People v. Ward

• Decision Date: 17 October 1986
• Docket Number: No. 61883,61883
• Parties: , 101 Ill.Dec. 834 The PEOPLE of the State of Illinois, Appellee, v. James WARD, Appellant.
• Court: Illinois Supreme Court

Page 422

499 N.E.2d 422

113 Ill.2d 516, 101 Ill.Dec. 834

The PEOPLE of the State of Illinois, Appellee, v. James WARD, Appellant.

No. 61883.

Supreme Court of Illinois.

Oct. 17, 1986.

Steven Clark, Deputy Defender, Jeffrey Walker, Asst. Appellate Defender, Office of the State Appellate Defender, Chicago, for appellant.

Neil F. Hartigan, Atty. Gen., Mark L. Rotert, Asst. Atty. Gen., Chicago, for appellee; Richard M. Daley, State's Atty. Co. of Cook, Chicago, Joan S. Cherry, Thomas V. Gainer, Jr., Kenneth T. McCurry, Asst. State's Attys., of counsel.

Justice RYAN delivered the opinion of the court:

James Ward, the defendant, and Robert Berry were charged by information in the circuit court of Cook County with the offense of burglary (Ill.Rev.Stat.1983, ch. 38, par. 19-1). Ward was also charged with attempted murder and armed violence. Following a bench trial, Berry was found not guilty. Ward was found guilty of burglary and not guilty of the other charges. Ward appealed to the appellate court contending he was not proved guilty beyond a reasonable doubt and that the circuit court erred in sentencing him to a term of six years. He contended that the sentence was imposed as a result of his protestation of innocence at the sentencing hearing. The appellate court affirmed both the defendant's conviction and his sentence in a Rule 23 order (87 Ill.2d R. 23). (131 Ill.App.3d 1163, 98 Ill.Dec. 201, 493 N.E.2d 1222.) We granted the defendant's petition for leave to appeal (103 Ill.2d R. 315).

The brief filed by the defendant in this court raises the same two issues that were raised in the appellate court. However, the petition for leave to appeal which the defendant filed in this court, and which we allowed, urged as the sole reason for granting the petition for leave to appeal the contention that the circuit court considered the defendant's protestation of innocence as an aggravating factor in imposing sentence. No question was raised in the petition for leave to appeal as to the sufficiency of the evidence to prove the defendant guilty beyond a reasonable doubt.

This court recently, in People v. Anderson (1986), 112 Ill.2d 39, 44, 96 Ill.Dec. 58, 490 N.E.2d 1263, refused to consider an issue that had not been raised in the petition for leave to appeal. In Anderson we pointed out that our Rule 315(b)(3) (87 Ill.2d R. 315(b)(3) ) requires that the petition for leave to appeal state the points relied on for reversal of the judgment of the appellate court. In Anderson the petition for leave to appeal had not raised any question concerning the appellate court's affirmance of the defendant's conviction, but raised only a question concerning the defendant's sentence. We declined to consider the validity of the conviction and considered only the issue raised in the petition for leave to appeal, that is, the propriety of the defendant's sentence. (People v. Anderson (1986), 112 Ill.2d 39, 44, 96 Ill.Dec. 58, 490 N.E.2d 1263.) Rule 315(b)(3), however, does not preclude the consideration of all issues not raised in a petition for leave to appeal. We have found authority for the consideration of such issues in Rule 366(a)(5) (87 Ill.2d R. 366(a)(5) ) when the facts of the case present good reason to do so. (See Genaust v. Illinois Power Co. (1976), 62 Ill.2d 456, 462, 343 N.E.2d 465; Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill.2d 143, 145, 281 N.E.2d 323.) In the case now before this court the validity of the defendant's conviction was considered and upheld by the appellate court. It appears that essentially the same questions that are now argued in this court concerning the defendant's conviction were raised in the appellate court. We therefore find that further review of these questions is unnecessary. See People v. Anderson (1986), 112 Ill.2d 39, 44, 96 Ill.Dec. 58, 490 N.E.2d 1263.

The defendant was charged with breaking into a Conrail mail car with several other men and removing therefrom bags of United States mail. The defendant and Berry were the only two individuals apprehended and prosecuted for the offense and, as noted earlier, following the bench trial, Berry was acquitted and the defendant was convicted. Following the defendant's conviction, a sentencing hearing was held which consisted primarily of a consideration of the contents of a presentence report and arguments in aggravation and mitigation. The prosecutor pointed out that the defendant had two previous felony convictions. One was for robbery in 1974, for which he was sentenced to the penitentiary for a term of from two to six years, while the other conviction was for armed robbery in 1978, for which the defendant was sentenced to the penitentiary for a term of from four to eight years. Based on these prior convictions, the prosecutor asked for an extended-term sentence and asked that the defendant be sentenced to 14 years, the maximum extended-term sentence allowed under the statute for such offense. (Ill.Rev.Stat.1983, ch. 38, par. 1005-8-2(a)(4).) Defense counsel, in response, asked that the defendant be given the minimum sentence for burglary, a Class 2 felony (Ill.Rev.Stat.1983, ch. 38, par. 19-1(b)), which is three years (Ill.Rev.Stat.1983, ch. 38, par. 1005-8-1(a)(5)).

