{ "id": 5495461, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRETT HOYER, Defendant-Appellant", "name_abbreviation": "People v. Hoyer", "decision_date": "1981-09-22", "docket_number": "No. 80-847", "first_page": "418", "last_page": "423", "citations": [ { "type": "official", "cite": "100 Ill. App. 3d 418" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "412 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. 2d 268", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5476013 ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0268-01" ] }, { "cite": "368 N.E.2d 882", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "266 N.E.2d 733", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "131 Ill. App. 2d 877", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2908757 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/131/0877-01" ] }, { "cite": "310 N.E.2d 420", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "18 Ill. App. 3d 746", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2611217 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0746-01" ] }, { "cite": "334 N.E.2d 452", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "31 Ill. App. 3d 759", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2707730 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0759-01" ] }, { "cite": "69 Ill. 2d 588", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5455362 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-2d/69/0588-01" ] }, { "cite": "356 N.E.2d 628", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 85", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2724657 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0085-01" ] }, { "cite": "411 N.E.2d 1354", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "86 Ill. App. 3d 858", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3186612 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0858-01" ] }, { "cite": "414 N.E.2d 543", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "91 Ill. App. 3d 209", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3149136 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/0209-01" ] }, { "cite": "316 N.E.2d 773", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "58 Ill. 2d 57", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2953999 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/58/0057-01" ] }, { "cite": "317 N.E.2d 559", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "58 Ill. 2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2952306 ], "opinion_index": 0, "case_paths": [ "/ill-2d/58/0187-01" ] } ], "analysis": { "cardinality": 624, "char_count": 12140, "ocr_confidence": 0.913, "pagerank": { "raw": 8.634903349331992e-08, "percentile": 0.4909570017402559 }, "sha256": "2156ced380e5563f413e6f657aac491b81babde25ef2233d1c43deb41c279024", "simhash": "1:fa22b0e2b6c6c6af", "word_count": 2044 }, "last_updated": "2023-07-14T21:36:06.230892+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRETT HOYER, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE HOPF\ndelivered the opinion of the court:\nDefendant pleaded guilty to armed robbery and was sentenced to 25 years in the Department of Corrections. He appeals, contending that the court should have permitted him to withdraw his plea and that the sentence imposed was excessive.\nOn the afternoon of March 5,1979, the 17-year-old defendant, having earlier ingested three \u201chits\u201d of LSD and smoked hashish, beat Manutchehr Kaboli to death and robbed him of his wallet. Defendant was charged by indictment with three counts of murder, armed robbery, and armed violence.\nAfter being admonished by the court as required by Supreme Court Rule 402 (Ill. Rev. Stat. 1979, ch. 110A, par. 402), defendant pleaded guilty to armed robbery in exchange for the State\u2019s agreement to enter a nolle prosequi with regard to the remaining charges.\nThe first issue defendant raises is that his guilty plea was involuntarily and unknowingly entered. He bases this on the fact that in admonishing him before the entry of his plea the court did not advise him that he could be subject to an extended term pursuant to section 5 \u2014 8\u20142 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 \u2014 8\u20142).\nAt the sentencing hearing the prosecuting attorney stated that due to the brutal nature of the crime the State could ask for an extended term. He added that the State was not asking for that but for 30 years, the maximum term for armed robbery, a Class X felony, when extended term is not involved. The trial judge told defendant at the time of sentencing that psychiatric reports relating the effects of LSD on defendant\u2019s behavior were the reason it would not consider an extended term.\nSection 5 \u2014 8\u20142 of the Criminal Code provides for the imposition of an extended term of imprisonment for offenders when aggravating factors are involved. This section provides a safeguard to prevent the defendant pleading guilty from unwittingly exposing himself to such a sentence:\n\u201cIf the conviction was by plea, it shall appear on the record that the plea was entered with the defendant\u2019s knowledge that a sentence under this Section was a possibility. If it does not so appear on the record, the defendant shall not be subject to such a sentence unless he is first given an opportunity to withdraw his plea without prejudice.