{ "id": 5796011, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOZSEF FERCSI, Defendant-Appellant", "name_abbreviation": "People v. Fercsi", "decision_date": "1991-10-25", "docket_number": "No. 1\u201486\u20143592", "first_page": "768", "last_page": "772", "citations": [ { "type": "official", "cite": "221 Ill. App. 3d 768" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "444 N.E.2d 518", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 669", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5437428 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0669-01" ] }, { "cite": "547 N.E.2d 429", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "132 Ill. 2d 86", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5588813 ], "opinion_index": 0, "case_paths": [ "/ill-2d/132/0086-01" ] }, { "cite": "537 N.E.2d 875", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "181 Ill. App. 3d 821", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499308 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/181/0821-01" ] }, { "cite": "481 N.E.2d 987", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "135 Ill. App. 3d 132", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3601552 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0132-01" ] }, { "cite": "538 N.E.2d 758", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "182 Ill. App. 3d 335", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2622267 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/182/0335-01" ] }, { "cite": "550 N.E.2d 640", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "193 Ill. App. 3d 896", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2499723 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/193/0896-01" ] }, { "cite": "573 N.E.2d 256", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "214 Ill. App. 3d 170", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5297847 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/214/0170-01" ] }, { "cite": "435 N.E.2d 789", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. App. 3d 65", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3031035 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0065-01" ] }, { "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": "575 N.E.2d 538", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "143 Ill. 2d 435", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591446 ], "weight": 2, "pin_cites": [ { "page": "450" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0435-01" ] }, { "cite": "526 N.E.2d 141", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "123 Ill. 2d 184", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550970 ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0184-01" ] }, { "cite": "537 N.E.2d 912", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "182 Ill. App. 3d 13", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2619721 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/182/0013-01" ] } ], "analysis": { "cardinality": 538, "char_count": 8842, "ocr_confidence": 0.77, "pagerank": { "raw": 5.714603279856598e-08, "percentile": 0.3585243772899501 }, "sha256": "fe6c0f521d4fdceb459dbd8bcf608ec759e723f3cacc3a6f2a24f52b968b596c", "simhash": "1:21133c78437e9032", "word_count": 1458 }, "last_updated": "2023-07-14T20:24:34.404944+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. JOZSEF FERCSI, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE MURRAY\ndelivered the opinion of the court:\nThis case is back before this court on remand from the Illinois Supreme Court. In the first instance, defendant Jozsef Fercsi (Fercsi) appealed his conviction for murder and we reversed (People v. Fercsi (1989), 182 Ill. App. 3d 13, 537 N.E.2d 912), based upon the opinion issued by the Illinois Supreme Court in People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141. The State appealed our decision and the supreme court reversed and issued a mandate that we consider the remaining issue not addressed in the original appeal. (People v. Shields (1991), 143 Ill. 2d 435, 575 N.E.2d 538.) The one issue presently before this court is whether Fercsi\u2019s 30-year sentence was improper because the trial court considered facts implicit in the offense as an aggravating factor.\nThe facts of this case were set forth in our first opinion in this matter and in the supreme court opinion. However, we shall reiterate them here.\nFercsi was found guilty by a jury of the September 1985 murder of Tiberiu Paratei (Paratei). The evidence presented at trial indicated that Fercsi, Paratei and Robert Flowers were residents of a rooming house at 1622 West Winnemac in Chicago. On September 21, 1985, Fercsi and Paratei were at Flowers\u2019 apartment drinking throughout the evening. Flowers showed them some photos of his daughter, and Fercsi became offended when Paratei made sexually oriented remarks about her. Fercsi insisted that Paratei apologize to Flowers, which Paratei later did. However, Fercsi and Paratei continued to argue.\nFlowers left the room for a few minutes and upon his return he found Paratei\u2019s body lying across the threshold of the room, his feet sticking out into the hallway and his head inside the room. Fercsi was standing over Paratei, wielding a hammer, striking Paratei repeatedly about the head.\nChicago police officer Skwarski testified that on September 21, 1985, he responded to a police call concerning a battery in progress at 1622 West Winnemac. Upon arriving at that location, he proceeded to the second floor and found Fercsi standing over the body of Paratei. Skwarski placed Fercsi under arrest and advised him of his constitutional rights.\nFercsi then told the officer that he and Paratei had been drinking in Flowers\u2019 room, that he had argued with Paratei, and then left Flowers\u2019 room. Paratei came to Fercsi\u2019s room, kicked at the door, and in response Fercsi grabbed a pipe and struck Paratei in the stomach and head. As Paratei staggered back, Fercsi obtained a hammer from a bag of tools in his room, returned to Paratei and struck him several times in the head with the hammer. Fercsi gave similar statements to the investigating detectives and an assistant State\u2019s Attorney. Fercsi also admitted during questioning that he had placed a knife in Paratei\u2019s hand after the incident to bolster his claim that Paratei had been the first aggressor.