The opinion of the court was delivered by: Justice Rapp
Appeal from the Circuit Court of Du Page County.
Honorable Ann Brackley Jorgensen, Judge, Presiding.
Defendant, Douglas J. Taube, appeals from a finding of a violation of probation under section 5--6--4 of the Unified Code of Corrections (Corrections Code) (730 ILCS 5/5--6--4 (West 1997)) and a sentence of four years in the Department of Corrections. The trial court denied the defendant's motions to reconsider both the finding of a violation and the sentence.
On January 12, 1995, Defendant pled guilty to two counts of criminal sexual assault in violation of section 12-13 of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1991 ch. 38, par. 12--13 recodified as 720 ILCS 5/12--13 (West 1993)). The victims of these offenses were defendant's two adopted sons, P.T., age ten, and A.T., age eight. Defendant had been charged in a five-count indictment. The indictment included three counts of aggravated criminal sexual assault, in violation of section 12--14(b)(1) of the Criminal Code (Ill. Rev. Stat. 1991 ch. 38, par. 12--14(b)(1) recodified as 720 ILCS 5/12-- 14(b)(1) (West 1993)), a class X felony. The indictment also included two counts of aggravated criminal sexual abuse, in violation of section 12--16(b) of the Criminal Code (Ill. Rev. Stat. 1991 ch. 38, par. 12-- 16(b) recodified as 720 ILCS 5/12--16(b) (West 1993)), a class 2 felony. Following a plea agreement, the State amended two of the counts to criminal sexual assault, a class 1 felony. The remaining counts were nol-prossed and dismissed.
The trial court advised defendant that, pursuant to section 5--5-- 3(c)(2)(H) of the Corrections Code (730 ILCS 5/5--5--3(c)(2)(H) (West 1997)), he was not eligible for the probation proposed unless he agreed to accept, as a condition of probation, the counseling provisions of section 5--5--3(e) of the Corrections Code (730 ILCS 5/5--5--3(e) (West 1997)).
Section 5--5--3(e)(1) of the Corrections Code provides in pertinent part:
"(e) In cases where prosecution for criminal sexual assault or aggravated criminal sexual abuse under Section 12--13 or 12--16 of the Criminal Code of 1961 results in conviction of a defendant who was a family member of the victim at the time of the commission of the offense, the court shall consider the safety and welfare of the victim and may impose a sentence of probation only where:
(1) the court finds (A) or (B) or both are appropriate:
(A) the defendant is willing to undergo a court approved counseling program for a minimum duration of 2 years; or
(B) the defendant is willing to participate in a court approved plan including but not limited to the defendant's:
(i) removal from the household;
(ii) restricted contact with the victim;
(iii) continued financial support of the family;
(iv) restitution for harm done to the ...