People v. Porter

NOS. 4-96-0359, 4-96-0430 cons.
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. (No. 4-96-0359) ) Macon County
WILLIAM C. PORTER, ) No. 94CF704
Defendant-Appellant. )
) Honorable
) John L. Davis,
) Judge Presiding.
------------------------------------ )
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. (No. 4-96-0430) ) Macon County
WILLIAM C. PORTER, ) No. 92CF799
Defendant-Appellant. )
) Honorable
) Scott B. Diamond,
) Judge Presiding.

_________________________________________________________________

JUSTICE McCULLOUGH delivered the opinion of the court:

In these consolidated appeals, defendant William C.
Porter seeks review of sentences imposed in Macon County case Nos.
92-CF-799 and 94-CF-704. In No. 92-CF-799, defendant pleaded
guilty to attempt (burglary). Ill. Rev. Stat. 1991, ch. 38, pars.
8-4(a), 19-1(a). On November 11, 1993, he was sentenced to 18
months' probation. In July and August 1994, the State filed four
petitions to revoke probation alleging (1) burglary and criminal
damage to property (De Witt County case No. 94-CF-76); (2) failure
to pay restitution, public defender fees, and probation service
fees in Macon County case No. 92-CF-799; (3) burglary (Macon County
case No. 94-CF-589); and (4) the burglary which was charged in
Macon County case No. 94-CF-704. On January 4, 1995, defendant
pleaded guilty to the burglary alleged in No. 94-CF-704. In what
was apparently a consolidated sentencing hearing in case Nos. 92-
CF-799 and 94-CF-704, defendant was sentenced to concurrent periods
of probation of two years, conditioned on 90 days in jail subject
to work release and 12 months' intensive probation supervision
(IPS).
On October 10, 1995, a petition to revoke IPS was filed
charging defendant with reckless driving while his driver's license
was suspended (Macon County case Nos. 95-TR-17370, 95-TR-17371) and
resisting a peace officer. On January 8, 1996, four additional
petitions to revoke probations were filed alleging (1) armed
robbery, home invasion, aggravated battery to a senior citizen,
armed violence, and residential burglary to Wayne and Mary
Campbell; (2) two counts of robbery of Ellyn and Allan Carney; (3)
robbery of Dorothy Borden; and (4) attempt (armed robbery) of Jean
Crane.
Following an evidentiary hearing in which evidence was
presented on the petitions as to the traffic violations and
resisting a peace officer, the petition as to the Campbells and the
petitions as to Crane, the trial court found the allegations
proved. Defendant's probations were revoked. He was sentenced to
consecutive terms of imprisonment of five years in No. 92-CF-799
and seven years in No. 94-CF-704.
The only issues raised on appeal are whether (1)
defendant's sentences are excessive and (2) he is entitled to 90
days' credit against his sentences for time previously served while
on probation. The State responds that these issues are waived
because defendant failed to file in the trial court a written post-
sentencing motion challenging the correctness of the sentences. We
decline to find waiver, but affirm the revocations of probations
and sentences, while remanding for calculation of defendant's
sentencing credit.
The first paragraph of section 5-8-1(c) of the Unified
Code of Corrections (Code) now states:
"(c) A motion to reduce a sentence may be
made, or the court may reduce a sentence
without motion, within 30 days after the
sentence is imposed. A defendant's challenge
to the correctness of a sentence or to any
aspect of the sentencing hearing shall be made
by a written motion filed within 30 days
following the imposition of sentence. Howev-
er, the court may not increase a sentence once
it is imposed." (Emphasis added.) 730 ILCS
5/5-8-1(c) (West 1994).
Prior to the inclusion of the emphasized language in the above
quotation, the Supreme Court of Illinois interpreted the statute as
being permissive and not mandatory. That is, a defendant was not
required to file a written post-sentencing motion in order to
preserve sentencing issues for review. People v. Lewis, 158 Ill. 2d 386, 390-91, 634 N.E.2d 717, 719-20 (1994). Since the amendment
(Pub. Act 88-311, 15, eff. August 11, 1993 (1993 Ill. Laws 2604,
2615)), some courts have interpreted this paragraph. People v.
Cook, 279 Ill. App. 3d 718, 725-26, 665 N.E.2d 299, 303-04 (1995)
(first district); People v. Reed, 282 Ill. App. 3d 278, 279-81, 668 N.E.2d 51, 52-54 (1996) (first district); People v. O'Neal, 281
Ill. App. 3d 602, 612-13, 667 N.E.2d 516, 523 (1996) (first
district); People v. McCleary, 278 Ill. App. 3d 498, 501-02, 663 N.E.2d 22, 24-25 (1996) (first district); People v. Moncrief, 276
Ill. App. 3d 533, 535, 659 N.E.2d 106, 108 (1995) (second dis-
trict). McCleary and Cook were both decided by the first district,
first division.
Recognizing that the legislature retained the word "may"
in the first sentence of section 5-8-1(c) of the Code, we agree
with the interpretation placed on it by Cook. The statute, even as
amended, does not require a defendant to file a post-sentencing
motion as a prerequisite to an appeal. It merely dictates the form
it must take and when it must be filed if defendant chooses to file
one. In addition, this interpretation avoids any possible
challenge to the constitutionality of this section based on the
separation of powers clause of the Illinois Constitution. Ill.
Const. 1970, art. II, 1.
The first issue is whether the sentence was excessive.
