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March 15, 1994


Appeal from the Circuit Court of Saline County. No. 91-CF-195. Honorable Michael J. Henshaw, Judge Presiding.

Supplemental Opinion of June 20, 1995,

Lewis, Rarick, Maag

The opinion of the court was delivered by: Lewis

PRESIDING JUSTICE LEWIS delivered the opinion of the court:

This court has issued numerous Supreme Court Rule 23 (134 Ill. 2d R. 23) orders remanding cases to sentencing Judges for noncompliance with section 5-3-1 of the Unified Code of Corrections. (Ill. Rev. Stat. 1991, ch. 38, par. 1005-3-1 (now 730 ILCS 5/5-3-1 (West 1992).) We are now issuing an opinion, so that sentencing Judges are made aware of an increasing problem of noncompliance with section 5-3-1.

The defendant, Billy J. Evans, a/k/a Billee J. Evans, pursuant to negotiations, pleaded guilty to residential burglary, burglary, and felony criminal damage to property. He was sentenced to concurrent prison terms of six years for residential burglary and burglary and three years for criminal damage to property. On appeal, defendant only contends that the circuit court erred in sentencing him without a presentence investigation report, where the criminal history presented to the court was incomplete.

On January 24, 1992, defendant pleaded guilty. The initial statement to the court by the State's Attorney was: "The State would first disclose to the Court that the defendant has no prior felony record and the State has entered into a negotiated agreement to dispose of case number 91-CF-195 as well as 91-CF-211." The court admonished defendant pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402), concurred in the plea agreement, accepted defendant's guilty pleas, and sentenced defendant according to the agreement. At a prior hearing on the same date at which defendant's motion for psychiatric examination was denied, defense counsel stated he had talked with the probation officer who had been supervising defendant "during a misdemeanor probation period."

Section 5-3-1 of the Unified Code of Corrections (Ill. Rev. Stat. 1991, ch. 38, par. 1005-3-1) states:

"A defendant shall not be sentenced for a felony before a written pre-sentence report of investigation is presented to and considered by the court.

However, the court need not order a pre-sentence report of investigation where both parties agree to the imposition of a specific sentence, provided there is a finding made for the record as to the defendant's history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment.

The court may order a pre-sentence investigation of any defendant." Ill. Rev. Stat. 1991, ch. 38, par. 1005-3-1.

On appeal, defendant urges that the presentence-report requirement of section 5-3-1 is mandatory, relying on our supreme court's decision in People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 416, 45 Ill. Dec. 938, and that his sentence should be vacated and the cause should be remanded for resentencing. In Youngbey, the court held the presentence investigation and report to be a mandatory legislative requirement which cannot be waived, absent agreement between the parties as to the sentence to be imposed. The rationale for finding the report mandatory was that it was not solely for the benefit of the defendant but was also for the enlightenment of the court. A complete disclosure of a criminal defendant's history of criminality leaves no excuse for the court to state it was not aware of that record prior to deciding whether to accept a plea agreement. It is the court's responsibility to accept or reject a plea agreement. (See 134 Ill. 2d R. 402.) Since section 5-3-1 is intended to serve as a useful tool for the sentencing Judge, it is not the defendant's personal right which could be waived. People v. Graham (1984), 126 Ill. App. 3d 442, 444, 467 N.E.2d 374, 375-76, 81 Ill. Dec. 674.

In People v. Harris (1985), 105 Ill. 2d 290, 473 N.E.2d 1291, 85 Ill. Dec. 486, our supreme court was presented with the issue of whether, after revocation of probation, a trial court must consider a presentence investigation before sentencing defendant on a felony conviction. Our supreme court held that since no agreement was reached between the parties as to the specific sentence which was to be imposed following revocation of probation, presentence reports should have been ordered. ( Harris, 105 Ill. 2d at 301, 473 N.E.2d at 1296.) The supreme court explained that substantial compliance is not sufficient because the adoption of substantial compliance would invite appeals and require an examination of the record in each case. The court further explained that substantial compliance would conflict with the express language of the statute, which requires a written presentence report. Because of the statute's mandatory nature, strict compliance was required. ( Harris, 105 Ill. 2d at 302-03, 473 N.E.2d at 1297.) The compliance must be at the time the plea is taken without reference to other parts of the record; therefore, in this cause, pursuant to the reasoning used in Harris, the history of criminality and delinquency must be given to the sentencing Judge at the time the plea agreement is offered for approval to the court.

In the case at bar, the parties agreed to the imposition of a specific sentence; therefore, a presentence report would not be necessary if there were "a finding made for the record as to defendant's history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment." (Ill. Rev. Stat. 1991, ch. 38, par. 1005-3-1.) The statement that defendant had not been convicted of a felony tells only half the story, as it appears from other portions of the record on appeal that defendant has a misdemeanor conviction. Further, defendant was charged in Williamson County with armed violence and aggravated unlawful restraint. (Reference is made to the charges in Williamson County in the discovery file in this cause, and we can take judicial notice of our own ruling in People v. Evans ' (March 4, 1993), No. 5-92-0298 (unpublished Rule 23 order), whereby the defendant pleaded guilty to the charges in Williamson County.) Thus, the State's Attorney's statement was, to say the least, incomplete and did not comply with the mandate of section 5-3-1. In order for the trial court not to order a presentence investigation report, the parties must agree on a specific sentencing recommendation and section 5-3-1 must be strictly complied with in establishing defendant's history of criminality and delinquency, including the Disposition made of those charges. It cannot be left to guesswork.

The State replies that the error is harmless, because defendant could not realistically expect to receive less than the negotiated sentences. However, section 5-3-1 is primarily concerned with making the sentencing Judge aware of the dangerousness of a particular defendant, and so the argument that the defendant could not realistically expect to receive less than the negotiated sentences misapprehends the purpose of the statute. The question is not whether the defendant could have received less time; rather the question is, should the defendant have received a greater sentence? The Judge has the duty and responsibility in imposing a sentence, not the attorneys. The mere fact that the parties negotiate a plea does not remove the responsibility and burden of sentencing from the Judge.

This case presents a fine example of what the legislature was attempting to prevent by section 5-3-1. The court was unaware of the defendant's complete record, so the question remains as to whether the court would have accepted the negotiated plea, if it had been aware of the serious pending criminal charges in Williamson County and the defendant's complete misdemeanor record. A complete history of defendant's criminality and delinquency may have revealed more than can be gleaned from the record. As stated previously in this order, the presentence report is to enlighten the court to defendant's background in order to assess his rehabilitative potential. Section 5-3-1 mandates that a sentencing Judge be aware of the history of the defendant's criminality and delinquency in assessing whether to accept the negotiated plea. In light of the statute's mandatory language, strict compliance is required ( Harris, 105 Ill. 2d at 302-03, 473 N.E.2d at 1297); therefore, we decline to apply the waiver rule by defendant's acquiescence in the procedure or his failure to raise it in his Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)) motion to withdraw his guilty plea.

For the foregoing reasons, the convictions are affirmed. The sentences are vacated, and this cause is remanded for a new sentencing hearing.

Affirmed in part, vacated in part, and remanded with directions.

RARICK, J., and MAAG, J., Concurring.


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