{ "id": 249259, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISRAEL VARGAS, Defendant-Appellant", "name_abbreviation": "People v. Vargas", "decision_date": "1995-03-28", "docket_number": "No. 1\u201491\u20140625", "first_page": "337", "last_page": "345", "citations": [ { "type": "official", "cite": "271 Ill. App. 3d 337" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "445 N.E.2d 795", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "112 Ill. App. 3d 486", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5434271 ], "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0486-01" ] }, { "cite": "497 N.E.2d 1138", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "113 Ill. 2d 256", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173780 ], "weight": 3, "pin_cites": [ { "page": "269" }, { "page": "271-72" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0256-01" ] }, { "cite": "419 N.E.2d 906", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. 2d 400", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3045432 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/84/0400-01" ] }, { "cite": "538 N.E.2d 1227", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "182 Ill. App. 3d 1082", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3359993 ], "year": 1989, "pin_cites": [ { "page": "642" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0640-01" ] }, { "cite": "434 N.E.2d 1121", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "91 Ill. 2d 47", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3092756 ], "year": 1978, "pin_cites": [ { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0047-01" ] }, { "cite": "431 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 ], "weight": 3, "pin_cites": [ { "page": "154" }, { "page": "154" }, { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "71 N.E. 886", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "211 Ill. 17", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3308227 ], "weight": 2, "pin_cites": [ { "page": "23" }, { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/ill/211/0017-01" ] }, { "cite": "61 N.E. 317", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "192 Ill. 493", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5578017 ], "opinion_index": 0, "case_paths": [ "/ill/192/0493-01" ] }, { "cite": "149 Ill. App. 215", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2642319 ], "pin_cites": [ { "page": "217" } ], "opinion_index": 0, "case_paths": [ "/ill-app/149/0215-01" ] }, { "cite": "155 N.E. 310", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1909, "opinion_index": 0 }, { "cite": "324 Ill. 322", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2442430 ], "year": 1909, "pin_cites": [ { "page": "329-30" } ], "opinion_index": 0, "case_paths": [ "/ill/324/0322-01" ] }, { "cite": "129 N.E. 73", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1927, "opinion_index": 0 }, { "cite": "295 Ill. 222", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5064906 ], "year": 1927, "pin_cites": [ { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/ill/295/0222-01" ] }, { "cite": "127 N.E. 654", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1920, "opinion_index": 0 }, { "cite": "293 Ill. 475", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4987387 ], "year": 1920, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/ill/293/0475-01" ] }, { "cite": "70 N.E. 1056", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1920, "opinion_index": 0 }, { "cite": "209 Ill. 627", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3301000 ], "year": 1920, "pin_cites": [ { "page": "636-37" } ], "opinion_index": 0, "case_paths": [ "/ill/209/0627-01" ] }, { "cite": "52 N.E. 903", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1904, "opinion_index": 0 }, { "cite": "178 Ill. 320", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3146278 ], "weight": 2, "year": 1904, "pin_cites": [ { "page": "326" }, { "page": "326" } ], "opinion_index": 0, "case_paths": [ "/ill/178/0320-01" ] }, { "cite": "32 N.E. 968", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1899, "opinion_index": 0 }, { "cite": "144 Ill. 378", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3079890 ], "weight": 2, "year": 1899, "pin_cites": [ { "page": "381" }, { "page": "381-82" } ], "opinion_index": 0, "case_paths": [ "/ill/144/0378-01" ] }, { "cite": "84 Ill. 479", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2655936 ], "weight": 3, "pin_cites": [ { "page": "482" }, { "page": "482" }, { "page": "482-83" } ], "opinion_index": 0, "case_paths": [ "/ill/84/0479-01" ] }, { "cite": "505 N.E.2d 754", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1877, "opinion_index": 0 }, { "cite": "153 Ill. App. 3d 328", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3609108 ], "year": 1877, "pin_cites": [ { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/153/0328-01" ] }, { "cite": "179 N.E.2d 654", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "23 Ill. 2d 520", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2796899 