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06/23/97 PEOPLE STATE ILLINOIS v. MARK L. RHOADES

June 23, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MARK L. RHOADES, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois. Nos. 93--CF--445 & 93--CF--301. Honorable Richard Grawey, Judge Presiding.

Rehearing Denied July 30, 1997. Released for Publication July 30, 1997.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable William E. Holdridge, Justice, Honorable Thomas J. Homer, Justice. Justice Homer delivered the opinion of the court. Lytton, P.j., and Holdridge, J., concur.

The opinion of the court was delivered by: Homer

JUSTICE HOMER delivered the opinion of the court:

The defendant entered guilty pleas to two counts of burglary and one count of theft. 720 ILCS 5/19--1, 16--1 (West 1994). The trial court sentenced the defendant to concurrent prison terms of eight and nine years on the burglary counts and to a consecutive seven-year term for theft.

On appeal, the defendant contends that this court should vacate his sentence and allow him to withdraw his guilty pleas due to the trial judge's failure to properly admonish him of the potential penalties for his offenses. We affirm.

FACTS

Initially, the defendant was charged with residential burglary and burglary in two separate Tazewell County incidents, and with felony theft in Peoria County. The Peoria case was transferred to Tazewell County for disposition.

On November 22, 1993, the parties presented a partially negotiated plea to the court with respect to all three cases. The State agreed to reduce the residential burglary charge to simple burglary in exchange for the defendant's agreement to enter open pleas to all three charges.

The trial judge admonished the defendant that he faced a Class 2 sentence of three to seven years for each burglary count, with the possibility of an extended-term of seven to fourteen years for each. The court also informed the defendant that he faced a consecutive sentence of two to five years, with the possibility of an extended-term of five to ten years for the Class 3 theft charge. A consecutive sentence was required because the defendant was on pre-trial release on the felony theft charge at the time he committed the burglaries. 730 ILCS 5/5--8--4(h) (West 1994). Finally, the trial judge advised the defendant that he was eligible for probation on all three charges.

While there was no agreement as to sentence, it appears that the prosecutor and defense attorney mistakenly believed that the amendment of the residential burglary charge made the defendant eligible for probation through the program commonly known as TASC (Treatment Alternatives for Special Clients). 20 ILCS 301/40--5, 40--10 (West 1994), formerly 20 ILCS 305/10--101, 10--102 (West 1992). In actuality, the defendant was ineligible for TASC probation due to a prior residential burglary conviction. Further, due to his criminal history, *fn1 the defendant was also ineligible for standard probation since the trial court had to impose Class X sentences for the burglary convictions.

At the sentencing hearing, the defendant testified that he was an alcoholic and asked to be sentenced to TASC probation. The prosecutor pointed out that the defendant had to be sentenced as a Class X offender for the burglaries. Additionally, he asked for a consecutive extended-term sentence for the defendant's theft conviction. The prosecutor agreed that the defendant was eligible for TASC probation, but argued that the court should reject that alternative due a lack of evidence that the defendant's crimes were alcohol related and because of the defendant's extensive criminal history.

Defense counsel concurred with the prosecutor's statements relative to the sentencing alternatives available to the court, but asked the court to sentence the defendant to TASC probation. He pointed out that the State had allowed the defendant to remain eligible for TASC by reducing his residential burglary offense to simple burglary.

Without specific reference to the defendant's request for TASC probation, the trial judge determined that a sentence of probation would have deprecated the seriousness of the defendant's conduct, and that imprisonment was necessary for the protection of the public. The court imposed concurrent prison terms of eight and nine years on the two burglaries, to run consecutively with an ...


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