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07/27/89 the People of the State of v. Gary Thomas Bray

July 27, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GARY THOMAS BRAY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

542 N.E.2d 512, 186 Ill. App. 3d 394, 134 Ill. Dec. 333 1989.IL.1160

Appeal from the Circuit Court of McLean County; the Hon. Luther H. Dearborn, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Two causes have been consolidated on appeal as they involve the same defendant and the same issue. In both causes, defendant was serving a sentence of probation following a negotiated plea of guilty. The State filed petitions to revoke probation, and defendant admitted the allegations in the petitions. The circuit court of McLean County revoked defendant's probation in each cause, and sentenced defendant to concurrent terms of five years' imprisonment in the Department of Corrections. Defendant appeals.

The sole issue raised in this appeal is whether the five-year sentence was improper, as it violated the terms of defendant's plea agreements. The pertinent facts follow.

The complaint in cause No. 84-CF-18 was filed on January 24, 1984, and charged defendant with commission of a burglary. (Ill. Rev. Stat. 1983, ch. 38, par. 19-1.) Defendant negotiated a plea agreement in which he would plead guilty to the burglary charge and, in return, the State would nol-pros a pending charge of delivery of a controlled substance and other misdemeanor alcohol-related offenses. The agreement provided for a maximum sentence of three years' imprisonment in the Department of Corrections. However, defendant was free to seek a lesser sentence.

At the hearing on the plea agreement, the court told defendant that the statutory penalty for burglary, a Class 2 felony, is three to seven years' imprisonment. Thus, the agreement limited the court to imposing the minimum possible term of imprisonment should the court so decide. The court asked defendant if he would be requesting probation. Upon hearing defendant's affirmative answer, the court gave the following explanation:

"THE COURT: Okay. If I were to sentence you to probation instead of sentencing you to the penitentiary, and you were to violate the terms of your probation and your probation got revoked, then you could be sent to the penitentiary. Not only could you be sent to the penitentiary for three years, you could be sent for all the way up to seven, because if you break the agreement by not -- or if you break the rules and conditions as imposed upon you by the Court, then this plea agreement doesn't mean anything after that point. Do you understand that?, DEFENDANT BRAY: Yes, sir."

The court accepted defendant's plea and, eventually, sentenced defendant to a term of 48 months' probation, which included in its terms the payment of restitution. Also, defendant was ordered to serve six months of periodic imprisonment, but the mittimus was stayed on this portion of his sentence.

The first petition for revocation against defendant was filed on October 2, 1984, for failure to make restitution and failure to report to his probation officer. Defendant admitted to the allegations in this petition. The court continued defendant's probation, but ordered defendant to serve 270 days' straight time in the McLean County jail. One hundred eighty days represented the previously stayed sentence of periodic imprisonment, and the remaining 90 days were for contempt of court.

The next petition for revocation was filed on February 24, 1987, for driving while intoxicated and driving with a blood-alcohol concentration greater than 0.10. Later, in July 1987, a supplemental petition to revoke probation was filed as a result of the complaint being filed in cause No. 87--CF--133. Cause No. 87--CF--133 is the second cause in this consolidated appeal, and it consisted of an aggravated battery charge.

Defendant appeared in court with a negotiated plea agreement. Defendant agreed to plead guilty to aggravated battery in cause No. 87--CF--133 and to admit to the allegations in the petition to revoke and the supplemental petition to revoke in cause No. 84--CF--18. In return, the State agreed to nol-pros the pending alcohol-related offenses. The agreement again provided a maximum sentence of three years' imprisonment in the Department of Corrections. Again, defendant was allowed to seek a lesser sentence. The plea agreement was accepted by the court. The court gave no special admonishments concerning probation in accepting defendant's plea of guilty and his admissions to the allegations in the petitions to revoke. On October 9, 1987, defendant was sentenced to a term of 30 months' intensive probation, with no credit for ...


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