from the Circuit Court of McLean County Nos. 15CF906,
15CF1184 Honorable John Casey Costigan, Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with
opinion. Presiding Justice Holder White and Justice Cavanagh
concurred in the judgment and opinion.
1 In September 2015, defendant, Terrell Lasean Hibbler,
pleaded guilty to threatening a public official (720 ILCS
5/12-9(a) (West 2014)) in exchange for a sentence of 30
months' probation. While on probation, in October 2015,
defendant was indicted for armed robbery and resisting a
peace officer. Id. §§ 18-2(a)(2),
31-1(a-7). The State also filed a petition to revoke his
2 In August 2016, a jury convicted defendant of armed robbery
and resisting a peace officer, and the trial court granted
the State's petition to revoke probation. In September
2016, the court sentenced defendant to 30 years in prison for
armed robbery, 3 years for resisting a peace officer, and 5
years for threatening a public official and ordered all
sentences to run concurrently.
3 Defendant appeals, arguing (1) the trial court erred at the
sentencing hearing by considering defendant's conduct in
jail based upon information contained within the presentence
investigation report (PSI), (2) the trial court erred by
imposing a sentence that constituted a double enhancement,
(3) the trial court erred by ordering restitution without
stating whether it was to be paid in a lump sum or by
installments, (4) trial counsel was ineffective because he
failed to challenge the restitution amount in the PSI, and
(5) the trial court erred when sentencing defendant after
revoking his probation because the sentence was based on his
subsequent conduct instead of the original offense for which
he had been placed on probation. We agree only with
defendant's third argument and remand regarding
restitution. We reject all of defendant's other arguments
and otherwise affirm the trial court's judgment.
4 I. BACKGROUND
5 A. The Charges
6 In August 2015, defendant was indicted on one count of
threatening a public official. Id. § 12-9(a).
In September 2015, as part of a negotiated plea agreement,
defendant pleaded guilty to threatening a public official in
exchange for a sentence of 30 months' probation.
7 In October 2015, defendant was indicted for armed robbery
and resisting a peace officer. Id. §§
18-2(a)(2), 31-1(a-7). Later that month, the State filed a
petition to revoke his probation, alleging defendant violated
the terms of his probation by committing the offenses set
forth in the October 2015 indictment.
8 B. The Trials
9 In August 2016, the trial court conducted a jury trial on
the armed robbery and resisting charges. The court
simultaneously conducted a bench trial on the petition to
10 Lashkmibhargava Ravi testified he was working at the
Blooming Food Mart (Food Mart), a gas station convenience
store located in Bloomington, Illinois, on the night of
October 3, 2015. Ravi stated that defendant entered the
store, pointed a gun at him, and demanded the money in the
cash register. Ravi instructed another employee to give
defendant the money, which he estimated to be about $3600.
Defendant took the money and ran out of the store. Ravi
called the police to report the robbery and later identified
defendant as the robber after police took him to a location
not far from the store where defendant had been arrested.
11 The State played a surveillance video that depicted the
events Ravi described for the jury. The video also showed
defendant pointing the gun at Ravi and the other employee and
placing the money in his front left pocket.
12 Bloomington police officer Joseph Rizzi testified he was
dispatched to a home, which happened to be near the Food
Mart, in response to a reported fight in the residence. Rizzi
stated that, as he approached the home, he saw a black male
running through the backyard and stopped him to inquire about
the fight. Rizzi identified the man as defendant in open
13 Rizzi testified that defendant claimed he saw the fight
and was running through the backyard to avoid it. As Rizzi
spoke with him, defendant started to back away. Rizzi then
noticed cash bulging out of defendant's left jeans
pocket, which defendant was trying to stuff into his pocket.
Rizzi also noticed defendant's hand was moving toward his
waistband generally. Rizzi then heard over his radio about an
armed robbery at the nearby Food Mart. (Rizzi explained that
Bloomington police officers wear earpieces to listen to
information over their radios so that the public cannot
hear.) Rizzi stated that defendant was wearing clothing that
was identical with the description of the robbery suspect.