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "525" }, { "page": "524-25" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/23/0520-01" ] } ], "analysis": { "cardinality": 876, "char_count": 19388, "ocr_confidence": 0.717, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.009745548871768199 }, "sha256": "3c7f272a73a1bf541af4bb711976bc79915e59ba5bf03874e98b6053586ddf50", "simhash": "1:1a2ca90076c00ad1", "word_count": 3278 }, "last_updated": "2023-07-14T19:52:56.134317+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. ISRAEL VARGAS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McCORMICK\ndelivered the opinion of the court:\nAfter a jury trial, defendant was convicted of first degree murder of Alvin Gill on a theory of accountability and sentenced to 35 years\u2019 imprisonment. On appeal, defendant contends: (1) he was denied his right to due process as a result of the trial judge\u2019s leaving the courtroom during trial and allowing the trial to proceed in his absence; (2) his sentence was excessive; and (3) the trial court considered improper factors in determining his sentence. We affirm defendant\u2019s conviction and sentence.\nOn January 17, 1990, defendant and two codefendants discussed killing members of a rival gang in retaliation for a previous shooting incident. At the corner of 63d and Artesian in Chicago, they observed Gill, whom they believed to be a member of a rival gang because the bill of his cap was off to the right. Gill was chased and died of gunshot wounds inflicted by one of the codefendants.\nDefendant first contends that his right of due process was violated when, during cross-examination of one of the State\u2019s witnesses, the trial judge left the courtroom to take a telephone call. Defendant argues that the trial judge\u2019s absence constitutes plain error and, as such, mandates reversal of the judgment. The State contends that defense counsel\u2019s failure to object constitutes waiver of this issue. Alternatively, the State contends that the record does not affirmatively show that the trial judge actually left the courtroom or otherwise lost control of the courtroom and cites a number of cases from other jurisdictions in support of this proposition.\nAt trial, the trial judge interrupted defense counsel while counsel was cross-examining one of the State\u2019s witnesses, and the following proceedings were had:\n\"THE COURT: Excuse me, Mr. Flanagan. I have Judge Brady on the phone. You can continue. If you need me, let me know.\n(Judge exited.)\nMR. FLANAGAN: Q. Now, your job as a State\u2019s Attorney is to prosecute for the People of the State of Illinois?\nA. That is correct.\nQ. And that is what you were doing January 18th of 1990, isn\u2019t that right?\nA. I was a prosecutor at that time, yes.\nQ. And you were working in Felony Review?\nA. That is correct.\nQ. And I believe you told the ladies and gentlemen of the jury that when you work Felony Review you assist in the investigation of cases, isn\u2019t that right?\nA. Yes.\nQ. And you gather evidence?\nA. Yes. We talk to witnesses, we talk to defendants if they are willing to talk to us.\nQ. And the purpose of that is ultimately to be used in court, isn\u2019t that right?\nA. Yes.\nQ. That is what you told Mr. Vargas when you spoke to him on January 18th, isn\u2019t that right, anything that he\u2019d say would be used in court, didn\u2019t you tell him that?\nA. That\u2019s right I did inform him of, yes.\nQ. So when you were talking to Mr. Vargas you were acting as an attorney for the State of Illinois and not as his attorney?\nA. Yes. That is what I told him.\nQ. And your job as a State\u2019s Attorney was to gather evidence to prosecute Mr. Vargas, isn\u2019t that right?\nA. No. We gather information\u2014\nMS. RODI [the prosecutor]: Objection.\nMR. FLANAGAN: Miss Court Reporter, could you make a note of where that is and then I can continue along another line.\nAny objection, Counsel?\nMS. RODI: No.\nMR. FLANAGAN: Q. Now, in January of this year how long had you been working as a State\u2019s Attorney?\nA. In January of 1990 I had been working, it wasn\u2019t four years yet because I started in June of 1986.\n(Judge entered.)\nMR. FLANAGAN: Judge, we did have an objection and it was one question ago. Maybe we could go back to that question. I would respectfully ask for your ruling.\nTHE COURT: You ask for what?\nMR. FLANAGAN: Your ruling.\nTHE COURT: Well, what is the question?\nMR. FLANAGAN: If the Court Reporter can read it back.\nTHE COURT: All right.\n(The Court Reporter read the record.) And there was an objection to that?\nMR. FLANAGAN: Yes.\nTHE COURT: Overruled. He may answer.\u201d\nWe first observe that the State\u2019s contention that defendant waived this issue is without merit. While Illinois courts have found that defendants may waive the issue of substitution of judges during a criminal trial (People v. Mays (1962), 23 Ill. 2d 520, 525, 179 N.E.2d 654; People v. Wills (1987), 153 Ill. App. 3d 328, 339, 505 N.E.2d 754), the courts have not found that the right to have a judge present on the bench at all times during a trial may be waived. Meredeth v. People (1877), 84 Ill. 479, 482 (\"It is not material whether the judge of the circuit court was absent from the courtroom, during the trial of the cause, by consent of counsel for the defense\u201d).