People v. Vernon

No. 2--95--0166
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
) No. 92--CF--1007
v. )
)
RANDY L. VERNON, ) Honorable
) John W. Nielsen,
Defendant-Appellant. ) Judge, Presiding.
________________________________________________________________

JUSTICE BOWMAN delivered the opinion of the court:
Defendant, Randy L. Vernon, appeals the trial court's order
denying his motion to reconsider the sentence. The issue on appeal
is whether, on a remand from this court in which we ordered the
trial court to conduct a new hearing on defendant's motion to
reconsider the sentence in full compliance with Supreme Court Rule
604(d) (145 Ill. 2d R. 604(d)), the trial court erred in refusing
to consider the evidence of defendant's behavior and
accomplishments while in prison during the pendency of his appeal.
We affirm.
On May 6, 1992, defendant was charged by indictment with two
counts of aggravated criminal sexual assault (720 ILCS 5/12--
14(a)(1) (West 1992)) and two counts of aggravated unlawful
restraint (720 ILCS 5/10--3.1 (West 1992)). On October 15, 1992,
defendant pleaded guilty to one count of aggravated criminal sexual
assault in exchange for the State's agreement to dismiss the
remaining charges and a pending misdemeanor charge. There was no
agreement as to the sentence to be imposed.
On December 22, 1992, the trial court sentenced defendant to
12 years' imprisonment. On January 12, 1993, defendant filed a
motion to reconsider the sentence which the trial court denied on
the same date. Defendant filed a timely notice of appeal.
On appeal, defendant argued that the cause must be remanded
because the trial court did not order that he be furnished a copy
of the transcript until after the motion for reconsideration of his
sentence was denied and because his attorney did not file the
certificate required by Supreme Court Rule 604(d) (145 Ill. 2d R.
604(d)). On August 9, 1994, we reversed the trial court's order
denying defendant's motion to reconsider the sentence and remanded
the cause to the circuit court for full compliance with Rule
604(d). People v. Vernon, No. 2--93--0107 (1994) (unpublished
order under Supreme Court Rule 23).
On January 30, 1995, defense counsel filed a new motion to
reconsider the sentence and a certificate in compliance with Rule
604(d). The new motion alleged that defendant's conduct while in
prison shows a great rehabilitative potential in defendant.
On February 1, 1995, the trial court held a new hearing on
defendant's motion. At the hearing, defense counsel asked the
court for leave to file a copy of a letter and a progress report
from the Clinical Services Department of the Western Illinois
Correctional Center. The State objected to the report being
considered by the court because it referred to conduct which the
court could not possibly have considered during the first hearing
on the motion to reconsider the sentence. The trial court allowed
defendant to file the report. However, the trial court stated:
"Now I am going to tell you that I am not going to
consider it in regards to anything that is before the court
because it is after sentencing, and the case came back down
to me for hearing today on a 604(d) motion. This is not
relevant to anything that is before the court. It will be
filed, made part of the record, but I will not consider it."
Defense counsel then stated that he had intended to call
defendant as a witness solely to discuss what he had done while in
prison. The following exchange then occurred between the court and
defense counsel:
"THE COURT: Your offer of proof, and I will take it as
an offer of proof in regards that he will testify as to what
he has done, and I suppose it will all be in good light to
him.
MR. LIGHT: Yes, sir, it would.
THE COURT: That offer of proof is made and it is
denied."
The trial court refused to consider any evidence which was not
before it when defendant was sentenced. Defense counsel then
argued that defendant's sentence should be reduced based on the
information which was before the court at the original sentencing
hearing. The trial court then denied defendant's motion to
reconsider the sentence.
Defense counsel then filed a motion to reconsider the denial
of the motion to reconsider the sentence in which he argued that
the court erred in denying the motion and in refusing to consider
the evidence of defendant's behavior and accomplishments while in
prison. The trial court denied the motion. Defendant filed a
timely notice of appeal.
On appeal, defendant argues that, when considering the motion
to reconsider his sentence, the trial court should have considered
the evidence of defendant's behavior and accomplishments while in
prison during the pendency of his appeal. The State argues that
because a remand for compliance with Rule 604(d) returns the case
to the same procedural point as on the date defendant's original
motion to reconsider the sentence was filed, it is improper for the
trial court to consider anything it could not have considered on
that date.
Initially, we note that the purpose of a motion to reconsider
the sentence is not to conduct a new sentencing hearing. Rather,
"[t]he purpose of a motion to reconsider a sentence is to allow the
trial court an opportunity to review the appropriateness of the
sentence imposed and correct any errors made." People v. Root, 234
Ill. App. 3d 250, 251 (1992).
