{ "id": 3115686, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. BRUCE BOURKE, Appellant", "name_abbreviation": "People v. Bourke", "decision_date": "1983-05-27", "docket_number": "No. 56760", "first_page": "327", "last_page": "334", "citations": [ { "type": "official", "cite": "96 Ill. 2d 327" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "98 Ill. App. 3d 202", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499070 ], "pin_cites": [ { "page": "206-07" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0202-01" ] }, { "cite": "98 Ill. App. 3d 914", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8500122 ], "year": 1981, "pin_cites": [ { "page": "926-27" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0914-01" ] }, { "cite": "101 Ill. App. 3d 238", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3080567 ], "year": 1981, "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0238-01" ] }, { "cite": "103 Ill. App. 3d 1027", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5482515 ], "year": 1981, "pin_cites": [ { "page": "1037-38" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/1027-01" ] }, { "cite": "108 Ill. App. 3d 1015", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3014260 ], "year": 1982, "pin_cites": [ { "page": "1019" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/108/1015-01" ] }, { "cite": "94 Ill. 2d 88", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3106754 ], "year": 1982, "pin_cites": [ { "page": "91" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/94/0088-01" ] }, { "cite": "97 Ill. App. 3d 38", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3108806 ], "year": 1983, "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/0038-01" ] }, { "cite": "101 Ill. App. 3d 343", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3081444 ], "year": 1981, "pin_cites": [ { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0343-01" ] }, { "cite": "101 Ill. App. 3d 993", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3085386 ], "year": 1981, "pin_cites": [ { "page": "996" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0993-01" ] }, { "cite": "105 Ill. App. 3d 103", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5473693 ], "year": 1981, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0103-01" ] }, { "cite": "84 Ill. 2d 400", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3045432 ], "weight": 4, "pin_cites": [ { "page": "405" }, { "page": "402" }, { "page": "405" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0400-01" ] }, { "cite": "105 Ill. App. 3d 1211", "category": "reporters:state", "reporter": "Ill. App. 3d", "opinion_index": 0 } ], "analysis": { "cardinality": 562, "char_count": 11880, "ocr_confidence": 0.739, "pagerank": { "raw": 1.1533854664510326e-06, "percentile": 0.9867465246043302 }, "sha256": "92acbdf1069bc623a86661236a0c2cce2cd054acf6eb82918087f286aec36e8d", "simhash": "1:a72f7f87ae3b6805", "word_count": 1913 }, "last_updated": "2023-07-14T20:31:41.894296+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. BRUCE BOURKE, Appellant." ], "opinions": [ { "text": "JUSTICE GOLDENHERSH\ndelivered the opinion of the court:\nIn three separate informations filed in the circuit court of Montgomery County, defendant, Bruce Bourke, was charged with two counts of burglary (Ill. Rev. Stat. 1979, ch. 38, par. 19\u20141) and one count of deceptive practices (Ill. Rev. Stat. 1979, ch. 38, par. 17\u20141). The burglary counts involved two separate entries on different dates, and the deceptive-practices count involved the issuance of three worthless checks. He pleaded guilty to all three charges and was sentenced to one year probation. Defendant\u2019s probation was subsequently revoked, and he was sentenced to four years\u2019 imprisonment on each burglary conviction and two years\u2019 imprisonment on the deceptive-practices conviction, the sentences to be served concurrently. In a Rule 23 order (87 Ill. 2d R. 23) the appellate court affirmed (105 Ill. App. 3d 1211), and we allowed defendant\u2019s petition for leave to appeal (87 Ill. 2d R. 315).\nThe People filed a petition for revocation of probation alleging that defendant had violated the terms of his probation by committing two acts of deceptive practices. Approximately 60 days later the People filed a second petition for revocation, alleging that defendant had wilfully failed to make payments of court costs and fines in accordance with the provisions of the probation order. Shortly thereafter the People filed an additional petition for revocation alleging that defendant had violated the provisions of his bail bond posted in the pending deceptive-practices charges, and that he had failed to report to his probation officer for a period of five months.\nAt the revocation hearing the State called several witnesses who testified concerning the violations of the terms of probation alleged in the People\u2019s petitions. Montgomery County Sheriff Claude Carlock testified concerning acts of misconduct by defendant while he was confined in the county jail. Defendant\u2019s mother testified that defendant\u2019s father was disabled and that defendant was needed at home to perform various chores for which the family could not afford to pay. Sandy Hayes testified that she was the mother of defendant\u2019s child and that defendant and she were planning to be married. Ms. Hayes testified that she needed defendant\u2019s help in raising the child and that she felt defendant was willing to support her and the baby. On cross-examination it was revealed that Ms. Hayes was 15 years old and was presently in the eighth grade. Ms. Hayes stated that she had received no financial support from defendant.