Appeal from the Circuit Court of McHenry County. No. 97--CF--565 Honorable Ward S. Arnold, Judge, Presiding.
The opinion of the court was delivered by: Justice O'malley
Defendant, Robert Bouyer, appeals the circuit court's order sentencing him to five years' imprisonment after the court revoked his probation. Defendant contends that the five-year sentence was an abuse of discretion because it resulted solely from defendant's failure to abide by an improper agreement with the trial court whereby defendant would not be imprisoned as long as he paid restitution in monthly installments.
In 1997, defendant pleaded guilty to two counts of burglary (720 ILCS 5/19--1(a) (West 1996)). In exchange for the plea, the State recommended a sentence of 30 months' probation and dismissed other charges. Defendant also agreed to pay restitution.
The factual basis for defendant's plea was that he and a co-defendant, Bishop, entered a Menard's store and took various items. Defendant and Bishop also entered a truck belonging to Sheetz Lawn Service and took various items. Defendant and Bishop were both represented by the same assistant public defender, Michael Barrett.
The trial court found that the plea was voluntary and imposed the agreed-upon sentence. Because defendant wanted to return to Texas, the court agreed to waive his presence at a scheduled hearing to set the amount of restitution (as long as defendant did not dispute the amount).
On August 21, 1997, Barrett sought to continue the restitution hearing so that he could send a copy of the report to defendant in Texas. The court stated, "I want you to understand that Mr. Bishop, because of his financial circumstances[,] is unable to pay, I want Bouyer to shoulder the whole load." Barrett responded, "I understand." Bishop was subsequently sentenced to prison.
On January 21, 1998, the prosecutor told the court that the parties had been unable to agree on the amount of restitution and asked for a date for a contested hearing. The court asked, "[A]re we doing an exercise in futility or what?" Barrett responded, "The co-defendant who would be held responsible for the entire amount is in Texas and is a stocker at a grocery store earning $6 an hour." After some further colloquy, the court stated, "I'm setting a date. I'm not going to put up with this nonsense. I have two people that basically are judgment proof contesting it."
On April 16, 1998, Barrett again appeared on behalf of defendant and Bishop. Barrett said that Bishop, who was still in prison, had agreed to be jointly and severally liable with defendant for $6,603.04, spread among five victims. Barrett also said that he had sent defendant a letter informing him that if he failed to appear for the hearing judgment could be entered against him. Barrett had not heard from defendant. The court thus entered judgment against defendant and Bishop jointly and severally.
On October 19, 1998, the State petitioned to revoke defendant's probation, alleging that he had tested positive for cannabis twice and had committed disorderly conduct in Texas. A warrant was issued for defendant's arrest.
Eventually defendant completed an affidavit of assets and liabilities that showed he lived with his mother and brother and had been employed as a cook earning $150 per week. His employment ended when he was arrested on the warrant. Defendant listed his assets as $22.36. On February 9, 1999, defendant appeared in court and admitted to the allegations that he tested positive for marijuana. No agreement on a sentence was made.
Barrett asked that defendant be released on bond so that he could go back to Texas. He added that the parties had agreed to postpone the sentencing hearing for three months, during which time defendant would pay $300 per month toward restitution. The court accepted defendant's admission and revoked his probation. The court stated, "It's contemplated that if in fact those payments are current on May 11th that we would continue the sentencing for approximately another three months. If they were not current we would proceed with the sentencing. Do you understand?" Defendant responded that he did.
On May 11, 1999, Barrett reported that defendant had made three $300 payments since the revocation and the court accordingly continued the sentencing hearing for another three months. On August 10, the State reported that defendant was "a little short" on his payments. The court suggested that if defendant was "still a little short in three months he's going to have a problem."
On November 10, 1999, Barrett reported that defendant's family had made a $900 payment by credit card to make defendant current with his payments. The court continued the hearing for three more months. Defendant's sister made a $600 debit card payment on February 10 to again make defendant current, so the hearing was continued again.
On June 8, 2000, the court was informed that defendant had not made his payments. Public defender Chris Harmon told the court that he had left two messages for defendant. The court issued a bench warrant and continued the cause to determine whether defendant should be sentenced in absentia.
One week later, Harmon reported that he had spoken to defendant's sister, but not to defendant, who had failed to return his calls. According to Harmon, defendant's family members had told him that morning that they wanted to pay off all of defendant's fines, costs, and restitution, but had "some disagreement with the amount that's reflected on the finance screen." The court told Harmon, "I guess they better come up and argue it." The court ordered defendant to be served with notice of the sentencing hearing and ordered that a presentence report be prepared. In response to Harmon's question, the court stated, "My position has always ...