\u201d Ill. Rev. Stat. 1979, ch. 38, par. 1005 \u2014 8\u20142(b).\nDefendant argues that because he was not advised of the possibility of an extended term at the time he pleaded guilty the court should have later granted his motion to withdraw his plea. Defendant contends he was subject to, that is, exposed and vulnerable to, an extended term or in danger of receiving such a sentence.\nSupreme Court Rule 402 (Ill. Rev. Stat. 1979, ch. 110A, par. 402) required that in a hearing on a plea of guilty a defendant must be admonished of the possible minimum and maximum penalties prescribed by law. The rule requires substantial compliance. (People v. Krantz (1974), 58 Ill. 2d 187, 317 N.E.2d 559.) However, even when the rule is not substantially complied with, a reviewing court will not vacate a guilty plea absent an allegation and proof of prejudice. (People v. Dudley (1974), 58 Ill. 2d 57, 316 N.E.2d 773; People v. Cohn (1980), 91 Ill. App. 3d 209, 414 N.E.2d 543.) It has been held, for example, that where consecutive terms are possible a failure to admonish defendant of such a possibility at the hearing on a guilty plea is not a ground for withdrawal of that plea where in fact no consecutive terms are imposed. (People v. Whitlow (1980), 86 Ill. App. 3d 858, 411 N.E.2d 1354; People v. Waud (1976), 43 Ill. App. 3d 85, 356 N.E.2d 628, affd on other grounds (1977), 69 Ill. 2d 588; People v. Mass (1975), 31 Ill. App. 3d 759, 334 N.E.2d 452; People v. Back (1974), 18 Ill. App. 3d 746, 310 N.E.2d 420.) Further, where the trial court understates the possible maximum penalty but sentences within the limits it had stated, no prejudice results, and defendant is not entitled to withdraw his guilty plea. People v. Hrebenar (1971), 131 Ill. App. 2d 877, 266 N.E.2d 733.\nThere is no authority directly addressing the question that arises when a trial court fails to apprise a defendant of the possibility of an extended sentence. Defendant argues that the above-cited cases do not support the State\u2019s position that the fact he was not sentenced to an extended term negates any error by the court in failing to admonish defendant of the possibility. He argues that section 5 \u2014 8\u20142 states not merely that a defendant not advised of the possibility of an extended term may not be so sentenced, but also that he shall not be \u201csubject to\u201d an extended term. Defendant contends that the court\u2019s comment that it would not consider an extended term because \u201cpsychiatric reports have some significance\u201d evidences the fact that he was \u201csubject to\u201d an extended term at that time. We disagree. We think that, regardless of the court\u2019s comment, the failure to admonish defendant precluded the imposition of an extended term. It was incorrect for the court to assume it had the option of so sentencing defendant, but where a defendant by law may not be sentenced to an extended term and he is not so sentenced we do not think reversible error is committed.\nDefendant also argues that the court should have permitted him to withdraw his plea because the prosecuting attorney induced him to plead guilty by advising his counsel that an extended penalty would not be sought. At the hearing on the guilty plea the prosecutor advised the court that the agreement consisted of defendant changing his plea to guilty on the armed robbery charge in exchange for the State dropping the charges on the remaining counts. The prosecutor added that \u201cbasically * * * there is no agreement with regard to sentencing.\u201d Defendant and his attorney stated that the agreement was correctly stated by the prosecution. At the sentencing hearing the prosecutor commented that \u201c[d]ue to the brutality of the case and the surrounding circumstances * * * we could ask for an extended term which would make it anywhere between 12 and 60 years. We are not asking for it in this case. What we are asking for is the maximum [penalty], that being 30 years.\u201d At the hearing on defendant\u2019s motion to withdraw his guilty plea defendant\u2019s attorney informed the court that \u201cI didn\u2019t mention to [defendant] that there was a possibility of an enhanced sentence. I told him it should not be considered in his determination whether or not to enter a plea, because I think the State had informed me they had no intention of seeking an enhanced sentence.\u201d\nWe think the prosecutor\u2019s comment to the trial court that the State could seek an extended term was merely a comment meant to reflect the seriousness with which it viewed the crime. Judging by defendant\u2019s understanding of the plea agre\u00e9ment, the State could not seek such a sentence for defendant. What the State sought, however, was not an extended term but the maximum penalty witbin the- usual range of sentences for armed robbery. According to defendant\u2019s counsel, the State promised defendant it would not seek an extended term, and it did not. At most, its comment was an empty threat. Additionally, we think the State\u2019s remark does not show that the State misrepresented to defendant the possible penalties.