\nIn closing argument, the assistant State\u2019s Attorney argued that the two separate incidents of deceptive practices and the violation of the provisions of his bail bond together with the failure to report to the probation officer and the failure to pay the fines as required by the probation order amounted to a \u201cflagrant violation of the terms of probation.\u201d She argued that it would deprecate the seriousness of the offenses if defendant were to be placed on probation and argued that defendant should receive five years on each burglary charge and three years on the deceptive-practices charges without credit for the time served on probation. Finally, she argued that defendant was not \u201cworthy of being placed on probation again\u201d because there had been no showing that he had been promised any employment, that he had any chance of paying the fines imposed on him, or that he had contributed to the support of his child and Ms. Hayes. Defendant\u2019s counsel stressed in closing argument that defendant\u2019s actions had not threatened serious injury to anyone and that defendant\u2019s family had attempted to compensate the victims. Defense counsel also argued that placing defendant in prison would entail excessive hardship to his dependents. Defense counsel stressed that \u201cthere are not a lot of cases where so many family members are willing to come in in support of the defendant.\u201d In rebuttal, the assistant State\u2019s Attorney argued that although there was no physical harm in this case, the victims lost several hundred dollars due to the burglaries and \u201cbad checks.\u201d She also argued that defendant\u2019s conduct while incarcerated in the county jail and his repeated offenses while on probation indicated that his rehabilitation was unlikely and noted that since defendant must have been aware of his girlfriend\u2019s pregnancy at the time he committed the violations of his probation, he had not behaved as a responsible future father should have behaved.\nThe court, after noting that it considered the testimony presented at the hearing, the presentence report, the arguments of counsel, the statement made by the defendant, and the factors in mitigation and aggravation as presented by counsel in closing argument, stated:\n\u201cThe Court would only comment in passing on those as far as factors in aggravation I would find that the defendant did receive compensation for committing the offenses that are involved here. He has a history of prior delinquency and criminal activity. The sentence to be imposed by the Court today is necessary to deter others from committing the same crime in violation of probation. As far as factors in mitigation I don\u2019t find that the defendant\u2019s actions contemplated any serious physical harm to anyone or that he contemplated that they would. I find that there is the factor two dependents who have to rely on Mr. Bourke should he be released and readmitted to probation. I don\u2019t find any grounds to excuse his actions in this regard or that his conduct was induced or facilitated by anyone other than himself.\nIt is the Court\u2019s opinion that to readmit Mr. Bourke to probation in this matter would deprecate the seriousness of these offenses, would in effect place little or no meaning on the probation terms that were previously entered against the defendant in these three cases.\u201d\nOn appeal, the defendant contended, inter alia, that contrary to this court\u2019s holding in People v. Conover (1981), 84 Ill. 2d 400, the circuit court improperly relied upon the aggravating factor that defendant had been compensated for his crime because he had received the proceeds from his burglaries and deceptive practices. The appellate majority held that since the court stated that it noted the factor \u201cin passing,\u201d it gave no weight to the factor in imposing sentence, and, alternatively, held that if the circuit court did improperly consider the issue of compensation, in light of the number of felonies on which sentence was imposed and defendant\u2019s conduct while on probation, the error was harmless. The dissenting justice found this court\u2019s decision in People v. Conover indistinguishable from this case.\nDefendant argues that the appellate court erred in holding that the circuit court gave no weight to the improper factor but only mentioned it \u201cin passing.\u201d Defendant argues that since the circuit court also commented \u201cin passing\u201d on the two other statutory aggravating factors upon which it relied, the most logical inference to be drawn from the court\u2019s statement is that it gave equal weight to each of the three aggravating factors noted.