{ "id": 3529704, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROSS KIRK, Defendant-Appellant", "name_abbreviation": "People v. Kirk", "decision_date": "1985-04-17", "docket_number": "No. 5\u201484\u20140708", "first_page": "641", "last_page": "644", "citations": [ { "type": "official", "cite": "133 Ill. App. 3d 641" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "301 N.E.2d 300", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. 2d 552", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2932873 ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0552-01" ] }, { "cite": "466 N.E.2d 268", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 479", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3633009 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0479-01" ] }, { "cite": "404 U.S. 257", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172366 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/404/0257-01" ] } ], "analysis": { "cardinality": 381, "char_count": 5223, "ocr_confidence": 0.768, "pagerank": { "raw": 7.317852702137001e-08, "percentile": 0.4372725977460462 }, "sha256": "b83354b4e881444c097831c056a365b2b81d758b6c93bf1ae9f020d21b19796f", "simhash": "1:6b763ba3e1770c71", "word_count": 866 }, "last_updated": "2023-07-14T17:42:49.711724+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. ROSS KIRK, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE JONES\ndelivered the opinion of the court:\nThe defendant, Ross Kirk, pleaded guilty to burglary and was sentenced to three years\u2019 imprisonment. The only issue on appeal is whether the State\u2019s Attorney breached the plea agreement to stand mute at the sentencing hearing. We affirm.\nThe State initially contends that the issue is waived by the failure of the defendant to object at the sentencing hearing at the time the statements were made. The issue, however, was raised in defendant\u2019s amended motion to withdraw his plea of guilty which was filed pursuant to Supreme Court Rule 604(d) (87 Ill. 2d R. 604(d)). Therefore, we will consider the issue raised in this appeal.\nPrior to the court\u2019s accepting defendant\u2019s plea of guilty to burglary, which had been reduced from a charge of home invasion, the State\u2019s Attorney stated:\n\u201cWe have advised counsel for the Defendant we will stand mute as to any recommendation, and will present no aggravation at pre-sentencing hearing. We will stand on the pre-sentence report and the Court\u2019s jurisdictional notice of evidence at the pre-sentence hearing.\u201d\nThe presentence investigation revealed that defendant had had juveriile adjudications based on burglary and theft and that he had had adult misdemeanor convictions for unlawful possession of cannabis and illegal possession of alcohol by a minor. Defendant had successfully completed court supervision imposed upon a misdemeanor escape charge. At the sentencing hearing, defendant, age 18, presented evidence that he had been placed in various foster homes, that he was now attending Triton Junior College, where he is on the football team, that this incident stemmed from alcohol abuse and that he is employed full time when not attending college. The defense attorney made a lengthy argument in support of his recommendation of probation. The State\u2019s Attorney stated:\n\u201cWe per agreement made no recommendation. It is up to the Court. Anything the Court imposes in this is rough because it is a felony conviction. The offense is quite serious, and the Defendant has had his problems and that is all I am going to say. The Court has heard the testimony, and all we can do is submit to the Court the offense occurred in Mr. Ahlfield\u2019s home and Mr. Ahlfield\u2019s family. As the Defendant states alcohol was involved. I believe the evidence is to that effect, and the Defendant has been ably represented, and we have submitted no evidence in aggravation other than what the Court heard in the Preliminary Hearing and the finding of guilty in the negotiated plea. The only thing that applies, militates what Mr. Roberts has suggested, possibly alternative, I guess probation, \u2014 in any event it is a felony whether or not any serious harm was threatened or caused. I don\u2019t think there was any serious harm in a physical sense. It is a serious crime because it is a dangerous crime for both the perpetrator and the victim. In its deliberation we trust the Court will consider all with the Defendant\u2019s record and background and what he is trying to accomplish in school and as well as the victims, what they suffered. We will rest without saying anything further.\u201d\nIf the plea agreement that induced defendant\u2019s plea of guilty to the charge of burglary was violated by the prosecutor, then defendant\u2019s plea is rendered involuntary, and the court\u2019s acceptance of that plea is a violation of defendant\u2019s right to due process of law. A plea of guilty made in reliance on an unfulfilled promise is not voluntarily made by a defendant. Santobello v. New York (1971), 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495; People v. Langston (1984), 125 Ill. App. 3d 479, 466 N.E.2d 268.\nIn the case at bar, the matters mentioned by the State\u2019s Attorney were apparent to the sentencing judge on the record. The State\u2019s Attorney was merely reciting the facts and not making any argument for the imposition of any particular sentence or for the denial of probation. Had the State\u2019s Attorney stood mute, the trial court, with a cursory examination of the record, would have had the same information. The State\u2019s Attorney\u2019s statement was basically a concise recapitulation of the lengthy statement of defense counsel.\nDefendant received the minimum penal sentence for burglary (Ill. Rev. Stat. 1983, ch. 38, pars. 19 \u2014 1(b), 1005 \u2014 8\u20141(a)(5)). Defendant\u2019s prior criminal record reflects that probation was tried but did not result in defendant\u2019s rehabilitation from his criminal activity; defendant could not reasonably expect to receive probation again. Defendant received the minimum penal sentence, and we are not able to find that the trial court acted arbitrarily (People ex rel. Ward v. Moran (1973), 54 Ill. 2d 552, 301 N.E.2d 300) or that the State\u2019s Attorney violated the plea agreement.\nAffirmed.\nKASSERMAN and EARNS, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE JONES" } ], "attorneys": [ "Randy E. Blue and John R. Abell, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Kenneth R. Boyle, Stephen E. Norris, and Susan M. Young, all of State\u2019s Attorneys Appellate Service Commission, of Mt. Vernon, for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROSS KIRK, Defendant-Appellant.\nFifth District\nNo. 5\u201484\u20140708\nOpinion filed April 17, 1985.\nRandy E. Blue and John R. Abell, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nKenneth R. Boyle, Stephen E. Norris, and Susan M. Young, all of State\u2019s Attorneys Appellate Service Commission, of Mt. Vernon, for the People." }, "file_name": "0641-01", "first_page_order": 663, "last_page_order": 666 }