{ "id": 258792, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLY J. EVANS, a/k/a Billee J. Evans, Defendant-Appellant", "name_abbreviation": "People v. Evans", "decision_date": "1994-03-15", "docket_number": "No. 5\u201492\u20140486", "first_page": "252", "last_page": "259", "citations": [ { "type": "official", "cite": "273 Ill. App. 3d 252" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "478 N.E.2d 402", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. 2d 342", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138571 ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0342-01" ] }, { "cite": "431 N.E.2d 344", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "88 Ill. 2d 482", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082585 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/88/0482-01" ] }, { "cite": "411 N.E.2d 9", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "81 Ill. 2d 524", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5480180 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-2d/81/0524-01" ] }, { "cite": "408 N.E.2d 212", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "81 Ill. 2d 286", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5480907 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/81/0286-01" ] }, { "cite": "180 N.E. 832", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1980, "opinion_index": 0 }, { "cite": "348 Ill. 333", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5275346 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill/348/0333-01" ] }, { "cite": "177 N.E. 739", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1932, "opinion_index": 0 }, { "cite": "345 Ill. 142", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5262922 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/ill/345/0142-01" ] }, { "cite": "467 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 631", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3597044 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0631-01" ] }, { "cite": "559 N.E.2d 131", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "201 Ill. App. 3d 496", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2593718 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0496-01" ] }, { "cite": "509 N.E.2d 618", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "156 Ill. App. 3d 344", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3504575 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0344-01" ] }, { "cite": "607 N.E.2d 951", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "147 Ill. 2d 633", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "570 N.E.2d 578", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "211 Ill. App. 3d 641", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2527237 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/211/0641-01" ] }, { "cite": "528 N.E.2d 612", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "123 Ill. 2d 322", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550912 ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0322-01" ] }, { "cite": "599 N.E.2d 926", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "930" }, { "page": "932" } ], "opinion_index": 0 }, { "cite": "149 Ill. 2d 540", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5599350 ], "weight": 3, "pin_cites": [ { "page": "548" }, { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/149/0540-01" ] }, { "cite": "473 N.E.2d 1291", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "1296" }, { "page": "1297" }, { "page": "1297" } ], "opinion_index": 0 }, { "cite": "105 Ill. 2d 290", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141293 ], "weight": 4, "pin_cites": [ { "page": "301" }, { "page": "302-03" }, { "page": "302-03" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0290-01" ] }, { "cite": "467 N.E.2d 374", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "375-76" } ], "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 442", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3598653 ], "pin_cites": [ { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0442-01" ] }, { "cite": "413 N.E.2d 416", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. 2d 556", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474979 ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0556-01" ] } ], "analysis": { "cardinality": 678, "char_count": 14858, "ocr_confidence": 0.768, "pagerank": { "raw": 9.137954832624022e-08, "percentile": 0.5075293965014949 }, "sha256": "67e12b9ccd087e567d143c6fc11de88a0116c098d64864acc006ccfd1ac0b02a", "simhash": "1:bab377f16386862d", "word_count": 2441 }, "last_updated": "2023-07-14T20:25:46.120982+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLY J. EVANS, a/k/a Billee J. Evans, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE LEWIS\ndelivered the opinion of the court:\nThis court has issued numerous Supreme Court Rule 23 (134 Ill. 2d R. 23) orders remanding cases to sentencing judges for noncompliance with section 5 \u2014 3\u20141 of the Unified Code of Corrections. (Ill. Rev. Stat. 1991, ch. 38, par. 1005 \u2014 3\u20141 (now 730 ILCS 5/5 \u2014 3\u20141 (West 1992)).) We are now issuing an opinion, so that sentencing judges are made aware of an increasing problem of noncompliance with section 5 \u2014 3\u20141.