{ "id": 2719099, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE WEEKS, JR., Defendant-Appellant", "name_abbreviation": "People v. Weeks", "decision_date": "1976-03-29", "docket_number": "No. 74-413", "first_page": "41", "last_page": "48", "citations": [ { "type": "official", "cite": "37 Ill. App. 3d 41" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "33 Ill. 2d 417", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2882811 ], "year": 1965, "pin_cites": [ { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0417-01" ] }, { "cite": "25 Ill. App. 3d 396", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2706862 ], "year": 1974, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0396-01" ] }, { "cite": "42 Ill. 2d 159", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2849499 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0159-01" ] }, { "cite": "51 Ill. 2d 418", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392065 ], "year": 1972, "pin_cites": [ { "page": "425" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0418-01" ] }, { "cite": "26 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2783819 ], "year": 1974, "pin_cites": [ { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0001-01" ] }, { "cite": "24 Ill.. App. 3d 536", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5310394 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/24/0536-01" ] }, { "cite": "5 Ill. App. 3d 908", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2523013 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-3d/5/0908-01" ] }, { "cite": "74 Ill. App. 2d 450", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2579991 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-app-2d/74/0450-01" ] }, { "cite": "340 N.E.2d 700", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "35 Ill. App. 3d 208", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5307082 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/0208-01" ] }, { "cite": "31 Ill. App. 3d 666", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2712979 ], "pin_cites": [ { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0666-01" ] }, { "cite": "30 Ill. App. 3d 1000", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2621330 ], "pin_cites": [ { "page": "1010" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/1000-01" ] }, { "cite": "119 Ill. App. 2d 116", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1584460 ], "pin_cites": [ { "page": "131-132" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/119/0116-01" ] }, { "cite": "38 Ill. 2d 165", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2862345 ], "year": 1967, "pin_cites": [ { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/38/0165-01" ] }, { "cite": "497 F.2d 615", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 174492, 3681966 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/f2d/497/0615-01", "/us-app-dc/162/0028-01" ] }, { "cite": "10 Ill. App. 3d 456", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5390437 ], "year": 1973, "pin_cites": [ { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/10/0456-01" ] }, { "cite": "16 Ill. App. 3d 1003", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2520443 ], "year": 1974, "pin_cites": [ { "page": "1006" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/16/1003-01" ] } ], "analysis": { "cardinality": 827, "char_count": 17513, "ocr_confidence": 0.898, "pagerank": { "raw": 2.5119638724772966e-07, "percentile": 0.8106179163341183 }, "sha256": "f7a14972a486a3a9a63f3008a34ba45e6e9e295f7ec8b9798054325ff08e600a", "simhash": "1:facca56a0b4444bd", "word_count": 2969 }, "last_updated": "2023-07-14T17:14:56.744968+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. GEORGE WEEKS, JR., Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE DIXON\ndelivered the opinion of the court:\nDefendant George Weeks, Jr., was indicted by a Lake County grand jury for conspiracy to commit murder and attempt murder. He was found guilty of both charges by a jury, and he was sentenced to a term of 6 to 18 years for the conviction on the attempt murder charge. The conspiracy conviction was merged into the greater offense and no judgment or sentence was imposed on it. Defendant appeals his conviction and sentence on three grounds: that the court abused its discretion in failing to accept his negotiated plea of guilty, that he was deprived of a fair trial by the court\u2019s failure to properly instruct the jury, and that the minimum and maximum sentences imposed are excessive, with no extraordinary elements present to justify a higher than minimum sentence.\nDominic Mingarelli, the victim, was the State\u2019s first witness. He testified that he was at home playing cards with his wife on April 28,1973, shortly before midnight, when there was a knock at the door. His wife went to the washroom, asking her husband to answer the door. He opened the front door and saw the defendant standing there, asking if Mingarelli\u2019s brother-in-law Bill Henry was at home. Mingarelli, only 18 inches from the defendant, at that point saw a gun in defendant\u2019s hand pointed at him and grabbed for the gun. A shot was fired and it went through the sleeve of the robe Mingarelli was wearing without striking his arm and leaving only a powder burn. Defendant turned and ran. Mingarelli told the police he recognized defendant, having seen him with his brother-in-law. He also testified that he and his wife had been separated prior to this incident, that she had previously run off with a Mr. Cummings, and that she left him immediately after this incident and he subsequently filed for divorce.