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05/22/97 PEOPLE STATE ILLINOIS v. TIMOTHY G. SMITH

May 22, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
TIMOTHY G. SMITH, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 92--CF--1176. Honorable Raymond J. McKoski, Judge, Presiding.

Released for Publication June 24, 1997.

The Honorable Justice Hutchinson delivered the opinion of the court. Inglis and Thomas, JJ., concur.

The opinion of the court was delivered by: Hutchinson

JUSTICE HUTCHINSON delivered the opinion of the court:

Defendant, Timothy G. Smith, appeals the order of the circuit court of Lake County denying his motion to reconsider his sentence. On appeal, defendant argues (1) that the trial court abused its discretion when it sentenced defendant, and (2) that the mittimus be corrected to conform to the trial court's oral pronouncement of defendant's conviction. We affirm.

On May 20, 1992, defendant was charged with four counts of aggravated criminal sexual assault (720 ILCS 5/12--14 (West 1992)) and one count of aggravated criminal sexual abuse (720 ILCS 5/12--16 (West 1992)). On August 17, 1992, defendant admitted to violating his probation and entered negotiated pleas of guilty to one of the three counts of aggravated criminal sexual assault and one count of aggravated criminal sexual abuse. In return for the plea, the State agreed to (1) dismiss the remaining three counts of aggravated criminal sexual assault, and (2) recommend a sentence cap of 25 years' imprisonment.

Prior to the sentencing hearing, the trial court ordered an updated presentence investigation report. The presentence report indicated that defendant was originally sentenced to three years' probation in July 1988 for aggravated criminal sexual abuse. In August 1990 defendant was resentenced to two years' probation for violating his probation sentence by failing to cooperate with treatment for sexual offenders. In January 1991 defendant was held in contempt of court for violating the terms of his probation and ordered to complete the remainder of his sentence in the Lake County jail. The report also contained information about defendant's employment record, family background, and his participation in counseling programs. Defendant was ordered to attend counseling at the Community Youth Network as a condition of his previous sentence of probation for aggravated criminal sexual abuse. He was refused treatment in April 1992 because of his failure to pay for the services; in May 1992 defendant committed the offenses at issue in the present case. The report also indicates that defendant admits to his criminal behavior, but he "neither understands or [sic] is able to control his behavior." Defendant paid his court obligations in full, reported regularly to the probation department, and completed his public service.

Defendant gave a voluntary statement to the Waukegan police department in May 1992 in which he described in detail his version of the events of the sexual assault on the victim. Defendant stated that he had "no intentions of hurting the little girl," but that he "just wanted to do it and let her go."

A mental health evaluation of defendant conducted by Alfred Marx, Ph.D., was filed on September 25, 1992. A June 1990 report, partially described in the evaluation, characterized defendant's intellectual functioning at the top of the "mentally deficient" range and the "mild mental retardation" category. Dr. Marx' report states in part:

"[Defendant] has little ability to see things in any perspective, to connect past experiences with the present, or to modify his present understanding or behavior in accordance with anticipated future events or consequences."

Further, Dr. Marx observed recurring themes based on defendant's comments: (1) acknowledgment that his behavior was wrong, inappropriate, and illegal; (2) a lack of understanding about how he could have allowed himself to engage in such behavior; (3) projecting blame to others; (4) complaints that he is misunderstood and unfairly treated; (5) anger; and (6) recognition that he needs treatment. Dr. Marx concluded that defendant is emotionally immature, "functioning at a child-like level," as well as manifesting a significant problem with impulse control. Dr. Marx went on to state:

"So far as efforts at helpful interventions are concerned, [defendant] has a reported history of failure to consistently follow through with the conditions of probation, with the requirements of treatment programs, etc. Thus it was reported that he failed to report consistently to probation, that he 'walked out of' work release, and that he was 'unsuccessfully discharged from the Community Youth Network's sexual offenders' program' because of 'an irresponsible and avoidant stance with regard to his treatment.' *** [Defendant's] failure to consistently follow through with the requirements of probation or of any outpatient treatment program *** appears *** to be a function of a combination of his intellectual limitations and a severe personality disorder which *** renders him emotionally and behaviorally unstable and interpersonally dysfunctional[.] *** [Defendant] does not seem to readily learn from experience so that prior offenses, jail, probation, and the threat of consequences don't 'stick.'"

Dr. Marx diagnosed defendant with pedophilia, mild mental retardation, and personality disorder. He opined that defendant is a high risk for reoffending and too high of a risk for outpatient treatment.

The trial court sentenced defendant to a term of 20 years' imprisonment. Following two earlier remands of this case, defendant now appeals the length of his sentence ...


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