No. 2--03--1087

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

PRESIDING JUSTICE O'MALLEY delivered the opinion of the court:

Defendant, Miguel Aleman, was charged in Du Page County with armed robbery (Ill. Rev.Stat. 1991, ch. 38, par. 18--2). He posted bond on that charge but failed to appear for his trial. Hewas then charged with violating his bail bond (Ill. Rev. Stat. 1991, ch. 38, par. 32--10), and hepleaded guilty to that charge. The Du Page County armed robbery charge was ultimately nol-prossed. The trial court sentenced defendant to six years' imprisonment on the bail bond conviction,to be served consecutively to a six-year sentence that he had received for a Cook County armedrobbery charge. The court found that consecutive sentences were mandatory pursuant to section 5--8--4(h) of the Unified Code of Corrections (Corrections Code) (Ill. Rev. Stat. 1991, ch. 38, par.1005--8--4(h)). Defendant appeals, arguing that (1) consecutive sentences were not mandatorybecause, pursuant to section 32--10 of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat.1991, ch. 38, par. 32--10), a sentence for a bail bond violation is mandatorily consecutive only to asentence for the charge for which the bail had been granted; and (2) the trial court abused itsdiscretion in sentencing him to six years' imprisonment for the bail bond violation. We affirm.

I. FACTS

In 1991, defendant was charged with a Cook County armed robbery and a Du Page Countyarmed robbery, each a Class X felony. He posted bond on each charge. A trial on the Du PageCounty charge was set for April 7, 1992, but defendant did not appear. In 1994, defendant wascharged in Du Page County with violating his bail bond, a Class 1 felony. In 1999, after pleadingguilty in California to corporal injury to his wife, he was extradited to Du Page County. OnSeptember 21, 1999, defendant pleaded guilty to violating his bail bond, but sentencing was delayed. On March 3, 2000, defendant pleaded guilty to the Cook County armed robbery and was sentencedto six years' imprisonment. As noted, the Du Page County armed robbery charge was ultimately nol-prossed.

On April 4, 2000, the Du Page County circuit court conducted a sentencing hearing on theDu Page County bail bond violation conviction. Officer William Stutzman testified about defendant'sinvolvement in the Cook County armed robbery. Officer Stutzman stated that on May 31, 1991,defendant and two other Hispanic men entered a Mexican grocery store in Wheeling, wearing nylonstockings as masks. Defendant approached the cashier, pointed a gun at her, and took money fromthe store's cash register.

Officer Dean Costopoulos testified about defendant's participation in the Du Page Countyarmed robbery. Relying on a report that a fellow officer had prepared, Officer Costopoulos statedthat on April 15, 1991, three armed Hispanic suspects entered a Mexican grocery store and restaurantin Wood Dale and took money from the cash register. One of the suspects was wearing a stocking-cap mask. Officer Costopoulos conducted a follow-up investigation, which entailed speaking withthe victims about the suspects' identity. Officer Costopoulos showed a three-person photo lineup totwo of the victims, both of whom immediately identified defendant as one of the robbers. Thisidentification was the only evidence directly linking defendant to the Du Page County armed robbery.

Defendant testified in mitigation. He denied any involvement in the Du Page County armedrobbery, contending that he was unfamiliar with the Wood Dale area.

The trial court sentenced defendant to six years' imprisonment. In imposing this sentence, thecourt considered the facts of the Cook County armed robbery, to which defendant pleaded guilty. The court also addressed the facts of the Du Page County armed robbery, noting that the evidence,for sentencing purposes, needed only to be relevant and reliable. In that context, the courtemphasized that two of the victims of the Du Page County armed robbery positively identifieddefendant as one of the robbers. The court found that, in looking at defendant's criminal history, theDu Page County armed robbery "is obviously what is most significant." The court also consideredthat defendant has an eighth-grade education, is separated from his wife, has a number of children tosupport, and does not have a substance abuse problem.

The trial court then determined that defendant's bail bond sentence would run consecutivelyto the Cook County armed robbery sentence. The court found that, pursuant to section 5--8--4(h)of the Corrections Code, consecutive sentences were mandatory because defendant committed oneof those felonies (the bail bond violation) while on pretrial release for the other felony (the CookCounty armed robbery). The court rejected defendant's argument that, pursuant to section 32--10of the Criminal Code, his bail bond sentence would have been mandatorily consecutive only to asentence for the Du Page County armed robbery.

