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People v. Morrison

July 31, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ADRIAN A. MORRISON, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Presiding Justice Homer

IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 1998

Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois

No. 96--CF--199

Honorable John D. O'Shea, judge Presiding

Following probation revocation proceedings, the defendant, Adrian A. Morrison, was sentenced to six years' imprisonment for attempted aggravated criminal sexual abuse (720 ILCS 5/8--4(a), 12--16(d) (West 1996)). The defendant appeals, arguing that (1) he is entitled to jail time credit for the date of his arrest; (2) the trial court improperly ordered him to pay $350 as reimbursement for the services of the public defender; and (3) his sentence is excessive and an abuse of the court's discretion. For reasons that follow, we affirm the defendant's sentence and remand for correction of the mittimus.

FACTS

The record shows that the defendant was charged with Class 1 and Class 2 felony sex offenses allegedly committed against his former girlfriend's 16-year-old sister. He entered a negotiated plea of guilty to Class 3 attempted aggravated criminal sexual abuse. In exchange for the plea, the State dismissed the original charges and recommended a sentence of 30 months' probation. On May 21, 1996, the court admonished the defendant, accepted his plea and imposed probation, as agreed. The court then inquired about the parties' agreement for reimbursement of the public defender's services. Defense counsel noted that there was no agreement, and the court sua sponte imposed a $350 fee.

The State subsequently filed a petition to revoke probation based on the defendant's failure to report to his probation officer. The defendant was arrested on July 11, 1996. Following a hearing, the court granted the State's petition and ordered a presentence investigation.

The presentence investigation report revealed that the 25-year-old defendant had an extensive, 12-year history of criminal conduct. In addition to the current offense, the defendant's adult record included convictions for illegal possession of alcohol, criminal damage to property, burglary, battery and resisting a peace officer. The defendant's only reported employment as an adult consisted of three days' work for a friend prior to his arrest for this offense. He dropped out of school and attempted work toward a General Education Degree, but failed to complete the classes. Although never married, the defendant claimed to have fathered twins, who died shortly after birth, and one daughter, who lives with her mother. The defendant's leisure activities included doing drugs, drinking and smoking.

At the resentencing hearing, Treatment Alternatives for Special Clients representative Christopher Volker testified that the defendant was unacceptable for sentencing as an addict because of the nature of his convictions and the unlikelihood of his rehabilitation through substance abuse treatment. The defendant asked the court for another chance on probation so that he could provide for his daughter.

At the close of the hearing, the court reviewed the facts of the underlying offense and the presentence investigation report. The court determined that further probation would be inconsistent with the ends of Justice, and that a sentence of imprisonment was necessary for the protection of the public. Factors cited in aggravation included the defendant's criminal history and the need to deter the defendant and others from committing the same crime (730 ILCS 5/5--5--3.2(a)(3),(7) (West 1996)). The court also noted that an extended term applied (730 ILCS 5/5--5--3.2(b)(1) (West 1996)). The court then imposed a six-year prison sentence with credit for time spent in pre-sentence custody. In its sentencing order, the court specified that credit be given for March 7 through May 21, 1996, and from July 12, 1996, to the date of sentencing. The defendant filed a timely motion to reconsider sentence, which was denied on July 21, 1997, and he appeals.

SENTENCING CREDIT

Initially, the State concedes that the defendant is entitled to presentence credit for July 11, 1996, the date of his arrest for violation of probation. We agree. Day-for-day jail time credit must be given for each day or partial day the defendant spends in custody prior to sentencing. 730 ILCS 5/5--8--7(b) (West 1996); People v. Williams, 144 Ill. App. 3d 994, 495 N.E.2d 685 (1986).

The record before us discloses that the defendant was first arrested for the sex offense on March 7, 1996, and he remained in jail until May 21, when he was released on probation. The defendant was re-arrested on July 11 and remained in jail until he was resentenced on August 23, 1996. By our calculation, the defendant spent 120 days in custody. Therefore, ...


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