People v. Hess
| Decision Date | 22 February 1993 |
| Docket Number | No. 2-91-0716,2-91-0716 |
| Citation | 609 N.E.2d 371,241 Ill.App.3d 276,182 Ill.Dec. 68 |
| Parties | , 182 Ill.Dec. 68 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James M. HESS, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Fearer, Nye, Ahlberg & Chadwick, Alan W. Cargerman, Oregon, for James M. Hess.
Dennis Schumacher, Ogle County State's Atty., William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Daniel P. Merriman, Asst. State's Atty., Oregon and Martin P. Moltz, State's Atty. Appellate Prosecutor, for the People.
Defendant, James Hess, appeals from a judgment of the circuit court of Ogle County sentencing him to seven years' imprisonment upon the revocation of his probation.
After a hearing which resulted in the revocation of his four-year term of probation, on June 24, 1991, the trial court summarily sentenced defendant to the maximum term of seven years' imprisonment. Defendant had originally pleaded guilty in July 1987 to a charge of aggravated criminal sexual abuse of a step-daughter who was under the age of 13 (see Ill.Rev.Stat.1987, ch. 38, par. 12-16(c)(1)). At the sentencing hearing in August 1987, the court considered, among other things, a presentence report as well as the opinions of psychologists. As a condition of probation, the court sentenced defendant to 30 months' periodic imprisonment, required court-approved counseling, and restricted contact with the victim and her (his) family except through counselors or attorneys, and required defendant to pay for his stepdaughter's counseling fees.
Defendant failed to file a post-sentencing motion. He appeals from the final judgment of revocation and the sentencing judgment. The thrust of defendant's arguments challenges the manner in which he was sentenced. He argues that the trial court erroneously resentenced him without considering a new or updated presentence report after nearly four years had elapsed and the court failed to follow the statutory requirements for a hearing in aggravation and mitigation and failed to give him an opportunity to be heard. The defendant concludes that the trial court did not give adequate, judicious consideration to the existing circumstances of the defendant at the time of sentencing and requests a remand of the cause for resentencing before a different judge.
We agree that the sentencing procedure employed here was so fundamentally deficient that we have no choice but to vacate the sentence.
Defendant began serving his periodic imprisonment in August 1987 in Ogle County. He was transferred in December to Winnebago County, where he was working. He was also released periodically for religious instruction. The record reveals that defendant received psychological counseling from Dr. Dudgeon and later continued counseling with Dr. Michalek in Rockford, Illinois, until May 1988. From August 1988, defendant received counseling from Dr. Edward Glenn, a psychiatrist, and participated in weekly group therapy sessions with Sexual Addicts Anonymous, a support group.
The testimony of defendant's wife Karen at the original sentencing hearing shows that she filed for divorce and sought counseling from Elise Cadigan, a psychiatric social worker, with the victim, K., and the two younger children of Karen's marriage with defendant. The three children had become fearful of the defendant. Karen and the children continued to live in Byron, Illinois.
It appears from the record that, on three occasions in October and November 1988, Karen brought the children for supervised visitations with defendant at the Winnebago County work-release facility, with Dr. Glenn's knowledge. The probation officer's report alleged that the visits were not made with the approval of the probation department or through counselors or attorneys according to the probation order. On November 30, 1988, the State petitioned for the revocation of defendant's probation on this basis. At the evidentiary hearing on December 22, 1988, the court granted a directed finding for defendant.
On January 5, 1989, the court also heard defendant's petition for a diminution of his periodic imprisonment. The court considered the testimony of Drs. Michalek and Glenn and the testimony of defendant regarding his activities and treatment. The trial court granted defendant diminution of his periodic imprisonment from a term of 30 months to 17 months. The court also allowed his release from the Winnebago County facility on January 27, 1989, conditioned on the requirement that he live with his mother in Byron for up to 60 days; thereafter, he was to live in Rockford, Illinois. He was ordered not to be present in his mother's home if the children were present and was ordered not to be alone with any female under the age of 18. The remaining terms of the prior sentencing order of August 1987 were to remain in effect.