14 Rizzi then attempted to detain defendant, but defendant
started to run away. Rizzi grabbed defendant's shirt, and
a struggle ensued. After the two tumbled down a hill in the
yard, Rizzi attempted to secure defendant's hands, and
defendant fought to get away. Another officer on the scene
came to Rizzi's aid. The two eventually arrested
15 Rizzi testified that he had a cut on his nose, elbow, and
both knees as a result of the struggle. Rizzi noted that his
bulletproof vest, which was secured with Velcro on either
side of his torso, came loose during the fight and was
twisted in such a way that it no longer offered him any
meaningful protection. (Rizzi also explained that, in part
because of incidents such as this one, the Bloomington Police
Department now used vests secured by zippers.) Because Rizzi
believed defendant was the armed robber, he described himself
as "[e]xtremely[ ] [t]errified" during the
16 The State presented testimony from multiple other officers
who arrived at the scene. Collectively, they recovered $2685
in cash from defendant's jeans pocket and a handgun from
the area where the struggle occurred.
17 Detective Tim Power, who interviewed defendant at the
Bloomington police station, testified that defendant said his
fingerprints would be on the gun because someone paid him
$200 to hold it. The gun had live ammunition in it, but the
gun's chamber did not contain a bullet when the police
18 The jury found defendant guilty of armed robbery and
resisting a peace officer. The trial court found the State
had proved its petition to revoke defendant's probation
by a preponderance of the evidence.
19 C. The Sentencing Hearing
20 In September 2016, the trial court conducted a sentencing
hearing. The PSI was filed seven days prior to the hearing.
The PSI contained a list of rule violations defendant
committed while in the county jail and a brief description of
the factual circumstances of those violations. The PSI also
stated that "the firm *** representing the [Food Mart]
Insurer [was] requesting restitution in the amount of $4,
359.92," and the City of Bloomington was requesting
$280.37 in restitution for Rizzi's medical treatment.
211. Proceedings Relating to the PSI
22 At the beginning of the sentencing hearing, the trial
court stated it had reviewed the PSI and then asked the State
if it had received the PSI as well. The State indicated it
had, and the court asked if the State had any changes or
amendments. The State responded that it did not.
23 The trial court then asked the same questions of defense
counsel, who indicated he had received the report and asked
the court to add one day to the number of days defendant
would receive for presentence credit. The State agreed, and
the court changed the PSI to include an extra day of
24 The trial court next moved on to defendant's motion
for a new trial. After hearing argument from counsel, the
court denied defendant's motion.
25 The trial court then asked the State if it had anything
further before the court proceeded to sentencing. The State
asked the court to grant its motion to substitute evidence,
replacing the physical cash recovered from defendant with
scanned copies of the bills so that the cash could be
returned to the victim. The State also asked the court to
amend the PSI to reduce the amount of restitution by $2685.
The court granted the motion to substitute and also amended
26 Before proceeding to sentencing, the following exchange
"THE COURT: Anything further before we get to the
sentencing hearing, Mr. Rigdon?
MR. RIGDON [(ASSISTANT STATE'S ATTORNEY)]: No, [Y]our
THE COURT: Mr. Tusek?
MR. TUSEK [(DEFENSE COUNSEL)]: No, [Y]our Honor. THE COURT:
All right. The Court has received and reviewed the PSI. The
one amendment that Mr. Tusek has requested has been made. Any
objection to the admission of the PSI, Mr. Rigdon? MR.
RIGDON: No, [Y]our Honor. THE COURT: Mr. Chambers?
MR. CHAMBERS [(MCLEAN COUNTY STATE'S ATTORNEY)]: No,
THE COURT: Mr. Rigdon is going to handle the sentencing? MR.
CHAMBERS: Both of us.
THE COURT: Both of you. Okay. Mr. Tusek, any objection to
the- MR. TUSEK: No. No objection.
THE COURT: The PSI will be shown as admitted. Any evidence in
aggravation for the State, Mr. Chambers?"
27 2. Evidence in ...