People v. Jones

                                             FIRST DIVISION
                                             June 30, 1997



No. 1-95-1273

THE PEOPLE OF THE STATE OF ILLINOIS,

          Plaintiff-Appellee,

     v.

TERRY JONES,

          Defendant-Appellant.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County.

No. 94 CR 20313

Honorable
James M. Schreier,
Judge Presiding.

     JUSTICE O'BRIEN delivered the opinion of the court:

     Following a joint bench trial with his codefendant, Tony Hays,
defendant Terry Jones was found guilty of vehicular invasion and
thereafter sentenced to a Class X 20-year prison term.  On appeal,
defendant contends that (1) he was not proved guilty beyond a
reasonable doubt and (2) the circuit court abused its sentencing
discretion.

BACKGROUND
     At trial, Carl Irps testified that on July 7, 1994, at
approximately 5:30 a.m., he was waiting alone inside his van at the
corner of Paulina Street and Jackson Boulevard in Chicago to begin
pipefitting work in a nearby restaurant when defendant and Hays
approached him.  Defendant had an unlit cigarette in his mouth and
motioned for a match.  Irps indicated that he did not have one,
whereupon defendant and Hays continued walking until they reached
a stop sign at the corner.  There, they stopped and continued to
talk.
     Defendant and Hays then turned around and walked back to Irps,
who by that time had found a matchbook.  Irps rolled down his
window and gave defendant the matchbook.  Defendant took the
matchbook from Irps and lit his cigarette.  According to Irps,
defendant suddenly lunged at him through the open driver's side
window with a "folding knife or something" and said, "I am going to
cut you."  Irps "bailed for" his passenger's side door, jumped out
of his van and fled.  Defendant and Hays followed.  As he ran, Irps
noticed a nearby hospital's security truck driving toward him. 
Irps pointed to his pursuers.  The security officer driving that
truck responded and began to chase defendant and Hays.
     Irps further testified that he was not cut or otherwise struck
by defendant.
     David A. Schur, the hospital security officer who assisted
Irps, testified that he was stationed on the Paulina Street bridge
on July 7, 1994, in the early morning, and there saw defendant and
Hays walking along Paulina toward Jackson Boulevard.  According to
Schur, defendant and Hays stopped in the middle of the Paulina
Street-Jackson Boulevard intersection and then began walking toward
a blue van.  When they reached the van, defendant approached the
driver's side window, reached inside and then "back[ed] off." 
Schur drove closer.  As he did, he saw defendant return to the
front of the van and then run back toward the rear of the van.  He
then saw Irps running from defendant and Hays toward Van Buren
Street.
     Schur further testified that as Irps fled toward him, he
pointed at defendant and Hays and "mumbled something about [them]
trying to rob him."  Schur radioed for assistance.  He then got out
of his truck and told defendant and Hays to stop.  They did not and
he gave chase.
     Chicago police officer Patrick M. Finucane testified that he
and his partner responded to Schur's radio call and shortly
thereafter arrested defendant.  Hays was later arrested by other
responding officers.
     Chicago police officer Daniel McWeeny testified that he spoke
with Irps and Schur and then interviewed defendant.  According to
Detective McWeeny, defendant denied any attempt to rob Irps.
     Neither defendant nor Hays presented any evidence in their
defense.
     Following closing statements, the circuit court found both
defendant and Hays guilty of vehicular invasion.  Specifically, the
circuit court found that "[defendant] reached into the van and with
a knife or razor-like instrument *** attempted to cut [Irps]."
SUFFICIENCY OF THE EVIDENCE
     Defendant initially contends, that although the evidence
introduced against him established his intent to commit aggravated
assault, a Class A misdemeanor, within Irps' van, it did not
establish his intent to commit a felony therein.

     In resolving a challenge to the sufficiency of the evidence
used to convict a defendant, a reviewing court does not reweigh
that evidence.  See People v. Young, 128 Ill. 2d 1, 48-51 (1989). 
Rather, it resolves such a challenge by determining whether, after
viewing all the evidence in a light most favorable to the State,
any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.  Young, 128 Ill. 2d at 48-
49, citing Jackson v. Virginia, 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89 (1979).  Only when the
evidence of a defendant's guilt is so unsatisfactory, improbable or
implausible, as to create a reasonable doubt, will a conviction be
set aside.  People v. Slim, 127 Ill. 2d 302, 307 (1989).
     Section 12-11.1 of the Criminal Code of 1961 states as
follows:
               "A person commits vehicular invasion who
          knowingly, by force and without lawful
          justification, enters or reaches into the
          interior of a motor vehicle *** while such
          motor vehicle is occupied by another person or
          persons, with the intent to commit therein a
          theft or felony."  720 ILCS 5/12-11.1 (West
          1994).

