Opinion
No. 54765 Judgment affirmed.
October 20, 1971.
APPEAL from the Circuit Court of Cook County; the Hon. ROBERT J. COLLINS, Judge, presiding.
Gerald W. Getty, Public Defender, of Chicago, (James N. Gramenos, of Defender Project, of counsel,) for appellant.
Edward V. Hanrahan, State's Attorney, of Chicago, (Robert A. Novelle, and Terrence J. Mahoney, Assistant State's Attorneys, of counsel,) for the People.
The defendant, Roosevelt Jackson, was charged in a two-count indictment with the offenses of rape and indecent liberties with a child. He entered a guilty plea to the charge of indecent liberties with a child, which was accepted by the trial court, and after a hearing in aggravation and mitigation he was sentenced to serve not less than four nor more than four years and one day in the Illinois State Penitentiary. The rape charge was dismissed on motion of the State.
The defendant contends on appeal (1) that his waiver of jury trial and his entry of a guilty plea were not voluntarily and understandingly made, (2) that he was deprived of due process because the hearing in mitigation was inadequate and (3) that the sentence imposed was excessive.
We shall first review the proceedings in the circuit court in order to place the contentions in proper context. The defendant was arraigned on November 20, 1968, and after the appointment of the Public Defender as his counsel, he entered a plea of not guilty. The Public Defender continued to represent him until February 27, 1969, when leave was given to Richard L. Vaughns, an attorney hired by the defendant's mother, to file an appearance and to substitute as the defendant's counsel. The cause was continued from time to time and set for trial on September 8, 1969. When the matter was first called for trial on that date, it was passed over so that the defendant would have an opportunity to confer with his mother. The case was then recalled and held for trial. As the cause was about to proceed to trial, the following colloquy occurred:
"THE COURT: Mr. Vaughns, it is now twelve o'clock. You have had an opportunity to confer with Mr. Jackson and his mother has talked to him. What is the situation?
MR. VAUGHNS: Yes, Your Honor. May it please the Court, at this time in Indictment 68-3853, in count 2 of said indictment, the charge of indecent liberties with a child, at this time the defendant wishes to withdraw his plea of not guilty and waive a jury trial and to enter a plea with reference to Count 2 of said indictment.
THE COURT: Have you talked to this defendant about the consequences of his plea, Mr. Vaughns?
MR. VAUGHNS: Yes, I have, Your Honor. I have advised the defendant that he can be upon his plea could be sentenced to an indeterminate term of not less than four years by Your Honor to the Illinois State Penitentiary.
THE COURT: Mr. Jackson, your attorney, Mr. Vaughns, advises me that you wish to change your plea of not guilty to the second count of this indictment which charges you with the crime of indecent liberties with a child to a plea of guilty, is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: When you plead guilty, Mr. Jackson, you automatically waive your right to a jury trial, you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Before I will accept your plea of guilty it is my duty to advise you that on your plea of guilty to the second count of this indictment which as I have said charges you with the crime of indecent liberties with a child you may be sent to the penitentiary for a term of years. It may be any number of years, not less than four and there is no maximum number —
MR. ELSENER: I think there is, 20.
THE COURT: I'm looking for it.
MR. ELSENER: Section 11-4. The top of the second column there.
THE COURT: Oh, yes. It may be any number of years, not less than four and not more than twenty or any span of years within that period. Knowing that do you still persist in your plea of guilty?
THE DEFENDANT: Yes, sir.
THE COURT: Let the record show that the defendant has been advised of the consequences of his plea of guilty to this indictment and after being so advised persists in his plea. I should have said to the second count of this indictment. The plea, therefore, will be accepted. Mr. State's Attorney, will you please advise me what the facts are in connection with the second count of this indictment."
The prosecutor then narrated the factual circumstances of the case which were stipulated to by the defense counsel. On October 22, 1968, at approximately 3:15 P.M., the defendant, who was then aged 19, took 13 year old Helen Thurman to an apartment where he had sexual intercourse with her. After Miss Thurman was permitted to leave, she went home and made an immediate complaint to her mother who called the police. The defendant was arrested on the following day and "in the course of a discussion with the police officers admitted his act with the girl."
A finding of guilty was then entered, and sentence imposed after a hearing in aggravation and mitigation. On defendant's request, the mittimus was stayed for ten days.
The defendant appeared in court ten days later, and at that time he expressed a desire to exercise his rights of appeal. The Court, after determining that he was indigent appointed the Public Defender to represent him in further proceedings and stayed the mittimus again. Four days later, the defendant once again appeared in court; and after it was established that he wanted to file a notice of appeal, the following colloquy occurred:
"THE COURT: I want to be sure of one thing. As I understand it, Mr. Jackson does not want a trial. He's not asking me to vacate my finding. I'm not saying that I would.
MR. REYNOLDS [Assistant Public Defender]: Why don't we ask him?
THE COURT: Let's ask him. Do you want a trial?
THE DEFENDANT: Sir, I just want to appeal on this time that I got because I feel it's too much time for a crime I didn't commit even though I did plead guilty to it.
THE COURT: You have a right to appeal, but, what I want to be sure is: you don't want a trial, am I correct?
THE DEFENDANT: Right."
The defendant contends that his waiver of jury trial and his entry of a guilty plea were not voluntarily and understandingly made, and he argues that "The trial judge in his remarks to the defendant neither attempted to make efforts to insure that the defendant was understandingly pleading guilty because he was guilty nor did the trial judge insure that this defendant actually knew what a jury trial was and the function of the fact finding process."