Following the denial of defendant's motion to reconsider, defendant appealed, contending thathis guilty plea to violating his bail bond was invalid because neither his attorney nor the trial courtadmonished him about the possibility of consecutive sentences. This court remanded the cause forproceedings consistent with Supreme Court Rules 604(d) and 605(b) (188 Ill. 2d Rs. 604(d), 605(b)). People v. Aleman, No. 2--00--0799 (2001) (unpublished order under Supreme Court Rule 23).

On remand, defendant moved to withdraw his guilty plea. The trial court granted the motion,but on June 18, 2002, defendant again pleaded guilty to violating his bail bond. At the subsequentsentencing hearing, the parties stipulated that if Officers Stutzman and Costopoulos were called totestify, their testimony would be the same as that presented at the earlier sentencing hearing.

In mitigation, defendant presented a letter from his minister, who indicated that defendant hadregularly attended Bible study class and exhibited a potential for rehabilitation. Defendant alsotestified, providing the trial court with evidence similar to the mitigation evidence presented at thefirst sentencing hearing.

The trial court again sentenced defendant to six years' imprisonment. In imposing thesentence, the court stated that the primary evidence in aggravation were the facts surrounding theCook County armed robbery, noting that defendant, while pointing a gun at the cashier, took moneyfrom the cash register.

In addressing the facts of the Du Page County armed robbery, the trial court noted thatdefendant "[denied] any participation in that and [the court was] certainly mindful of that and ***really [placed] very little weight on that testimony." However, the court also observed that defendantwas found guilty in California of corporal injury to his wife while he was on bond for the Du PageCounty armed robbery charge. Finally, the court reiterated that, pursuant to section 5--8--4(h) of theCorrections Code, it was required to make defendant's bail bond sentence run consecutively to hisCook County armed robbery sentence.

Defendant's attorney moved to reconsider the sentence, arguing that the bail bond sentenceshould run concurrently with the Cook County armed robbery sentence. The trial court denied themotion, and defendant appealed. This court again remanded the cause for proceedings consistentwith Rule 604(d), noting that defendant's trial attorney had failed to file a Rule 604(d) certificate. People v. Aleman, No. 2--02--0633 (2003) (unpublished order under Supreme Court Rule 23).

On remand, defendant's attorney filed a new motion to reconsider defendant's sentence, alongwith a Rule 604(d) certificate. Defendant maintained that his bail bond sentence should runconcurrently with his Cook County armed robbery sentence. He also argued that his sentence shouldbe reduced because the Du Page County armed robbery, which was a significant aggravating factorat the first sentencing hearing, was given little if any weight at the second sentencing hearing. Insupport of his motion, defendant presented various certificates attesting to the academic and socialachievements he has made while incarcerated.

The trial court denied the motion to reconsider, reiterating that consecutive sentences weremandatory. The court also found that it was not improper to consider evidence of the Du PageCounty armed robbery. The court clarified that "[it] gave very little weight to the testimony that theState presented in aggravation." This timely appeal followed.

II. ANALYSIS

On appeal, defendant raises two issues. First, he contends that the trial court erred indetermining that his bail bond sentence was mandatorily consecutive to his Cook County armedrobbery sentence. Second, he raises various arguments concerning the propriety of his six-yearsentence for the bail bond violation. We will consider each argument in turn.

A. Consecutive Sentences

We first consider whether the trial court erred when it found that defendant's bail bondsentence had to run consecutively to his Cook County armed robbery sentence. The resolution ofthis issue involves interpreting sections 5--8--4(h) of the Corrections Code and 32--10 of the CriminalCode.

Section 5--8--4(h) of the Corrections Code provides as follows:

"If a person charged with a felony commits a separate felony while on pre-trial release*** the sentences imposed upon conviction of these felonies shall be served consecutivelyregardless of the order in which the judgments of conviction are entered." Ill. Rev. Stat.1991, ch. 38, par. 1005--8--4(h).

