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03/20/96 PEOPLE STATE ILLINOIS v. PERRY HANDY

March 20, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
PERRY HANDY, JR., DEFENDANT-APPELLANT.



Appeal from Circuit Court of Morgan County. No. 94CF145. Honorable J. David Bone, Judge Presiding.

Supplemental Opinion on Denial of Rehearing of May 2, 1996, As Corrected August 26, 1996.

Justices: Honorable Robert J. Steigmann, J., Honorable John T. McCULLOUGH, J., Honorable Rita B. Garman, J., Concurring

The opinion of the court was delivered by: Steigmann

The Honorable Justice STEIGMANN delivered the opinion of the court:

In February 1995, defendant, Perry Handy, Jr., pleaded guilty to vehicular invasion (720 ILCS 5/12-11.1 (West 1994)), in an "open plea," meaning that no agreement existed between the State and defendant regarding what sentence the State would recommend to the trial court. The court ordered a presentence report and allotted the sentencing hearing for the following month. In March 1995, the court conducted a sentencing hearing and sentenced defendant to six years in prison. Defendant filed a timely motion to modify sentence, which the court denied.

Defendant appeals, arguing that the trial court erred by (1) imposing a prison sentence because of its mistaken belief that defendant was not eligible for the Treatment Alternative for Special Clients (TASC) program in lieu of a prison sentence; (2) considering in aggravation two factors--namely, compensation and defendant's causing or threatening serious harm--which are inherent in the offense; and (3) abusing its discretion in imposing a six-year sentence.

We affirm.

I. BACKGROUND

At the March 1995 sentencing hearing, neither party presented any evidence. The trial court received the presentence report prepared by the probation department and arguments of counsel. Defense counsel recommended a sentence of probation with 180 days in custody as a condition thereof, emphasizing (1) his client's youth (defendant was then 20 years old), and (2) that because a TASC program report indicated that defendant had a drug or alcohol problem, the court should consider defendant's participation in TASC as an alternative to prison. See section 40-10(a) of the Alcoholism and Other Drug Abuse and Dependency Act (20 ILCS 301/40-10(a) (West 1994)).

The State pointed out that defendant had a prior aggravated battery conviction for which he had served two years on probation and spent 109 days in jail in 1992, as well as some misdemeanor convictions. The State also contended that defendant was not eligible for TASC because of the violent nature of the charge he was convicted of, and the trial court appeared to agree.

The presentence report indicated that the offense in question occurred in the early morning hours when the victim, while returning home from work, stopped her car at a stop sign. Defendant opened her car door, grabbed her by the hair, pulled her head back against the seat, and said, "How much money do you have, bitch?" The victim pleaded with him to take whatever she had and leave her alone. He then took her purse and fled. At the sentencing hearing, the trial court noted that it had "no doubt that [the victim] was terrified" and sentenced defendant to six years in prison with credit for 111 days already served in the county jail.

Defendant filed a timely motion to modify sentence, arguing that his sentence was "excessive under those guidelines set out in section 5-5-3" of the Unified Code of Corrections. See 730 ILCS 5/5-5-3 (West 1994). In May 1995, the trial court conducted a hearing on that motion and denied it.

II. WAIVER UNDER SUPREME COURT RULE 604(d)

The State contends that defendant's first two arguments regarding his sentence--namely, that the trial court erred by not considering TASC and by considering inherent factors--are waived because defendant failed to include them in his motion to modify sentence. Resolving this issue requires this court to analyze Rule 604(d) (145 Ill. 2d ...


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