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11/29/95 PEOPLE STATE ILLINOIS v. STEPHANIE

November 29, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
STEPHANIE PATTERSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Jackson County. No. 92-CF-547. Honorable David W. Watt, Jr., Judge, presiding. This Opinion Substituted on Denial of Rehearing for Withdrawn Opinion of October 27, 1995, Previously

The Honorable Justice Kuehn delivered the opinion of the court: Rarick and Goldenhersh, JJ., concur.

The opinion of the court was delivered by: Kuehn

ORDER

This cause has been considered on appellant's petition for rehearing. The court being fully advised finds:

On October 27, 1995, the court previously filed a decision in this cause;

On November 6, 1995, appellant filed a petition for rehearing; and

The court now desires to vacate its previous decision and substitute a new decision.

IT IS THEREFORE ORDERED that appellant's petition for rehearing is DENIED.

IT IS FURTHER ORDERED that the decision previously filed in this cause on October 27, 1995, shall be, and the same is hereby, VACATED AND HELD FOR NAUGHT.

IT IS FURTHER ORDERED that the opinion filed on this date shall stand as the decision of the court.

The Honorable Justice KUEHN delivered the opinion of the court:

On September 21, 1992, defendant Stephanie Patterson was charged by information with two counts of forgery pursuant to sections 17-3(a)(1) and (2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 17-3(a)(1),(2) (now 720 ILCS 5/17-3 (a)(1),(2) (West 1992).) Both counts relate to the forgery of a signature on one check. The State dismissed one count before trial. On June 2, 1993, defendant Stephanie Patterson was convicted of forgery. In addition to being ordered to pay court costs, fines, and restitution, defendant received a 24-month sentence of probation and was required to undergo a Treatment Alternatives for Special Clients, Inc. (T.A.S.C.), substance-abuse evaluation. Defendant failed to comply with certain probation requirements, and the State filed a petition to revoke probation. Defendant admitted the content of the petition to revoke probation. At the December 14, 1993, resentencing hearing, the court admonished defendant that the maximum penalty for forgery was two to five years in the penitentiary, followed by a one-year period of mandatory supervised release, and a $10,000 fine. Following the admonition, the court sentenced defendant to two years in the Department of Corrections (D.O.C.) and 30 months of probation consecutive to the D.O.C. sentence. Defendant filed a motion for reconsideration, which the court denied.

Defendant contends that the trial court failed to admonish her about the possibility of consecutive sentences and that this failure warrants vacation of that portion of her sentence. Our supreme court recently considered and rejected this argument in People v. Gazelle (1995), 165 Ill. 2d 93, 649 N.E.2d 381, 208 Ill. Dec. 325. In Gazelle, the defendant was sentenced to a term of imprisonment in one county consecutive to a term of imprisonment in a second county. Without a detailed analysis, the supreme court affirmed defendant's consecutive sentence, indicating that "a new revocation hearing would change nothing and would be a waste of judicial time and manpower." Gazelle, 165 Ill. 2d at 95, 649 N.E.2d at 382.

While the Gazelle majority did not specifically address a defendant's due process right to receive an admonition of all sentence possibilities, Justice Nickels discussed the issue in his concurrence. Concurring opinions are not binding authority but are persuasive. (21 C.J.S. Courts ยง 141 (1990).) Justice Nickels noted that Illinois Supreme Court Rule 402 (134 Ill. 2d R. 402) requires the trial court to admonish a defendant of consecutive-sentence possibilities with a guilty plea. ( Gazelle, 165 Ill. 2d at 98, 649 N.E.2d at 383.) Due process does not require the same admonishment in a probation revocation hearing. ( Gazelle, 165 Ill. 2d at 99, 649 N.E.2d at 384.) Justice Nickels found no Illinois law requiring warnings of possible consecutive sentences during a probation revocation hearing. Justice Nickels determined that defendant's due process rights were not violated because defendant ...


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