People v. Yepsen

• Decision Date: 25 July 1975
• Docket Number: No. 74--135,74--135
• Citation: 333 N.E.2d 565,30 Ill.App.3d 484
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas L. YEPSEN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 565

333 N.E.2d 565

30 Ill.App.3d 484

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas L. YEPSEN, Defendant-Appellant.

No. 74--135.

Appellate Court of Illinois, Third District.

July 25, 1975.

James Geis, Ottawa, for defendant-appellant.

Walter D. Boyle, State's Atty., of Putnam County, Hennepin, F. Stewart Merdian, I.S. A.A., App. Asst. Serv., Ottawa, for plaintiff-appellee.

ALLOY, Justice.

This is an appeal from a judgment of conviction of burglary in the Circuit Court of Putnam County, Illinois, which followed a negotiated plea of guilty. Defendant was sentenced to a term of not less than 2 nor more than 6 years in the Illinois State Penitentiary. The principal issue raised on appeal is the contention that it was an abuse of the trial court's discretion to sentence the defendant to the term of 2 to 6 years without first conducting a sentencing hearing. The hearing referred to is provided for in Section 1005--4--1, ch. 38, Ill.Rev.Stat., 1973.

From the record it appears that in the early morning hours of November 26, 1973, defendant burglarized a doctor's office in Granville, Illinois. He was apparently trying to procure several types of pills. A shoot-out with a Deputy Sheriff resulted when he was discovered and he was not apprehended at that time, but he was arrested later. On March 15, 1974, defendant notified the court that he wished to change his plea to guilty. He was permitted to do so, after being fully advised by the court of his rights and the consequences of his guilty plea. The guilty plea was entered pursuant to plea negotiations with the State. The court imposed the recommended sentence of 2 to 6 years.

Defendant signed a written waiver of a hearing in aggravation and mitigation (the equivalent of a sentencing hearing under the former Illinois law--ch. 38, § 1--7(g), Ill.Rev.Stat., 1971). In this case, additionally, the court asked defendant if he had any evidence to offer in mitigation. While defendant had nothing that he wished to say, his counsel did point out that no one was hurt in the burglary and that defendant was young. The court was then also advised of defendant's prior record by the State's Attorney which disclosed that defendant had one prior conviction (for escape).

It is the contention of defendant on appeal that a sentencing hearing is mandatory, if the sentence to be imposed exceeds the minimum term permissible under the Code provisions. (Ill.Rev.Stat., 1973, § 1005--8--1(c), ch. 38). Defendant contends that a higher than minimum sentence requires justification in the nature and circumstances of the offense or the history and character of defendant. Defendant argues that such factors cannot be brought to the court's attention without the aid of a sentencing hearing. Defendant points to the mandatory nature of the language in the provision referred to where it is provided '(a) after a determination of the guilt, a hearing shall be held to impose a sentence.' In the Council Commentary in Smith-Hurd Annotated Statutes, ch. 38, § 1005--4--1, relating to this particular section, it is asserted that a hearing is now mandatory, 'whether requested by defendant or not'.

The issue now before us is whether a defendant may affirmatively waive a sentencing hearing when a negotiated plea is entered, where the sentence to be imposed is higher than the specified minimum. We left this issue unanswered in the recent case of People v. Barto (1975), 27 Ill.App.3d 853, 327 N.E.2d 469 (1975). In that case we simply held that the mere fact that a negotiated plea is entered cannot serve to operate as a waiver of a sentencing hearing, absent a knowing waiver by defendant.

Since a defendant can waive such fundamental rights as trial by jury and confrontation of witnesses by a knowing and voluntary waiver (Ill.Rev.Stat., 1973, ch. 110A, § 402), we believe it cannot be said that he could not waive the sentencing hearing which involves a statutory right given to him. The sentencing provisions of the Unified Code of Corrections, including those which require the court to consider the nature of the offense and the history and character of defendant, are designed primarily for the benefit of one who has been convicted of a crime. Like other rules or procedures which are in existence for the benefit of the accused, however, these sentencing proceedings, clearly, can be waived by defendant, provided the defendant waives the sentencing hearing voluntarily and knowingly.

Defendant cites the case of People v. Matychowiak (5th Dist., 1974), 18 Ill.App.3d 739, 310 N.E.2d 394, as authority for his contention that a sentencing hearing cannot be waived where a higher than minimum sentence is to be imposed. While there is language in that case that, broadly construed, might support such argument, the case, in reality, stands for two basic propositions: (1) that the mere fact that defendant entered a plea of guilty does not alone vitiate the need for a sentencing hearing (18 Ill.App.3d at 741, 310 N.E.2d 394), and (2) that a higher than minimum sentence must be based on facts in the record pertaining to the nature and circumstances of the offense and the history and character of defendant which justifies such higher sentence (18 Ill.App.3d at 742, 310 N.E.2d 394). In any event, the same court which decided the Matychowiak case, later decided People v. Melvin, 27 Ill.App.3d 269, 273, 327 N.E.2d 139 (5th Dist., 1975), where the court clearly holds that a defendant may waive a sentencing hearing as part of a negotiated plea procedure.

The language in the Council Commentary in Smith-Hurd ...