\nThe victim\u2019s brother-in-law, William Henry, testified next for the State, having been granted immunity. He testified he\u2019d seen defendant earlier that evening with Andrew Cummings. He saw defendant holding a knife and say, \u201cI\u2019m going to kill him,\u201d having said Mingarelli had killed his dog, and that he was tired of Mingarelli making Cummings and Angel Mingarelli so unhappy. Defendant stated that he was going to see to it that Angel and her lover could be together. Henry asked defendant what he was on, referring to drugs, and defendant replied he\u2019d only had a couple of beers. A little later Henry saw defendant and Cummings in a car outside his home (Henry lived in a mobile home attached to the home of his sister and brother-in-law, the Mingarellis). He got into the car and saw Cummings give defendant a gun and bullets. Cummings asked defendant if he needed any money, defendant said no, but Cummings gave him some anyway for traveling expenses. Henry next saw defendant the following day when defendant asked whether he\u2019d killed Mingarelli. Henry said he hadn\u2019t even hit him, but he\u2019d been recognized, and Henry didn\u2019t see defendant again until 3 months later in jail.\nThe State\u2019s final witness was David Schrimp, an F.B.I. agent. He testified that he\u2019d taken a statement from defendant in Texas in July 1973. Defendant had told Schrimp he\u2019d smoked one quarter pound of marijuana on April 28, 1973, and that Henry had given him 3 dosages of window pane LSD. He stated that while in a car talking with Henry and Cummings, Cummings gave defendant a loaded gun and told defendant he wanted him to shoot a man that night. Defendant knew only that the man\u2019s name was Nick and surmised it was because of an affair between Cummings and Nick\u2019s wife. Defendant was told to knock on the door near midnight, that Nick would answer the door, and that defendant was to shoot Nick. Defendant recalls seeing a man answer the door, firing one shot, and then walking away. Schrimp testified defendant told him that he never would have done the things he had done had he not been under the influence of LSD.\nDefendant then testified in his own behalf. He stated that on April 28, 29 and 30, 1973, he had used window pane LSD, heroin, amphetamines, and marijuana. He testified that on the evening of the incident, Henry had given him three hits of window pane LSD, and that when he saw Henry the next day he didn\u2019t know whether or not he\u2019d done anything. Henry told him he\u2019d taken a shot at someone and had better get out of the area. He further testified he\u2019d been using drugs for about 11 years, and that he was under the influence of marijuana when he gave his statement to F.B.I. Agent Schrimp. He testified he\u2019d only known Cummings for 1 week prior to the incident and that Henry had told him Cummings and Angel Mingarelli were having an affair. Defendant testified he was hallucinating the night of the incident and the following morning.\nDefendant\u2019s first contention of error is the failure of the judge to accept defendant\u2019s plea of guilty to the charge of conspiracy to commit murder. In return, the State would agree to nolle prosse the charge of attempt murder, present no evidence in aggravation, and neither recommend nor oppose probation. The defense counsel\u2019s first statement to the court regarding the guilty plea was as follows:\n\u201cBut I would like to this morning after discussing present to the court a tentative by way of a negotiated plea though not a strict plea if there is no complete settlement of the case by the presentment of the plea.\u201d\nThe judge stated he didn\u2019t follow that and asked him to start again, at which point the defense counsel stated the above agreement adding that defendant would make a motion for probation and present in mitigation evidence of his drug habit \u201cand then the court would make its decision whether or not the defendant would be a fit candidate for probation or such other program.\u201d The court then asked how far the attempt went, and upon being informed of the facts, stated \u201cCounselor, I would never put a man like that on probation,\u201d and later, \u201c * * * you\u2019d better get prepared for trial, gentlemen.\u201d\nThe defendant contends that the court abused its discretion in failing to accept the guilty plea, that in so doing the court exceeded its function in plea bargaining by substituting its discretion for that of the State\u2019s Attorney. The law is clear in Illinois that sentencing is a judicial function, and it remains so in plea negotiations. Any agreements in plea negotiations are at most recommendations and the sentence to be imposed is for the court and the court alone. (People v. Congleton, 16 Ill. App. 3d 1003, 1006 (1974).) The record in this case is not as clear as it could be on whether the defendant was proposing a conditional plea. The defense counsel\u2019s first statement seems to indicate that the plea was only being offered upon the condition that the defendant receive probation or placement in a drug treatment facility; however, his later statement indicates only that he will make a motion for probation without saying that the plea is to be conditioned