People v. Harris

• Court: Illinois Supreme Court
• Writing for the Court: THOMAS J. MORAN
• Citation: People v. Harris, 473 N.E.2d 1291, 105 Ill.2d 290, 85 Ill.Dec. 486 (Ill. 1985)
• Decision Date: 23 January 1985
• Docket Number: 59660,Nos. 59630,s. 59630
• Parties: , 85 Ill.Dec. 486 The PEOPLE of the State of Illinois, Appellee, v. David HARRIS, Appellant. The PEOPLE of the State of Illinois, Appellant, v. Raymond COLEMAN, Appellee.

Page 1291

473 N.E.2d 1291

105 Ill.2d 290, 85 Ill.Dec. 486

The PEOPLE of the State of Illinois, Appellee, v. David HARRIS, Appellant.

The PEOPLE of the State of Illinois, Appellant, v. Raymond COLEMAN, Appellee.

Nos. 59630, 59660.

Supreme Court of Illinois.

Jan. 23, 1985.

Neil F. Hartigan, Atty. Gen., Mark L. Rotert, James E. Fitzgerald, Asst. Attys. Gen., Chicago, for People.

Steven Clark, Deputy State Appellate Defender, Patricia Unsinn, Asst. State Appellate Defender, Chicago, for appellant Harris.

G. Joseph Weller, Deputy State Appellate Defender, John Wimmer, Jan K. Dargel, Asst. State Appellate Defenders, Elgin, for defendant-appellee Coleman.

THOMAS J. MORAN, Justice:

In cause No. 59630, defendant, David Harris, was convicted of burglary in the circuit court of Cook County following a bench trial. Defendant waived a presentence investigation report, and the court proceeded to a sentencing hearing. During this hearing, the judge gave defendant the option of being sentenced to either a minimum term of imprisonment, or a three-year term of probation. The court warned the defendant, however, that if he violated the terms and conditions of his probation he would be sentenced to prison for five years. Despite this caveat, defendant opted to be sentenced to a three-year term of probation.

A petition for violation of probation and application for warrant was subsequently filed by the State against him. A hearing on the petition was conducted before the same judge who had sentenced him on the original burglary conviction. During this hearing, defendant's probation officer informed the court that while defendant was on probation he had been sentenced to a two-year term of imprisonment for possession of a stolen motor vehicle. Defendant admitted this conviction and indicated that he would not require the State to prove the conviction on a more formal basis. Based on the defendant's admission, the court found that he had violated the terms of his probation and sentenced him to a five-year term of imprisonment pursuant to its earlier warning. Although defendant was given credit for the time he had spent on probation prior to the State filing its petition to revoke, the court denied defendant credit for time spent in custody prior to his initial burglary conviction. The court also stated that the five-year sentence imposed upon the burglary would run concurrently with the two-year sentence defendant received for possession of a stolen motor vehicle.

On appeal, the appellate court found that defendant was entitled to credit for time spent in custody and remanded the cause for correction of the mittimus. In all other respects, however, the judgment of the circuit court was affirmed. (87 Ill.2d R. 23: 119 Ill.App.3d 1162.) Specifically, the court held that the sentencing judge's failure to order a presentence investigation report, prior to imposing sentence upon revocation of defendant's probation, did not constitute error where the defendant voluntarily waived his right to a presentence report when originally placed on probation. Pursuant to our Rule 315(a) (87 Ill.2d R. 315(a)), we granted defendant's petition for leave to appeal.

In cause No. 59660, defendant, Raymond Coleman, was charged by information in Lake County with the offense of burglary. The defendant pleaded guilty and, pursuant to a plea negotiation, was sentenced to 24 months' probation. Both parties waived a presentence investigation report.

Sometime thereafter the State filed a two-count petition to revoke probation which alleged that defendant had committed two separate burglaries while on probation. At the hearing on this petition, the defendant stipulated to the probation violation alleged in the first count, which was the burglary of the Sub Venture Restaurant located in North Chicago. In return for that stipulation, the State withdrew the remaining count. Based on the defendant's admission, the court found that he was in violation of his probation. At this time, defense counsel, apparently forgetting that the presentence investigation report had been initially waived, requested that an "update" report be ordered. The State also joined in this request, which was granted by the court.

At the subsequent sentencing hearing, a five-page "up-dated" presentence report was filed by the probation department. The report detailed the defendant's conduct, health, and residence while on probation and included a section on resources available in the community to aid in rehabilitation. The "updated" report also described the impact of the probation violation on the Sub Venture Restaurant. However, the report did not contain any information concerning defendant's background prior to the time he was placed on probation. Nor did it describe the impact of the original burglary on defendant's victim.

