{ "id": 5369466, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES TUCKER, Defendant-Appellant", "name_abbreviation": "People v. Tucker", "decision_date": "1994-06-21", "docket_number": "No. 3\u201493\u20140382", "first_page": "895", "last_page": "901", "citations": [ { "type": "official", "cite": "263 Ill. App. 3d 895" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "613 N.E.2d 740", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "155 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4810501 ], "weight": 2, "pin_cites": [ { "page": "198" }, { "page": "198-99" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/155/0188-01" ] }, { "cite": "537 N.E.2d 1010", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "182 Ill. App. 3d 176", "category": "reporters:state", "reporter": "Ill. 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JAMES TUCKER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McCUSKEY\ndelivered the opinion of the court:\nFollowing a bench trial, the defendant, James E. Tucker, was convicted of residential burglary (Ill. Rev. Stat. 1991, ch. 38, par. 19\u20143). The defendant was sentenced to an extended term of 30 years in the Department of Corrections. The trial court ordered the defendant\u2019s sentence to be consecutive to the sentence previously imposed upon the defendant in case No. 92 \u2014 CF\u2014279.\nIn case No. 92 \u2014 CF\u2014279, the defendant was convicted of home invasion, aggravated criminal sexual assault, two counts of residential burglary and aggravated battery. The defendant was sentenced to 60 years\u2019 imprisonment for home invasion and 60 years\u2019 imprisonment for aggravated criminal sexual assault, with these sentences to run consecutively. He was given concurrent sentences for the residential burglary and aggravated battery convictions. On appeal, the defendant\u2019s convictions and sentences for home invasion and aggravated criminal sexual assault were affirmed. People v. Tucker (3d Dist. 1994), No. 3\u201492\u20140936 (unpublished order under Supreme Court Rule 23).\nThe defendant raises two issues in this appeal: (1) whether resentencing is required because the trial court relied upon a presentence investigation report prepared after the defendant\u2019s previous convictions, about 51h months prior to the defendant\u2019s sentencing in this case; and (2) whether the defendant\u2019s sentence must be modified to a concurrent sentence based upon section 5 \u2014 8\u20144(c)(2) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 1005\u20148\u20144(c)(2)).\nWe find that resentencing is not required because the trial court properly relied upon a recent presentence investigation report. However, we conclude that the consecutive sentence imposed must be modified to a concurrent sentence because the maximum permissible consecutive sentence under section 5 \u2014 8\u20144(c)(2) of the Code was imposed in case No. 92 \u2014 CF\u2014279. As a result, we affirm the judgment of the trial court as modified.\nThe defendant\u2019s bench trial was held on March 29, 1993. At trial, EEen McKibben, age 67, and George McKibben, age 79, testified that an intruder broke into their home around 12:45 a.m. on April 8, 1992. The intruder attempted to put a black garbage bag over Ellen\u2019s head, causing her to fall. George then wrestled briefly with the intruder, and the intruder left. The garbage bag was found on the front porch of the McKibbens\u2019 home. Six of the defendant\u2019s fingerprints were found on the garbage bag. Based upon this evidence, the trial court found the defendant guilty of residential burglary.\nThe trial court then stated that it would be difficult to order a presentence investigation report prior to sentencing because the defendant was incarcerated. The prosecutor and defense counsel discussed the fact that a presentence investigation report had been prepared prior to the defendant\u2019s sentencing for his previous convictions in case No. 92 \u2014 CF\u2014279. The report was dated October 7, 1992, and the defendant\u2019s previous sentencing hearing was held on November 25, 1992. The prosecutor and defense counsel then stipulated that the presentence investigation report was accurate because the defendant had been incarcerated since the prior sentencing hearing. During a break, defense counsel reviewed the report with the defendant. Counsel asked that the report be corrected to reflect that a retail theft charge had been nol-prossed. The correction was made in the report.\nAt the sentencing hearing, defense counsel pointed out to the court that the presentence investigation report showed the defendant had a significant drug problem and suffered from mental difficulties. Counsel specifically noted that the defendant had previously spent time in the Menard psychiatric unit.\nBased upon the age of the victims, the trial court sentenced the defendant to an extended term of 30 years\u2019 imprisonment. The court ordered that the sentence would be consecutive to the sentences previously imposed in the other case. The defendant subsequently filed a notice of appeal.\nThe defendant first argues that a new sentencing hearing is required because a new presentence investigation report was not prepared prior to sentencing in this case. We disagree.