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06/20/95 PEOPLE STATE ILLINOIS v. BILLY J. EVANS

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT


June 20, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
BILLY J. EVANS, A/K/A BILLEE J. EVANS, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Saline County. No. 91-CF-195. Honorable Michael J. Henshaw, Judge, presiding. Original Opinion of March 15, 1994,

273 Ill. App. 3d 252 at 257. 651 N.E.2d 1143 at 1146.

The Honorable Justice Lewis delivered the opinion of the court: Maag, P.j., and Rarick, J., concur.

The opinion of the court was delivered by: Lewis

SUPPLEMENTAL OPINION ON REHEARING

The Honorable Justice LEWIS delivered the opinion of the court:

The State filed a petition for rehearing alleging that this court overlooked or misapprehended certain points in its original opinion. The State contends that it would be error for the sentencing court to consider the "bare fact of arrest or charges in Williamson County" when determining the sentence to impose.

We first note that the sentencing judge was not determining the sentence to be imposed. The court was deciding whether to accept the plea negotiation by the parties with the agreed-to sentence. The court had no right at that stage of the proceeding to impose a different sentence from the one agreed to by the parties.

We further note that the case that the State cites as authority, People v. Jackson (1992), 149 Ill. 2d 540, 599 N.E.2d 926, 174 Ill. Dec. 842, held: "Outstanding indictments or other criminal conduct for which there has been no prosecution or conviction may be considered in sentencing. Such evidence, however, should be presented by witnesses who can be confronted and cross-examined, rather than by hearsay allegations in the presentence report." ( Jackson, 149 Ill. 2d at 548, 599 N.E.2d at 930.) In People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612, 123 Ill. Dec. 908, our supreme court held that it was not error for the sentencing court to consider the testimony of seven alleged offenses not resulting in convictions. The only admonition from the supreme court in Richardson was that the testimony involving misconduct by defendant must be reliable and relevant to sentencing and that the evaluation of what testimony was reliable and relevant is left largely to the sentencing judge's discretion.

What may be overlooked in Jackson is that the supreme court specifically overruled People v. McGee (1991), 211 Ill. App. 3d 641, 570 N.E.2d 578, 156 Ill. Dec. 102, rev'd (1992), 147 Ill. 2d 633, 607 N.E.2d 951, 180 Ill. Dec. 651 and People v. Dean (1987), 156 Ill. App. 3d 344, 509 N.E.2d 618, 108 Ill. Dec. 922, where each appellate court had held that a new sentencing hearing was required where the trial judge, in sentencing the defendant, expressly relied on evidence of a pending charge, of which the defendant was subsequently acquitted. ( Jackson, 149 Ill. 2d at 553, 599 N.E.2d at 932.) The State cites People v. Alvelo (1990), 201 Ill. App. 3d 496, 559 N.E.2d 131, 147 Ill. Dec. 131, and People v. Dean (1984), 126 Ill. App. 3d 631, 467 N.E.2d 353, 81 Ill. Dec. 653, for additional authority for its position that pending charges cannot be considered by the sentencing court. Suffice it to say that when you review the authorities cited by Alvelo and Dean, the authorities mainly consist of appellate court cases, not supreme court decisions. The primary supreme court cases, other than Jackson and Richardson, that allow the use of pending charges or uncharged criminal conduct, if relevant and reliable, are People v. Popescue (1931), 345 Ill. 142, 177 N.E. 739; People v. McWilliams (1932), 348 Ill. 333, 180 N.E. 832, followed by People v. Poll (1980), 81 Ill. 2d 286, 408 N.E.2d 212, 41 Ill. Dec. 790; People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9, 44 Ill. Dec. 103; People v. La Pointe (1981) 88 Ill. 2d 482, 431 N.E.2d 344, 59 Ill. Dec. 59; and People v. Brisbon (1985), 106 Ill. 2d 342, 478 N.E.2d 402, 88 Ill. Dec. 87. While the appellate court in Alvelo and Dean upheld the sentences of the defendants, the language and reasoning is certainly questionable in light of the many supreme court decisions.

We repeat once again that the sentencing judge should be made aware of the history of defendant's delinquency and criminality before the judge accepts a negotiated plea. There is absolutely no valid reason for the State to hide defendant's criminal history from the court, so that a bad negotiated plea can be slipped by the unknowing judge. We are not holding that the negotiated plea in this particular case was bad. That decision lies within the discretion of the sentencing judge, and we will have no complaint as long as the judge is apprised of the defendant's history of criminality. All that we are interested in is that the sentencing court is made aware of the kind of defendant it is sentencing.

Since negotiated pleas are presented to the court by counsel without testimony in most cases, it would be costly and time consuming to require testimony with the right to cross-examination and to call rebuttal witnesses to show the reliability and relevance of the pending charges. If there are problems with the relevancy and reliability of the pending charges presented as part of the criminal history of defendant by the State, defendant can make his objections to the sentencing judge. The chance that a sentencing judge would reject a negotiated plea based upon some irrelevant or unreliable pending charge seems to us to be very unlikely.

We need not address the State's request for a waiver of the recitation of the specifics of defendant's misdemeanor conviction and sentence as being de minimis, since we are remanding this cause for a hearing whereby the sentencing court is to be apprised of the history of defendant's delinquency and criminality.

Accordingly, we reaffirm the opinion of this court and remand for a hearing whereby the sentencing judge is to be informed of the history of the delinquency and criminality of defendant. The sentencing judge is then to make an independent decision as to the acceptability of the negotiated sentence and, if such negotiation is acceptable, make the proper findings for the record required by 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 (1992 West))).

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

MAAG, P.J., and RARICK, J., concur.

19950620

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