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People v. Swank

December 05, 2003


Appeal from Circuit Court of McLean County No. 00CF891 Honorable W. Charles Witte, Judge Presiding.

The opinion of the court was delivered by: Justice Cook


In March 2001, defendant, Christopher D. Swank, pleaded guilty to burglary (720 ILCS 5/19-1 (West 2000)). In exchange for his plea, the State agreed to dismiss other charges but made no agreement with defendant regarding what sentence the trial court would impose. At the September 2001 sentencing hearing, the State recommended probation, but the court sentenced defendant to 4 1/2 years in prison. The court also ordered that defendant pay a $20 penalty under the Violent Crime Victims Assistance Act (725 ILCS 240/10 (West 2000)), $425.75 in restitution, and $326 in costs. That same day, the McLean County circuit clerk notified defendant that he also must pay a $375 fine. Later in September 2001, defendant filed a motion to reconsider his sentence, which the court denied.

Defendant appeals, arguing that (1) the trial court abused its discretion in sentencing him and (2) the circuit clerk improperly imposed the $375 fine. We reverse and remand for a new sentencing hearing before a different judge; we vacate the $375 fine; and we otherwise affirm.


At the March 2001 guilty plea proceedings, the trial court admonished defendant that (1) no agreement existed regarding what sentence the court would impose; and (2) if the court accepted his "open" guilty plea, it could sentence him to between three and seven years in prison. Defendant indicated that he understood the court's admonitions and without any reservations wished to plead guilty.

According to the factual basis the State provided for defendant's guilty plea, around 12:30 a.m. on July 23, 2000, Denise Stark and her eight-year-old son returned to their Bloomington residence to find defendant walking out of the unattached garage. Defendant, who had dated Stark for about two years but did not live with her, told Stark that he needed to talk with her. When defendant, Stark, and her son went inside the residence, Stark and her son noticed that a videocassette recorder (VCR) and a television were missing. Stark confronted defendant regarding the missing items, and he ran from the residence. Stark then contacted defendant at his grandparents' residence and told him to come back to her residence. Defendant returned and admitted that he (1) crawled through an unlocked kitchen window in Stark's residence, (2) stole her VCR and television, and (3) pawned the items.

The trial court accepted the State's factual basis, found that defendant had knowingly and voluntarily entered his guilty plea, and accepted the plea. The court then ordered that defendant submit to a drug test that day, and defendant informed the court that he had used marijuana while out on bond in this case.

Defendant failed to appear at his April 2001 sentencing hearing, and the trial court issued a warrant. Defendant was later arrested in Indiana, where he pleaded guilty to a retail theft charge. He was then returned to Illinois for sentencing in this case.

At the September 2001 sentencing hearing, the trial court took judicial notice of defendant's (1) Indiana conviction and (2) recent retail theft guilty plea (McLean County case No. 00-CM-551). The court also considered the presentence investigation report (PSI), which indicated, in pertinent part, as follows: (1) defendant admitted using marijuana on a weekly basis while awaiting sentencing in this case; (2) defendant's March 2001 drug screen was positive for marijuana; (3) defendant had unsuccessfully participated in drug-treatment programs; (4) defendant graduated from high school; (5) defendant had difficulty maintaining a steady job; and (6) defendant's criminal history included (a) a July 1993 retail theft conviction (McLean County case No. 93-CM-1124), (b) a September 2001 retail theft conviction (McLean County case No. 00-CM-551), and (c) several traffic convictions. The State recommended that the court sentence defendant to at least 30 months' probation, and defense counsel concurred with the State's recommendation and suggested that defendant receive credit for time served. Defense counsel further recommended that defendant receive drug treatment because "the problem here is marijuana addiction." The court stated that it was inclined to agree with the probation recommendation but also noted that it could sentence defendant to up to seven years in prison.

In pertinent part, the following discussion then took place between the trial court and defendant:

"THE COURT: To be honest with you, when I looked at [the fact that you tested positive for cannabis in March 2001 and have twice sought treatment for drug addiction,] and now that I know there are two additional retail thefts while awaiting sentencing on this, I think a reasonable question might be why should I put you on probation? In the last 150 days, I couldn't trust you on bond. *** [Y]ou can't be trusted to be honest, not commit crimes, and not use illegal drugs, so how could I possibly put you on probation is a question I might ask. You stand up and tell me.

THE DEFENDANT: I think that--I mean part of my problem when I committed the crime was my drug use, you know, and I have been in jail for four months now. I have had a chance to clean out and my head to clear up. I haven't had the problem with drugs.

THE COURT: The problem, [defendant], since [your guilty plea], you went out and committed two more crimes of theft and you failed to appear, and we had to go clear to Indiana to get you. You left the State of Illinois in violation of bond. That is the problem. I mean you have had lots of chances to get your life cleaned up. You have been in residential [drug] treatment twice, in '96 and again in '97, right?


THE COURT: Why were you in Indiana?

THE DEFENDANT: I went over there to look for work.

THE COURT: Did you call your attorney and tell her you would be back on what day?

THE DEFENDANT: I never told her.

THE COURT: So if they hadn't arrested you on that theft, you would still be in Indiana or someplace else?


THE COURT: Given that history, how could I possibly trust you on probation?

THE DEFENDANT: I completed probation successfully before.

THE COURT: That is before you committed all these additional crimes and continued to use illegal drugs.

THE DEFENDANT: That structure in my life helped me in my life. It helped me live a productive life in society. That structure of probation, showing up once a month, twice a month.

THE COURT: Do you have a valid driver's license?


THE COURT: How did you get to Indiana?



THE DEFENDANT: A guy named Mike.

THE COURT: Mike what?


THE COURT: Is he your drug supplier too?



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