People v. Compton

550 N.E.2d 640, 193 Ill. App. 3d 896, 140 Ill. Dec. 755, 1990 Ill. App. LEXIS 130
CourtAppellate Court of Illinois
DecidedFebruary 1, 1990
Docket4-89-0408
StatusPublished
Cited by22 cases

This text of 550 N.E.2d 640 (People v. Compton) 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. Compton, 550 N.E.2d 640, 193 Ill. App. 3d 896, 140 Ill. Dec. 755, 1990 Ill. App. LEXIS 130 (Ill. Ct. App. 1990).

Opinion

JUSTICE SPITZ

delivered the opinion of the court:

Defendant Compton (defendant) and Kim Parse were charged by information with forgery and both pleaded guilty. Parse is not involved in this appeal. The trial court sentenced defendant to five years’ imprisonment and later denied his motion to reconsider the sentence and for leave to withdraw his guilty plea. Defendant appeals.

On November 29, 1988, defendant and Kim Parse were charged with forgery after they took a check belonging to Amy McLain, forged her endorsement, and cashed the check. Defendant and Parse originally pleaded not guilty to the charge, but later withdrew their pleas and entered guilty pleas on March 6, 1988. Pursuant to the plea agreement, the court sentenced Parse to a two-year term of probation, 100 hours’ public service work, $5-a-month probation fee, restitution in the amount of $170.40, and a fine and court costs equal to the bond posted. The court also directed the probation officer to prepare a presentence investigation report for defendant.

On April 17, 1989, the trial court sentenced defendant to five years’ imprisonment. The court failed to give defendant credit for time spent in custody prior to the conviction. On May 8, 1989, the court denied defendant’s motion to reconsider sentence and for leave to withdraw his guilty plea.

On appeal, defendant argues that (1) his sentence must be vacated and the cause remanded for a new sentencing hearing; (2) his sentence was excessive and should be reduced; and (3) he is entitled to one day of sentence credit. Defendant first argues that his sentence must be vacated and the cause remanded for a new sentencing hearing. We grant defendant a one-day sentence credit, but otherwise affirm the trial court.

Defendant believes two errors were committed during sentencing: (1) the court improperly considered defendant to be eligible for an extended-term sentence when sentencing him to a nonextended term; and (2) the State represented to the court just prior to sentencing that defendant was the instigator of the offense.

We find defendant’s argument concerning the court’s consideration of an extended-term sentence to be waived. To preserve a question of trial error for review, there must be both a trial objection and a written post-trial motion raising the issue. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) There was no objection at trial when the court made its statement or when it imposed the sentence, and the issue was not included in the written post-trial motion presented for appeal. Furthermore, this is not an instance where the plain error rule applies. The alleged error is waived.

We do note, however, that defendant’s contention is without merit. Defendant points to a portion of the trial court’s comments prior to sentencing, which contains the following:

“But as I understand the law and the record, he would, under these circumstances be eligible for a sentence of up to ten years in the penitentiary.”

The trial court was alluding to the fact that defendant was eligible for an extended term. Later, at the motion to reconsider defendant’s sentence, the trial court stated: Once again, the trial court alluded to the fact that defendant was eligible for an extended-term sentence. Defendant argues that because the court found he had a prior juvenile and criminal history, and discussed the possibility of an extended-term sentence, he is entitled to a new sentencing hearing.

“Isn’t this a case where the extended term applies? So, he didn’t receive the maximum. He received the maximum without extended term.”

Defendant relies on People v. Killen (1982), 106 Ill. App. 3d 65, 435 N.E.2d 789, in demanding a new sentencing hearing. In Kitten, the trial court made an express finding that the offense involved was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. This finding is a factor to be considered in imposing an extended sentence. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5— 3.2(b)(2).) However, the trial court in Kitten failed to impose an extended-term sentence. Instead, the court used the finding of exceptionally brutal or heinous behavior to impose the maximum nonextended sentence for the offense. We held in Kitten that the trial court’s approach short-circuited the sentencing procedures set forth in the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)(2)). We further held in Kitten that a court may only consider a finding under section 5—5—3.2(b)(2) of the Code (exceptionally brutal or heinous behavior of wanton cruelty) in imposing an extended-term sentence and that such finding may not be used to impose the maximum sentence allowed. This prohibition was to prevent a trial court from imposing a maximum term without considering factors in aggravation and mitigation. Killen, 106 Ill. App. 3d 65, 435 N.E.2d 789.

Defendant maintains that, like the court in Killen, the trial court here used an extended-term factor to impose the maximum sentence. Defendant is wrong in his assertion. Furthermore, we now overrule Kitten.

During the sentencing hearing, the trial court first considered factors in aggravation and mitigation. Factors in aggravation included defendant’s adjudication as a delinquent on an attempt (burglary) charge, and his conviction as an adult of burglary and residential burglary. Only after the court considered factors in aggravation and mitigation did it mention the possibility of an extended-term sentence. Defendant, however, argues that the court’s finding of a prior juvenile and criminal history was an extended-term factor listed under section 5—5—3.2(b)(1) of the Code (conviction of any felony, after having been previously convicted in Illinois of the same or greater class felony, when such conviction has occurred within 10 years after the previous conviction). (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(b)(1).) What defendant fails to realize is that the trial court’s finding was an aggravating factor listed under section 5 — 5—3.2(a)(3) of the Code (defendant has a history of prior delinquency or criminal activity) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(a)(3)), and, as such, was properly used to impose a more severe sentence. The trial court did not engage in the type of analysis this court found improper in Killen.

Furthermore, the record does not support defendant’s view that the trial court used his eligibility for an extended term as a basis for imposing the maximum nonextended sentence. A trial court’s sentence will not be reversed unless it is clear that the sentence was improperly imposed. (People v. Ward (1986), 113 Ill. 2d 516, 499 N.E.2d 422, cert. denied (1987), 479 U.S. 1096, 94 L. Ed. 2d 168, 107 S. Ct. 1314.) The court articulated other substantial bases for its imposition of the maximum nonextended sentence.

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Cite This Page — Counsel Stack

Bluebook (online)
550 N.E.2d 640, 193 Ill. App. 3d 896, 140 Ill. Dec. 755, 1990 Ill. App. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-compton-illappct-1990.