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People v. Fischer

Court of Appeals of Illinois, First District, Sixth Division

December 27, 2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
MICHAEL FISCHER, Defendant-Appellant

Page 241

Appeal from the Circuit Court of Cook County. No. 06 CR 10635. Honorable Gregory Robert Ginex, Judge Presiding.

Affirmed in part, vacated in part, and remanded with directions.

SYLLABUS

The conviction entered for defendant's violation of the terms of his probation was affirmed, but the sentence imposed was vacated and the cause was remanded for a new sentencing hearing, where the trial court failed to consider a presentence investigation report as required by section 5-3-1 of the Unified Code of Corrections or satisfy the conditions necessary to obtain a waiver of that requirement.

FOR APPELLANT: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender (Patrick Morales-Doyle, Assistant Appellate Defender, of counsel) Office of the State Appellate Defender, Chicago, IL.

FOR APPELLEE: Anita Alvarez, State's Attorney of Cook County (Alan J. Spellberg, Tasha-Marie Kelly, and Koula A. Fournier, Assistant State's Attorneys, of counsel) Chicago, IL.

JUSTICE HALL delivered the judgment of the court, with opinion. Presiding Justice Rochford and Reyes concurred in the judgment and opinion.

OPINION

HALL, JUSTICE

Page 242

[¶1] In this appeal, defendant Michael Fisher argues the trial court improperly extended his probation and he challenges the imposition of a three-year prison sentence for violations of his probation. For the reasons that follow, we affirm in part, vacate in part, and remand with directions.

[¶2] On July 11, 2007, defendant was sentenced to 24 months' probation after pleading guilty to one count of indecent solicitation of a child. The solicitation charge stemmed from defendant's online solicitation of a person he believed to be a 14-year-old girl, but who was actually an investigator with the Cook County sheriff's department. Under the conditions of his probation, defendant was required to, among other things, register his address as a sex offender for 10 years; successfully complete sex-offender treatment; avoid contact with minors under the age of 18 years, unless given advanced, written approval from the court; and maintain a stable residence.

[¶3] On September 28, 2010, the circuit court entered a judgment revoking defendant's probation. He was subsequently sentenced to three years' imprisonment. The probation was revoked after the court determined defendant had violated several conditions of his probation. On appeal, defendant raises a number of arguments regarding the revocation of his probation. He also challenges his three-year prison sentence.

[¶4] BACKGROUND

[¶5] On April 18, 2006, defendant was arrested during a sting operation conducted by the Cook County sheriff's department and charged with indecent solicitation of a child. He was subsequently indicted by a grand jury on two counts of indecent solicitation of a child with the intent to commit aggravated criminal sexual abuse, a Class 3 felony.

[¶6] On July 11, 2007, at the Cook County circuit court in Maywood, Illinois, the trial court conducted a guilty plea hearing. Defendant was represented by counsel. The prosecutor informed the court that the State was prepared to recommend a sentence of 24 months' probation in the sex offender unit as part of a plea agreement under which defendant would plead guilty to the first count in the indictment. The court then reviewed a clinical report prepared by a licensed clinical social worker

Page 243

who had conducted a presentence sex-offender evaluation of defendant.

[¶7] After reviewing the report, the court admonished defendant of the rights he was foregoing by pleading guilty, as well as the potential sentences he faced. The defendant waived his right to a presentence investigation report. The prosecutor recited the stipulated facts underlying the charge in the indictment, and thereafter, the court found that a factual basis existed to support defendant's guilty plea. The court determined the guilty plea was voluntary and accepted the plea.

[¶8] The court sentenced defendant to sex-offender probation through the adult probation department. The court explained the conditions of the probation, which defendant stated he understood. The court also admonished defendant of his appellate rights. Although the court did not mention the duration of the probation term, the written order states that the term was for 24 months with a termination date of July 11, 2009. A status hearing was set for October 3, 2007.

[¶9] Neither defendant nor his counsel appeared at the October 3 status hearing. However, a probation officer from the adult probation department informed the court that defendant was regularly reporting to probation and there were no probation violations. The court agreed to set the next status hearing for November 7, 2007, to give defendant an opportunity to appear in court on that date.

[¶10] On November 7, the defendant appeared for the status hearing without counsel. Defendant informed the court he was in sex-offender treatment. He also notified the court that on October 4, 2007, he was arrested for failing to register as a sex offender. He was arrested by the Hoffman Estates police department. He had been released on a personal recognizance bond and ordered to appear at the Cook County circuit court in Rolling Meadows on November 30, 2007. Defendant told the court he had retained counsel as to the new charge, but added that counsel was unaware of his court date in this case and he did not expect counsel to appear in court that day.

[¶11] The State was granted leave to file a petition for violation of probation based on defendant's arrest. Defendant was given an " I-bond" as to the petition. The court set the next hearing date for January 23, 2008, in order to give defense counsel an opportunity to address the pending case in Rolling Meadows.

[¶12] On January 23, 2008, defendant appeared for the status hearing without counsel. Defendant stated he was presently in treatment, which was confirmed by the probation officer. The probation officer also informed the court that defendant was in compliance with his probation. Defendant further stated he was presently registered and that the failure to register issue in Rolling Meadows had been resolved. The court noted that defendant's probation was to continue and set the next status hearing for July 9, 2008.

[¶13] On July 9, 2008, defendant appeared for the status hearing without counsel. The probation officer informed the court that defendant was in compliance with probation. The matter was ...


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