Mr. JUSTICE MILLS
delivered the opinion of the court:
But for a question of conflict of counsel — raised sua sponte by this court — this case would be a simple, straightforward single-issue appeal involving the trial court’s sentencing discretion.
In short, we affirm.
But first we will look at the conflict question. In the court below, defendant was represented by court-appointed counsel who was incidentally a special assistant attorney general. This fact was known by this court from a roster or list of assistants and special assistants prepared by the Attorney General of Illinois, and on our own motion we remanded the case to the trial court for the taking of additional evidence on the surrounding circumstances of appointed counsel’s duties with the Attorney General. The trial judge conducted the hearing and the report of proceedings was filed in our court.
That crystalline record discloses that the appointed defense counsel’s duties as a special assistant attorney general were limited solely to the area of workmen’s compensation cases arising in the Springfield and Lincoln, Illinois, areas. Her testimony as to her official responsibilities went like this:
“A. I was to handle all hearings on arbitration where petitions for adjustment of claim were filed by state employees against the state in Lincoln and Springfield. Now then if any of those were taken on review, which is the appeal immediately beyond the arbitration hearing, they would go before a commissioner. I was responsible for counter-reviewing or appealing anything we found unfavorably. That was one commissioner here and after that should either of the parties, myself or the employee, there were oral arguments before the full commission. I was responsible for that.
Q. Did you ever have occasion during your term of service as special assistant attorney general to appear in any court of law in behalf of the attorney general’s office?
A. No.
Q. Would you have to appear in court as a result of your appointment as special assistant for the attorney general’s office?
A. No.
Q. Why would you not have to so appear?
A. My responsibilities go only to the cases I handled out of Springfield on arbitration and review and beyond the review of the commission itself there is no appeal. The statute denies any review beyond that to the state and state employees. So we cannot take it into the circuit court as one normally would with arbitration hearings.
Q. What office did your case assignments come out of within the attorney general’s office?
A. Springfield.
Q. Are you aware of whether or not there is a criminal justice division within that particular office?
A. I am not.
Q. What, if any, contact did you have with anyone in the criminal justice division?
A. None.
Q. Are you aware of who is head of that particular division?
A. No.
Q. What, if any, contact did you have with the criminal appeals division of that office?
A. None.
Q. Are you aware of who heads that particular office?
A. No.
Q. Did you ever have occasion during your term of service as a special assistant attorney general to advise various state’s attorneys of the State of Illinois in any capacity?
A. No.
Q. Specifically did you have occasion to render advice and assistance to the various state’s attorneys of the State of Illinois with regard to their handling of criminal cases?
A. No.
Q. Did you ever have the opportunity to or did you ever I should say consult with anyone within the attorney general’s office relative to criminal cases?
A. No.
Q. Did you ever consult with anyone within the attorney general’s office relative to criminal appeals?
A. No.
Q. Did you ever perform any work with regard to criminal law as a special assistant attorney general?
A. No.
Q. Did you ever perform any work with regard to a criminal appeal as a special assistant attorney general?
A. No.
Q. Are you aware at all the duties and responsibilities of the criminal justice division of the attorney general’s office?
A. No.
Q. Are you aware of the duties and responsibilities of the criminal appeals division of the attorney general’s office?
A. No.”
No waiver by the defendant took place. See People v. Stoval (1968), 40 Ill. 2d 109, 239 N.E.2d 441.
From the above recitation — undisputed below — a majority of this panel can find no conflict — per se or actual — in the representation of defendant here. Courbappointed counsel had no access, contact, or involvement with the criminal justice elements of the Attorney General’s office and served that elected official in a very limited, circumscribed and narrow area of civil law. We adhere to our holding in People v. Crawford (1978), 65 Ill. App. 3d 790, 382 N.E.2d 1223, wherein we overruled People v. Cross (1975), 30 Ill. App. 3d 199, 331 N.E.2d 643, and renounced the per se conflict rule created therein.
