{ "id": 150256, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARY WILCOX, Defendant-Appellant", "name_abbreviation": "People v. Wilcox", "decision_date": "1996-06-07", "docket_number": "No. 3\u201494\u20140730", "first_page": "494", "last_page": "497", "citations": [ { "type": "official", "cite": "281 Ill. App. 3d 494" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "558 N.E.2d 638", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "200 Ill. App. 3d 232", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2462689 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/200/0232-01" ] }, { "cite": "485 N.E.2d 443", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1985, "pin_cites": [ { "page": "445" }, { "page": "445, 447" }, { "page": "450" }, { "page": "445" } ], "opinion_index": 0 }, { "cite": "138 Ill. App. 3d 130", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498673 ], "weight": 5, "year": 1985, "pin_cites": [ { "page": "135" }, { "page": "135, 138" }, { "page": "142" }, { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/138/0130-01" ] }, { "cite": "235 N.E.2d 393", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "pin_cites": [ { "page": "396" } ], "opinion_index": 0 }, { "cite": "93 Ill. App. 2d 283", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2644876 ], "year": 1968, "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/93/0283-01" ] }, { "cite": "204 N.E.2d 314", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "55 Ill. App. 2d 157", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5283791 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-app-2d/55/0157-01" ] }, { "cite": "542 N.E.2d 1269", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1989, "opinion_index": 0 }, { "cite": "186 Ill. App. 3d 983", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2659045 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0983-01" ] } ], "analysis": { "cardinality": 389, "char_count": 6164, "ocr_confidence": 0.775, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.005688748649052513 }, "sha256": "b00eaab7998eb1d78009d2f2f7ca9359f0810d2cc25fc6ac2e7cc5e0e450900c", "simhash": "1:330a354f11170ee5", "word_count": 979 }, "last_updated": "2023-07-14T22:18:30.087160+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. CARY WILCOX, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE HOLDRIDGE\ndelivered the opinion of the court:\nFollowing a jury trial, defendant Cary Wilcox was convicted of intimidation (720 ILCS 5/12 \u2014 6(a)(1) (West 1994)) and aggravated assault (720 ILCS 5/12 \u2014 2(a)(13) (West 1994)). He was sentenced to 30 months\u2019 probation. Subsequently, the defendant admitted violating his probation. He was then sentenced to five years\u2019 imprisonment for the intimidation conviction and a concurrent three-year term of imprisonment for the aggravated assault conviction. The defendant appeals his sentence. We affirm.\nThe record reveals that in October of 1993, the defendant\u2019s wife, Carol Ann Nicholls, initiated divorce proceedings. On October 23, 1993, the defendant drove to Nicholls\u2019 place of employment and asked her to drop the divorce proceedings. When Nicholls refused, the defendant pulled out a gun, aimed it at Nicholls, and told her that she was dead. Nicholls closed the door between herself and the defendant and ran away. The defendant then shot himself in his left arm. The bullet also struck the door, leaving an indentation.\nFollowing a jury trial, the defendant was convicted of intimidation and aggravated assault. In April of 1994, he was sentenced to 30 months\u2019 probation. Probation was conditioned on, among other things, the defendant not consuming alcohol and not entering Big Mike\u2019s Tavern, a bar where his wife sometimes worked.\nIn August of 1994, the State filed a petition to revoke the defendant\u2019s probation. The petition alleged that the defendant had entered Big Mike\u2019s Tavern and drank a beer. The defendant admitted these allegations. A sentencing hearing was held, and the defendant was sentenced to five years\u2019 imprisonment for the intimidation conviction and a concurrent three-year term of imprisonment for the aggravated assault conviction.\nOn appeal, the defendant\u2019s sole contention is that this cause should be remanded for resentencing because the trial court improperly sentenced the defendant for his conduct leading to his probation revocation rather than for the underlying intimidation and aggravated assault convictions. For reasons which follow, we find no merit to this contention.