upon granting of probation. It appears the court understood the defense counsel to be conditioning the plea upon probation, and thus properly rejected the plea as invading the court\u2019s function of determining the severity of the sentence. The court\u2019s confusion was justified by defense counsel\u2019s failure to clarify the record. Defendant now contends no such conditional plea was intended; however, the proper time for him to clarify the record would have been when the court refused to accept the plea because he \u201ccouldn\u2019t put a man like that on probation\u201d; when it became clear the court construed defendant\u2019s plea to be based on the granting of a certain sentence. The defendant\u2019s failure to at that point tell the court that it had misunderstood defendant\u2019s intentions, leads us to hold that the court did not abuse its discretion in finding this to be a situation where the court is not bound by agreement between the defendant and the State\u2019s Attorney. See People v. Williams, 10 Ill. App. 3d 456, 458 (1973).\nIt is not necessary for us to reach the question of applicability of the foreign case cited by defendant, United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1973), for we feel the court here acted well within the scope of established Illinois law and that there is no reason to consider a case where the court\u2019s refusal to accept a plea was based on different ground.\nDefendant\u2019s second contention of error, that the jury was improperly instructed, is two pronged. Defendant\u2019s first assertion is that the court\u2019s characterization of the statement defendant gave to Schrimp as a confession rather than an admission was error and that defendant was prejudiced by the giving of IPI 3.07 (evidence that defendant confessed to the crime) rather than IPI 3.06 (evidence that defendant made an admission of fact relating to the crime). A confession acknowledges all the elements of the crime; an admission is a statement with evidentiary value in proof of an element of the offense. (People v. Georgev, 38 Ill. 2d 165, 175 (1967).) Defendant contends that his statement to Schrimp did not admit all the elements of the crime, rather, that because he said that he never would have done these things had he not been under the influence of LSD, there was a specific denial of intent, a necessary element to a murder charge.\nTo give a statement the binding force of a confession, its distinctive feature must be an acknowledgement of guilt without any exculpating statement or explanation. A statement which admits the commission of the act charged but which also gives a legal justification or excuse, is not a confession. However, a statement by a defendant containing an admission of facts which together constitute proof of the commission of the crime charged has been deemed to be a confession even though additional facts are asserted in the statement by way of justification of the crime, if the additional facts are insufficient as a matter of law to establish a defense. (Emphasis supplied.) (29 Am. Jur. 2d Evidence \u00a7523 (1967); 23 C.J.S. Criminal Law \u00a7816b (1961); People v. Rollins, 119 Ill. App. 2d 116, 131-132; People v. Green, 30 Ill. App. 3d 1000,1010; People v. Ellis, 31 Ill. App. 3d 666, 668.) We find that to be the situation in the instant case, that defendant\u2019s statement relating to the influence of drugs was insufficient, as a matter of law, to establish a defense. We therefore need not reach the question of whether the giving of IPI 3.07 was prejudicial error, as was recently held in People v. Horton, 35 Ill. App. 3d 208,340 N.E.2d 700 (1st Dist. 1975), because we find that the court in the instant case properly characterized defendant\u2019s statement to have been a confession rather than an admission.\nThe second prong of defendant\u2019s allegation that the jury was improperly instructed is defendant\u2019s contention that it was error that the court failed to give on its own motion IPI 25.02 (\u201cIssues in Defense of \u00b0 \u00b0 * Drugged Condition\u201d). Though the instruction was never tendered by either party, defendant cites Supreme Court Rule 451(c) (Ill. Rev. Stat., ch. 110A, \u00a7451(c)) that substantial defects (concerning instructions) are not waived by failure to make timely objections thereto. It has been held error to fail to instruct the jury on the elements of the crime (People v. Davis, 74 Ill. App. 2d 450 (1966)) or on reasonable doubt and presumption of innocence (People v. French, 5 Ill. App. 3d 908 (1972)) even if no such instructions are tendered. The defense cites People v. Wright, 24 Ill.. App. 3d 536 (1974), in which the issues in murder instruction IPI 7.02 did not include the requirement that the State must prove beyond a reasonable doubt that defendant was not justified in using the force which he used. The court held this omission to be reversible error even though (a) no objection was made to 7.02 as given and (b) the jury was elsewhere separately instructed, by IPI 25.05, that the State had to prove that there was no justifiable use of force. The basis of this decision was that the directions as given were in direct conflict and in that manner there was a denial of fundamental fairness. However, these cases are distinguishable from the present case. There is no contention that the jury did not receive a complete issues in attempt murder instruction or presumption of innocence and reasonable doubt instruction. In the present case the jury was fully instructed in the issues in murder (including the element of intent) and also received an instruction on the criminal responsibility of a drugged person (24.02). We hold that when those instructions are given, it is not a substantial defect to fail to also give 25.02, \u201cIssues in Defense of \u00b0\n\u201d 0 Drugged Condition.