\nBy the same token the State\u2019s alternative contention, that the record does not reflect whether the trial judge was absent from the courtroom, is disingenuous. Not only does the record reflect that the judge \"exited\u201d and \"entered,\u201d but the record also reflects that the judge had to be apprised of what happened during his absence, evidencing that he heard no part of the proceedings and was not present to rule from the bench.\nA judge may not absent himself from trial proceedings without calling a recess or otherwise suspending the proceedings. (Meredeth, 84 Ill. at 482; Thompson v. People (1893), 144 Ill. 378, 381, 32 N.E. 968; Schintz v. People (1899), 178 Ill. 320, 326, 52 N.E. 903; Wells v. O\u2019Hare (1904), 209 Ill. 627, 636-37, 70 N.E. 1056; Loftus v. Chicago Rys. Co. (1920), 293 Ill. 475, 482, 127 N.E. 654; People v. Chrfrikas (1920), 295 Ill. 222, 228, 129 N.E. 73; People v. Bolton (1927), 324 Ill. 322, 329-30, 155 N.E. 310; People v. Rudorf (1909), 149 Ill. App. 215, 217.) Although our supreme court has not had occasion to rule upon this issue in several years, we believe the above cases are still good law. See Mays, 23 Ill. 2d at 524-25 (where the court in reviewing Meredeth, Thompson and another case, Durden v. People (1901), 192 Ill. 493, 61 N.E. 317, stated that it did \"not disagree with these decisions in the light of the extreme situations\u201d involved).\nWe note, however, that in each case where the supreme court has had occasion to address the issue of a judge\u2019s absence from the bench, the court, while specifically disapproving of the practice, has reversed only where the defendant suffered prejudice as a result of the judge\u2019s absence. For example, in Meredeth (84 Ill. at 482-83), a capital case, judgment was reversed because the judge was absent for two days during argument before the jury, his place was occupied by two other members of the bar, and the record showed that order was not maintained in the courtroom. In Thompson (144 Ill. at 381-82), the presiding judge went into his chambers during the State\u2019s closing argument to prepare jury instructions. During the State\u2019s argument, defense counsel made several objections that were never ruled upon. The court reversed the defendant\u2019s conviction. However, in dicta the court indicated that its ruling might have been different if the trial judge had remained within hearing of the argument and been available to rule upon any objections. In Schintz (178 Ill. at 326), the court found that although the trial judge was not present during the argument, he could hear the argument and \"no questions were raised to be passed upon by the judge, and whilst not approving the practice of a judge absenting himself from the court room, we are not disposed to hold the facts here shown constitute error.\u201d Moreover, our supreme court has held that the absence of the trial judge from the courtroom in a criminal case is not cause for reversal absent a showing of prejudice. Quigg v. People (1904), 211 Ill. 17, 23, 71 N.E. 886.\nHere, we do not condone the trial judge\u2019s absence from the bench and it was error for the trial judge to leave the bench, for whatever reason, during the trial without first recessing the proceedings. However, considering the relevant case law and the facts of this case, we find that the error was harmless. Quigg, 211 Ill. at 23.\nDefendant next contends that the trial court\u2019s sentence of 35 years\u2019 imprisonment was excessive, in light of his potential for rehabilitation and his lack of a criminal record, and that his sentence was grossly and improperly disparate from the 20-year sentence imposed upon his codefendant James Kallenborn. He urges this court to reduce his sentence to 22 years pursuant to the court\u2019s authority under Supreme Court Rule 615(b). 134 Ill. 2d R. 615(b).\nA trial judge\u2019s sentencing is afforded great weight and deference. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 431 N.E.2d 882.) A sentence is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. (Perruquet, 68 Ill. 2d at 154.) \"A disparity between sentences will not be disturbed *** where it is warranted by differences in the nature and extent of the concerned defendants\u2019 participation in the offense.\u201d (People v. Godinez (1982), 91 Ill. 2d 47, 55, 434 N.E.2d 1121, citing People v. Johnson (1978), 59 Ill. App. 3d 640, 642, 375 N.E.2d 1027.) Fundamental fairness is not violated by the mere fact that one defendant receives a substantially longer sentence than another. People v. Milton (1989), 182 Ill. App. 3d 1082, 1094, 538 N.E.2d 1227.