People v. Burrage

645 N.E.2d 455, 206 Ill. Dec. 450, 269 Ill. App. 3d 67
CourtAppellate Court of Illinois
DecidedDecember 27, 1994
Docket1—91—3560, 1—92—0009 cons.
StatusPublished
Cited by68 cases

This text of 645 N.E.2d 455 (People v. Burrage) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Burrage, 645 N.E.2d 455, 206 Ill. Dec. 450, 269 Ill. App. 3d 67 (Ill. Ct. App. 1994).

Opinions

JUSTICE McCORMICK

delivered the opinion of the court:

Defendants Rozene Burrage and Allen Redmond were arrested and charged with attempted first degree murder, armed violence and two counts of aggravated battery. After a joint bench trial, they were found guilty of attempted first degree murder and armed violence. The trial court sentenced Burrage to 22 years’ imprisonment and Redmond to 20 years’ imprisonment.

Both defendants appeal their convictions and sentences. Redmond contends that: (1) his conviction for attempted first degree murder must be vacated because (a) the attempted first degree murder offense is based on the same physical act as the armed violence offense, (b) attempted first degree murder is a lesser included offense of armed violence, (c) the trial court erred in finding him accountable for the actions of his codefendant Burrage, and (d) he did not possess the specific intent to murder the victim; and (2) he was not proven guilty of attempted first degree murder and armed violence beyond a reasonable doubt. Burrage contends that: (1) the judgment of conviction on the armed violence count must be vacated because it is based on the same physical act as the attempted first degree murder count; and (2) she was denied a fair sentencing hearing because the trial court considered improper factors in aggravation. Both defendants argue that they are entitled to a resentencing hearing because the trial court may have been influenced in determining their sentences by both convictions. For the reasons set forth below, we affirm in part and vacate in part.

On January 25, 1989, at approximately 9:30 p.m., Kimberly Hinton was in the kitchen of her apartment at 1533 West 51st Street, Chicago, Illinois. Kimberly and other adults were playing cards. After hearing gunshots ring out, Kimberly hurried to her living room to check on the safety of children who were watching television. Upon entering the living room, Kimberly observed her nephew, three-year-old Donte Hinton, sitting on a couch holding his head. Donte was bleeding from a gunshot wound. Subsequently, Donte required brain surgery for the removal of a bullet.

Solomon Hicks and Curtis Hicks both testified at trial that on January 25, 1989, shortly after 9:30 p.m., they were walking with a friend southbound on Justine Street towards 51st Street. They heard a gunshot and looked in the direction of the sound. They observed Burrage on the west side of Justine Street, about two or three houses south of an alley facing north. Burrage fired two or three shots in the direction of Andre, also known as Dre, who was standing in a stairwell of the 1533 West 51st Street building that faced Justine.

A few seconds later, Redmond drove an automobile out of an alley and stopped in the middle of Justine Street. Redmond positioned himself on the window sill of the driver’s side of the automobile and fired three shots toward the building. Thereafter, Redmond drove the automobile south on Justine, Burrage entered the automobile and Redmond drove away from the scene.

Redmond first argues that his conviction for attempted first degree murder must be vacated because it arises out of the same physical act as the offense of armed violence and it is a lesser included offense of armed violence. The State argues that Redmond waived the issue of multiple convictions for one act by failing to raise the issue before the sentencing court (see People v. Clark (1987), 160 Ill. App. 3d 877, 513 N.E.2d 937) and failing to seek reconsideration of bis sentence (see People v. Macke (1992), 224 Ill. App. 3d 815, 587 N.E.2d 1113). The State further argues that the trial court did not sentence Redmond for the armed violence offense; hence, there is no final judgment on that offense and there can be no appeal. (See People v. Flores (1989), 128 Ill. 2d 66, 538 N.E.2d 481, cert. denied (1990), 497 U.S. 1031, 111 L. Ed. 2d 799, 110 S. Ct. 3291.) Lastly, the State argues that attempted first degree murder is not a lesser included offense of armed violence.

Notwithstanding Redmond’s failure to raise these issues at his sentencing hearing, a reviewing court may review an issue not properly preserved if it involves an error affecting a substantial right of the defendant. (People v. Enoch (1988), 122 Ill. 2d 176, 199, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Sentencing issues are regarded by courts as matters affecting a defendant’s substantial rights and, thus, have been excepted from the doctrine of waiver. (People v. Lindsay (1993), 247 Ill. App. 3d 518, 527, 617 N.E.2d 389, appeal denied (1993), 153 Ill. 2d 565, 624 N.E. 2d 812.) We further observe that prior to the supreme court’s decision in People v. Lewis (1994), 158 Ill. 2d 386, 634 N.E.2d 717, the courts in this district were divided on the issue of whether a defendant’s failure to file a post-sentencing motion pursuant to section 5 — 8—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(c) (now 730 ILCS 5/5 — 8—1(c) (West 1992)) resulted in a waiver of the alleged error for appeal purposes. Lewis, however, overruled People v. Macke (1992), 224 Ill. App. 3d 815, 587 N.E.2d 1113, relied on by the State in support of its waiver argument; Lewis held that the statutory provision giving defendants 30 days to move for reconsideration of a sentence is permissive, rather than mandatory, and should not be viewed as a prerequisite to an appeal of matters relating to sentencing. (Lewis, 158 Ill. 2d at 390.) Accordingly, Redmond cannot be said to have waived this issue.

We next observe that the parties’ confusion over whether the trial court entered final judgment (including the imposition of a sentence) on the finding of guilty on Redmond’s armed violence offense arises from the court’s rulings at trial and the sentencing hearing. Specifically, at trial the judge stated: "I find both defendants were guilty of the charges of attempt murder and also armed violence and I will enter judgment on Count[s] One [attempted first degree murder] and Two [armed violence]. Counts Three and Four [aggravated battery] will merge with Counts One and Two.” At the sentencing hearing the court stated only that it was sentencing Bur-rage and Redmond to 22 and 20 years’ imprisonment, respectively; the court did not specify at the hearing or in the common law record half-sheet entries as to which offense the sentence was imposed. However, as argued by the State, the trial court’s order of sentence and commitment clearly indicates that Redmond was sentenced only on the attempted first degree murder offense. Nevertheless, the fact that Redmond was not sentenced on the armed violence offense does not preclude the appeal of that conviction. Generally, absent the imposition of a sentence, a judgment of guilty in a criminal case cannot be appealed. An exception to this rule exists where, as in the case at bar, there is a proper appeal from the final judgment of another offense. Under these circumstances, a reviewing court may also review an appealed conviction of an offense for which no sentence was imposed. People v. Frantz (1986), 150 Ill. App. 3d 296, 300, 501 N.E.2d 966.

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Cite This Page — Counsel Stack

Bluebook (online)
645 N.E.2d 455, 206 Ill. Dec. 450, 269 Ill. App. 3d 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-burrage-illappct-1994.