People v. Morrison

No. 3--97--0613
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 14th Judicial Circuit,
) Rock Island County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 96--CF--199
)
ADRIAN A. MORRISON, ) Honorable
) John D. O'Shea,
Defendant-Appellant. ) Judge Presiding
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PRESIDING JUSTICE HOMER delivered the opinion of the court:
________________________________________________________________

Following probation revocation proceedings, the defendant,
Adrian A. Morrison, was sentenced to six years' imprisonment for
attempted aggravated criminal sexual abuse (720 ILCS 5/8--4(a),
12--16(d) (West 1996)). The defendant appeals, arguing that (1)
he is entitled to jail time credit for the date of his arrest;
(2) the trial court improperly ordered him to pay $350 as
reimbursement for the services of the public defender; and (3)
his sentence is excessive and an abuse of the court's discretion.
For reasons that follow, we affirm the defendant's sentence and
remand for correction of the mittimus.
FACTS
The record shows that the defendant was charged with Class 1
and Class 2 felony sex offenses allegedly committed against his
former girlfriend's 16-year-old sister. He entered a negotiated
plea of guilty to Class 3 attempted aggravated criminal sexual
abuse. In exchange for the plea, the State dismissed the
original charges and recommended a sentence of 30 months'
probation. On May 21, 1996, the court admonished the defendant,
accepted his plea and imposed probation, as agreed. The court
then inquired about the parties' agreement for reimbursement of
the public defender's services. Defense counsel noted that there
was no agreement, and the court sua sponte imposed a $350 fee.
The State subsequently filed a petition to revoke probation
based on the defendant's failure to report to his probation
officer. The defendant was arrested on July 11, 1996. Following
a hearing, the court granted the State's petition and ordered a
presentence investigation.
The presentence investigation report revealed that the 25-
year-old defendant had an extensive, 12-year history of criminal
conduct. In addition to the current offense, the defendant's
adult record included convictions for illegal possession of
alcohol, criminal damage to property, burglary, battery and
resisting a peace officer. The defendant's only reported
employment as an adult consisted of three days' work for a friend
prior to his arrest for this offense. He dropped out of school
and attempted work toward a General Education Degree, but failed
to complete the classes. Although never married, the defendant
claimed to have fathered twins, who died shortly after birth, and
one daughter, who lives with her mother. The defendant's leisure
activities included doing drugs, drinking and smoking.
At the resentencing hearing, Treatment Alternatives for
Special Clients representative Christopher Volker testified that
the defendant was unacceptable for sentencing as an addict
because of the nature of his convictions and the unlikelihood of
his rehabilitation through substance abuse treatment. The
defendant asked the court for another chance on probation so that
he could provide for his daughter.
At the close of the hearing, the court reviewed the facts of
the underlying offense and the presentence investigation report.
The court determined that further probation would be inconsistent
with the ends of justice, and that a sentence of imprisonment was
necessary for the protection of the public. Factors cited in
aggravation included the defendant's criminal history and the
need to deter the defendant and others from committing the same
crime (730 ILCS 5/5--5--3.2(a)(3),(7) (West 1996)). The court
also noted that an extended term applied (730 ILCS 5/5--5--
3.2(b)(1) (West 1996)). The court then imposed a six-year prison
sentence with credit for time spent in pre-sentence custody. In
its sentencing order, the court specified that credit be given
for March 7 through May 21, 1996, and from July 12, 1996, to the
date of sentencing. The defendant filed a timely motion to
reconsider sentence, which was denied on July 21, 1997, and he
appeals.
SENTENCING CREDIT
Initially, the State concedes that the defendant is entitled
to presentence credit for July 11, 1996, the date of his arrest
for violation of probation. We agree. Day-for-day jail time
credit must be given for each day or partial day the defendant
spends in custody prior to sentencing. 730 ILCS 5/5--8--7(b)
(West 1996); People v. Williams, 144 Ill. App. 3d 994, 495 N.E.2d 685 (1986).