Following argument of counsel and before imposing sentence, the circuit court gave the defendant an opportunity to make a statement in his own behalf, pursuant to section 5-4-1 of the Unified Code of Corrections. (Ill.Rev.Stat.1983, ch. 38, par. 1005-4-1(a)(5).) At that time the following colloquy occurred in court:

"THE COURT: Okay, and you, Mr. Ward, you have something you want to say?

THE DEFENDANT: I don't quite understand.

THE COURT: I haven't sentenced you yet, but you want to say anything regarding the mitigation? You can say anything before I pass sentence. You have a right, or you can remain silent.

THE DEFENDANT: I trust, Judge, your judgment. The statement that you made, but I feel that if the proper evidence would have been brought out in court yesterday, which I feel for some reason why the attorney didn't speak up on the matters which alleged my conviction, and not me being innocent, as I am.

THE COURT: Well, Mr. Ward, what you are saying now almost makes me want to sentence you to what the prosecutor is asking for, because you show no repentance when you stand before me; no contrition. You have an extensive criminal history, and you stand before this Court convicted of the charge; not of all the charges you were charged with, and your lawyer did a very, very fine job. She defended two of you. One person was found not guilty of all charges.

Whether or not your crime is against property or person, I am charged by the Constitution of this State to enforce and interpret the laws, and in hearing your case, you were given your right to a trial.

This court heard the facts, and the facts did give rise to your conviction of the burglary.

You could be sentenced to a minimum term of three years which your lawyer was asking for, and up to a maximum of fourteen years because of your past criminal history, meaning the extended term.

However, in view of the fact that your history of criminality, although extensive did not lead you to another conviction of a Class X felony, as you stand before this court, this Court does not feel that it should give you the extended term. However, I will reject the minimum term of three years and I'll double that. I'm going to make that six years, Illinois Department of Corrections, because you show no contrition, and I hope as you serve your sentence, that you will perhaps get some contrition and maybe smarten up. You are now, you are 30 years old. You are to be 30 years old. You're 29 years old."

Defendant now argues that the comment by the judge shows that he considered the defendant's protestation of innocence as an aggravating factor, which violated due process by placing a penalty on the defendant's exercise of his fifth amendment right to refuse to be a witness against himself, that is, to refuse to admit that he committed the offense. For this reason, the defendant argues that we should remand this cause to the circuit court for resentencing.

In People v. Perruquet (1977), 68 Ill.2d 149, 11 Ill.Dec. 274, 368 N.E.2d 882, this court summarized the role of a court of review in considering a challenge to a criminal sentence and discussed the deference that should be given to the trial court's determination as follows:

"We have frequently stated that the trial judge is normally in a better position to determine the punishment to be imposed than the courts of review. (People v. Butler (1976), 64 Ill.2d 485, 490 [1 Ill.Dec. 204, 356 N.E.2d 330]; People v. Burbank (1972), 53 Ill.2d 261, 275 ; People v. Taylor (1965), 33 Ill.2d 417, 424 .) A reasoned judgment as to the proper sentence to be imposed must be based upon the particular circumstances of each individual case. (People v. Bolyard (1975), 61 Ill.2d 583, 589 .) Such a judgment depends upon many factors, including the defendant's credibility, demeanor, general moral character, mentality, social environment, habits, and age. (People v. Dukett (1974), 56 Ill.2d 432, 452 .) The trial judge, in the course of the trial and the sentencing hearing, has an opportunity to consider these factors 'which is superior to that afforded by the cold record in this court.' (People v. Morgan (1974), 59 Ill.2d 276, 282 .) We continue to find that the trial court is normally the proper forum in which a suitable sentence is to be determined and the trial judge's decisions in regard to sentencing are entitled to great deference and weight. We therefore reaffirm our long-standing rule that absent an abuse of discretion by the trial court a sentence may not be altered upon review." (People v. Perruquet (1977), 68 Ill.2d 149, 154 [11 Ill.Dec. 274, 368 N.E.2d 882].)

See also People v. La Pointe (1981), 88 Ill.2d 482, 492, 59 Ill.Dec. 59, 431 N.E.2d 344.

This court has held, however,...