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09/16/96 PEOPLE STATE ILLINOIS v. LEROY RICE

September 16, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
LEROY RICE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. Nos. 94--CF--2014, 94--CF--2017, 94--CF--2020. Honorable Raymond J. McKoski, Judge, Presiding.

Rehearing Denied October 10, 1996. Released for Publication October 10, 1996. Supplemental Opinion of August 13, 1997,

The Honorable Justice Rathje delivered the opinion of the court: Geiger and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Rathje

JUSTICE RATHJE delivered the opinion of the court:

Indictments filed on October 5, 1994, charged defendant, Leroy Rice, with several counts of burglary. A plea negotiation was agreed to on November 15, 1994. In exchange for the defendant's plea of guilty to four counts of burglary (94--CF--2014 (two counts); 94--CF--2017; 94--CF--2020), the State agreed to a cap of six-year terms of imprisonment on all counts to which the defendant pleaded guilty, with the sentences to run concurrently. Further, on January 3, 1995, the State agreed to dismiss the seven remaining charges of burglary. The trial court sentenced the defendant to concurrent five-year terms of imprisonment. On February 2, 1995, the defendant's motion to reconsider his sentence was denied. This timely appeal followed.

On appeal, defendant raises one issue, namely, whether the defendant's cause must be remanded for a new hearing on the defendant's motion to reconsider his sentence.

In support of this contention, defendant asserts three bases for remand, namely, (1) that, in light of Supreme Court Rule 605(b)(5) (145 Ill. 2d R. 605(b)(5)), defense counsel should have been required to review the sentencing hearing transcripts; (2) that he was not provided with a copy of his sentencing transcript, in violation of Rule 605(b)(5); and (3) that his counsel's certificate failed to comply with the exact requirements of Rule 604(d) (145 Ill. 2d R. 604 (d)).

Initially, we address defendant's contention that defense counsel's failure to review the sentencing transcript is ground for a remand. Defendant concedes that Rule 604(d) merely requires that defense counsel review only the court file and the guilty plea transcript, not the sentencing transcript, even if defendant challenges only his sentence. Defendant argues that we should reject this court's prior determination of the instant issue in People v. Heinz, 259 Ill. App. 3d 709, 198 Ill. Dec. 279, 632 N.E.2d 338 (1994).

In People v. Heinz, this court wrote:

"Defendant acknowledges that the language of the rule does not also require that defense counsel read the transcript of the sentencing proceeding before going forward with his motion to reconsider; nevertheless, he asks this court to read such a requirement into the rule on the basis of 'symmetry.' Thus, he argues that, just as the rule requires defense counsel to examine the transcript of a guilty plea proceeding as a condition precedent to a hearing on the motion to withdraw his plea, so too should counsel be required to examine the transcript of the sentencing hearing prior to a hearing on the motion to reconsider the sentence. Defendant cites no relevant authority for this court to read such a requirement into the rule, and it is not a prerogative of this court to amend a rule of our supreme court. We therefore must decline defendant's invitation to do so." Heinz, 259 Ill. App. 3d at 712.

We see no reason to reject this reasoning.

In his next argument, defendant initially points out that the trial court did not provide him with a transcript of the sentencing hearing prior to the hearing on the motion to reconsider the sentence. He then argues that his access to the sentencing transcript was crucial to enable him to communicate effectively with counsel regarding the nature of his claims and their factual basis.

In response, the State initially points out that defendant cites no case law in support of this argument. Moreover, the State contends that Rule 604(d) is primarily concerned with perfecting a defendant's rights on appeal and the need to provide defendant with the necessary transcripts by the time defendant pursues his appeal.

Our review of the relevant portions of Rules 604 and 605 does not indicate to us that the transcript of the sentencing hearing is required for defendant's use at the ...


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