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No. 2--00--1158

JUSTICE O'MALLEY delivered the opinion of the court:

Defendant, Robert Bouyer, appeals the circuit court's ordersentencing him to five years' imprisonment after the court revokedhis probation. Defendant contends that the five-year sentence wasan abuse of discretion because it resulted solely from defendant'sfailure to abide by an improper agreement with the trial courtwhereby defendant would not be imprisoned as long as he paidrestitution in monthly installments.

In 1997, defendant pleaded guilty to two counts of burglary(720 ILCS 5/19--1(a) (West 1996)). In exchange for the plea, theState recommended a sentence of 30 months' probation and dismissedother charges. Defendant also agreed to pay restitution.

The factual basis for defendant's plea was that he and acodefendant, Bishop, entered a Menard's store and took variousitems. Defendant and Bishop also entered a truck belonging toSheetz Lawn Service and took various items. Defendant and Bishopwere both represented by the same assistant public defender,Michael Barrett.

The trial court found that the plea was voluntary and imposedthe agreed-upon sentence. Because defendant wanted to return toTexas, the court agreed to waive his presence at a scheduledhearing to set the amount of restitution (as long as defendant didnot dispute the amount).

On August 21, 1997, Barrett sought to continue the restitutionhearing so that he could send a copy of the report to defendant inTexas. The court stated, "I want you to understand that Mr.Bishop, because of his financial circumstances[,] is unable to pay,I want Bouyer to shoulder the whole load." Barrett responded, "Iunderstand." Bishop was subsequently sentenced to prison.

On January 21, 1998, the prosecutor told the court that theparties had been unable to agree on the amount of restitution andasked for a date for a contested hearing. The court asked, "[A]rewe doing an exercise in futility or what?" Barrett responded, "Theco-defendant who would be held responsible for the entire amount isin Texas and is a stocker at a grocery store earning $6 an hour." After some further colloquy, the court stated, "I'm setting a date. I'm not going to put up with this nonsense. I have two people thatbasically are judgment proof contesting it."

On April 16, 1998, Barrett again appeared on behalf ofdefendant and Bishop. Barrett said that Bishop, who was still inprison, had agreed to be jointly and severally liable withdefendant for $6,603.04, spread among five victims. Barrett alsosaid that he had sent defendant a letter informing him that if hefailed to appear for the hearing judgment could be entered againsthim. Barrett had not heard from defendant. The court thus enteredjudgment against defendant and Bishop jointly and severally.

On October 19, 1998, the State petitioned to revokedefendant's probation, alleging that he had tested positive forcannabis twice and had committed disorderly conduct in Texas. Awarrant was issued for defendant's arrest.

Eventually defendant completed an affidavit of assets andliabilities that showed he lived with his mother and brother andhad been employed as a cook earning $150 per week. His employmentended when he was arrested on the warrant. Defendant listed hisassets as $22.36. On February 9, 1999, defendant appeared in courtand admitted to the allegations that he tested positive formarijuana. No agreement on a sentence was made.

Barrett asked that defendant be released on bond so that hecould go back to Texas. He added that the parties had agreed topostpone the sentencing hearing for three months, during which timedefendant would pay $300 per month toward restitution. The courtaccepted defendant's admission and revoked his probation. Thecourt stated, "It's contemplated that if in fact those payments arecurrent on May 11th that we would continue the sentencing forapproximately another three months. If they were not current wewould proceed with the sentencing. Do you understand?" Defendantresponded that he did.

On May 11, 1999, Barrett reported that defendant had madethree $300 payments since the revocation and the court accordinglycontinued the sentencing hearing for another three months. OnAugust 10, the State reported that defendant was "a little short"on his payments. The court suggested that if defendant was "stilla little short in three months he's going to have a problem."

On November 10, 1999, Barrett reported that defendant's familyhad made a $900 payment by credit card to make defendant currentwith his payments. The court continued the hearing for three moremonths. Defendant's sister made a $600 debit card payment onFebruary 10 to again make defendant current, so the hearing wascontinued again.

On June 8, 2000, the court was informed that defendant had notmade his payments. Public defender Chris Harmon told the courtthat he had left two messages for defendant. The court issued abench warrant and continued the cause to determine whetherdefendant should be sentenced in absentia.

One week later, Harmon reported that he had spoken todefendant's sister, but not to defendant, who had failed to returnhis calls. According to Harmon, defendant's family members hadtold him that morning that they wanted to pay off all ofdefendant's fines, costs, and restitution, but had "somedisagreement with the amount that's reflected on the financescreen." The court told Harmon, "I guess they better come up andargue it." The court ordered defendant to be served with notice ofthe sentencing hearing and ordered that a presentence report beprepared. In response to Harmon's question, the court stated, "Myposition has always been up to this date that if--and because thatwas the agreement that was entered into by everybody, if the manpaid off the thing, the case would be terminated."

The court expressed its belief that defendant or his familywanted to renegotiate the restitution agreement. Harmon said,"They're not dickering with what's--They're thinking they havepossibly paid more than what's reflected on the sheet." The courtsaid that it would only credit defendant's account if his familyhad receipts with the case number on them. Then the followingcolloquy occurred:

"THE COURT: No. I don't think the deal is off. I thinkthat I just don't want to--You see, what Mr. Bouyer wants meto do is negotiate with him now, and I don't want to do that. Time for negotiation is all done."

MR. HARMON: Actually it's not Mr. Bouyer. I believe it'sMr. Bouyer's family.

THE COURT: Mr. Bouyer is the one who's going to pay theprice, not his family.

MR. HARMON: Exactly.

THE COURT: Well, nonmonetary price."

