People v. Gomez

617 N.E.2d 320, 247 Ill. App. 3d 68, 187 Ill. Dec. 112, 1993 Ill. App. LEXIS 732
CourtAppellate Court of Illinois
DecidedMay 25, 1993
Docket1-91-1804
StatusPublished
Cited by25 cases

This text of 617 N.E.2d 320 (People v. Gomez) 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. Gomez, 617 N.E.2d 320, 247 Ill. App. 3d 68, 187 Ill. Dec. 112, 1993 Ill. App. LEXIS 732 (Ill. Ct. App. 1993).

Opinion

JUSTICE DiVITO

delivered the opinion of the court:

Following a bench trial, defendant Frank Gomez was convicted of possession of a stolen motor vehicle and sentenced as a Class X offender to 10 years in the custody of the Department of Corrections. On appeal, he challenges only his sentence, contending that the circuit court improperly considered his prior arrests in aggravation and that the sentence was the result of an improper double enhancement.

The following evidence was adduced at trial. On June 2, 1990, at approximately 5 a.m., Laura Mendez and her sister-in-law, Lillian Castro, arrived at their home at 3637 West Fullerton in Chicago with Mendez’s boyfriend, Alberto Torres. As Torres parked the car in the lot behind the building, Mendez saw a “beat up” Buick automobile pull into the driveway and park in the lot. When defendant exited the vehicle and began walking alongside them toward the front of the building, Mendez noticed that he was wearing white shorts, a white sleeveless tee-shirt, and a black pouch around his waist.

After they reached the front of the building, Castro went upstairs, while Mendez and Torres sat in the front hall. A few minutes later, Mendez heard a scream. When she went upstairs to investigate, Castro told her that someone had tried to steal her car from the back lot. Mendez looked out the rear window but saw no one there. She then went to the front of the building, where she saw defendant running across the street. When she checked her car, she found a screwdriver lying on the floor and discovered that the ignition had been damaged. She then went upstairs to her apartment and called the police.

When the police arrived, Mendez told them what had happened and described the man as Hispanic, about 5 feet 9 inches tall, with dark, slicked-back hair, and wearing a white tee-shirt, white shorts, and a black pouch. After speaking with Torres and Castro, the officers proceeded to an area where moments earlier they had seen a person who matched the given description run across the street in front of their parked squad car. Approximately two blocks from where they had seen him earlier, the officers found defendant walking down the street. They handcuffed him, placed him in the back of their car, and returned to Mendez’s building, where Mendez, Torres, and Castro each identified him as the person they had seen.

When they inspected the car that defendant had parked in the lot behind the building, the officers found that it had been “completely destroyed.” All the seats were removed, and a milk crate had been placed on the floor as a driver’s seat. The radio and the ignition were missing, and the dash was ripped apart. The car’s exterior was covered with spray paint, and the windows were either broken or rolled down. After the officers checked the license plate number and learned that the car had been stolen, they charged defendant with possession of a stolen vehicle.

As previously indicated, the circuit court found defendant guilty of that charge and sentenced him to 10 years’ imprisonment as a Class X offender.

On appeal, defendant contends that the circuit court improperly considered the “bare arrests” which appeared on his criminal history sheet without any proof of underlying criminal conduct. He also contends that his sentence was the result of an impermissible double enhancement. The State maintains that defendant has waived any challenge to the propriety of his sentence because he failed to file a motion to reduce sentence within 30 days after it was imposed pursuant to section 5—8—1(c) of the Unified Code of Corrections. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(c).) We agree with the State.

The record reflects that defendant neither objected during the sentencing hearing nor filed a motion to reduce his sentence pursuant to section 5 — 8 — 1(c). The failure to file such a motion has been held to constitute a waiver of sentencing issues on appeal because it denies the circuit court the opportunity to correct any error that may have occurred and instead burdens the appellate court with the processing of potentially needless appeals. (People v. Macke (1992), 224 Ill. App. 3d 815, 816, 587 N.E.2d 1113; see also People v. Lewis (1992), 235 Ill. App. 3d 1003, 1005-06, 602 N.E.2d 492, appeal granted (1993), 148 Ill. 2d 649 (applying Macke and dismissing the appeal); People v. Pfister (1993), 240 Ill. App. 3d 931, 934, 608 N.E.2d 1230 (reaffirming Macke).) The Macke court recognized that a motion to reduce sentence is the functional equivalent of a post-trial motion which is necessary to preserve issues for appeal. (Macke, 224 Ill. App. 3d at 816.) We agree with the Macke court and therefore adopt its rationale as our own.

We believe that a rule requiring such a motion does not offend a defendant’s rights in any manner and is consistent with the well-established requirement that a contemporaneous objection is necessary to make a proper record concerning alleged error. (See People v. Williams (1992), 149 Ill. 2d 467, 493, 599 N.E.2d 913 (holding that any claimed deficiency or inaccuracy in the presentence report must be brought to the attention of the sentencing court or will be considered waived); People v. Murray (1990), 201 Ill. App. 3d 573, 580, 559 N.E.2d 174, appeal denied (1990), 135 Ill. 2d 563, 564 N.E.2d 844 (finding waiver where defendant never objected to the court’s consideration of death as an aggravating factor in sentencing); People v. Craddock (1987), 163 Ill. App. 3d 1039, 1048, 516 N.E.2d 1357, appeal denied (1988), 119 Ill. 2d 562, 522 N.E.2d 1249 (holding that the defendant waived the issue of whether the court improperly considered the presence of weapons in aggravation by failing to object at the sentencing hearing).) Furthermore, it is also well established that a written motion is a necessary precondition to the preservation of an issue for appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186-87, 522 N.E.2d 1124, cert, denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274; see also People v. Wallace (1991), 143 Ill. 2d 59, 60-61, 570 N.E.2d 334 (holding that a motion to reconsider is a prerequisite to an appeal of a sentence imposed pursuant to a guilty plea); People v. Wilk (1988), 124 Ill. 2d 93, 110, 529 N.E.2d 218 (same).) We believe that a written motion pursuant to section 5 — 8 — 1(c) serves the same important goal of promoting “judicial economy and finality of judgments” (Enoch, 122 Ill. 2d at 190) by highlighting any alleged error for the circuit court and granting it the “opportunity to [review] the appropriateness of the sentence imposed and to correct [any] errors made.” (Wilk, 124 Ill. 2d at 110.) In the absence of such a motion, a reviewing court must strain its limited resources combing the record looking for guidance where none may exist. In contrast, requiring a defendant to file such a motion would eliminate much of this needless waste by developing a focused record in the circuit court.

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Cite This Page — Counsel Stack

Bluebook (online)
617 N.E.2d 320, 247 Ill. App. 3d 68, 187 Ill. Dec. 112, 1993 Ill. App. LEXIS 732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gomez-illappct-1993.