The evidence defendant wishes to admit is clearly outside that
which a trial court is required to consider. If trial courts were
required to consider such evidence, the character of hearings on
motions to reconsider a sentence would essentially be more like ad
hoc parole hearings where the trial court would view defendant's
conduct in prison and determine, based at least partially on that
conduct, how much longer defendant should spend in prison. We do
not believe that this comports with the purpose of a hearing on a
motion to reconsider a sentence. See Root, 234 Ill. App. 3d at
251. When ruling on a motion to reconsider a sentence, the trial
court should limit itself to determining whether the initial
sentence was correct; it should not be placed in the position of
essentially conducting a completely new sentencing hearing based on
evidence which did not exist when defendant was originally
sentenced.
Defendant argues that People v. Loomis, 132 Ill. App. 2d 903
(1971), People v. Ferguson, 84 Ill. App. 3d 175 (1980), and People
v. Westbrook, 262 Ill. App. 3d 836 (1992), provide support for his
argument. We conclude that these cases are distinguishable from
the present case and do not support defendant's argument.
In Loomis, we merely held that the trial court may consider
defendant's behavior during his incarceration prior to the original
sentencing hearing. 132 Ill. App. 2d at 905. In that case, the
trial court was not reconsidering an existing sentencing order; it
was sentencing defendant for the first time. Because the purpose
at an original sentencing hearing is much broader in that the court
considers all the evidence relevant to the proper sentence rather
than whether the original sentence was correct, we conclude that
Loomis is not instructive.
In Ferguson, the trial court considered in the original
sentence defendant's expression of remorse for his attempt to kill
his estranged wife. 84 Ill. App. 3d at 176-77. Defendant's
original sentence was vacated and, at the new sentencing hearing,
the trial court considered: (1) testimony regarding jailhouse
conversations in which defendant discussed killing his wife; and
(2) a letter defendant had written describing his wife, directions
to his residence, instructions to make her shooting look like a
suicide, and instructions to force her to write two notes
explaining that she had lied at trial and that she was killing
herself. Ferguson, 84 Ill. App. 3d at 177. Because the original
sentence in Ferguson was vacated and the trial court was conducting
a new sentencing hearing and because the evidence considered
rebutted defendant's expression of remorse at the original
sentencing hearing, Ferguson is not persuasive regarding the issue
in the present case.
The court in Westbrook held that nonstatutory evidence is
admissible in aggravation at an original sentencing hearing. 262
Ill. App. 3d at 857-58. Because Westbrook, like People v. Loomis,
involved an original sentencing hearing, we conclude that it is not
instructive concerning the issue in the present case.
Next defendant argues that our decision in People v.
Brasseaux, 254 Ill. App. 3d 283 (1993), supports his argument. In
Brasseaux, we held that, if a motion to reconsider the sentence
alleges facts outside the record or raises issues which may not be
resolved without an evidentiary hearing, defendant's presence
should be required. Brasseaux, 254 Ill. App. 3d at 291. Defendant
argues that Brasseaux recognized that evidence not presented at the
original sentencing hearing may be appropriate at a hearing on a
motion to reconsider the sentence. However, Brasseaux does not
suggest that a defendant may present evidence of events occurring
after the original sentencing hearing. We decline to expand the
holding of Brasseaux to include such evidence.
Finally, defendant argues that People v. Smith, 258 Ill. App.
3d 633 (1994) is instructive. In Smith, defendant was sentenced to
12 years' imprisonment for aggravated arson. 258 Ill. App. 3d at
635. On appeal, the court found that her sentence was not an abuse
of discretion. Smith, 258 Ill. App. 3d at 645. However, the
court, without discussion, remanded the cause to the trial court to
determine what effect, if any, the fact that defendant was
diagnosed with cancer after her sentence and commitment to the
Department of Corrections should have on the appropriate sentence.
Smith, 258 Ill. App. 3d at 645.
Although Smith lends some support to defendant's argument in
the present case, we conclude that the unique facts of Smith
distinguish it from the case at bar. First, the defendant in Smith
may have had the condition, although it remained undetected, at the
time of the original sentence. Second, evidence that defendant
suffers from a potentially fatal illness is qualitatively different
from evidence that defendant has achieved a good behavior record
during his incarceration. The uniqueness of the facts presented in
Smith is demonstrated by the fact that the Smith court remanded the
cause without stating that defendant either requested that the
trial court reconsider her sentence based on her newly discovered
illness or requested that the appellate court remand the cause for
the trial court to do so. To the extent that Smith suggests that
evidence of events occurring after the original sentencing hearing
is admissible in a hearing on a motion to reconsider the sentence,
we decline to follow it. To do so would completely alter the
character of hearings on motions to reconsider the sentence.
For the foregoing reasons, we affirm the judgment of the
circuit court of Winnebago County.
Affirmed.
DOYLE and RATHJE, JJ., concur.