\nDefendant\u2019s final contention is that his 25-year sentence was excessive.\nAt the hearing in aggravation and mitigation, defendant testified that on March 5,1979, he had taken three \u201chits\u201d of LSD and had smoked some hashish and marijuana. Defendant told two of his friends that he had a business dispute with Mr. Kaboli, a junk dealer. Defendant stated that he and his friends decided to go to the junkyard to see if they could get defendant\u2019s money back. Once at the junkyard, defendant took a baseball bat from his car and hid it underneath his jacket. The three boys entered the yard and defendant hid while the other youths attempted to lure Kaboli towards him. The boys succeeded in luring Kaboli to defendant, but defendant \u201cdecided not to do anything.\u201d He \u201ccouldn\u2019t do it\u201d; he \u201ccouldn\u2019t hit him.\u201d All three boys left the junkyard. Later, after the other boys had berated defendant for failing to hit Kaboli they returned to the junkyard and defendant again hid while the other boys attempted to lure Kaboli towards him. Kaboli was suspicious and ordered the other boys out of the junkyard. Defendant testified that he attempted to leave the junkyard but Kaboli saw him and asked him what he was doing there. Defendant stated that he took the bat from underneath his coat and hit Kaboli on the shoulder. Kaboli fell, rose from the ground and came after defendant. Defendant then hit Kaboli over the head repeatedly. Defendant further testified that during the incident he would sometimes know what he was doing, while at other times he would not know what he was doing because of the effects of the drug.\nDefendant also offered into evidence three psychiatric reports. One report indicated that defendant was incapable of forming a requisite intent to commit murder because he was a novice with LSD usage. The second report indicated that if it were not for defendant\u2019s use of the drug, defendant would not have committed the crime. The third report indicated that although defendant\u2019s ability to appreciate the criminality of his act was diminished, defendant could have had the requisite mental state to commit murder despite his drug usage. Several other people testified on defendant\u2019s behalf. They indicated that he did not have a violent disposition, that he was a good student and that he came from a closely knit family.\nThe presentence report indicated that defendant had one misdemeanor conviction, for acquisition of liquor by a minor. That offense occurred on May 3, 1980.\nDefendant first asserts that the sentence of 25 years was more than three times the length of the average sentence imposed for armed robbery throughout the State. In support of this assertion defendant relied upon the \u201c1979 Statistical Presentation\u201d prepared by the Illinois Department of Corrections in compliance with section 5 \u2014 5\u20144.3 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 \u2014 5\u20144.3). The record reveals that defendant failed to present this survey to the trial court, however.\nDefendant next asserts that the court did not give adequate attention to his age, remorse, rehabilitation potential, morals and general character background and history. The result, he contends, is a sentence greatly at variance with the purpose and spirit of the law and an abuse of discretion.\nThe trial court\u2019s remarks at the close of the sentencing hearing reveal, however, a deep concern for the factors that defendant says it ignored. The court\u2019s words also reflected, however, its recognition that defendant voluntarily ingested drugs and committed a terrible crime with tragic consequences for all concerned, not least of all for defendant. A trial court is in a better position than a court in review to consider the myriad of factors involved in imposing the proper sentence. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) A reviewing court may modify a sentence only upon a finding of an abuse of discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet.) We must conclude that the trial court, having given full consideration to those matters which comprise the sentencing determination, did not abuse its discretion in sentencing defendant to 25 years in the Department of Corrections.\nFor the foregoing reasons we affirm the judgment and the sentence of the trial court.\nAffirmed.\nUNVERZAGT and REINHARD, JJ\u201e concur.", "type": "majority", "author": "Mr. JUSTICE HOPF" } ], "attorneys": [ "David P. Schippers, of Schippers, O\u2019Brien & Long, of Chicago, and Stuart L. Whitz, of Aurora, for appellant.", "Robert Morrow, State\u2019s Attorney, of Geneva (Phyllis J. Perko and Gene Armentrout, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRETT HOYER, Defendant-Appellant.\nSecond District\nNo. 80-847\nOpinion filed September 22,1981.\nDavid P. Schippers, of Schippers, O\u2019Brien & Long, of Chicago, and Stuart L. Whitz, of Aurora, for appellant.\nRobert Morrow, State\u2019s Attorney, of Geneva (Phyllis J. Perko and Gene Armentrout, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0418-01", "first_page_order": 440, "last_page_order": 445 }