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08/27/87 the People of the State of v. Bervet R. Horton

August 27, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

BERVET R. HORTON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

513 N.E.2d 502, 160 Ill. App. 3d 513, 112 Ill. Dec. 88 1987.IL.1251

Appeal from the Circuit Court of Champaign County; the Hon. Robert J. Steigmann, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. SPITZ, P.J., and McCULLOUGH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

On October 30, 1985, defendant pleaded guilty to the offense of unlawful restraint, a Class 4 felony (Ill. Rev. Stat. 1985, ch. 38, par. 10-3(b)), and was sentenced to a term of 30 months' probation. On March 25, 1986, defendant stipulated to allegations of a petition to revoke his probation, that he appeared late on six dates for weekend imprisonment ordered as a condition of his probation. Defendant's probation was revoked, and he was resentenced on March 7, 1986, to a term of two years' probation and ordered to participate in the intensive probation supervision program , felony unit, until the trial court ordered otherwise. In December 1986, a petition to revoke defendant's probation was filed alleging defendant had violated the terms of his probation. After hearing on December 19, 1986, the court found the State had proved the alleged violations by a preponderance of the evidence and revoked defendant's probation. After hearing on January 15, 1987, with the benefit of a presentence investigation report and arguments of counsel, the trial court sentenced defendant to three years' imprisonment. The trial court ordered defendant be credited with 136 days, the period of periodic imprisonment custody previously ordered. The court further made the specific finding that defendant was not entitled to be credited against sentence with any time spent on probation. Defendant appeals, arguing the trial court abused its discretion in denying him sentence credit for time served on probation. We affirm.

Under section 5-6-4(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-6-4(h)), when a defendant is resentenced after revocation of probation, the time served on probation shall be credited against a sentence of imprisonment unless the court orders otherwise. As this court stated in People v. Chumbley (1982), 106 Ill. App. 3d 72, 76, 435 N.E.2d 811, 814, under this section the trial court has broad discretion in choosing to grant or refuse credit for time served on probation. The determination of whether the trial Judge abused his discretion in denying credit for time served on probation is similar to a review of whether the Judge imposed an excessive sentence. The decision rests within the sound discretion of the trial court and will not be disturbed by a reviewing court absent an abuse of discretion. (People v. Cox (1980), 82 Ill. 2d 268, 279-80, 412 N.E.2d 541, 547.) In deciding whether the trial Judge abused his discretion, Chumbley stated two factors of controlling importance: (1) the defendant's conduct during probation; and (2) the sentence imposed by the trial Judge. People v. Chumbley (1982), 106 Ill. App. 3d 72, 76, 435 N.E.2d 811, 814, citing People v. Stufflebean (1979), 73 Ill. App. 3d 801, 804, 392 N.E.2d 414, 417; People v. Willett (1976), 44 Ill. App. 3d 545, 552, 358 N.E.2d 657, 664.

When a defendant is admitted to probation and probation is subsequently revoked, the court may sentence the defendant to any sentence which would have been appropriate for the original offense. (People v. Reznick (1986), 141 Ill. App. 3d 593, 596, 491 N.E.2d 444, 446.) The statutory sentencing range for the original offense here, unlawful restraint, permits for a sentence of imprisonment of not less than one year and not more than three years. (Ill. Rev. Stat. 1985, ch. 38, pars. 10-3(b), 1005-8-1(a)(7).) Defendant was, therefore, sentenced to the maximum term of imprisonment for the original offense.

In sentencing a defendant on revocation of probation, it is proper for the trial court to consider defendant's conduct on probation in assessing his history, character, and rehabilitative potential. (People v. Young (1985), 138 Ill. App. 3d 130, 142, 485 N.E.2d 443, 450 (and cases cited therein).) It follows that if a defendant's conduct on probation reflects poorly on his rehabilitative potential, the trial court may impose a more severe sentence than the one which the court may have initially imposed. (People v. Reznick (1986), 141 Ill. App. 3d 593, 597-98, 491 N.E.2d 444, 446-47.) These same principles which generally apply to determination of the appropriate sentence are encompassed by the factors referred to in Chumbley and may likewise affect the trial court's determination in the exercise of its discretion on whether to deny defendant credit for time served on probation.

In November 1986, defendant was notified in writing by the IPS program of the following additional condition of probation:

"On 11/10/86, Charlesetta Smith contacted our office and advised that on the morning of 11/10/86, you contacted her at her office and made threatening statements toward her. To eliminate this problem in the future, you are hereby informed that as of 11/10/86, you must not have any contact, directly or indirectly with her. This includes phone contacts. Should Ms. Smith inform us that you have contacted her, it will be considered a direct violation of probation."

A second petition to revoke probation was filed on December 5, 1986, alleging defendant had unlawfully restrained Charlesetta Smith in a car.

At hearing on the December 1986 petition, Robert Schwieter, supervisor of the IPS unit, testified the above-quoted condition of defendant's IPS probation, People's exhibit No. 1, was established in writing and defendant was given a copy, which defendant signed at 4:20 p.m. on November 10, 1986.

Smith testified she saw defendant in a parking lot at 1 p.m. on December 2, 1986, and defendant pulled her by her coat to his car. Smith said she agreed to get in and speak to defendant if he would let go of her coat. After she entered the car, defendant drove away, ignoring her request to be let out of the car. While the car was moving, Smith saw a police officer, opened the door of the car and screamed, and exited the car while it was still moving. Smith testified she had lived with defendant for several months in 1986. Prior to December 2, 1986, she requested the ...


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