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06/02/88 the People of the State of v. Mark J. Cissna

June 2, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MARK J. CISSNA, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

524 N.E.2d 268, 170 Ill. App. 3d 398, 120 Ill. Dec. 503 1988.IL.872

Appeal from the Circuit Court of Adams County; the Hon. Dennis K. Cashman, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. GREEN, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

On March 21, 1986, in the circuit court of Adams County, defendant Mark Cissna pleaded guilty to the offense of unlawful use of weapons by a felon in violation of section 24-1.1(a) of the Illinois Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1(a)). He was placed on 30 months' probation for that offense on July 2, 1986.

On August 13, 1986, defendant was found guilty by a jury in the circuit court of Adams County of the offense of theft in excess of $300 in violation of section 16-1 of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 16-1). On September 29, 1986, a sentencing hearing on the theft conviction and a hearing to revoke defendant's weapons probation based on said theft conviction was held. Defendant was placed on 30 months' probation for the theft conviction after the court warned defendant he qualified for an extended-term sentence on this conviction. The court continued the hearing on the petition to revoke the first probation for a 90-day period.

On October 29, 1986, a petition to revoke probation was filed in defendant's theft probation case. The petition alleged that defendant failed to abide by his curfew restrictions. On December 17, 1986, defendant admitted this violation. On January 21, 1987, the court resentenced defendant to 30 months' probation on the theft conviction with a condition of four months' periodic imprisonment. The State withdrew the previously filed petition to revoke on the weapons conviction.

On February 6, 1987, petitions to revoke probation were filed in each case alleging defendant violated section 4(a) of the Cannabis Control Act (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 704(a)) by possessing less than 2.5 grams of cannabis. On February 24, amended petitions to revoke probation were filed alleging additionally that defendant committed the offense of escape in violation of section 31-6(a) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 31-6(a)) by failing to return to the Adams county jail from work release.

On July 6, 1987, defendant admitted the above violations, and the court revoked the probations. On July 31, 1987, the court sentenced defendant to five years' imprisonment in the Illinois Department of Corrections on each conviction to be served concurrently. Defendant appeals from the sentence.

Defendant appeals alleging three errors. First, he asserts the court mistakenly believed defendant qualified for an extended-term sentence on his convictions and this mistake entitles him to a new sentencing hearing. Second, defendant argues the court improperly considered the revoking offenses when imposing sentence. Third, defendant asserts the court improperly considered victim-impact evidence. We affirm.

Defendant first argues the court mistakenly believed he was eligible for an extended-term sentence pursuant to section 5-5-3.2(b)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2(b)(1)). He acknowledges he did not receive an extended-term sentence, being sentenced to the maximum nonextended term on each offense, but maintains it is settled that, if the court is mistaken as to the possible maximum sentence which can be imposed, the defendant is entitled to be resentenced. People v. Hargis (1983), 118 Ill. App. 3d 1064, 1081, 456 N.E.2d 250, 259.

In regards to the unlawful use of weapons conviction, this argument is without merit. Defendant appears to have misapprehended the record. It is clear the court's focus in these proceedings was almost entirely on the theft conviction. Any Discussion of a possible extended-term sentence by the court was addressed entirely to the theft conviction.

At the sentencing hearing, the court observed defendant qualified for an extended-term sentence on the theft conviction based on the prior weapons conviction and that defendant had previously ...


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