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07/10/89 the People of the State of v. Daniel Houck

July 10, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DANIEL HOUCK, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

541 N.E.2d 813, 185 Ill. App. 3d 585, 133 Ill. Dec. 602 1989.IL.1085

Appeal from the Circuit Court of Macon County; the Hon. John L. Davis, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

Defendant Daniel Houck pleaded guilty to criminal sexual assault in the circuit court of Macon County and was sentenced to the Department of Corrections for four years and six months. On appeal, the defendant alleges an error by the trial court in denying him probation after he testified he is willing to undergo a court-approved counseling program. We affirm.

On July 18, 1988, the defendant was charged with the criminal sexual assault of his minor stepdaughter in violation of section 12-13(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 12-13(a)(3)). At the time of the crime the defendant was age 49, while the victim, L.M.T., was age 14. As part of a plea agreement, the defendant pleaded guilty to the charge. The case was referred to the probation department for a presentence investigation. At the sentencing hearing, the trial Judge considered the presentence report along with the defendant's testimony.

The defendant testified he was willing to undergo a court-approved counseling program for a minimum of two years. He had already started professional counseling, and planned to continue. The defendant also testified he was willing to follow any orders of protection the court would impose.

The State presented evidence of the defendant's lack of mental illness and described the court-approved counseling program, stating, "counseling is the bedrock of this type of probation." The State recommended the defendant to be sentenced to the Illinois Department of Corrections for five years since there was no need for counseling.

The trial court agreed with the State, but sentenced the defendant to four years and six months in the Department of Corrections. The Judge stated probation can be denied when "imprisonment is necessary for the protection of the public, and probation would deprecate the seriousness of the offense and be inconsistent with the ends of Justice." Here the court found the denial of probation necessary, stating, "Willingness [to undergo the court-approved counseling program] alone is not sufficient."

The defendant appeals pursuant to Supreme Court Rule 605(b) (107 Ill. 2d R. 605(b)), asking this court to remand the cause and place the defendant on probation. The defendant claims the trial court erred by not following sections 5-5-3(e)(i) and (e)(ii) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, pars. 1005-5-3(e)(i), (e)(ii)), which state:

"In cases where prosecution for criminal sexual assault or aggravated criminal sexual abuse under Section 12 -- 13 . . . of this Code results in conviction of a defendant who was a family member of the victim at the time of the commission of the offense, the court shall consider the safety and welfare of the victim and may impose a sentence of probation only where the court finds (i) or (ii) or both are appropriate:

(i) the defendant is willing to undergo a court approved counseling program for a minimum ...


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