\nThe defendant is correct that section 5 \u2014 3\u20141 of the Code provides that a defendant shall not be sentenced for a felony before a written presentence investigation report is presented to and considered by the court. (Ill. Rev. Stat. 1991, ch. 38, par. 1005\u20143\u20141.) This requirement is mandatory. (People v. Youngbey (1980), 82 Ill. 2d 556, 565, 413 N.E.2d 416.) Accordingly, in People v. York (1992), 230 Ill. App. 3d 874, 596 N.E.2d 187, we held that remand for resentencing was necessary because the trial court sentenced the defendant without ordering the preparation of a presentence investigation report and without considering a previously prepared report. York, 230 Ill. App. 3d at 876.\nHowever, the facts of the instant case are distinguishable from the facts of York. Here, the trial court did consider a recent, written presentence investigation report. Therefore, we conclude that the defendant\u2019s reliance on York is misplaced.\nThe purpose of a presentence investigation report is to collect all the necessary information for the trial judge before sentence is imposed. (People v. Williams (1992), 149 Ill. 2d 467, 488, 599 N.E.2d 913.) Therefore, the requirements of section 5 \u2014 3\u20141 are met when the trial court considers a recently prepared presentence investigation report which contains the information necessary for a sentencing decision. Accordingly, a new presentence investigation report is not required when a defendant is resentenced after his original sentence is vacated on appeal. (People v. Young (1988), 124 Ill. 2d 147, 156-57, 529 N.E.2d 497; People v. Brown (1990), 198 Ill. App. 3d 156, 158-59, 555 N.E.2d 794; People v. Munson (1988), 171 Ill. App. 3d 274, 277-78, 525 N.E.2d 250; People v. Morton (1981), 102 Ill. App. 3d 280, 281, 430 N.E.2d 383.) Similarly, when a presentence investigation report was prepared at the time a defendant was placed on probation, a new report is not required at sentencing following the revocation of probation as long as the defendant is given the opportunity to present additional information. (People v. Acevedo (1991), 216 Ill. App. 3d 195, 202-03, 576 N.E.2d 949; People v. Walker (1987), 164 Ill. App. 3d 133, 137-38, 517 N.E.2d 679; cf. People v. Harris (1985), 105 Ill. 2d 290, 473 N.E.2d 1291 (in a probation revocation proceeding, a presentence investigation report must be prepared if no report was prepared prior to imposition of sentence of probation).) Also, a new presentence investigation report is not required where, as here, a report was recently prepared prior to sentencing for a previous conviction. People v. Berry (1993), 241 Ill. App. 3d 993, 1000, 609 N.E.2d 900; People v. Sweeney (1990), 200 Ill. App. 3d 218, 222-23, 558 N.E.2d 622; People v. Torres (1986), 146 Ill. App. 3d 250, 255, 496 N.E.2d 1060.\nHere, the presentence investigation report used at the defendant\u2019s sentencing hearing was less than six months old. Also, defense counsel was given the opportunity to correct the report. Moreover, defense counsel stipulated that the report was otherwise accurate because the defendant had been incarcerated since its preparation. We conclude that, based on these circumstances, the presentence investigation report was adequate to provide the court with the necessary information for a proper sentencing decision.\nWe note the defendant contends that he was prejudiced by this procedure because the trial court was not advised about his incarceration in the psychiatric division of Menard Correctional Center. He argues that, \"[o]bviously, the records from that Division should have been considered in imposing sentence.\u201d We cannot agree. Any claimed deficiency or inaccuracy in a presentence investigation report must be brought to the attention of the sentencing court. (Williams, 149 Ill. 2d at 493.) The failure to do so results in the waiver of the issue on review. (Williams, 149 Ill. 2d at 493; People v. James (1993), 255 Ill. App. 3d 516, 530, 626 N.E.2d 1337.) Here, defense counsel agreed to the use of the previously prepared report and stipulated that it was accurate. Based on these circumstances, we find the defendant has waived any claim that the presentence investigation report lacked sufficient current information. People v. Mata (1993), 243 Ill. App. 3d 365, 376, 611 N.E.2d 1235.\nAdditionally, we find from our review of the record that the defendant was not prejudiced. The presentence investigation report contained sufficient information concerning the defendant\u2019s mental problems. Also, the trial court was informed by defense counsel that the defendant had previously spent time in the Menard psychiatric unit. As a result, the court was well informed concerning the defendant\u2019s mental problems prior to imposing sentence.\nThe defendant next contends that the trial court exceeded its authority when it ordered the 30-year sentence to be served consecutively. The defendant argues the maximum consecutive sentence allowable under section 5 \u2014 8\u20144(c)(2) of the Code was already imposed in case No. 92 \u2014 CF\u2014279 when the defendant was sentenced to two consecutive terms of 60 years. We agree with the defendant\u2019s contention.