\nThe People respond that defendant\u2019s assertion amounts to a request that this court adopt a \u201cper se rule requiring remandment of any case in which the trial court notes that it is relying on an improper factor.\u201d The People argue that this is an incorrect interpretation of Conover, and that Conover held only that where it is impossible to determine how much weight the circuit court placed on an improperly considered aggravating factor, the case must be remanded for resentencing. The People argue that it is clear that the circuit court placed no weight whatsoever on the factor that defendant was \u201ccompensated\u201d for his crime and thus resentencing is not required in this case.\nIt is clear from the decisions of this court and the appellate court that reliance on an improper factor in aggravation does not always necessitate remandment for resentencing. Where the reviewing court is unable to determine the weight given to an improperly considered factor, the cause must be remanded for resentencing. (People v. Conover (1981), 84 Ill. 2d 400, 405; People v. Gardner (1982), 105 Ill. App. 3d 103, 118; People v. Teague (1981), 101 Ill. App. 3d 993, 996; People v. Hart (1981), 101 Ill. App. 3d 343, 344; People v. Allen (1981), 97 Ill. App. 3d 38, 40.) However, where it can be determined from the record that the weight placed on the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, remandment is not required. People v. Reid (1983), 94 Ill. 2d 88, 91; People v. DeSimone (1982), 108 Ill. App. 3d 1015, 1019; People v. Carmack (1982), 103 Ill. App. 3d 1027, 1037-38; People v. Hicks (1981), 101 Ill. App. 3d 238, 244; People v. Devine (1981), 98 Ill. App. 3d 914, 926-27; People v. Fowler (1981), 98 Ill. App. 3d 202, 206-07.\nThe sentence in this case was imposed prior to our decision in Conover, and the circuit court could not, of course, have looked to Conover for guidance. Since Conover, however, there would appear to be little reason for this problem to arise again.\nWe agree with the appellate majority that this case is distinguishable from Conover. In Conover, defendant Con-over was sentenced to six years for burglary, a sentence which was one year under the maximum. The sentencing court cited Conover\u2019s prior record, the need for deterrence, and the defendant\u2019s receipt of compensation in the form of the burglary\u2019s proceeds as aggravating factors. Defendant Jones, whose appeal was consolidated with Conover\u2019s, received a five-year prison sentence for theft, the maximum sentence permissible for that crime. In Jones\u2019 case the sentencing court considered the defendant\u2019s prior record, his violation of his position of public trust, the need for deterrence, and the defendant\u2019s receipt of compensation from his theft. (84 Ill. 2d 400, 402.) This court remanded the causes for resentencing because it could not determine how much weight had been accorded the improper aggravating factor. (84 Ill. 2d 400, 405.) Here, the record adequately demonstrates that the weight placed on the improperly considered aggravating factor was so insignificant that it did not result in a greater sentence. While it is true, as defendant notes, that the circuit court did note all three aggravating factors considered \u201cin passing,\u201d the circuit court explained that to readmit defendant to probation \u201cwould in effect place little or no meaning on the probation terms that were previously entered against the defendant in these three cases.\u201d The assistant State\u2019s Attorney did not mention the improperly considered aggravating factor in her closing arguments, but rather stressed defendant\u2019s \u201cflagrant violation of the terms of probation,\u201d the same factor that the circuit court emphasized. Defendant not only continued to commit crimes while on probation, but violated several other conditions of his probation. Furthermore, defendant\u2019s sentences were substantially below the maximum sentences permissible for burglary and deceptive practices. Unlike Conover, we are able to determine here that the length of defendant\u2019s sentence was not increased based on the circuit court\u2019s statement that defendant had received compensation for committing these offenses.\nAccordingly, the judgment of the appellate court is affirmed.\nJudgment affirmed.", "type": "majority", "author": "JUSTICE GOLDENHERSH" } ], "attorneys": [ "Randy E. Blue, Deputy Defender, and Daniel M. Kirwan, Assistant Defender, of the Office of the State Appellate Defender, of Mt. Vernon, for appellant.", "Tyrone C. Fahner and Neil F. Hartigan, Attorneys General, of Springfield (Michael B. Weinstein, Ellen M. Flaum and Maureen Cain, Assistant Attorneys General, of Chicago, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 56760.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. BRUCE BOURKE, Appellant.\nOpinion filed May 27, 1983.\nRandy E. Blue, Deputy Defender, and Daniel M. Kirwan, Assistant Defender, of the Office of the State Appellate Defender, of Mt. Vernon, for appellant.\nTyrone C. Fahner and Neil F. Hartigan, Attorneys General, of Springfield (Michael B. Weinstein, Ellen M. Flaum and Maureen Cain, Assistant Attorneys General, of Chicago, of counsel), for the People." }, "file_name": "0327-01", "first_page_order": 339, "last_page_order": 346 }