People v. Kane

489 N.E.2d 500, 140 Ill. App. 3d 928, 95 Ill. Dec. 279, 1986 Ill. App. LEXIS 1796
Appellate Court of Illinois·Decided February 13, 1986·No. 84-2582·Published·Cited by 13 cases

Opinions

JUSTICE JIGANTI

delivered the opinion of the court:

After the defendant pleaded guilty to three counts of murder and one count of armed robbery, he was sentenced to concurrent extended prison terms of 80 years for each count of murder, and 60 years for armed robbery. He has now appealed from the trial judge’s denials of his motions to withdraw his guilty pleas and have his sentences reduced. He argues first that he was not advised of the factors making him eligible for an extended-term sentence; second, that the trial judge erred in imposing an extended term because his acts were not “exceptionally brutal and heinous”; third, that his extended-term sentence was grossly disproportionate to that of his codefendant; fourth, that the trial judge erred in sentencing him on all three counts of murder; and fifth, that his extended-term sentence for armed robbery must be reduced or vacated, given his accompanying conviction for the more serious offense of murder.

At the hearing on the defendant’s guilty plea, he was told by the trial judge that he could be sentenced for murder to natural life imprisonment without parole, or to a 40- to 80-year extended term if there were “aggravating circumstances,” as well as to six to 30 years for armed robbery. He also was advised that he could receive a 30- to 60-year extended term for armed robbery, as well as consecutive sentences for the offenses totalling 140 years. After the judge admonished him of his rights, he pleaded guilty. The stipulated testimony of several Chicago police officers established that the 17-year-old defendant had orally admitted that he and his codefendant talked about robbing a taxicab driver, and also “went out to look for some [rival street gang members] to kill.” Although the defendant admitted that he and his codefendant then took a gun, entered a cab, announced a “stickup,” shot the driver in the neck, took his money, and fled, he stated that while he did handle the gun, it was his codefendant who actually shot the man. However, the codefendant said the defendant did the shooting, the revolver later was found with the defendant’s coat, the gun belonged to the defendant, and a chemist’s stipulated testimony indicated that gunshot residue was found on only the defendant’s hands.

After the defendant was found guilty, he read a letter he had written into the record, and his mother also read a statement. The record further indicates that the defendant had at least two prior juvenile burglary adjudications. Defense counsel sought a minimum sentence of 20 years, and the State asked for the maximum penitentiary term. The judge, terming the murder “terrible” and “outrageous,” found that the “killing was brutal and heinous and wantonly cruel” and that the evidence indicated that the defendant shot the victim; he then imposed concurrent extended-term sentences of 80 years for murder and 60 years for armed robbery.

Initially, even if we assume for the sake of argument that this issue has not been waived, we reject the claim that the defendant’s motion to withdraw his guilty plea should have been granted, because the trial judge failed to inform him of the factors in aggravation that could justify an extended-term sentence. We find neither authority nor rationale to support the proposition that a trial judge is obliged to do so. .

However, we must agree with the defendant that the trial judge erred in imposing an 80-year extended-term sentence. In this case, the testimony at the hearing on the defendant’s guilty plea indicated that the deceased taxicab driver was robbed and shot in the neck, and the codefendants previously had discussed robbing a cab driver and killing a rival street gang member. However, in imposing the extended-term sentence, the trial judge relied on section 5 — 5— 3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—3.2(b)(2)), which permits such a sentence when a felony is “accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.”

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People v. Kane, 489 N.E.2d 500, 140 Ill. App. 3d 928, 95 Ill. Dec. 279, 1986 Ill. App. LEXIS 1796 (Ill. Ct. App. 1986).

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People v. Kane
489 N.E.2d 500 (Appellate Court of Illinois, 1986)