\nThe Cook County medical examiner, who performed the autopsy on Paratei, graphically described the injuries which caused Paratei\u2019s death. He testified that there were numerous head and facial lacerations, as well as approximately 20 separate and interlocking skull fractures and severe laceration to the brain itself, indicative of forceful and repeated blunt trauma. He concluded that Paratei died as a result of severe cranial and cerebral injury caused by multiple blunt trauma injury to the head.\nThe jury was instructed on murder and the unreasonable belief form of voluntary manslaughter and found Fercsi guilty of murder. We reversed the conviction based upon the Reddick decision, which held that the pattern jury instructions for murder and involuntary manslaughter were erroneous when given together. However, the supreme court reversed, finding that the error was harmless beyond a reasonable doubt in this case. The supreme court held that \u201cthe evidence in support of the murder conviction is so clear and convincing that the jury\u2019s verdict would not have been different had correct instructions been used.\u201d People v. Shields (1991), 143 Ill. 2d 435, 450.\nWe now turn our attention to the issue to be addressed in this opinion, i.e., whether the sentence imposed was improper. At sentencing, the State requested an extended term contending that Fercsi\u2019s repeated use of a pipe and a hammer to kill Paratei evidenced \u201cwanton cruelty.\u201d The trial court rejected the request for an extended term, but imposed a 30-year sentence, 10 years above the statutory minimum term for the offense (Ill. Rev. Stat. 1985, ch. 38, par. 1005\u2014 8 \u2014 1(a)), finding the circumstances of the murder to be \u201cbrutal.\u201d\nFercsi, a first offender, contends that the sentencing court erred. He argues (1) that the brutality of the incident is not a statutorily authorized consideration when fixing a nonextended term and (2) that the acts which were characterized as brutal evidenced the intent element of the offense, so that they should not have been relied upon as an aggravating factor to increase the severity of the sentence.\nAlthough we agree that the sentence is a severe one, we must affirm it. The imposition of a sentence is a matter of judicial discretion, and absent a clear indication of an abuse of that discretion, the sentence imposed may not be altered. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) We find no such abuse of discretion.\nIn this case the trial court never discussed an extended-term sentence, despite the State\u2019s request that one be imposed. Thus, this case is unlike the Kitten case (People v. Kitten (1982), 106 Ill. App. 3d 65, 435 N.E.2d 789), cited to by Fercsi. In Kitten the trial court bypassed or \u201cshort circuited\u201d the sentencing procedure by imposing the maximum nonextended term without considering factors in aggravation and mitigation, merely because it believed it could have sentenced the defendant to an extended term due to the brutal and heinous nature of the offense. Furthermore, the premise in Kitten, that the brutal and heinous nature of the crime may not be considered except when imposing an extended term, has since been repeatedly rejected. See People v. Posedel (1991), 214 Ill. App. 3d 170, 573 N.E.2d 256; People v. Compton (1990), 193 Ill. App. 3d 896, 550 N.E.2d 640; People v. Jorgensen (1989), 182 Ill. App. 3d 335, 538 N.E.2d 758; People v. Butts (1985), 135 Ill. App. 3d 132, 481 N.E.2d 987.\nIn the case at bar, the record shows that the trial court considered the fact that the offense of murder carries a sentencing range of 20 to 60 years, and that any murder, regardless of its nature and circumstances, would be susceptible to a minimum sentence of 20 years. It then balanced the fact that Fercsi was a first offender with no history of violence or criminal activity against the fact that the murder was a physically brutal one, where the victim was bludgeoned repeatedly on the head with a hammer.\nWe find no error in the court\u2019s consideration of the nature and circumstances of the offense in fashioning an appropriate sentence within the sentencing range. The fact that Fercsi is a first-time offender is nothing more than one mitigating factor to have been considered along with any other mitigating and aggravating factors that were present. People v. Tatum (1989), 181 Ill. App. 3d 821, 537 N.E.2d 875.\nAs a general proposition of law, Fercsi is correct in stating that a factor implicit in the offense may not be used as an aggravating factor in sentencing absent a clear legislative intent. (People v. Ferguson (1989), 132 Ill. 2d 86, 547 N.E.2d 429.) However, that proposition of law is inapplicable in this instance. We are not convinced that the brutal manner in which this offense was committed, although indicative of murderous intent, could not be considered when imposing the sentence. (See People v. Barney (1982), 111 Ill. App. 3d 669, 444 N.E.2d 518.) Although the fact that Fercsi struck his victim in the head with a pipe and a hammer certainly supports a finding that he intended to cause death or serious bodily harm, the unnecessary and excessively violent nature of the acts, i.e., the fact that Fercsi hit Paratei with a pipe and then, while Paratei was incapacitated, procured a hammer and delivered numerous blows to Paratei\u2019s head with it, may also be considered as an aggravating factor.\nAccordingly, we affirm the sentence imposed.\nAffirmed.\nLORENZ, P.J., and McNULTY, J., concur.", "type": "majority", "author": "JUSTICE MURRAY" } ], "attorneys": [ "Randolph N. Stone, Public Defender, of Chicago (Richard E. Gade, Assistant Public Defender, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Inge Fryklund and Kevin Sweeney, Assistant State's Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOZSEF FERCSI, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1 \u2014 86\u20143592\nOpinion filed October 25, 1991.\nRandolph N. Stone, Public Defender, of Chicago (Richard E. Gade, Assistant Public Defender, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Inge Fryklund and Kevin Sweeney, Assistant State's Attorneys, of counsel), for the People." }, "file_name": "0768-01", "first_page_order": 790, "last_page_order": 794 }