Defendant's entire argument is that his character and potential for
rehabilitation are such that lesser sentences would be appropriate.
Defendant, born July 16, 1975, points to a criminal history in the
presentence investigation report (PSI) that includes a juvenile
adjudication for burglary and criminal damage to property less than
$300 (Macon County case No. 91-J-62) and two speeding tickets as an
adult (Macon County case No. 92-TR-2152; Edgar County case No. 94-
TR-595). He admits there is also a conviction for reckless driving
and driving while his driver's license was suspended (Macon County
case Nos. 95-TR-17370, 95-TR-17371). Defendant further points out
that at the time of sentencing he was working as a construction
laborer earning $11 per hour.
In the absence of an abuse of discretion, the sentences
will not be altered on review. People v. Perruquet, 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883 (1977). A sentence imposed within
statutory limits will not be overturned unless it is greatly at
variance with the purpose and spirit of the law or is manifestly
disproportionate to the nature of the offense. People v. Cabrera,
116 Ill. 2d 474, 493-94, 508 N.E.2d 708, 716 (1987). When
sentencing a defendant after revocation of probation, the trial
court may consider the defendant's conduct while on probation, and
criminal offenses committed by defendant while on probation may be
considered in aggravation. People v. Laws, 200 Ill. App. 3d 232,
237, 558 N.E.2d 638, 641 (1990).
The attempt (burglary) in case No. 92-CF-799 was a Class
3 felony (Ill. Rev. Stat. 1991, ch. 38, pars. 8-4(c)(4), 19-1(b))
for which a sentence of not less than two years and not more than
five years was authorized (Ill. Rev. Stat. 1991, ch. 38, par. 1005-
8-1(a)(6)). The burglary in case No. 94-CF-704 was a Class 2
felony (720 ILCS 5/19-1(b) (West 1992)) for which a sentence of not
less than three years nor more than seven years was authorized (730
ILCS 5/5-8-1(a)(5) (West 1992)). Since the offenses involved in
this appeal did not arise from a single course of conduct, the
trial court had the discretion to impose consecutive sentences if,
having regard to the nature and circumstances of the offense and
the history and character of defendant, it was of the opinion
consecutive sentences were required to protect the public from
further criminal conduct by defendant. Ill. Rev. Stat. 1991, ch.
38, par. 1005-8-4(b); 730 ILCS 5/5-8-4(b) (West 1992). When
separate victims are harmed by separate criminal acts directed at
the victims separately, consecutive sentences are not prohibited by
section 5-8-4(a) of the Code (Ill. Rev. Stat. 1991, ch. 38, par.
1005-8-4(a); 730 ILCS 5/5-8-4(a) (West 1992)). People v. Schlemm,
82 Ill. App. 3d 639, 649, 402 N.E.2d 810, 817 (1980). Here, the
trial court found the nature and circumstances of the original
offenses and the history and character of the defendant necessitat-
ed consecutive sentences to protect the public from defendant's
further criminal conduct.
The sentences were not excessive, and no abuse of
sentencing discretion had been demonstrated. This determination is
made on the basis of our review of the common law record, in
particular the original and updated PSI, and the transcript of the
probation revocation hearing. The defendant's motion to file a
transcript of the sentencing hearing following revocation of
probation (April 10, 1996) was allowed, but instead defendant filed
the report of proceedings for defendant's guilty plea hearing
(April 22, 1996) and sentencing hearing (May 14, 1996) in Macon
County case Nos. 95-CF-1204, 95-CF-1210, 95-CF-1214, and 95-CF-
1227. We have not considered these transcripts in deciding the
issues in this appeal. Moreover, no bystander's report or agreed
statement of facts relating to the sentencing hearing of April 10,
1996, was filed in this court. 134 Ill. 2d R. 612(c); 155 Ill. 2d
Rs. 323(c), (d). Where the absence of a portion of the record
deprives the reviewing court of the opportunity to determine the
propriety of a trial court's ruling, the issue can be deemed
waived. See People v. Mills, 252 Ill. App. 3d 792, 796-97, 624 N.E.2d 384, 386-87 (1993); People v. Summers, 49 Ill. App. 3d 70,
76, 362 N.E.2d 1347, 1353 (1977); People v. Durflinger, 42 Ill.
App. 3d 174, 175, 355 N.E.2d 360, 361 (1976). Nevertheless, from
the portions of the record which have been presented, it is clear
no abuse of sentencing discretion occurred.
The final issue is whether defendant is entitled to 90
days' credit against his sentence for time previously served while
on probation. The docket entry of April 10, 1996, indicates the
trial court ruled that defendant was "to be given credit for time
served to be calculated." The sentencing order in both of these
cases says the same thing. Therefore, we conclude that the trial
court intended to give defendant credit for time served, but simply
failed to calculate it. As a result, the judgment of the circuit
court of Macon County is affirmed in all respects except as to the
credit for time previously served, and to that extent, the sentence
is reversed and the cause is remanded to the circuit court of Macon
County to calculate the sentence credit to which defendant is
entitled and to modify the sentencing orders in these cases
accordingly.
Affirmed in part and reversed in part; cause remanded
with directions.
COOK, P.J., and STEIGMANN, J., concur.