (1) aggravated battery causing great bodily harm; (2) aggravated battery causing permanent disfigurement; (3) aggravated battery using a deadly weapon; and (4) armed violence. The armed violence charge was predicated upon aggravated battery causing great bodily harm. The supreme court noted that the predicate felony was a "necessarily included offense" of armed violence and holding that sentence should have been imposed only on the more serious offense, vacated the aggravated battery. We find the rule in...
To continue reading
Request your trial
-
People v. Hartzol
...916, 77 Ill.Dec. 415, 460 N.E.2d 471); use of a series of actions to terrorize and endanger the victim (People v. Viens (1982), 109 Ill.App.3d 1017, 65 Ill.Dec. 525, 441 N.E.2d 660); and shooting the victim with a shotgun at close range (People v. Buford, 178 Ill.App.3d at 340, 127 Ill.Dec.......
-
People v. Del Percio
...426, 444 N.E.2d 662 (attempted armed robbery can serve as the predicate offense for armed violence); People v. Viens (1982), 109 Ill.App.3d 1017, 65 Ill.Dec. 525, 441 N.E.2d 660 (aggravated kidnaping with a deadly weapon can serve as the predicate offense for armed violence); People v. Good......
-
People v. Kennedy
...165 Ill.Dec. 112, 584 N.E.2d 291); use of a series of actions to terrorize and endanger the victim (People v. Viens, 109 Ill.App.3d 1017, 1028, 65 Ill.Dec. 525, 441 N.E.2d 660 (1982)); conduct devoid of mercy or compassion (La Pointe, 88 Ill.2d at 501, 59 Ill.Dec. 59, 431 N.E.2d 344); the a......
-
People v. Rangel
...without such a motion does not demonstrate the prejudice required to establish ineffective assistance. See People v. Viens (1982), 109 Ill.App.3d 1017, 65 Ill.Dec. 525, 441 N.E.2d 660. The same result obtains with regard to defendant's general contention that counsel failed to object to the......