Pre-Sentence Investigation Reports
A. Requirement of PSI in Felony Cases
A written pre-sentence report is mandatory for sentencing in felony cases, unless, other than for felony sex offenders being considered for probation, both sides agree to the imposition of a specific sentence and the court makes a finding for the record of the defendant’s history of delinquency, or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment. 730 ILCS 5/5-3-1 (italicized portion added by P.A. 93-970, effective August 20, 2004).
B. Requirement of Sex Offender Evaluation
In cases involving felony sex offenses in which the offender is being considered for probation or any felony offense that is sexually motivated as defined in the Sex
Offender Management Board Act in which the offender is being considered for probation, the investigation shall include a sex offender evaluation by an evaluator approved by the Board and conducted in conformance with the standards developed under the Sex Offender Management Board Act. 730 ILCS 5/5-3-2(b-5).
Sentencing Hearing
730 ILCS 5/5-4-1 – specifies requirements court is to consider prior to imposing a sentence.
The rules of evidence are inapplicable to the sentencing hearing. People v. Meeks, 81 Il2d 524, 411 N.E.2d 9 (1980). The only limitation upon admissibility of evidence is that the evidence is relevant and reliable. People v. Young, 128 Il2d 1, 538 N.E.2d 461 (1989). Hearsay evidence is admissible so long as it is relevant and reliable. People v. Thomas, 178 Il2d 215, 687 N.E.2d 892 (1997).
A. Aggravation Evidence
730 ILCS 5/5-5-3.2 lists the aggravating factors that are to be “accorded weight in favor of imposing a term of imprisonment or may be considered by the court as reasons to impose a more severe sentence.” The sentencing court is not limited to considering only statutory aggravating factors, but may consider any fact that tends to aggravate the offense. People v. Shatner, 174 Ill. 2d 133 (1996) (history of drug abuse); U.S. v. Grayson, 438 U.S. 41 (1978) (perjury, lack of remorse, continued protestations of innocence may be considered). See also 720 ILCS 570/407, 408, 411 (for special aggravating/extending factors in certain drug cases).
B. Mitigation Evidence
730 ILCS 5/5-5-3.1(a) lists grounds which “shall be accorded weight in favor of withholding or minimizing a sentence of imprisonment.” Under subparagraph (b), the enumerated grounds shall be considered in mitigation of a term of imprisonment should imprisonment be mandated or be determined to be the most appropriate disposition.
C. Allocution
The court must afford the defendant the opportunity to make a statement in his own behalf. 730 ILCS 5/5-4-1(a)(6). The defendant may not be required to speak, nor may the court draw an adverse witness from the defendant’s silence. Mitchell v. United States, 526 U.S. 314 (1999). The court may question the defendant, however. People v. Iseminger, 202 Ill. App. 3d 581 (4th Dist. 1990). A trial judge’s failure to invite allocution is a technical error and may be harmless. People v. BoClair, 225 Ill. App. 3d 331 (1st Dist. 1992).
D. Victim Impact Statement
(In any case where defendant has been convicted of a violent crime or a juvenile has been adjudicated delinquent for a violent crime)
1. Oral versus Written
Any impact statement must have been prepared in writing in conjunction with the Office of the StateAttorney prior to the initial hearing or sentencing before it can be presented orally or in writing at the sentencing hearing. 725 ILCS 120/6(a).
2. Who May Present
The victim, or his or her representative, and the victim’s spouse, guardian, grandparent, or other immediate family or household member may upon his, her, or their request, be permitted to address the court regarding the impact that the defendant or juvenile’s conduct had had upon them and the victim. Id.
3. Limitation on Number
The court has discretion to determine the number of oral presentations of victim impact statements. Id.The Illinois Constitution prohibits a defendant from seeking appellate relief on the ground that more than one victim impact statement was presented and considered at sentencing. People v. Richardson, 196 Ill. 2d 225 (2001). See also 725 ILCS 120/9 (“Nothing in this Act shall create a basis for vacating a conviction or aground for appellate relief in any criminal case”).