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12/12/96 PEOPLE STATE ILLINOIS v. RANDY L. VERNON

December 12, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
RANDY L. VERNON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County. No. 92--CF--1007. Honorable John W. Nielsen, Judge, Presiding.

Released for Publication January 14, 1997.

The Honorable Justice Bowman delivered the opinion of the court. Doyle and Rathje, JJ., concur.

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Defendant, Randy L. Vernon, appeals the trial court's order denying his motion to reconsider the sentence. The issue on appeal is whether, on a remand from this court in which we ordered the trial court to conduct a new hearing on defendant's motion to reconsider the sentence in full compliance with Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)), the trial court erred in refusing to consider the evidence of defendant's behavior and accomplishments while in prison during the pendency of his appeal. We affirm.

On May 6, 1992, defendant was charged by indictment with two counts of aggravated criminal sexual assault (720 ILCS 5/12--14(a)(1) (West 1992)) and two counts of aggravated unlawful restraint (720 ILCS 5/10--3.1 (West 1992)). On October 15, 1992, defendant pleaded guilty to one count of aggravated criminal sexual assault in exchange for the State's agreement to dismiss the remaining charges and a pending misdemeanor charge. There was no agreement as to the sentence to be imposed.

On December 22, 1992, the trial court sentenced defendant to 12 years' imprisonment. On January 12, 1993, defendant filed a motion to reconsider the sentence which the trial court denied on the same date. Defendant filed a timely notice of appeal.

On appeal, defendant argued that the cause must be remanded because the trial court did not order that he be furnished a copy of the transcript until after the motion for reconsideration of his sentence was denied and because his attorney did not file the certificate required by Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)). On August 9, 1994, we reversed the trial court's order denying defendant's motion to reconsider the sentence and remanded the cause to the circuit court for full compliance with Rule 604(d). People v. Vernon, No. 2--93--0107 (1994) (unpublished order under Supreme Court Rule 23).

On January 30, 1995, defense counsel filed a new motion to reconsider the sentence and a certificate in compliance with Rule 604(d). The new motion alleged that defendant's conduct while in prison shows a great rehabilitative potential in defendant.

On February 1, 1995, the trial court held a new hearing on defendant's motion. At the hearing, defense counsel asked the court for leave to file a copy of a letter and a progress report from the Clinical Services Department of the Western Illinois Correctional Center. The State objected to the report being considered by the court because it referred to conduct which the court could not possibly have considered during the first hearing on the motion to reconsider the sentence. The trial court allowed defendant to file the report. However, the trial court stated:

"Now I am going to tell you that I am not going to consider it in regards to anything that is before the court because it is after sentencing, and the case came back down to me for hearing today on a 604(d) motion. This is not relevant to anything that is before the court. It will be filed, made part of the record, but I will not consider it."

Defense counsel then stated that he had intended to call defendant as a witness solely to discuss what he had done while in prison. The following exchange then occurred between the court and defense counsel:

"THE COURT: Your offer of proof, and I will take it as an offer of proof in regards that he will testify as to what he has done, and I suppose ...


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