\nHere, the record shows that the court properly considered all evidence presented by defendant in mitigation in imposing sentence. With respect to defendant\u2019s disparate sentence argument, the evidence established that codefendant Kallenborn (age 17) was younger than defendant (age 19) at the time of the offense. In addition, Kallenborn acknowledged his guilt, pleaded guilty and testified against co-defendant Raphael Padilla. Illinois courts have found that \"[i]t is proper for a trial court to grant leniency in sentencing a defendant who by his plea ensured prompt and certain application of correctional measures to him, acknowledged his guilt, showed a willingness to assume responsibility for his conduct, and cooperated in the successful prosecution of other offenders.\u201d (Milton, 182 Ill. App. 3d at 1094.) Finally, defendant\u2019s and Kallenborn\u2019s participation in the offense was not entirely equal; the trial court specifically noted that defendant went \"scouting\u201d for the potential victim. We do not believe that the trial court abused its discretion in sentencing defendant to 35 years in prison.\nDefendant further argues that the trial judge improperly considered factors implicit in the offense as aggravating factors. In passing sentence, the court stated:\n\"Well, the Court has heard the arguments and the intentions [sic] raised today, both in aggravation and mitigation, the evidence presented on behalf of Mr. Vargas here by his counsel.\nCourt has also considered the facts of the case as he recalls them from the jury trial that Mr. Vargas chose to have. And also has considered this case in light of the statutory factors in aggravation and mitigation which the Court is duty bound by law to consider.\n* * *\n*** It is implicit from the charge of course that the physical harm inflicted here was of the ultimate degree and while I say that is implicit in any charge involving first degree murder. And the Court would consider that in aggravation.\nNonetheless, the facts of the case and the manner in which Mr. Gill met his death may be considered by the Court. *** [T]he shooting of Mr. Gill was clearly intended by the group that set out to chase him. *** Mr. Vargas voluntarily attached himself to that group, the evidence shows, was a group that was bent upon and involved in the commission of death.\u201d (Emphasis added.)\nDefendant argues that the court\u2019s statements that the physical harm here was of the \"ultimate degree\u201d and that the perpetrators \"intended to shoot\u201d the victim are factors implicit in the crime of first degree murder. Defendant also argues that the court\u2019s comment that defendant was a willing participant in the murder is a factor implicit in a conviction for murder based on accountability.\nIn People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, the supreme court held that factors inherent in a crime were improper to be considered as factors in aggravation. (Conover, 84 Ill. 2d at 404-OS.) However, as the court explained in a subsequent case, People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138, this rule is not subject to rigid application. Furthermore, \"[w]hile the classification of a crime determines the sentencing range, the severity of the sentence depends upon the degree of harm caused to the victim and as such may be considered as an aggravating factor in determining the exact length of a particular sentence, even in cases where serious bodily harm is arguably implicit in the offense for which a defendant is convicted.\u201d (Emphasis in original.) (Saldivar, 113 Ill. 2d at 269.) In Saldivar, the court modified the defendant\u2019s sentence because it found that the trial court\u2019s finding in aggravation was not \"directed at the degree or gravity of the defendant\u2019s conduct, i.e., the force employed and the physical manner in which the victim\u2019s death was brought about or the nature and circumstances of the offense,\u201d but rather focused primarily on \"the end result of the defendant\u2019s conduct, i.e., the death of the victim, a factor implicit in the offense of voluntary manslaughter.\u201d Saldivar, 113 Ill. 2d at 271-72.\nThe same cannot be said in this case. First, we disagree with defendant that the trial judge, \"while acknowledging that the fact that the 'physical harm inflicted here was of the ultimate degree\u2019 was inherent in the offense, nevertheless stated that he was considering this factor in aggravation.\u201d From our review of the court\u2019s comments, we believe that the court reporter misheard or mistyped the court\u2019s statement so that it failed to be recorded that the court would not consider this factor in aggravation. The court\u2019s statement immediately following the \"ultimate degree\u201d statement clearly negates defendant\u2019s interpretation and supports our conclusion, i.e., the court stated, \"Nonetheless, the facts of the case and the manner in which *** [the victim] met his death may be considered.\u201d (Emphasis added.) The use of the word \"nonetheless\u201d clearly denotes an exclusion of the preceding \"ultimate degree\u201d statement as a factor of consideration and an inclusion of the succeeding statement; the court was first indicating a factor it could not consider (one implicit in the offense) and those factors that it may consider (the facts of the case and the manner in which the victim met his death). Second, the remaining comments complained of by defendant are merely a recitation of the evidence presented, leading up to the stated bases for the sentence imposed, i.e., defendant\u2019s age at the time of the offense, that defendant went 'scouting\u201d for a potential victim, the fact that defendant was out on bond for a less serious offense (burglary) at the time of the homicide, and the court\u2019s belief that deterrence was necessary to prevent others from engaging in similar conduct.