Before imposing sentence, the court inquired as to the accuracy of the information contained in the updated presentence report. The defendant responded that the report was accurate. Further, both the State and defense counsel stated that there were no additions or corrections to be made to the updated report. In pronouncing sentence the court mistakenly stated that it had examined both "the presentence investigation report and the up-dated presentence report." Defendant was then sentenced to a four-year term of imprisonment, without credit for time served on probation, but with credit for time served in custody.

The appellate court reversed the judgment of the circuit court and remanded for resentencing. (People v. Coleman (1983), 120 Ill.App.3d 619, 76 Ill.Dec. 234, 458 N.E.2d 634.) It held "that the trial court's failure to consider a presentence report and its consideration only of an 'update' of a presentence report was plain error." (120 Ill.App.3d 619, 625, 76 Ill.Dec. 234, 458 N.E.2d 634.) We granted the State's petition for leave to appeal and consolidated both causes.

These consolidated cases present a common question: whether, after revocation of probation, a trial court must consider a presentence investigation report before sentencing a defendant on a felony conviction. Additionally, defendant Harris raises two issues: (1) whether the trial judge abused his discretion in sentencing defendant to five years; and (2) whether defendant was denied effective assistance of counsel at the probation-revocation proceedings.

The disparate results reached in the cases at bar evidence the division that currently exists within the appellate court regarding the need for a presentence investigation report prior to imposing sentence after revocation of probation. The State urges this court to adopt the position that the presentence-report requirement, contained in section 5-3-1 of the Unified Code of Corrections (Ill.Rev.Stat.1981, ch. 38, par. 1005-3-1), is inapplicable to probation-revocation proceedings by virtue of section 5-6-4(h) of the Code. (Ill.Rev.Stat.1981, ch. 38, par. 1005-6-4(h)). According to the State, the better reasoned authorities support this view. (See People v. Stahlman (1982), 103 Ill.App.3d 402, 59 Ill.Dec. 193, 431 N.E.2d 694; People v. Higgins (1980), 92 Ill.App.3d 27, 48 Ill.Dec. 114, 416 N.E.2d 9; People v. Martin (1979), 76 Ill.App.3d 765, 32 Ill.Dec. 77, 395 N.E.2d 24; People v. Handlon (1976), 40 Ill.App.3d 959, 353 N.E.2d 278.) These cases are bottomed on the fact section 5-3-1 does not expressly include probation-revocation proceedings. Section 5-3-1 provides:

"A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court.

However, 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's history of delinquency or criminality * * *." Ill.Rev.Stat.1981, ch. 38, par. 1005-3-1.

Further, as the courts in these cases have correctly observed, section 5-3-1 is not mentioned under the provision for resentencing after violation of probation. Instead, section 5-6-4(h) provides that resentencing after revocation of probation "shall be under article 4." Ill.Rev.Stat.1981, ch. 38, par. 1005-6-4(h).

Article 4, or section 5-4-1, is entitled "Sentencing Hearing" and sets forth the guidelines to be followed before imposing sentence in all cases, except where the death penalty is sought. It states, in pertinent part, that "the court shall * * * consider any presentence reports * * *." (Ill.Rev.Stat.1981, ch. 38, par. 1005-4-1(a)(2).) This language was interpreted in Handlon, where the court found it to be directory in that it merely instructs the sentencing court to consider any existing or requested presentence reports. It does not require an investigation and report as does section 5-3-1. (People v. Handlon (1976), 40 Ill.App.3d 959, 961, 353 N.E.2d 278.) Accordingly, the State maintains that both defendants were properly sentenced after their probation was revoked as there was no presentence report in existence concerning defendant Harris, and since the updated report, requested by defendant Coleman, was considered before sentence was imposed.

The defendants, on the other hand, contend that section 5-3-1 is applicable whenever a defendant is sentenced on a felony and there is no agreement between the parties concerning the imposition of a specific sentence. They argue that the Handlon rationale is no longer viable as section 5-3-1 was amended subsequent to the time that decision was rendered. See Ill.Rev.Stat.1977, ch. 38, par. 1005-3-1, amended by Pub.Act 80-1099 sec. 3, eff. Feb. 1, 1978, 1977 Ill.Laws 3264, 3294.

Under the former statute, a presentence report was required "where the defendant [was] convicted of a felony." (Emphasis added.) (Ill.Rev.Stat.1977, ch. 38, par. 1005-3-1.) The defendants concede that this language limited the application of section 5-3-1 to situations which involved a...