The record before us discloses that the defendant was first
arrested for the sex offense on March 7, 1996, and he remained in
jail until May 21, when he was released on probation. The
defendant was re-arrested on July 11 and remained in jail until
he was resentenced on August 23, 1996. By our calculation, the
defendant spent 120 days in custody. Therefore, we remand the
cause for correction of the mittimus to reflect 120 days of
presentence credit.
REIMBURSEMENT FOR APPOINTED COUNSEL
Next, the defendant claims that the trial court exceeded its
authority in assessing a $350 fee for the public defender's
services without conducting a reimbursement hearing pursuant to
section 113--3.1(a) of the Code of Criminal Procedure of 1963
(the Code) (725 ILCS 5/113--3.1(a) (West 1996)). The State
argues that this court lacks jurisdiction to consider the issue.
Jurisdiction to consider errors arising under a particular
judgment of the trial court is conferred on the appellate court
by the timely filing of a notice of appeal. 134 Ill. 2d R.
606(a). If the defendant fails to appeal from the judgment, this
court has no authority to review a claim of error unless the
judgment was void, in which case the error may be corrected at
any time. People v. Davis, 156 Ill. 2d 149, 619 N.E.2d 750
(1993). An appeal from a sentence entered upon revocation of
probation does not revive voidable errors in guilty plea
proceedings. People v. Stueve, 66 Ill. 2d 174, 361 N.E.2d 579
(1977).
Reimbursement orders for the services of appointed counsel
are authorized by section 113--3.1 of the Code and may be entered
by the trial court after a hearing to determine the defendant's
ability to pay. People v. Love, 177 Ill. 2d 550, 687 N.E.2d 32
(1997); People v. Matthews, No. 3--97--0732 (Ill. App. July 9,
1998). The trial court's failure to conduct a hearing prior to
ordering reimbursement does not defeat its jurisdiction, but
constitutes an erroneous exercise of power. See Love, 177 Ill. 2d 550, 687 N.E.2d 32. Therefore, a reimbursement order entered
without a hearing is voidable, not void. See Davis, 156 Ill. 2d 149, 619 N.E.2d 750.
In this case, the trial court entered final judgment on the
defendant's guilty plea on May 21, 1996, and a voidable order for
reimbursement of the public defender's services. The defendant
never perfected an appeal from the May 21 judgment. Accordingly,
we hold that we have no jurisdiction to review the propriety of
the reimbursement order.
EXCESSIVE SENTENCE
Finally, we consider the defendant's contention that his
sentence is excessive. After revoking a sentence of probation,
the trial judge may resentence the defendant to any sentence that
would have been appropriate for the original offense. People v.
Young, 138 Ill. App. 3d 130, 485 N.E.2d 443 (1985). An
appropriate consideration is how the defendant has conducted
himself while on probation; however, the sentence imposed must
not be punishment for the probation violation. People v. Walsh,
273 Ill. App. 3d 453, 652 N.E.2d 1102 (1995). On appeal, the
sentencing judge's determination will not be reversed on appeal
unless the sentence imposed represents an abuse of discretion.
Young, 138 Ill. App. 3d 130, 485 N.E.2d 443.
The record in this case belies the defendant's claim that
his six-year prison sentence was in fact imposed as a penalty for
failing to abide by the terms of probation. The sentencing judge
repeatedly stated that the sentence was based on his review of
the entire record. The sentence was imposed with regard to the
nature of the sex offense and the defendant's character and
criminal history, not as punishment for his violation of
probation. The minor nature of the conduct which was the basis
for the probation revocation did not require the court to treat
the defendant with lenity. The sentence imposed lies well within
the extended-term range for a Class 3 felony (730 ILCS 5/5--8--
2(a)(5) (West 1996)), and it was not an abuse of the trial
court's discretion.
CONCLUSION
For the reasons stated, we affirm the defendant's sentence
and remand with instructions to modify the mittimus to reflect
120 days' credit for pre-sentence jail time.
Affirmed as modified and remanded.
LYTTON and SLATER, JJ., concur.