Now to the merits of the matter. Rogers (age 17) was sentenced to a term of 1 to 3 years for burglary, and on appeal the sole substantive ground he raises contends that the trial court abused its discretion in sentencing him to imprisonment.
Since the quantum of evidence of guilt is not challenged, it will suffice to relate that Rogers had burglarized the home of Alex Fife and removed stereo equipment (which cost *868 and which had a retail value of *1,734). Upon his detention by the sheriff’s office, the defendant was twice advised of his Miranda rights. Thereafter, Rogers signed a statement of self-incrimination detailing the particulars of the crime.
Following the jury verdict finding the defendant guilty of both burglary and theft (over *150), a sentencing hearing was held.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. JUSTICE MILLS
delivered the opinion of the court:
But for a question of conflict of counsel — raised sua sponte by this court — this case would be a simple, straightforward single-issue appeal involving the trial court’s sentencing discretion.
In short, we affirm.
But first we will look at the conflict question. In the court below, defendant was represented by court-appointed counsel who was incidentally a special assistant attorney general. This fact was known by this court from a roster or list of assistants and special assistants prepared by the Attorney General of Illinois, and on our own motion we remanded the case to the trial court for the taking of additional evidence on the surrounding circumstances of appointed counsel’s duties with the Attorney General. The trial judge conducted the hearing and the report of proceedings was filed in our court.
That crystalline record discloses that the appointed defense counsel’s duties as a special assistant attorney general were limited solely to the area of workmen’s compensation cases arising in the Springfield and Lincoln, Illinois, areas. Her testimony as to her official responsibilities went like this:
“A. I was to handle all hearings on arbitration where petitions for adjustment of claim were filed by state employees against the state in Lincoln and Springfield. Now then if any of those were taken on review, which is the appeal immediately beyond the arbitration hearing, they would go before a commissioner. I was responsible for counter-reviewing or appealing anything we found unfavorably. That was one commissioner here and after that should either of the parties, myself or the employee, there were oral arguments before the full commission. I was responsible for that.
Q. Did you ever have occasion during your term of service as special assistant attorney general to appear in any court of law in behalf of the attorney general’s office?
A. No.
Q. Would you have to appear in court as a result of your appointment as special assistant for the attorney general’s office?
A. No.
Q. Why would you not have to so appear?
A. My responsibilities go only to the cases I handled out of Springfield on arbitration and review and beyond the review of the commission itself there is no appeal. The statute denies any review beyond that to the state and state employees. So we cannot take it into the circuit court as one normally would with arbitration hearings.
Q. What office did your case assignments come out of within the attorney general’s office?
A. Springfield.
Q. Are you aware of whether or not there is a criminal justice division within that particular office?
A. I am not.
Q. What, if any, contact did you have with anyone in the criminal justice division?
A. None.
Q. Are you aware of who is head of that particular division?
A. No.
Q. What, if any, contact did you have with the criminal appeals division of that office?
A. None.
Q. Are you aware of who heads that particular office?
A. No.
Q. Did you ever have occasion during your term of service as a special assistant attorney general to advise various state’s attorneys of the State of Illinois in any capacity?
A. No.
Q. Specifically did you have occasion to render advice and assistance to the various state’s attorneys of the State of Illinois with regard to their handling of criminal cases?
A. No.
Q. Did you ever have the opportunity to or did you ever I should say consult with anyone within the attorney general’s office relative to criminal cases?
A. No.
Q. Did you ever consult with anyone within the attorney general’s office relative to criminal appeals?
A. No.
Q. Did you ever perform any work with regard to criminal law as a special assistant attorney general?
A. No.
Q. Did you ever perform any work with regard to a criminal appeal as a special assistant attorney general?
A. No.
Q. Are you aware at all the duties and responsibilities of the criminal justice division of the attorney general’s office?
A. No.
Q. Are you aware of the duties and responsibilities of the criminal appeals division of the attorney general’s office?
A. No.”
No waiver by the defendant took place. See People v. Stoval (1968), 40 Ill. 2d 109, 239 N.E.2d 441.