\nSection 5 \u2014 8\u20144 of the Code applies when multiple sentences are being imposed upon a defendant at the same time. (Ill. Rev. Stat. 1991, ch. 38, par. 1005\u20148\u20144(a).) It also applies when, as here, a term of imprisonment is being imposed upon a defendant who is subject to a previously imposed sentence. (Ill. Rev. Stat. 1991, ch. 38, par. 1005\u20148\u2014 4(a).) The section sets out the circumstances where a consecutive sentence may or, in some cases, must be imposed. (Ill. Rev. Stat. 1991, ch. 38, par. 1005\u20148\u20144.) Section 5 \u2014 8\u20144(c)(2) of the statute provides, in pertinent part:\n\"[T]he aggregate of consecutive sentences shall not exceed the sum of the maximum terms authorized under Section 5 \u2014 8\u20142 for the 2 most serious felonies involved. When sentenced only for misdemeanors, a defendant shall not be consecutively sentenced to more than the maximum for one Class A misdemeanor.\u201d Ill. Rev. Stat. 1991, ch. 38, par. 1005\u20148\u20144(c)(2).\nIn People v. Taylor (1988), 171 Ill. App. 3d 278, 525 N.E.2d 246, the defendant was sentenced to consecutive terms of 364 days in the county jail for two separate misdemeanors. We held that consecutive sentences were not permissible because that portion of section 5 \u2014 8\u2014 4(c)(2) which relates to misdemeanor offenses clearly \"prohibits a defendant convicted only of misdemeanors from being consecutively sentenced to more than the maximum for one Class A misdemean- or.\u201d Taylor, 171 Ill. App. 3d at 280.\nThe First District Appellate Court has reached a different conclusion in interpreting that portion of section 5 \u2014 8\u20144(c)(2) which relates to felony offenses. In both People v. Tipton (1991), 222 Ill. App. 3d 657, 584 N.E.2d 310, and People v. Spires (1989), 182 Ill. App. 3d 176, 537 N.E.2d 1010, the court recognized that the statute clearly says that the aggregate consecutive sentence imposed shall not exceed the sum of the maximum terms for the two most serious felonies. Nevertheless, in both Tipton and Spires, the court held that section 5 \u2014 8\u20144(c)(2) does not apply where the defendant\u2019s consecutive sentences are imposed for separate offenses committed at different points in time. (Tipton, 222 Ill. App. 3d at 667; Spires, 182 Ill. App. 3d at 185.) The court determined the practical effect of an opposite conclusion would be to: (1) give a defendant free reign to commit as many crimes as he desires knowing he was subject to consecutive sentencing on only two of the crimes; and (2) lessen the protection to the public from persons determined to be a serious threat to society. Tipton, 222 Ill. App. 3d at 667; Spires, 182 Ill. App. 3d at 185.\nWe do not agree with the conclusion reached by the first district in Tipton and Spires. In construing language contained in section 5 \u2014 8\u20144(a) of the Code, our supreme court recently stated that the \"surest and most reliable indicator of legislative intent is the language of the statute.\u201d (People v. Bole (1993), 155 Ill. 2d 188, 198, 613 N.E.2d 740.) The court acknowledged the plain language of the statute created something of an anomaly, but determined that it could not be corrected under the guise of statutory interpretation. The court stated, \"[t]o do so here would require substantial rewriting of the statutory language, in a manner inconsistent with the clearly expressed intent of the legislature.\u201d Bole, 155 Ill. 2d at 198-99.\nThe plain language of the statute provides that, in situations where multiple sentences are being imposed upon a defendant at the same time or where a term of imprisonment is being imposed upon a defendant who is subject to a previously imposed sentence, consecutive sentences cannot exceed the total of the maximum terms for the two most serious felonies involved. (Ill. Rev. Stat. 1991, ch. 38, pars. 1005\u20148\u20144(a), (c)(2).) The conclusion of the court in Tipton and Spires was based on persuasive reasoning. However, in order to reach its conclusion, the first district had to ignore the plain, unambiguous language of the statute. Based upon our supreme court\u2019s decision in Bole, we reach a different conclusion.\nFor the reasons stated, we determine that a new sentencing hearing is not required. We also conclude that the consecutive sentence must be modified to a concurrent sentence. Accordingly, the judgment of the circuit court of Kankakee County is affirmed as modified.\nAffirmed as modified.\nSTOUDER and BARRY, JJ., concur.", "type": "majority", "author": "JUSTICE McCUSKEY" } ], "attorneys": [ "Peter A. Carusona, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Clarke Erickson, State\u2019s Attorney, of Kankakee (John X. Breslin and Judith Z. Kelly, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES TUCKER, Defendant-Appellant.\nThird District\nNo. 3\u201493\u20140382\nOpinion filed June 21, 1994.\n\u2014 Rehearing denied July 28, 1994.\nPeter A. Carusona, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nClarke Erickson, State\u2019s Attorney, of Kankakee (John X. Breslin and Judith Z. Kelly, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0895-01", "first_page_order": 913, "last_page_order": 919 }