
    The People of the State of Illinois, Plaintiff-Appellee v. Robert McWilliams, Defendant-Appellant.
    (No. 11400;
    Fourth District
    — January 11, 1972.
    
      Morton Zwick, Director of Defender Project, of Chicago, (John F. McNichoIs and Bruce L. Herr, of Defender Project, of counsel,) for appellant.
    Richard A. Hollis, State’s Attorney, of Springfield, for appellee.
   Mr. PRESIDING JUSTICE TRAPP

delivered the opinion of the court:

Defendant was convicted of burglary following a bench trial. Sentence of six to ten years was imposed. He appeals.

The evidence heard by the court consisted in the testimony of two arresting officers and the testimony of an owner of the restaurant concerned that the defendant did not have authority to enter the premises after the business was closed.

The police found the glass in the front door of a restaurant broken out shortly after 10:00 P.M., and apprehended defendant crouched or crawling on the floor. The owners had closed the restaurant at about 6:00 P.M. Under the circumstances no property in the restaurant was found to be missing.

Upon appeal, it is urged that defendant did not receive competent representation in numerous lesser aspects which combined amount to a deprivation of counsel. Measured in the light of the only facts shown by the record to be available to defense counsel, the arguments are without merit. Lengthy review of the asserted issues would produce little of interest to either the Bench or the Bar.

The indictment upon which defendant was first arraigned was dismissed upon the return of a subsequent and second indictment. It is urged, as evidence of want of competent counsel, that he failed to file a motion to dismiss such first indictment. Without now deciding the sufficiency of the allegation of the ownership of the restaurant in the first indictment, it appears that if, in fact, such allegations were insufficient, a conviction thereon would be void. (People v. Green, 368 Ill. 242, 13 N.E.2d 278.) Such circumstance does not suggest that counsel was incompetent in failing to file a motion to dismiss.

By reason of the fact that the judgment here for review follows a bench trial, it would avail little to discuss in detail that defendant’s prior plea of guilty was set aside upon the motion of the trial court as not being voluntary. In a hearing in aggravation and mitigation following such plea defendant testified that he was in the restaurant but not with intent to steal. He stated that he had found a broken glass and entered to find out whether any of the women proprietors had been injured. While making such investigation, the police entered to arrest him. Upon such testimony the court inquired concerning the validity of the plea and the defendant stated that he was in the premises, that he had a record of two felony convictions and that it would be hard to prove he didn’t do it. Defense counsel stated to the court that he doubted that defendant should be called as a witness by reason of such felony convictions, and that it was believed that a plea might minimize the sentence. The court vacated the plea on its own motion as not being voluntary.

Upon the bench trial before another judge, no evidence was introduced in behalf of the defendant. There is no suggestion of any available evidence that could be offered in behalf of defendant other than the testimony of the defendant. There was neither question of identity nor alibi. Defendant’s testimony was subject to impeachment and he was on parole at the time of this arrest. The contention that the owner might have been impeached by vigorous and searching cross-examination as to the time that she was called to the restaurant by the police does not impress.

The absence of facts available to counsel reduces to scant weight the argument that counsel failed to make motions at the close of the evidence, or for a new trial. There were no issues of fact and no rulings on evidence subject to challenge. No other matter to be shown by such motions is suggested. We cannot say that counsel is incompetent for acting with realistic recognition of the factors prevailing under the facts of the case and for avoiding a major production in the terms of mere ritual.

Defendant directs his argument to the contention that the sole evidence introduced by the prosecution at the hearing in aggravation and mitigation was a “rap sheet” which was prejudicial and erroneous. This position is shown to be incorrect in that there were, in fact, certified copies evidencing convictions for burglary and for robbery placed into evidence.

The “rap sheet” introduced and reported some seven other convictions for theft and property damage offenses with sentences imposed. Such evidence is admissible at a hearing in aggravation and mitigation, or for probation. (People v. Daugherty, 106 Ill.App.2d 250, 245 N.E.2d 7.) Here, as in Daugherty, there was ample admissible evidence of prior convictions, and it does not appear that the court considered inadmissible evidence in imposing sentence. It is thus distinguished from People v. Jackson, 95 Ill.App.2d 193, 238 N.E.2d 196, where it was apparent that the court there considered reports of arrest for which there were no convictions, and such evidence was clearly inadmissible.

It is urged that the sentence should be reduced under a rule that the minimum sentence should not exceed one-third of the maximum. Such standard is a guide rather than an absolute formula and the factual circumstances may authorize deviations from the guide. (People v. Scott, 106 Ill.App.2d 98, 253 N.E.2d 553.) In People v. Wright (Ill.App.2d), 267 N.E.2d 757, it was pointed out that the rigid formula suggested precludes consideration of background and criminal propensities of the defendant.

Defendant’s record discloses his substantial and persistent resistance to prior efforts at rehabilitation. The offense at hand was committed while on parole. His potential for rehabilitation had been tested by probation, as weU as by sentence and by parole. In Scott we concluded that the reviewing court should not employ its authority to reduce sentence as a substitute for the judgment of the trial court as to an appropriate penalty. The defendant must make a substantial showing of mitigating circumstances to justify the reduction of sentence on review. (People v. Nelson, 41 Ill.2d 364, 243 N.E.2d 225.) We are unable to discover such mitigating circumstances in this record.

The judgment is affirmed.

Judgment Affirmed.

SMITH and CRAVEN, JJ., concur.  