No. 3--04--0317

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

JUSTICE SCHMIDT delivered the opinion of the court:

Defendant Paul J. Risley pleaded guilty to one count of aggravated criminal sexual abuse (720 ILCS 5/12--16(c)(1)(ii) (West 2002)). Sentences of probation and periodic imprisonment were subsequently revoked, and defendant was resentenced to seven years' imprisonment, the maximum term for the Class 2 felony offense (720 ILCS 5/12--16(g); 730 ILCS 5/5--8--1(a)(5) (West 2002)). Defendant appeals, contending that his sentence is excessive. We affirm.

On April 30, 2002, defendant entered a fully negotiated guilty plea to a charge of aggravated criminal sexual abuse of J.C., a minor who was a family friend, by using force to fondle her breast. In exchange for the plea, the State dismissed another count of aggravated criminal sexual abuse based on fondling J.C.'s vagina by the use of force. Pursuant to the plea agreement, defendant was sentenced to a four-year term of sex offender probation. One of the terms of defendant's probation was to attend a sex offender treatment program.

On June 30, 2003, the State filed a petition to revoke probation, alleging that defendant had been unsuccessfully discharged from the sex offender treatment program because of unexcused absences. Defendant admitted the petition. On October 17, 2003, the court extended defendant's sex offender probation and added an 18-month term of periodic imprisonment as a condition of the probationary sentence.

A month later, the State filed a second petition to revoke probation. After several amendments, the State's second petition alleged that defendant violated the terms of his probation because he (1) was again unsuccessfully discharged from the sex offender treatment program, (2) returned to the jail late one night, (3) failed to report to his probation officer, (4) failed to provide verification of employment, and (5) failed to comply with work release by failing to show up for work on 19 days between December 10, 2003, and January 22, 2004.

At the hearing on the petition to revoke probation, Dr. James Simone, defendant's sex offender treatment counselor, testified that defendant had agreed to pay $50 per session for group sex offender treatment beginning in October 2003. He failed to make any payments and was discharged after three sessions. Defendant's probation officer testified that defendant provided no pay stubs to verify employment after November 18, 2003, even though he signed himself out of the jail for work release on several days between November 23, 2003, and January 22, 2004. Kankakee County jail supervisor, Sergeant John Timm, testified that defendant signed out of jail for work release on November 23, 2003, and returned to the jail 45 minutes late. Elizabeth Brewer, a supervisor of Taco Bell restaurants where defendant said he was employed, testified that defendant did not show up for work on 8 days in December 2003 and 11 days in January 2004, even though he had signed out of jail for work release on those dates.

Based on the evidence, the court found that defendant had violated the terms of his probation. The court ordered an updated presentence investigation and set the cause for resentencing.

At the start of the hearing, the court ruled that defendant's unsuccessful discharge from sex offender treatment was not wilful and not, therefore, a basis for its finding that defendant had violated his probation. In mitigation, defendant's fianc