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11/03/88 the People of the State of v. Lenton Davis

November 3, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

LENTON DAVIS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

530 N.E.2d 601, 175 Ill. App. 3d 1006, 125 Ill. Dec. 443 1988.IL.1608

Appeal from the Circuit Court of Lake County; the Hon. Jack Hoogasian, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. LINDBERG, P.J., and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Defendant, Lenton Davis, appeals his 10-year sentence for residential burglary imposed following a guilty plea. Defendant contends that the trial court improperly considered as evidence in aggravation the report of a psychologist who examined him for the purpose of determining his acceptability for a drug treatment program. We affirm.

On March 16, 1987, defendant pleaded guilty to residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-3). Defendant filed a petition to be treated as an addict pursuant to the Alcoholism and Substance Abuse Act (the Act) (Ill. Rev. Stat. 1987, ch. 111 1/2, par. 6301 et seq.). The court granted defendant's petition and ordered defendant to be evaluated by Treatment Alternatives to Street Crime to determine whether he would be accepted into its substance abuse program. Jeffrey Wysocki examined defendant and filed a report with the court indicating that TASC would not accept defendant for treatment. The report also contained other observations from defendant's interview and psychological tests. Wysocki wrote:

"The data from the testing reveal a resentful and suspicious attitude with a tendency toward social intimidation. The data suggests [ sic ] a tendency toward aggressive behavior and intimidation. If provoked, sudden and unanticipated aggressive and possibly brutal behavior may occur."

At the sentencing hearing, the court read from Wysocki's report and stated:

"I think that explains it in a nutshell. So the Court takes into consideration everything which TASC, through Jeffrey Wysocki, the consulting psychologist, wrote in this one-page report."

The court sentenced defendant to 10 years' imprisonment and subsequently denied defendant's motion to withdraw his guilty plea. Defendant brought this timely appeal.

Defendant contends that the trial court erred in considering the TASC report as evidence in aggravation at his sentencing hearing. We note that defendant did not include this issue in the motion to withdraw his guilty plea. Generally, a defendant's failure to include an issue in his motion to withdraw a guilty plea constitutes a waiver of that issue on appeal. (107 Ill. 2d R. 604(d); People v. Bosworth (1987), 160 Ill. App. 3d 714, 716; People v. Bartik (1981), 94 Ill. App. 3d 696, 698-99.) This rule applies even where the issue sought to be raised concerns only a sentencing error. (Bartik, 94 Ill. App. 3d at 698; People v. Bryant (1977), 45 Ill. App. 3d 428, 430 aff'd (1977), 68 Ill. 2d 261; cf. People v. Robinson (1980), 83 Ill. 2d 424, 428-29 (wherein the court noted the defendant's concession that a sentencing issue was not included in the motion to withdraw his guilty plea and rejected his argument that the omission constituted ineffective assistance of counsel on the basis that the issue was not so obvious on the record to constitute ineffective assistance).) This court has recently stated that a defendant seeking to challenge his sentence following a guilty plea need only file a timely motion to withdraw his guilty plea and is not required to seek modification or reduction of his sentence to preserve that issue for appeal. (See People v. Ulmer (1987), 158 Ill. App. 3d 148, 150.) However, that case also involved a motion to reconsider the sentence which was not ruled upon, and we do not consider it authority for relieving defendant from his obligation to include all issues, including those related to sentencing, in the motion to withdraw his guilty plea. Because defendant did not do so in the instant action, he has not preserved the sentencing issue for appeal.

Indeed, defendant concedes that the issue "could be considered waived," but nonetheless argues that we should consider the issue on the basis that he lodged an objection at the sentencing hearing. We have reviewed the transcript of proceedings from the sentencing hearing and conclude that defendant did not state a proper objection sufficient to preserve the issue for review. At that hearing, the trial court denied defendant's petition to be treated as an addict on the basis that TASC found him to be potentially disruptive, dangerous to other clients, and unacceptable for treatment. In response, defense counsel stated:

"For the record, I would certainly differ with that, in that I have spoken to [defendant], going back to my first contact with him, which was January 22nd, and he, from the very first time I met him, expressed an eagerness to get some drug rehabilitation. He was arrested immediately following his release from the hospital in Highland Park where he was admitted for an overdose, but I just want the Court to understand that he has from the very ...


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