\u201d Therefore the court did not err in failing to give IPI 25.02, as the court is under no duty to give instructions not requested by counsel when the omitted instruction is not a fundamental instruction which must be given in all cases (People v. Doss, 26 Ill. App. 3d 1, 14 (2d Dist. 1974); People v. Springs, 51 Ill. 2d 418, 425 (1972)).\nDefendant\u2019s final argument is that both the minimum and maximum sentences imposed, 6-18 years, are excessive. Attempt murder is a Class I felony (Ill. Rev. Stat. 1973, ch. 38, \u00a78 \u2014 4). Under the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, \u00a71005 \u2014 8\u20141(c)(2)), the minimum term for a Class I felony shall be 4 years \u201cunless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term.\u201d The defendant asserts that the court\u2019s stated reasons for imposing the higher than minimum sentence were improper. Defendant contends the court was mistaken in its reliance on its characterization of defendant as a hired gun, and that the court improperly considered what the appellate courts or parole boards would do to the sentence he imposed. There was uncontroverted testimony by Henry that defendant accepted in excess of *100 for traveling expenses from Cummings immediately before the shooting. In speaking on the record prior to imposing sentence the court expressed its opinion that, as the appellate court often reduces sentences, the final sentence in this case could be determined by the appellate court. But the court indicated that the actions of the appellate court and parole board carried no weight with him, and what he was concerned about was the seriousness of this crime and the manner in which it was committed.\nThe court also specifically considered the fact that the defendant has had a serious drug problem for many years, but did not take advantage of the methadone program in which he was placed while he was in the Army. Defendant cites us to People v. Walcher, 42 Ill. 2d 159 (1969), in support of his contention that the fact of defendant\u2019s drug problem should have mitigated defendant\u2019s sentence. In that case the court recognized that the defendant\u2019s condition (in Walcher, chronic.alcoholism) \u201cis a circumstance to be considered in determining punishment\u201d (42 Ill. 2d 159, 166). We think the court in the instant case, by considering the defendant\u2019s condition, followed the holding of Walcher; we do not feel Walcher mandates that a defendant\u2019s sentence be mitigated because he suffers from a condition such as alcoholism or drug addiction. Thus, contrary to defendant\u2019s contentions, we find that the court in imposing its sentence did comply with the requirements of section 5 \u2014 8\u20141(c)(2) of the Unified Code of Corrections (Ill. Rev. Stat., ch. 38, \u00a71005 \u2014 8\u20141(c)(2)) in considering the circumstances of the offense and the history and character of the defendant, including his rehabilitative potential.\nThe defendant contends the Unified Code of Corrections requires the court to state the substantial extraordinary elements which justify a higher than minimum sentence, but cites no authority either by code section or case law. However, People v. Taylor, 25 Ill. App. 3d 396, 409 (1974), states:\n\u201cWe hold that there is no requirement that the trial judge make any specific statement as to the factors considered, but instead, each case must be determined on its own facts after a review of the record and proceedings involved.\u201d .\nIn the instant case as noted above, there are sufficient facts in the record to justify the court\u2019s decision to impose a higher than minimum sentence. The minimum and maximum sentence imposed here are within the limits prescribed by the legislature. Even though the reviewing courts have the power to reduce sentences imposed by trial courts, it has been held that such power \u201cshould be applied with considerable caution and circumspection, for the trial judge ordinarily has a superior opportunity in the course of trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed than do the appellate tribunals.\u201d People v. Taylor 33 Ill. 2d 417, 424 (1965).\nWe therefore hold that the 6-18 year sentence imposed upon this defendant is not excessive, and is affirmed.\nJudgment affirmed.\nT. J. MORAN, P. J., and RECHENMACHER, J., concur.", "type": "majority", "author": "Mr. JUSTICE DIXON" } ], "attorneys": [ "Ralph Ruebner and Ira A. Moltz, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Jack Hoogasian, State\u2019s Attorney, of Waukegan (Edward N. Morris and Martin P. Moltz, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE WEEKS, JR., Defendant-Appellant.\nSecond District (2nd Division)\nNo. 74-413\nOpinion filed March 29, 1976.\nRalph Ruebner and Ira A. Moltz, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nJack Hoogasian, State\u2019s Attorney, of Waukegan (Edward N. Morris and Martin P. Moltz, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." }, "file_name": "0041-01", "first_page_order": 69, "last_page_order": 76 }