¶1dissenting in part:
¶2I concur with the majority opinion in affirming the convictions but dissent from the conclusion that the case should be remanded for a new sentencing hearing.
¶3That remandment is bottomed upon “evidence of charges pending against him presented in aggravation at his sentencing hearing.”
¶4The “evidence” consisted of the testimony by the victim of a battery committed in the county jail while defendant was being held for trial upon this offense. That testimony was corroborated by the testimony of the jail officer who observed it. There was confrontation of the witness by the defendant with opportunity to cross-examine and to introduce rebuttal. The State’s Attorney dismissed the charge of battery following the sentencing of the defendant.
¶5Evidence upon a charge of conspiracy to escape from jail while this trial was pending consisted of defendant’s transcribed statement of his participation in the conspiracy. That charge was dismissed by the State’s Attorney upon the sentencing of the defendant in this case. Foundation for the statement was stipulated by defendant and it was stipulated that the transcript was to be admitted only for the purpose of this proceeding.
¶6The end result was precisely that achieved in the cited People v. Schleyhahn (1972), 4 Ill. App. 3d 591, 281 N.E.2d 409, except that dismissal of the pending charges followed the sentencing without prior stipulation.
¶7It is interesting to note that the opinion in Schleyhahn was filed on April 6, 1972. On March 30, 1972, the supreme court filed its opinion in People v. Bey, 51 Ill. 2d 262, 281 N.E.2d 638, in which the court stated:
“We have repeatedly held that proof of a pending indictment is properly presentable in aggravation as are a wide variety of other factors [citation], * ° (51 Ill. 2d 262, 267, 281 N.E.2d 638, 641.)
¶8We do not find that the determination by the supreme court has been modified. People v. Schmidt (1978), 61 Ill. App. 3d 7, 377 N.E.2d 553; People v. Malone (1974), 19 Ill. App. 3d 24, 311 N.E.2d 216.
¶9One finds that the trial judge had substantial authority supporting the admission of the testimony of witnesses concerning criminal acts, committed subsequently to the offense at trial, for which there had been no convictions as relevant to the determination of the potential for rehabilitation. The rationale of the several cases is that the testimony was subject to cross-examination and rebuttal. In People v. Jones (1976), 36 Ill. App. 3d 491, 344 N.E.2d 40, the reviewing court held testimony concerning two batteries committed by defendant subsequent to arrest on the pending charge and prior to the sentencing hearing to be admissible. In People v. Davis (1976), 38 Ill. App. 3d 649, 348 N.E.2d 533, defendant was charged with armed robbery. The court held it proper to introduce the testimony of competent witnesses that defendant had also committed a robbery shortly after the offense with which defendant was charged. The testimony was held admissible as an exception to the general rule that arrests without convictions were not admissible at a sentencing hearing. The same distinction was stated in People v. Lakes (1978), 60 Ill. App. 3d 271, 376 N.E.2d 730. In People v. Jones (1978), 65 Ill. App. 3d 435, 382 N.E.2d 697, the reviewing court determined that testimony of offenses committed while defendant was in jail pending sentencing was properly admitted and bearing upon moral character, inclination to crime, and potential for rehabilitation.
¶10There is also substantial authority which holds that testimony of competent witnesses having personal knowledge is admissible as to matters of pending charges committed prior to the offense at trial where defendant has had an opportunity for confrontation, cross-examination and rebuttal. In People v. Lemke (1975), 33 Ill. App. 3d 795, 338 N.E.2d 226, defendant was convicted of unlawful delivery of cocaine. At sentencing, testimony was presented concerning other pending offenses of violation of the Controlled Substances Act, each of which were subsequently dismissed. Defendant contended that the evidence was improper since there had been no conviction as to those offenses. The court stated:
“The general rule, to which there are significant exceptions, is that bare arrests which have not resulted in conviction are not admissible at a sentencing hearing. [Citations.]
The evidence concerning defendant’s conduct on August 14 was a proper subject of judicial inquiry and was clearly relevant to the issues involved in a sentencing hearing in aid of the court’s determination of the defendant’s propensities and of her rehabilitation potential. This was not bare evidence of arrests which have not resulted in conviction but a full presentation of facts and circumstances where the evidence was introduced formally with due opportunity for confrontation, cross-examination and rebuttal.” 33 Ill. App. 3d 795, 797-98, 338 N.E.2d 226, 228.
¶11In People v. Barksdale (1976), 44 Ill. App. 3d 770, 358 N.E.2d 1150, defendant was convicted of rape and deviate sexual assault. In addition to evidence of prior felony convictions, two victims of similar offenses testified to the defendant’s attack upon them. At the hearing in aggravation and mitigation, the reviewing court held that the sentencing standards stated in People v. Adkins (1968), 41 Ill. 2d 297, 301, 242 N.E.2d 258, 260, were applicable:
“The rules of evidence which ordinarily obtain in a trial where guilt is denied do not bind the court in its inquiry. It may look to the facts of the [crime], and it may search anywhere, within reasonable bounds, for other facts which tend to aggravate or mitigate the offense. In doing so it may inquire into the general moral character of the offender, his mentality, his habits, his social environments, his abnormal or subnormal tendencies, his age, his natural inclination or aversion to commit crime, the stimuli which motivate his conduct, and, as was said in People v. Popescue, [345 Ill. 142], the judge should know something of the life, family, occupation and record of the person about to be sentenced. [Citations.]”
¶12In People v. Stoutenborough (1978), 64 Ill. App. 3d 489, 381 N.E.2d 415, the reviewing court reached a similar conclusion as to a conviction for indecent liberties. The child was permitted to testify regarding prior conduct of the defendant, although the latter had not been charged thereupon. The court stated:
“In determining sentence, a court is not bound by the usual rules of evidence but may search anywhere within reasonable bounds for facts which tend to aggravate or mitigate the offense [citation]. Under the new sentencing act, a defendant’s ‘history of prior delinquency or criminal activity’ is a factor to be considered in aggravation (Ill. Rev. Stat. 1977 Supp., ch. 38, par. 1005—5—3.2(a)(3)). While the court must exercise care to insure the accuracy of the information considered and shield itself from any improper material’s prejudicial effect (Crews), it may inquire into the general moral character of the offender, his mentality, his habits, his social environments, his abnormal or subnormal tendencies, his age, his natural inclination or aversion to commit [crime] and the stimuli which motivated his conduct. [Citation.]” 64 Ill. App. 3d 489, 493, 381 N.E.2d 415, 419.
¶13The majority opinion also cites People v. Kennedy (1978), 66 Ill. App. 3d 35, 383 N.E.2d 255, in support of its remandment for new sentencing. That opinion was concerned, however, with only the statement of a series of arrests for misdemeanors subsequent to the original convictions. The trial court indulged in comment to the effect that defendant was likely to have been guilty although the prosecution had not been able to convict him. The reviewing court concluded that:
“[I]t is unfair to the defendant that mere charges or arrests be given substantial weight in determining whether further offenses have in fact been committed and this is true regardless of whether the grant of probation or other sentencing questions are at issue.” (66 Ill. App. 3d 35, 39, 383 N.E.2d 255, 258.)
¶14It is fair to conclude that the tenor and context of the Kennedy opinion distinguishes a record showing the mere fact of arrest or charges filed from the cited cases where there was competent evidence concerning the criminal conduct of the defendant, and the defendant had the opportunity to cross-examine or present rebuttal.
¶15The statement of the trial court in imposing sentence in this case discloses that the sentence term was in fact based upon defendant’s prior conviction for six felonies. I would hold that the evidence in aggravation was properly admitted and affirm the sentence.