• 1 The defendant changed his plea from not guilty to guilty only after he had conferred with his retained attorney and his mother. He was informed by the trial court of the nature of the charges against him and of the consequences thereof if found guilty as required by Supreme Court Rule 401(b) (Ill. Rev. Stat., 1969, ch. 110A par. 401(b)) which was then in effect, and in addition he was informed that the entry of a guilty plea automatically waived the right to trial by jury. The defendant, after receiving these admonitions, nevertheless persisted in his plea. In view of the record before us we must conclude that the defendant was fully advised of his rights and the consequences of a finding of guilty and that he entered the guilty plea both voluntarily and knowingly. See: People v. Mendoza, 48 Ill.2d 371, 270 N.E.2d 30, and People v. McCullough, 45 Ill.2d 305, 259 N.E.2d 19.
• 2, 3 The defendant next contends that the hearing in mitigation was inadequate because there was a failure to seek information concerning his life, moral character, family, or occupational history, and that as a result the trial court could not determine whether he was eligible for probation. Section 1-7(g) of the Criminal Code of 1961 (Ill. Rev. Stat. 1969, ch. 38, par. 1-7(g)) provides:
"For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation, and criminal record of the offender and may consider such evidence in aggravation or mitigation of the offense."
While it is mandatory under Section 1-7(g) that a hearing in aggravation and mitigation be conducted if requested by the defendant ( People v. Sessions, 95 Ill. App.2d 17, 238 N.E.2d 94), section 1-7(g) does not require either that the defendant or his attorney present evidence in mitigation or that the trial court seek or consider information in addition to that presented by the State or the defendant.
• 4 The defendant plead guilty to the offense of indecent liberties with a child which under section 11-4(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1967, ch. 38, par. 11-4(c)) is punishable by imprisonment in the penitentiary from four to twenty years. The record shows that the trial court conducted a hearing in aggravation and mitigation. The State, after presenting various matters in aggravation including two earlier convictions recommended a sentence of four years to four years and one day (i.e. the minimum to the minimum plus one day). Defense counsel concurred in this recommendation. Before imposing sentence, the trial court asked whether there was anything that the defendant wanted to say and he replied, "No." The defendant was afforded an opportunity to present evidence in mitigation, but rather than presenting such evidence he chose to join in the State's recommendation of the minimum possible sentence for the crime for which he plead guilty. The defendant having failed to present evidence cannot now complain that the hearing was inadequate.
The defendant cites People v. Smith, 62 Ill. App.2d 73, 210 N.E.2d 574, in support of his argument that it is necessary for the trial court to obtain information about the defendant in all cases. This case is inapplicable on the facts. The Court held in Smith that the trial court in accordance with section 1-7(g) must conduct a hearing in mitigation when such a hearing is requested. The Court, however, specifically recognized that the burden of introducing evidence in mitigation was placed upon the defendant, and stated 62 Ill. App.2d at 79-80, 210 N.E.2d at 577:
"If a defendant has a clean record and a good reputation and if there are circumstances which mitigate or explain his involvement in the crime for which he stands convicted, he has the privilege to bring these factors to the attention of the trial court and, through the record, to the reviewing court if an appeal is taken. It should not be the responsibility of the trial court to initiate the inquiry or to insert material into the record so that a defendant may possibly benefit from it on appeal."
It is finally contended that the sentence imposed was excessive. The defendant, as was pointed out above, was given the minimum possible sentence that could be imposed after pleading guilty to the offense of indecent liberties with a child; however, he urges in view of his youth either (1) that we reduce the degree of the offense from indecent liberties with a child which is punishable by imprisonment for a minimum of four years to the offense of contributing to the sexual delinquency of a minor (Ill. Rev. Stat. 1967, ch. 38, par. 11-5) which is punishable by fine and imprisonment for a maximum of one year or (2) that he be placed on probation.
• 5 The principal thrust of the defendant's contention is that the four-year minimum sentence prescribed in section 11-4(c) of the Criminal Code of 1961 is irrational when applied to this case, inconsistent with the minimum sentences for other offenses, and ineffective as a deterrent in situations such as that presented in the case at bar. It is argued that "The four year penitentiary sentence should be employed only for persistent, professional or mentally abnormal criminals or others presenting exceptional risk to the safety of the public." It is further argued that "In a post-Kinsey and post-Johnson and Masters age, studies recognize that the criminal law is largely ineffective in stopping teenagers from engaging in these public nuisance activities which result in young men being housed in Joliet, when they should be establishing working backgrounds to sustain themselves in the community for the remainder of their lives." We cannot agree that the punishment set forth by the General Assembly should be applied only in the limited fashion suggested by the defendant or that the conduct evidence in this case can be characterized merely as a "public nuisance activity."
• 6-8 Reviewing courts are empowered under Supreme Court Rule 615(b) (Ill. Rev. Stat., 1969 ch. 110A, par. 615(b)) to reduce the sentence imposed or to reduce the degree of the offense of which the defendant was convicted. This power is exercised with circumspection and caution and is as stated in People v. Ramey, 115 Ill. App.2d 431, at 438, 253 N.E.2d 688 at 692:
"When a sentence is imposed within the limits prescribed by statute, it will not be disturbed on review unless it clearly appears the punishment is a departure from fundamental law, its spirit and purpose; or, that the punishment is manifestly in excess of the provision of Section 11 of Article II of the Illinois Constitution, requiring that all penalties be proportioned to the nature of the offense."
The minimum punishment imposed in the case at bar was clearly not arbitrary or oppressive, and does not constitute a substantial departure from the spirit and purpose of the fundamental law.
For the reasons set forth above, the judgment of the circuit court is affirmed.
Judgment affirmed.
ADESKO, P.J., and DIERINGER, J., concur.