On August 31, over Harmon's objection, the trial court held asentencing hearing. In mitigation, counsel noted that defendantwas legally blind, could not obtain a driver's license, and wasunemployed. He had applied for social security disability but wasturned down. Harmon also observed that Bishop, not defendant, wasthe instigator of the criminal conduct. Commenting that defendanthad "not kept his part of the bargain," the prosecutor asked for aseven-year prison sentence.

A dispute arose about the extent of defendant's disability andthe court commented that it did not know the answer becausedefendant had not come to court. Harmon replied that defendant'sparents intended to pay off the debt by credit card, which did notnecessitate defendant coming to court from Texas.

The court sentenced defendant to five years' imprisonment. Inimposing the sentence the court stated as follows:

"I do not know what the status of his blindness is or hissight is today, and have not known it for approximately twoyears because he refuses to come to this court, I guess sinceJanuary 21st of 1999--strike that--February 9th of 1999, whenhe was granted a personal recognizance bond, and part of thatrecognizance bond was an agreement by him to pay a minimum ofthree hundred dollars a month toward restitution.

So, I can only take it that he is able to pay thatrestitution as he agreed, because I have not seen anything toshow that he cannot pay that restitution.

The Court finds that based on his willful violation ofthe terms and conditions of his probation that I will revokehis probation, and further finds that additional probation orconditional discharge would deprecate the seriousness of hisconduct and be inconsistent with the ends of justice."

Defendant filed a timely notice of appeal. He contends thatthe trial court abused its discretion in imposing a five-yearprison sentence where the sentence was apparently based, not on theconduct for which he was originally sentenced to probation, but onhis failure to comply with a separate agreement with the trialcourt to pay restitution.

Generally, a reviewing court may not overturn the sentence thetrial court imposed unless that court abused its discretion. People v. Visor, 313 Ill. App. 3d 567, 573 (2000). However, theconsideration of an improper aggravating factor is an abuse ofdiscretion that requires resentencing unless the factor was aninsignificant element of the sentence. People v. McPhee, 256 Ill.App. 3d 102, 114 (1993); People v. Joe, 207 Ill. App. 3d 1079, 1085(1991). After revoking probation, a trial court can consider thecrime that resulted in the revocation and defendant's conductduring the probationary period only as evidence of his or her rehabilitative potential. People v. Bedenkop, 252 Ill. App. 3d419, 424-25 (1993). The new sentence, however, cannot punish thedefendant for anything other than the original underlying offense. People v. Witte, 317 Ill. App. 3d 959, 963 (2000).

Here, the trial court's actions and comments throughout theproceedings make clear that defendant was punished primarily forfalling behind in his restitution payments. After revokingdefendant's probation on February 9, 1999, the court did notresentence him, but continued the case for three-month intervals aslong as defendant or his family paid $300 per month towardrestitution. The court expressly stated that it would consider thecase "terminated" if defendant paid all his obligations. The courtthus expressed its opinion that defendant was not a threat tosociety and deserved to continue on probation as long as hecontinued paying restitution.

On August 31, 2000, however, the court sentenced defendant tofive years' imprisonment, finding that probation would "deprecatethe seriousness of his conduct." The only thing that had changedsince the previous hearing was that defendant had fallen behind inpaying restitution. In imposing the sentence, the court nevermentioned the conduct for which defendant was originally placed onprobation or, for that matter, the conduct for which his probationwas revoked. The court referred only to the defendant's "willful"failure to pay restitution. It is thus clear that the courtimprisoned defendant for failing to pay restitution.

Courts have disapproved of the practice of making adefendant's sentence contingent upon his ability to payrestitution. In People v. Short, 66 Ill. App. 3d 172 (1978), thecourt held that the trial court improperly conditioned defendants'probation on their ability to borrow from their parents to makeimmediate restitution. Short, 66 Ill. App. 3d at 175-76. Notingthat that consideration related to neither the seriousness of theoffense nor defendants' rehabilitative potential, the court statedthat it "would be patently unjust to deny probation because of anapparent inability to make immediate restitution." Short, 66 Ill.App. 3d at 176.

In People v. Harpole, 97 Ill. App. 2d 28, 34 (1968), the courtstated that where "restitution becomes the ultimate criterion forimposition or relaxation of punishment, as we believe occurred inthe instant case, a theory of penology is propounded whichpredicates punishment upon the inability of the offender to makemonetary payment for his misconduct." In People v. Hancock, 143Ill. App. 3d 1027, 1032 (1986), this court held that a defendantcould not be conditionally sentenced to prison if he failed to payrestitution.

This case is in some ways similar to Short. It became clearduring the protracted proceedings that the payments were actuallycoming from members of defendant's family. Thus, defendant'sfreedom was conditioned on his family's willingness to continuemaking the payments.

We note that the trial court's remarks during sentencing thatdefendant's probation was being revoked as a result of his "willfulfailure" to comply with the probation condition requiringrestitution were incorrect. The court had already revokeddefendant's probation on February 9, 1999. Thus, defendant iscorrect in arguing that restitution was no longer a condition ofprobation after that date. The State never sought to revokeprobation based on a failure to pay restitution.

Moreover, there is no support in the record for the trialcourt's statement that defendant's failure to pay was wilful. Ifthe State had sought to revoke probation based on the failure topay restitution, it would have had to prove both that defendant wasable to pay restitution and that his failure to do so was wilful. See People v. Davis, 216 Ill. App. 3d 884, 888 (1991). This isbecause the constitution prohibits imprisonment for debt. In reC.A.H., 218 Ill. App. 3d 577, 582 (1991), citing Ill. Const. 1970,art. I,