{
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  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Willard McElroy, Defendant-Appellant",
  "name_abbreviation": "People v. McElroy",
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    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee, v. Willard McElroy, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE GOLDBERG\ndelivered the opinion of the court:\nWillard McElroy (defendant) was indicted for murder (Ill. Rev. Stat. 1971, ch. 38, par. 9 \u2014 1.) After plea bargaining he pleaded guilty to involuntary manslaughter (Ill. Rev. Stat. 1971, ch. 38, par. 9 \u2014 3(a)). On April 25, 1973, he was sentenced to 4 to 7 years in the penitentiary.\nIn this appeal by defendant, he questions the validity of the minimum sentence fixed under the law as it existed before January 1, 1973. The People respond that defendant, acting through his counsel, effectively waived his right to be sentenced under the Unified Code of Corrections and that the sentence should be affirmed as the result of a voluntary plea agreement.\nIt is agreed that the trial court fully and properly advised and admonished the defendant concerning all of his rights prior to accepting the plea as required by Supreme Court Rule 402 ( 50 I11.2d R. 402.) The record shows a proper factual basis for the plea of guilty to involuntary manslaughter and agreement between the parties and attorneys concerning the sentence. The court asked defendant\u2019s attorney in open court, \u201cNow, Counsel,- do you elect to be sentenced under the old Code?\u201d The attorney responded, \u201cYes, most certainly, Judge.\u201d After a hearing in aggravation and mitigation, the court passed sentence.\nAs shown, this all occurred after January 1, 1973, the effective date of the Illinois Unified Code of Corrections. (Ill. Rev. Stat. 1973, ch. 38, par. 1008 \u2014 6\u20141.) The offense was committed on October 23, 1972, and the indictment was returned on December 28, 1972. Under the law in effect on those two dates, the penalty for involuntary manslaughter was an indeterminate sentence of from 1 to 10 years. (Ill. Rev. Stat. 1971, ch. 38, par. 9 \u2014 3(c)(1).) As a result of the Unified Code and various conforming amendments, involuntary manslaughter was classified as a Class 3 felony. (Ill. Rev. Stat. 1973, ch. 38, par. 9 \u2014 3(c)(1).) This change fixed a maximum term \u201cin excess of one year not exceeding 10 years\u201d and a minimum term of 1 year, with an exception not applicable here, subject to the mandatory condition that the minimum should \u201cnot be greater than one-third of the maximum time set in that case by the court.\u201d See Ill. Rev. Stat. 1973, ch. 38, pars. 1005 \u2014 8\u2014l(b)(4) and 1005 \u2014 8\u20141 (c)(4).\nIt is our considered opinion that the minimum penalty here must necessarily be reduced to comply with the mandate of the Unified Code. Any one of the following reasons is sufficient to support and to require this result:\n(1) It has been held that \u201c[t]he Code of Corrections applies to negotiated pleas.\u201d (People v. Cole, 12 Ill.App.3d 1003, 299 N.E.2d 394.) In Cole, the defendant was sentenced before January 1, 1973. In the case before us, the sentence was passed when the Code was in effect. Based upon this premise, it follows logically that the sentence resulting from the negotiated plea should be conformed to the mandatory requirements of the Code.\n(2) By its own provisions the Unified Code is definitely applicable here. Since the cause had not reached the sentencing stage on tiie effective date of the Code and the sentence thereunder would be less than under prior law, under which the prosecution was commenced, the Code applies. (Ill. Rev. Stat. 1973, ch. 38, par. 1008 \u2014 2\u20144. Compare People v. Marin, 56 Ill.2d 490, 309 N.E.2d 9, and People v. Lilly, 56 Ill.2d 493, 496, 309 N.E.2d 1.) The illegal portion of the minimum sentence here is legally comparable to that portion of a maximum sentence in excess of the legal limit. The latter has been described as \u201cvoid.\u201d People v. Simpkins, 48 Ill.2d 106, 111, 268 N.E.2d 386.\n(3) We have serious doubts regarding the validity of the so-called waiver of the provisions of the Unified Code by the defendant. Waiver has been defined as \u201can intentional relinquishment or abandonment of a known right or privilege.\u201d (Johnson v. Zerbst, 304 U.S. 458, 464, 82 L.Ed. 1461, 58 S.Ct. 1019.) It would be difficult seriously to urge that any defendant would knowingly choose a minimum of 4 years as more desirable than 2Vs years.\n(4) The entire above discussion may be strictly academic. The parole eligibility of this defendant must be determined under the Unified Code. Since his eligibility for parole would occur later under the prior law, he is entitled to have his eligibility determined under the Code. (Ill. Rev. Stat. 1973, ch. 38, par. 1003 \u2014 3\u20143(c).) This was established in People ex rel. Weaver v. Longo, 57 Ill.2d 67, 72, 73, 309 N.E.2d 581, where the relator was sentenced under prior law and established his eligibility for earlier parole consideration under the Code by a subsequent mandamus action. See also People v. Marsh, 19 Ill.App.3d 357, 359, 360, 311 N.E.2d 416.\nThe judgment appealed from is modified by reducing the minimum of the sentence from 4 to 2Vs years. As thus modified, the judgment is affirmed.\nJudgment affirmed as modified.\nEGAN, P. J., and HALLETT, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE GOLDBERG"
      }
    ],
    "attorneys": [
      "Paul Bradley and Howard B. Augustus, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.",
      "Bernard Carey, State\u2019s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Jerome Charles Randolph, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Willard McElroy, Defendant-Appellant.\n(No. 59378;\nFirst District (1st Division)\nOctober 7, 1974.\nPaul Bradley and Howard B. Augustus, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Jerome Charles Randolph, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0674-01",
  "first_page_order": 698,
  "last_page_order": 701
}