From the above recitation — undisputed below — a majority of this panel can find no conflict — per se or actual — in the representation of defendant here. Courbappointed counsel had no access, contact, or involvement with the criminal justice elements of the Attorney General’s office and served that elected official in a very limited, circumscribed and narrow area of civil law. We adhere to our holding in People v. Crawford (1978), 65 Ill. App. 3d 790, 382 N.E.2d 1223, wherein we overruled People v. Cross (1975), 30 Ill. App. 3d 199, 331 N.E.2d 643, and renounced the per se conflict rule created therein.
Now to the merits of the matter. Rogers (age 17) was sentenced to a term of 1 to 3 years for burglary, and on appeal the sole substantive ground he raises contends that the trial court abused its discretion in sentencing him to imprisonment.
Since the quantum of evidence of guilt is not challenged, it will suffice to relate that Rogers had burglarized the home of Alex Fife and removed stereo equipment (which cost *868 and which had a retail value of *1,734). Upon his detention by the sheriff’s office, the defendant was twice advised of his Miranda rights. Thereafter, Rogers signed a statement of self-incrimination detailing the particulars of the crime.
Following the jury verdict finding the defendant guilty of both burglary and theft (over *150), a sentencing hearing was held. The owner of the burglarized house testified that he saw the defendant after the offenses and that Rogers said to him, “I will get even with you. I will bum your house down.” Moreover, the defendant’s history showed a long period of prior court supervision, all of which it can reasonably be said was unsuccessful as far as rehabilitation of the defendant was concerned. Without here relating the specifics, the record and presentence report clearly reflected that the defendant was adjudged a delinquent minor in 1975 and that every guidance program which was attempted thereafter had failed. The Department of Children and Family Services had attempted to support the defendant through case worker contact, mental health counseling, homemaker service, foster home placement, vocational rehabilitation training, monetary support, and supervision in an independent living arrangement. Each of these attempts failed. The upshot was that the defendant would not follow the rules.
The trial judge found after the sentencing hearing that the Department of Children and Family Services had tried every available alternative and that probation was simply not appropriate in this case. The sentencing judge noted that Rogers had participated in drug use during prior programs and that his temper seemed to be uncontrollable. Recognizing the difficulty of determining a period of incarceration as a sentence, the court below stated that anything other than the minimum term would be unfair to the defendant. In fact, the minimum term of 1 to 3 years imposed was exactly the term that was suggested by the defendant and his counsel.
Defendant now contends that the trial court abused its discretion in sentencing a first offender to the penitentiary, since a sentence of probation or periodic imprisonment could have achieved the objective of restoring the defendant to useful citizenship. And in support of this argument, he cites Ill. Const. 1970, art. 1, §11: “All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” But our supreme court has construed this very section as giving equal weight to both considerations — the seriousness of the offense and the objective of restoring the offender to useful citizenship. The second requirement is not to be given greater emphasis than the first. People ex rel. Ward v. Moran (1973), 54 Ill. 2d 552, 301 N.E.2d 300, 302.
Furthermore, the defendant’s contention is unpersuasive because the presentence report clearly indicates that numerous rehabilitative attempts have all failed. In view of these facts, the court’s determination that Rogers was not a likely candidate for rehabilitation does not appear to be an abuse of discretion when he concluded that probation is simply not appropriate here. It is trite but true to reiterate that the trial court is in a better position to determine punishment to be imposed and to assess the likelihood of a defendant’s chances for rehabilitation than is the court on review. Consequently, the reviewing court may not reduce a sentence imposed unless there is an abuse of the trial court’s discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882, 885.
The trial judge here recognized the difficulty of determining sentence and there is no indication that in doing so he considered any improper factors or was unconcerned with the rehabilitative potential of the defendant. On the contrary, the record reveals that the trial judge was abundantly aware of the defendant’s work history, family situation, and personal proclivities. In short, the sentencing judge was aware of the appropriate factors involved in sentencing, and both considered and rejected probation as a viable imposition. There is absolutely no indication to us of an abuse of discretion.
Affirmed.