\nThe defendant, Billy J. Evans, a/k/a Billee J. Evans, pursuant to negotiations, pleaded guilty to residential burglary, burglary, and felony criminal damage to property. He was sentenced to concurrent prison terms of six years for residential burglary and burglary and three years for criminal damage to property. On appeal, defendant only contends that the circuit court erred in sentencing him without a presentence investigation report, where the criminal history presented to the court was incomplete.\nOn January 24, 1992, defendant pleaded guilty. The initial statement to the court by the State\u2019s Attorney was: \"[T]he State would first disclose to the Court that the defendant has no prior felony record and the State has entered into a negotiated agreement to dispose of case number 91 \u2014 CF\u2014195 as well as 91 \u2014 CF\u2014211.\u201d The court admonished defendant pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402), concurred in the plea agreement, accepted defendant\u2019s guilty pleas, and sentenced defendant according to the agreement. At a prior hearing on the same date at which defendant\u2019s motion for psychiatric examination was denied, defense counsel stated he had talked with the probation officer who had been supervising defendant \"during a misdemeanor probation period.\u201d\nSection 5 \u2014 3\u20141 of the Unified Code of Corrections (Ill. Rev. Stat. 1991, ch. 38, par. 1005 \u2014 3\u20141) states:\n\"A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court.\nHowever, the court need not order a presentence report of investigation where both parties agree to the imposition of a specific sentence, provided there is a finding made for the record as to the defendant\u2019s history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment.\nThe court may order a presentence investigation of any defendant.\u201d Ill. Rev. Stat. 1991, ch. 38, par. 1005 \u2014 3\u20141.\nOn appeal, defendant urges that the presentence-report requirement of section 5 \u2014 3\u20141 is mandatory, relying on our supreme court\u2019s decision in People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 416, and that his sentence should be vacated and the cause should be remanded for resentencing. In Youngbey, the court held the presentence investigation and report to be a mandatory legislative requirement which cannot be waived, absent agreement between the parties as to the sentence to be imposed. The rationale for finding the report mandatory was that it was not solely for the benefit of the defendant but was also for the enlightenment of the court. A complete disclosure of a criminal defendant\u2019s history of criminality leaves no excuse for the court to state it was not aware of that record prior to deciding whether to accept a plea agreement. It is the court\u2019s responsibility to accept or reject a plea agreement. (See 134 Ill. 2d R. 402.) Since section 5 \u2014 3\u20141 is intended to serve as a useful tool for the sentencing judge, it is not the defendant\u2019s personal right which could be waived. People v. Graham (1984), 126 Ill. App. 3d 442, 444, 467 N.E.2d 374, 375-76.\nIn People v. Harris (1985), 105 Ill. 2d 290, 473 N.E.2d 1291, our supreme court was presented with the issue of whether, after revocation of probation, a trial court must consider a presentence investigation before sentencing defendant on a felony conviction. Our supreme court held that since no agreement was reached between the parties as to the specific sentence which was to be imposed following revocation of probation, presentence reports should have been ordered. (Harris, 105 Ill. 2d at 301, 473 N.E.2d at 1296.) The supreme court explained that substantial compliance is not sufficient because the adoption of substantial compliance would invite appeals and require an examination of the record in each case. The court further explained that substantial compliance would conflict with the express language of the statute, which requires a written presentence report. Because of the statute\u2019s mandatory nature, strict compliance was required. (Harris, 105 Ill. 2d at 302-03, 473 N.E.2d at 1297.) The compliance must be at the time the plea is taken without reference to other parts of the record; therefore, in this cause, pursuant to the reasoning used in Harris, the history of criminality and delinquency must be given to the sentencing judge at the time the plea agreement is offered for approval to the court.\nIn the case at bar, the parties agreed to the imposition of a specific sentence; therefore, a presentence report would not be necessary if there were \"a finding made for the record as to defendant\u2019s history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment.