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01/27/94 PEOPLE STATE ILLINOIS v. CHAD MICHAEL MOTE

January 27, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CHAD MICHAEL MOTE, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Logan County. No. 92CF70. Honorable Richard M. Baner, Judge Presiding.

Released for Publication March 2, 1994. As Corrected March 16, 1994.

Honorable Robert J. Steigmann, J., Honorable James A. Knecht, J., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In August 1992, defendant, Chad Michael Mote, pleaded guilty to one count of aggravated battery in violation of section 12-4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 12-4(a)). In November 1992, the trial court sentenced him to four years in prison and ordered him to pay restitution. Defendant appeals, contending that the court committed reversible error by conducting a private interview with the victim and his wife during the sentencing hearing. We agree and reverse and remand for a new sentencing hearing.

I. BACKGROUND

At the hearing at which defendant pleaded guilty, defense counsel stated that both he and the prosecutor agreed to recommend four years in prison as an appropriate sentence; neither would request a higher or lower sentence. As part of the plea agreement, the State dismissed an additional count of aggravated battery. However, when defendant spoke during allocution at the sentencing hearing, he requested probation. The trial court then stated that it was considering two sentences. The first consisted of four years in prison and restitution to the victim in the amount of $18,000 for unreimbursed medical expenses and $16,800 for lost wages. The second included 30 months of probation, six months of periodic imprisonment, and the same amount of restitution.

The court then stated the following:

"If the defendant wishes to select the [sentence] which does not include [a] sentence to the Department of Corrections[,] he will need to say that on the record.

If he so indicates[,] I will consider that sentence only if I have the agreement of counsel, and that is both counsel, to meet privately with the victim, the victim's wife, and any of their children they wish to be present with the Court Reporter only present to determine whether they are willing to accept that Disposition. Contents of the transcript of that proceeding will be sealed in the court file for purposes of any appeal."

After conferring with counsel, defendant selected the sentencing option that did not include a prison sentence. The court cautioned, however, that it would "consider that [option] only if [defendant] waives any objection to my discussing it privately with the victims." Defense counsel consented to this procedure.

The court then conducted a private Discussion with the victim and his wife. The transcript was sealed and not made available to defendant prior to this appeal. Following that meeting, and without disclosing what occurred there, the court sentenced defendant to four years in prison and ordered him to pay restitution.

II. ANALYSIS

In People v. Thunberg (1952), 412 Ill. 565, 107 N.E.2d 843, the supreme court overturned a rape conviction in part because the trial court, before arriving at a verdict in a bench trial, interviewed the victim and her parents outside the presence of defendant and his counsel. The supreme court ...


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