     Here, defendant's challenge to the sufficiency of the evidence
is based upon the presumption that Illinois does not recognize the
offense of attempted aggravated battery.  We reject that
presumption, for such an offense is recognized in this State. 
People v. Britz, 39 Ill. App. 3d 200, 202 (1976)(attempted
aggravated battery); Macklin v. Commonwealth Life & Accident Co.,
121 Ill. App. 2d 119, 126-27 (1970)(attempted aggravated battery);
see 720 ILCS Ann. 5/12-1, Committee Comments - 1961, at 215 (Smith-
Hurd 1993)(attempted battery).  Moreover, because attempted
aggravated battery is a specific intent offense, a defendant
convicted of such is also axiomatically deemed to have possessed
the intent to commit aggravated battery.  See 720 ILCS 5/8-
4(a)(West 1995); People v. Miner, 46 Ill. App. 3d 273, 283 (1977). 
Aggravated battery is a Class 3 felony.  720 ILCS 5/12-4(b)(West
1994).
     The circuit court implicitly found defendant guilty of
attempted aggravated battery.  We perceive no error in that
finding.  Indeed, we believe, as we did in People v. Hays, No. 1-
95-1278 (1995)(unpublished order under Supreme Court Rule 23), that
a rational trier of fact, viewing the evidence in a light most
favorable to the State, could have found defendant guilty of
vehicular invasion beyond a reasonable doubt.
PROPRIETY OF DEFENDANT'S SENTENCE
     Defendant also contends that the circuit court abused its
sentencing discretion.  Specifically, defendant argues that his 20-
year sentence is grossly disproportionate to the 8-year sentence
imposed upon his codefendant, Hays.
     At the time of defendant's offense and his subsequent
sentencing, the Unified Code of Corrections provided: "A
defendant's challenge to the correctness of a sentence or to any
aspect of the sentencing hearing shall be made by a written motion
filed within 30 days following the imposition of sentence."  730
ILCS 5/5-8-1(c) (West 1994) (eff. August 11, 1993).  The mandatory
language of section 5-8-1(c) has been interpreted to mean that a
defendant who fails to file a post-sentencing motion challenging
the correctness of the sentence waives appellate review of the
matter unless it appears that the trial court imposed consecutive
or extended sentences without legal justification.  See People v.
Reed, 282 Ill. App. 3d 278, 280-81 (1996) (cautioning litigants
about ignoring the waiver rule only because "substantial" or
"fundamental" rights are implicated).
     Here, defendant essentially argues that he was denied
fundamental fairness in sentencing.  See People v. Brown, 249 Ill.
App. 3d 986, 620 N.E.2d 1090 (1993) (holding that fundamental
fairness requires that defendants similarly situated should not
receive grossly disparate sentences).  Defendant did not raise this
issue before the circuit court in a post-sentencing motion. 
Accordingly, under Reed, we deem the matter waived.
     Although we deem the matter waived, we are mindful that the
Illinois Supreme Court has granted the defendant's petition for
leave to appeal the Reed decision.  Accordingly, in the interests
of judicial economy, we note that even if this court were to
consider defendant's argument, we would find no error. 
     A sentencing determination is committed to a circuit court's
sound discretion.  Accordingly, such a determination will not be
disturbed on appeal unless that discretion is shown to have been
abused.  People v. LatPointe, 88 Ill. 2d 482, 492 (1981); People v.
Perruquet, 68 Ill. 2d 149, 153 (1977).  Similarly situated
defendants may not be sentenced to unreasonably disparate
sentences.  People v. Godinez, 91 Ill. 2d 47, 55 (1982).  However,
a disparity between the sentences of similarly situated defendants
will not be deemed unreasonable on appeal if that disparity is
"warranted by differences in the nature and extent of the concerned
defendants' participation in the offense."  Godinez, 91 Ill. 2d  at
55.
     Here, defendant's participation in the vehicular invasion was
much greater than Hays'.  Defendant also had a more serious
criminal history.  Under these circumstances, the circuit court
will not be found to have imposed an unreasonably disparate
sentence upon defendant nor to have otherwise abused its sentencing
discretion.  See People v. Martin, 81 Ill. App. 3d 238, 245-46
(1980).
CONCLUSION
     For the aforementioned reasons, we affirm the judgment of the
circuit court.  As a part of our judgment, we also grant the
State's request and assess $100 against defendant, as costs, for
the State's defense of this appeal.
     Affirmed.
     BUCKLEY, J., and GALLAGHER, J., concur.