\u201d (Ill. Rev. Stat. 1991, ch. 38, par. 1005 \u2014 3\u20141.) The statement that defendant had not been convicted of a felony tells only half the story, as it appears from other portions of the record on appeal that defendant has a misdemeanor conviction. Further, defendant was charged in Williamson County with armed violence and aggravated unlawful restraint. (Reference is made to the charges in Williamson County in the discovery file in this cause, and we can take judicial notice of our own ruling in People v. Evans (March 4, 1993), No. 5 \u2014 92\u20140298 (unpublished order under Supreme Court Rule 23), whereby the defendant pleaded guilty to the charges in Williamson County.) Thus, the State\u2019s Attorney\u2019s statement was, to say the least, incomplete and did not comply with the mandate of section 5 \u2014 3\u20141. In order for the trial court not to order a presentence investigation report, the parties must agree on a specific sentencing recommendation and section 5 \u2014 3\u20141 must be strictly complied with in establishing defendant\u2019s history of criminality and delinquency, including the disposition made of those charges. It cannot be left to guesswork.\nThe State replies that the error is harmless, because defendant could not realistically expect to receive less than the negotiated sentences. However, section 5 \u2014 3\u20141 is primarily concerned with making the sentencing judge aware of the dangerousness of a particular defendant, and so the argument that the defendant could not realistically expect to receive less than the negotiated sentences misapprehends the purpose of the statute. The question is not whether the defendant could have received less time; rather, the question is, should the defendant have received a greater sentence? The judge has the duty and responsibility in imposing a sentence, not the attorneys. The mere fact that the parties negotiate a plea does not remove the responsibility and burden of sentencing from the judge.\nThis case presents a fine example of what the legislature was attempting to prevent by section 5 \u2014 3\u20141. The court was unaware of the defendant\u2019s complete record, so the question remains as to whether the court would have accepted the negotiated plea, if it had been aware of the serious pending criminal charges in Williamson County and the defendant\u2019s complete misdemeanor record. A complete history of defendant\u2019s criminality and delinquency may have revealed more than can be gleaned from the record. As stated previously in this order, the presentence report is to enlighten the court to defendant\u2019s background in order to assess his rehabilitative potential. Section 5 \u2014 3\u20141 mandates that a sentencing judge be aware of the history of the defendant\u2019s criminality and delinquency in assessing whether to accept the negotiated plea. In light of the statute\u2019s mandatory language, strict compliance is required (Harris, 105 Ill. 2d at 302-03, 473 N.E.2d at 1297); therefore, we decline to apply the waiver rule by defendant\u2019s acquiescence in the procedure or his failure to raise it in his Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)) motion to withdraw his guilty plea.\nFor the foregoing reasons, the convictions are affirmed. The sentences are vacated, and this cause is remanded for a new sentencing hearing.\nAffirmed in part; vacated in part and remanded with directions.\nRARICK and MAAG, JJ., concur.\nSUPPLEMENTAL OPINION ON REHEARING\nJUSTICE LEWIS delivered the opinion of the court:\nThe State filed a petition for rehearing alleging that this court overlooked or misapprehended certain points in its original opinion. The State contends that it would be error for the sentencing court to consider the \"har\u00e9 fact of arrest or charges in Williamson County\u201d when determining the sentence to impose.\nWe first note that the sentencing judge was not determining the sentence to be imposed. The court was deciding whether to accept the plea negotiation by the parties with the agreed-to sentence. The court had no right at that stage of the proceeding to impose a different sentence from the one agreed to by the parties.\nWe further note that the case that the State cites as authority, People v. Jackson (1992), 149 Ill. 2d 540, 599 N.E.2d 926, held: \"[Ojutstanding indictments or other criminal conduct for which there has been no prosecution or conviction may be considered in sentencing. Such evidence, however, should be presented by witnesses who can be confronted and cross-examined, rather than by hearsay allegations in the presentence report.\u201d (Jackson, 149 Ill. 2d at 548, 599 N.E.2d at 930.) In People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612, our supreme court held that it was not error for the sentencing court to consider the testimony of seven alleged offenses not resulting in convictions. The only admonition from the supreme court in Richardson was that the testimony involving misconduct by defendant must be reliable and relevant to sentencing and that the evaluation of what testimony was reliable and relevant is left largely to the sentencing judge\u2019s discretion.