On October 25, 1990, the court began hearing testimony to determine the issue of visitation. Defendant had remarried and, in consultation with Dr. Glenn, now sought supervised visitation with the children along with family counseling. The trial court required a report with the recommendations of Sheri Dean, the children's counselor at the Youth Services Bureau, and joint consultation with Dr. Glenn. In a brief order entered on February 13, 1991, the court adopted the findings of the Bureau and continued the matter for status until August 16, 1991--the same month that defendant's probation was to expire. Neither the report nor a transcript of the February 13 proceeding is included in the record.
On June 5, 1991, the State filed a petition to revoke defendant's probation on the ground that, in violation of the January 1989 order, he had moved in March 1991 to a home on McCormick Road in Stillman Valley, Illinois, outside the Rockford city limits. At a June 24 hearing, the State presented the testimony of Ogle County probation officer Jim Magnafici, who monitored defendant. Magnafici was aware that defendant had moved to Rockford and remained there until defendant moved to Stillman Valley on or about March 9, 1991. Magnafici became aware of the move when defendant left a telephone message that he would be moving to Stillman Valley. The probation officer made unannounced visits to that location on April 26 and May 2 and verified the move. Magnafici also noted that there was a Girl Scout camp located in the area near defendant's new residence; this apparently caused the State some concern.
After finding out that the court order required that defendant reside in Rockford and after consulting with the State's Attorney, the probation officer had a letter sent to defendant on May 30 advising him that he was in violation. Magnafici acknowledged that until this time defendant was in compliance with the January 1989 order, and Magnafici did not act immediately on defendant's telephone message, but stated that he was not immediately aware that the move was in violation of the order.
Defendant testified that he had complied with the order until February 1991. Having remarried, he made plans to move to Stillman Valley at the end of February because he liked to live in the country. He was aware that he could not reside in Byron. He signed the lease on February 27 and telephoned Magnafici's office on March 5 asking him to contact him regarding his move. He claimed to have continued to send the required periodic reports to Magnafici and then met with him on May 2. According to defendant, Magnafici told him he had no objection to the move; but defendant learned that the State's Attorney did have some objection. Magnafici told defendant to consult his attorney and to inform the court of the move.
Defendant made arrangements to cancel the lease. Since mid-May, just prior to the filing of the petition to revoke, when it became apparent to defendant that he should not have made the move, he began staying with a nephew in Rockford. Defendant then moved to a motel with his new wife. Defendant believed he was not in violation of the order because he thought the intent of it was that he not live in Byron. On cross-examination, defendant acknowledged that the order stated he was to live in Rockford. He also admitted that he left the Stillman Valley residence because the petition to revoke had been filed.
During closing argument, defense counsel conceded that there had been a technical violation, but argued that it was a violation "without deep meaning." Defense counsel requested that the court consider continuing defendant's probation and its conditions; the State agreed with this position.
The court made the following ruling:
"THE COURT: I think the petition to revoke has been determined to be founded [sic ] in favor of the State. My problem is that I have been talking about this case since 1987. And if you look through this case, you'll look through the fact that this defendant skirts around everything the Court wants to do as far as rehabilitation, as far as keeping him from those people, and it's my opinion that now I've done everything I can do, and I'm going to find that he violated the terms of his probation, and I'm going to sentence him to seven years to the Department of Corrections. Period.
Mr. BURDS [Assistant State's Attorney]: I'll submit the order, Judge. I'm not sure, remand to custody of Sheriff, Judge?"
According to the transcript there was no response heard as the judge left the courtroom.
Initially, we consider the effect of defendant's failure to make an objection regarding any deficiency in the sentencing proceedings and to file a post-sentencing motion. Although the parties have failed to raise this issue, we consider it because of the potential effect on our jurisdiction or the application of the waiver rule.
In guilty plea cases, our recent decisions have held that a motion to withdraw the plea and to vacate the judgment under Rule 604(d) (134 Ill.2d R. 604(d)...
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