\nIn reviewing a sentence entered following revocation of probation, the appellate court has traditionally tried to determine whether the trial court improperly \"commingled\u201d the underlying offense and the conduct which constituted the probation violation. People v. Vilces, 186 Ill. App. 3d 983, 542 N.E.2d 1269 (1989). The concern with commingling appears to have evolved from People v. Morgan, 55 Ill. App. 2d 157, 204 N.E.2d 314 (1965). In Morgan, the defendant contended that he had been subjected to double jeopardy because his commission of a single offense resulted in both: (1) indictment for that offense; and (2) revocation of a term of probation previously imposed for a separate offense. The Morgan court ultimately rejected the defendant\u2019s double jeopardy arguments.\nUnfortunately, the Morgan decision resulted in some confusion. Despite the Morgan court\u2019s clear rejection of the double jeopardy claim, subsequent cases nevertheless interpreted Morgan as requiring appellate scrutiny of sentences where \"there was a commingling of matters relating to the original offense with the conduct allegedly constituting the violation of probation.\u201d People v. White, 93 Ill. App. 2d 283, 288, 235 N.E.2d 393, 396 (1968). Precisely what constituted \"commingling\u201d was not well defined and resultant case law was inconsistent. See People v. Young, 138 Ill. App. 3d 130, 135, 485 N.E.2d 443, 445 (1985); see generally Annot. 65 A.L.R.Sd 1100 (1975). The commingling concept thus became a trap for the sentencing court, and meaningful appellate review was hampered by the absence of a consistent approach in analyzing such cases. Young, 138 Ill. App. 3d at 135, 138, 485 N.E.2d at 445, 447.\nMore recently, for reasons set forth in greater detail in Young, 138 Ill. App. 3d 130, 485 N.E.2d 443, the commingling concept has fallen into disfavor. Today, the preferred approach is that \"a sentence within the statutory range for the original offense will not be set aside on review unless the reviewing court is strongly persuaded that the sentence imposed after revocation of probation was in fact imposed as a penalty for the conduct which was the basis of revocation, and not for the original offense.\u201d (Emphasis in original.) Young, 138 Ill. App. 3d at 142, 485 N.E.2d at 450; accord People v. Vilces, 186 Ill. App. 3d 983, 542 N.E.2d 1269 (1989); People v. Laws, 200 Ill. App. 3d 232, 558 N.E.2d 638 (1990).\nHere, in pronouncing sentence, the trial court made several references to the conduct that was the basis of the probation revocation. However, such comments were quite similar to comments that were not found to be error in Young. Young, 138 Ill. App. 3d at 134, 485 N.E.2d at 445. Moreover, a review of the totality of the record reveals that the trial court sentenced the defendant for the underlying intimidation and aggravated assault convictions, rather than for the conduct that was the basis of the probation revocation. Finally, given the facts of the instant case, we fail to see how the defendant would have been prejudiced even if the trial court had sentenced the defendant based upon the conduct that was the basis of the probation revocation, rather than upon the underlying offenses. It is quite unlikely that a trial court would impose a lengthier sentence upon a defendant who merely went into a tavern and had a drink than it would impose upon a defendant convicted of intimidation and aggravated assault.\nFor the reasons set forth above, the judgment of the circuit court of Rock Island County is affirmed.\nAffirmed.\nMcCUSKEY and MICHELA, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE HOLDRIDGE" } ], "attorneys": [ "Ronald Packowitz, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Marshall E. Douglas, State\u2019s Attorney, of Rock Island (John X. Breslin and Judith Z. Kelly, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARY WILCOX, Defendant-Appellant.\nThird District\nNo. 3\u201494\u20140730\nOpinion filed June 7, 1996.\nRonald Packowitz, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nMarshall E. Douglas, State\u2019s Attorney, of Rock Island (John X. Breslin and Judith Z. Kelly, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0494-01", "first_page_order": 512, "last_page_order": 515 }