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06/21/94 PEOPLE STATE ILLINOIS v. JAMES TUCKER

June 21, 1994

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JAMES TUCKER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois. No. 92 CF 363. Honorable Daniel Gould, Judge Presiding.

Petition for Leave to Appeal Allowed December 6, 1994.

Present - Allan L. Stouder, Justice, Honorable Tobias Barry, Justice, Honorable Michael Mccuskey, Justice

The opinion of the court was delivered by: Mccuskey

JUSTICE McCUSKEY delivered the opinion of the court:

Following a bench trial, the defendant, James E. Tucker, was convicted of residential burglary (Ill. Rev. Stat. 1991, ch. 38, par. 19-3). The defendant was sentenced to an extended term of 30 years in the Department of Corrections. The trial court ordered the defendant's sentence to be consecutive to the sentence previously imposed upon the defendant in case No. 92-CF-279.

In case No. 92-CF-279, the defendant was convicted of home invasion, aggravated criminal sexual assault, two counts of residential burglary and aggravated battery. The defendant was sentenced to 60 years imprisonment for home invasion and 60 years' imprisonment for aggravated criminal sexual assault, with these sentences to run consecutively. He was given concurrent sentences for the residential burglary and aggravated battery convictions. On appeal, the defendant's convictions and sentences for home invasion and aggravated criminal sexual assault were affirmed. People v. Tucker (June 17, 1994), No. 3-92-0936 (unpublished Rule 23 order).

The defendant raises two issues in this appeal: (1) whether resentencing is required because the trial court relied upon a presentence investigation report prepared after the defendant's previous convictions, about 5 1/2 months prior to the defendant's sentencing in this case; and (2) whether the defendant's sentence must be modified to a concurrent sentence based upon section 5-8-4(c)(2) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 1005-8-4(c)(2)).

We find that resentencing is not required because the trial court properly relied upon a recent presentence investigation report. However, we conclude that the consecutive sentence imposed must be modified to a concurrent sentence because the maximum permissible consecutive sentence under section 5-8-4(c)(2) of the Code was imposed in case No. 92-CF-279. As a result, we affirm the judgment of the trial court as modified.

The defendant's bench trial was held on March 29, 1993. At trial, Ellen McKibben, age 67, and George McKibben, age 79, testified that an intruder broke into their home around 12:45 a.m. on April 8, 1992. The intruder attempted to put a black garbage bag over Ellen's head, causing her to fall. George then wrestled briefly with the intruder, and the intruder left. The garbage bag was found on the front porch of the McKibbens' home. Six of the defendant's fingerprints were found on the garbage bag. Based upon this evidence, the trial court found the defendant guilty of residential burglary.

The trial court then stated that it would be difficult to order a presentence investigation report prior to sentencing because the defendant was incarcerated. The prosecutor and defense counsel discussed the fact that a presentence investigation report had been prepared prior to the defendant's sentencing for his previous convictions in case No. 92-CF-279. The report was dated October 7, 1992, and the defendant's previous sentencing hearing was held on November 25, 1992. The prosecutor and defense counsel then stipulated that the presentence investigation report was accurate because the defendant had been incarcerated since the prior sentencing hearing. During a break, defense counsel reviewed the report with the defendant. Counsel asked that the report be corrected to reflect that a retail theft charge had been nol-prossed. The correction was made in the report.

At the sentencing hearing, defense counsel pointed out to the court that the presentence investigation report showed the defendant had a significant drug problem and suffered from mental difficulties. Counsel specifically noted that the defendant had previously spent time in the Menard Psychiatric Unit.

Based upon the age of the victims, the trial court sentenced the defendant to an extended term of 30 years' imprisonment. The court ordered that the sentence would be consecutive to the sentences previously imposed in the other case. The defendant subsequently filed a notice of appeal.

The defendant first argues that a new sentencing hearing is required because a new presentence investigation report was not prepared prior to sentencing in this case. We disagree.

The defendant is correct that section 5-3-1 of the Code provides that a defendant shall not be sentenced for a felony before a written presentence investigation report is presented to and considered by the court. (Ill. Rev. Stat. 1991, ch. 38, par. 1005-3-1.) This requirement is mandatory. ( People v. Youngbey (1980), 82 Ill. 2d 556, 565, 413 N.E.2d 416, 45 Ill. Dec. 938.) Accordingly, in People v. York (3d Dist. 1992), 230 Ill. App. 3d 874, 596 N.E.2d 187, 172 Ill. Dec. 908, we held that remand for resentencing was necessary because the trial court sentenced the defendantwithout ordering the ...


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