People v. Hollingsworth

417 N.E.2d 175, 93 Ill. App. 3d 416, 48 Ill. Dec. 773, 1981 Ill. App. LEXIS 2120
CourtAppellate Court of Illinois
DecidedFebruary 6, 1981
DocketNo. 80-290
StatusPublished
Cited by3 cases

This text of 417 N.E.2d 175 (People v. Hollingsworth) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Hollingsworth, 417 N.E.2d 175, 93 Ill. App. 3d 416, 48 Ill. Dec. 773, 1981 Ill. App. LEXIS 2120 (Ill. Ct. App. 1981).

Opinion

Mr. JUSTICE WELCH

delivered the opinion of the court:

The defendant, Ricky Hollingsworth, pleaded guilty to burglary and was sentenced to three years’ probation. Defendant’s probation was subsequently revoked, and he was sentenced to six years’ imprisonment.

On January 2, 1979, defendant was arrested for the burglary, which was committed on December 23, 1978, of the home of Joe Lewis, Jr. On March 26, 1979, defendant pleaded guilty to the burglary. On May 10, 1979, defendant was sentenced to three years’ probation and released from jail. On August 6,1979, the State filed a petition to revoke probation. Pursuant to section 5 — 6—4(a) (3) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—4(a)(3)), an arrest warrant issued and was returned on August 8, 1979. On January 2, 1980, the court, on motion of the State, dismissed the petition to revoke. On March 11,1980, another petition to revoke probation was filed, which alleged that defendant had committed a burglary on July 24, 1979, two armed robberies, and failed to report to his probation officer. Another arrest warrant was issued and returned on March 11, 1980. On May 2, 1980, the State’s motion to dismiss the armed robbery counts of the petition to revoke was granted. Evidence was presented on only count I of the petition to revoke, the allegation of commission of a burglary. The court found that the commission of the burglary was proved and ordered a presentence report.

The presentence investigation established that defendant is 22 years of age, that he dropped out of school in 1971 during his ninth year of schooling, and that he has only been employed twice, for one month in 1978 and for approximately a year in 1973. Defendant has three prior convictions of misdemeanor theft, one in each of the years of 1976,1977, and 1978. Defendant was convicted of burglary in St. Clair County case No. 79-CF-446, which was the basis for revocation of probation in the case at bar, and sentenced to probation. As a condition of probation in case No. 79-CF-446, defendant was to spend weekends in the county jail. The weekend sentences were to commence on December 21, 1979. The booking officer reported that from January 25, 1980, to March 7, 1980, defendant failed to serve his weekends. Of the five weekends he did serve between December 21,1979, and January 18,1980, he was late twice from the court-ordered time to start his weekend incarceration. Defendant is married and has one child.

At the sentencing hearing conducted on May 23, 1980, the defendant asked the court to take judicial notice of the petition to revoke in case No. 79-CF-446, which alleged failure to serve his weekend sentences commencing on February 15, 22, and 29 and did not allege failure to appear or tardiness on the other dates. Defendant explained that he had been in the hospital on one of the weekends. In response to the court’s inquiry on why he missed the other weekends, defendant responded:

“I had — okay. I was trying to get into my doctor — Dr. Thomas. He’s a nerve specialist at Community Hospital. And I was going there to see him, but they didn’t have C.M.U. ward there any more. They had it at St. Mary’s Hospital. And they wouldn’t allow me in there because I had no means of paying for it, no medical card or nothing.”

Counsel then stated that defendant would present evidence at the revocation hearing on case No. 79-CF-446 on why defendant missed his weekend incarceration dates. In sentencing defendant, the court stated:

“Well, Mr. Hollingsworth, you do have an extensive prior history of criminality, including your juvenile record. But discounting your juvenile record, your three adult minor theft charges could have easily resulted into a minimum sentence on your very first burglary that you had, but the Court gave you probation. So you got a break. It wasn’t a matter of a few months after that, but once again, you get in trouble for a burglary and should have gone to the penitentiary, but once again, you got a break. You got weekends. Then you failed to show up for your weekends, but beyond that, you do another burglary. The patience of the Court is gone. When I say that you get one break, I mean it. The only shame in this case was that I didn’t have your second burglary because you would already be gone now. But your attorney said you didn’t know whether you are coming or going; I’m going to make it simple for you; you are going for six years to the State penitentiary 0 * *. e # # [Y]ou will get credit for the time that you served from March 11th to today’s date * # **.”

The defendant does not contest that a penitentiary sentence was justified; however, he contends that six years’ imprisonment is excessive. As defendant correctly points out, a court in passing sentence after revocation of probation may impose any sentence that would have been appropriate for the original offense. (People v. Bullion (1974), 21 Ill. App. 3d 297, 314 N.E.2d 731.) A defendant may not be sentenced upon revocation of probation for the conduct which led to a revocation of that probation; however, such conduct can be considered as it reflects upon a defendant’s potential for rehabilitation. (People v. Shockley (1977), 54 Ill. App. 3d 1041, 370 N.E.2d 551.) Defendant points to his repentant attitude at the sentencing hearing and the impact of his previous incarceration on him. However, defendant was incarcerated for 129 days prior to pleading guilty in the case at bar; yet, four months after pleading guilty, he committed another burglary. Therefore, defendant’s statements ring hollow. Further, a court is not bound by defendant’s statement of remorse. (People v. Piontkowski (1979), 77 Ill. App. 3d 994, 397 N.E.2d 36.) The fact that another judge imposed sentence of probation in case No. 79-CF-446 is irrelevant to the sentence imposed in the case at bar. The standard of review is whether the trial court exercised its discretion and whether that discretion was abused. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) In light of defendant’s graduation from misdemeanor crimes to a residential burglary, his commission of a burglary so soon after being granted probation, his failure to maintain any recent employment in order to support his family, indicate that the sentence imposed was not an abuse of discretion in view of the reassessment of defendant’s potential for rehabilitation.

Lastly, defendant contends (a) that he is entitled to credit for time served from the date of his initial incarceration on January 2, 1979, until his release on probation on May 10, 1979, and (b) that he is entitled to credit for time served on probation from May 10, 1979, until the arrest warrant was issued on March 11,1980. The State concedes that defendant is entitled to credit for the time from January 2, 1979, until May 10,1979, 129 days. We agree. (People v. Scheib, (1979), 76 Ill. 2d 244, 390 N.E.2d 872.) The State assumes defendant was initially incarcerated on January 3, 1979, the day he was remanded to the county jail for failure to post bond; however, the original presentence investigation indicates defendant was arrested January 2, 1979.

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Related

State v. Wisehart
569 A.2d 434 (Supreme Court of Rhode Island, 1990)
People v. Tarter
476 N.E.2d 75 (Appellate Court of Illinois, 1985)
People v. Hollingsworth
433 N.E.2d 682 (Illinois Supreme Court, 1982)

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Bluebook (online)
417 N.E.2d 175, 93 Ill. App. 3d 416, 48 Ill. Dec. 773, 1981 Ill. App. LEXIS 2120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hollingsworth-illappct-1981.