\nDeterrence is a proper factor to consider in determining an appropriate sentence under the Unified Code of Corrections. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 5\u20143.2(a)(7) (now 730 ILCS 5/5 \u2014 5\u2014 3.2(a)(7) (West 1992)).) A judgment depends on many factors, including the defendant\u2019s credibility, demeanor, general moral character, age and social environment. (People v. Martin (1983), 112 Ill. App. 3d 486, 502, 445 N.E.2d 795.) Moreover, the law is well settled that a trial judge is in a better position to consider these factors than the reviewing court. (Perruquet, 68 Ill. 2d at 154.) We find no error in sentencing, and we decline to disturb the judgment of the trial court.\nDefendant\u2019s final contention is that the trial court improperly considered the fact that he was out on bond on a less serious offense (burglary) at the time of the homicide. Defendant initially argued before this court that this information was improperly considered as an aggravating factor since he was never convicted of the offense. The State, in a motion to supplement the record, demonstrated that defendant was convicted of the offense. In reply, defendant argues that the State violated its promise to defendant that in exchange for his plea of guilty to the burglary charge, it would not use the burglary conviction against him in \"any manner whatsoever\u201d in this case.\nWe find no evidence that defendant\u2019s burglary conviction was used in aggravation at sentencing. During the sentencing proceedings on the prior burglary guilty plea, the following colloquy occurred:\n\"THE COURT: *** [I]t was the understanding [that] in no way whatsoever would this disposition affect the trial or the disposition of the remaining [murder] charge which, of course, is more serious, and the State would not be using that impeachment if Mr. Vargas does testify or in aggravation if he were to be found guilty, is that your understanding?\nMS. RODDY [sic] [assistant State\u2019s Attorney]: That\u2019s correct.\u201d At sentencing in the instant case, the State made the following statements:\n\"[Defendant] was also involved in the actively seeking out a victim of course as evidenced by the fact when he went into the store. Furthermore, at that time he was also on bond for residential burglary. This was committed while he was on bond for that case.\u201d\nDefense counsel objected, stating, \"Judge, I ask you to not take that into consideration. That wouldn\u2019t be used for \u2014 .\u201d The following colloquy then occurred:\n\"MR. SMITH [assistant State\u2019s Attorney]: I am not expecting [sic] of a conviction at all, your Honor.\nTHE COURT: No, that is true. There was and [sic] understanding it would \u2014 the conviction would not be used in any manner whatsoever. The fact that he was on bond however, I think, is a fact. It is a fact that can be referred to so.\nMR. FLANNIGAN [sic] [defense counsel]: All right.\u201d (Emphasis added.)\nThe trial court later went on to state:\n\"It is true that Mr. Vargas does not have any background that the Court may consider by way of aggravation. However, the Court as Mr. Smith points out, may well consider the fact that he was indeed on bond for a less serious offense when this crime was committed.\u201d (Emphasis added.)\nIt is clear that the trial court referred only to the fact that defendant was out on bond at the time of the homicide. The court did not consider the burglary conviction as substantive evidence in light of its acknowledgement that defendant did not have \"any [criminal] background that the Court may consider by way of aggravation.\u201d Moreover, defense counsel did not object to the court\u2019s final pronouncement that it could consider as a factor in sentencing that defendant had been out on bond. This was a proper factor to consider in aggravation. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 5\u20143.2(a)(12) (now 730 ILCS 5/5 \u2014 5\u20143.2 (West 1992)).) Based on the record before us, we find no reason to overturn defendant\u2019s sentence.\nAffirmed.\nSCARIANO, P.J., and DiVITO, J., concur.", "type": "majority", "author": "JUSTICE McCORMICK" } ], "attorneys": [ "Michael J. Pelletier and Alan D. Goldberg, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Jane Liechty Loeb, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISRAEL VARGAS, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201491\u20140625\nOpinion filed March 28, 1995.\nMichael J. Pelletier and Alan D. Goldberg, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Jane Liechty Loeb, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0337-01", "first_page_order": 357, "last_page_order": 365 }