\nWhat may be overlooked in Jackson is that the supreme court specifically overruled People v. McGee (1991), 211 Ill. App. 3d 641, 570 N.E.2d 578, rev\u2019d (1992), 147 Ill. 2d 633, 607 N.E.2d 951, and People v. Dean (1987), 156 Ill. App. 3d 344, 509 N.E.2d 618, where each appellate court had held that a new sentencing hearing was required where the trial judge, in sentencing the defendant, expressly relied on evidence of a pending charge, of which the defendant was subsequently acquitted. (Jackson, 149 Ill. 2d at 553, 599 N.E.2d at 932.) The State cites People v. Alvelo (1990), 201 Ill. App. 3d 496, 559 N.E.2d 131, and People v. Dean (1984), 126 Ill. App. 3d 631, 467 N.E.2d 353, for additional authority for its position that pending charges cannot be considered by the sentencing court. Suffice it to say that when you review the authorities cited by Alvelo and Dean, the authorities mainly consist of appellate court cases, not supreme court decisions. The primary supreme court cases, other than Jackson and Richardson, that allow the use of pending charges or uncharged criminal conduct, if relevant and reliable, are People v. Popescue (1931), 345 Ill. 142, 177 N.E. 739; People v. McWilliams (1932), 348 Ill. 333, 180 N.E. 832, followed by People v. Poll (1980), 81 Ill. 2d 286, 408 N.E.2d 212; People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9; People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344; and People v. Brisbon (1985), 106 Ill. 2d 342, 478 N.E.2d 402. While the appellate court in Alvelo and Dean upheld the sentences of the defendants, the language and reasoning are certainly questionable in light of the many supreme court decisions.\nWe repeat once again that the sentencing judge should be made aware of the history of defendant\u2019s delinquency and criminality before the judge accepts a negotiated plea. There is absolutely no valid reason for the State to hide defendant\u2019s criminal history from the court, so that a bad negotiated plea can be slipped by the unknowing judge. We are not holding that the negotiated plea in this particular case was bad. That decision lies within the discretion of the sentencing judge, and we will have no complaint as long as the judge is apprised of the defendant\u2019s history of criminality. All that we are interested in is that the sentencing court is made aware of the kind of defendant it is sentencing.\nSince negotiated pleas are presented to the court by counsel without testimony in most cases, it would be costly and time consuming to require testimony with the right to cross-examination and to call rebuttal witnesses to show the reliability and relevance of the pending charges. If there are problems with the relevancy and reliability of the pending charges presented as part of the criminal history of defendant by the State, defendant can make his objections to the sentencing judge. The chance that a sentencing judge would reject a negotiated plea based upon some irrelevant or unreliable pending charge seems to us to be very unlikely.\nWe need not address the State\u2019s request for a waiver of the recitation of the specifics of defendant\u2019s misdemeanor conviction and sentence as being de minimis, since we are remanding this cause for a hearing whereby the sentencing court is to be apprised of the history of defendant\u2019s delinquency and criminality.\nAccordingly, we reaffirm the opinion of this court and remand for a hearing whereby the sentencing judge is to be informed of the history of the delinquency and criminality of defendant. The sentencing judge is then to make an independent decision as to the acceptability of the negotiated sentence and, if such negotiation is acceptable, make the proper findings for the record required by section 5 \u2014 3\u20141 of the Unified Code of Corrections (Ill. Rev. Stat. 1991, ch. 38, par. 1005 \u2014 3\u20141 (now 730 ILCS 5/5 \u2014 3\u20141 (West 1992))).\nAffirmed in part; vacated in part and remanded with directions.\nMAAG, P.J., and RARICK, J., concur.", "type": "majority", "author": "PRESIDING JUSTICE LEWIS" } ], "attorneys": [ "Daniel M. Kirwan, of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Rod Wolf, State\u2019s Attorney, of Harrisburg (Norbert J. Goetten, Stephen E. Norris, and Rebecca Sanders, all 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. BILLY J. EVANS, a/k/a Billee J. Evans, Defendant-Appellant.\nFifth District\nNo. 5\u201492\u20140486\nOpinion filed March 15, 1994.\n\u2014 Supplemental opinion filed on rehearing June 20, 1995.\nDaniel M. Kirwan, of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nRod Wolf, State\u2019s Attorney, of Harrisburg (Norbert J. Goetten, Stephen E. Norris, and Rebecca Sanders, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0252-01", "first_page_order": 272, "last_page_order": 279 }