Section 32--10 of the Criminal Code states:

"Any sentence imposed for violation of [a bail bond] shall be served consecutive to thesentence imposed for the charge for which bail had been granted and with respect to whichthe defendant has been convicted." Ill. Rev. Stat. 1991, ch. 38, par. 32--10.

In interpreting a statute, this court must ascertain and give effect to the legislature's intent,which is best determined by the language used in the statute. People v. Robinson, 172 Ill. 2d 452,457 (1996). The words used in the statute should be given their plain and ordinary meaning, andwhen the language in the statute is unambiguous, this court must apply the statute without resortingto any aids of construction. Robinson, 172 Ill. 2d at 457. Because interpreting a statute presents aquestion of law, our review is de novo. People v. Donoho, 204 Ill. 2d 159, 172 (2003).

Defendant concedes that he was convicted of two felonies and that he committed one of them(the bail bond violation) while on pretrial release for the other (the Cook County armed robbery). Thus, defendant acknowledges that section 5--8--4(h) of the Corrections Code, if it controls, requiresthat his sentences be consecutive. However, defendant contends that because one of his felonies wasa bail bond violation, section 32--10 of the Criminal Code more specifically applies, and his bail bondsentence would have been mandatorily consecutive only to a sentence for the Du Page County armedrobbery, the charge for which the bail had been granted.

It is true that, where two statutes apply, the specific statute controls over the general statute. Village of Franklin Park v. Dickman, 165 Ill. App. 3d 1012, 1014 (1988). Here, however, only onestatute applies. Section 5--8--4(h) provides that consecutive sentences are mandatory where, as here,a defendant is convicted of two felonies, one of which he committed while on pretrial release for theother. Section 32--10 provides that consecutive sentences are mandatory on another set of facts, i.e.,when the defendant is convicted of both a bail bond violation and the charge for which the bail hadbeen granted. In this case, because defendant was not convicted of the Du Page County armedrobbery charge for which bail had been granted (it was nol-prossed), defendant's argument thatsection 32--10 applies to the exclusion of section 5--8--4(h) must fail, as section 32--10 does notapply at all. Section 5--8--4(h) does apply and mandates consecutive sentences.

Defendant's argument is based on a misinterpretation of section 32--10. He reads the statuteto mean that any sentence imposed for a violation of a bail bond shall be served consecutively onlyto a sentence imposed for the charge for which the bail had been granted. We cannot adopt thatconstruction. Indeed, to interpret section 32--10 as defendant suggests, we would have to read intothe statute a substantial limitation, which we cannot do. See People v. Lavallier, 187 Ill. 2d 464, 468(1999); Nordine v. Illinois Power Co., 32 Ill. 2d 421, 428 (1965) (noting that "[t]he rule, not onlyin this State but in most jurisdictions, is that plain and unambiguous provisions of a statute do notneed construction and the courts cannot read into a provision exceptions or limitations which departfrom its plain meaning").

Defendant responds that our interpretation of section 32--10 renders it redundant andsuperfluous in light of section 5--8--4(h). Specifically, defendant states that "[a] defendant cannotcommit a violation of bail bond unless he is on pre-trial release for another charge. So any situationwhere a defendant is convicted for the violation of bail bond, as well as for the charge for which bailwas set, will necessarily be encompassed within the literal requirements of [section] 5--8--4(h)." Wedisagree. Section 5--8--4(h) provides that consecutive sentences must be imposed when a defendantcommits a felony while on pretrial release for a felony. In contrast, section 32--10 applies even whenthe bail bond violation and the underlying charge are misdemeanors.

Specifically, we observe that a defendant may post bail for a misdemeanor. Ill. Rev. Stat.1991, ch. 38, par. 110--4. If the defendant were to violate his bail bond for that misdemeanor, thebail bond violation would be the next lower class of misdemeanor. See Ill. Rev. Stat. 1991, ch. 38,par. 32--10. Then, if the defendant were to be convicted of both misdemeanors, consecutivesentences would be mandated by section 32--10, but section 5--8--4(h) would not apply. Thus,section 32--10 is neither redundant nor superfluous.

We acknowledge that, in a given case, both statutes could apply. Here, for example, ifdefendant had been convicted of the Du Page County armed robbery, both statutes would require thathe serve his bail bond sentence consecutively to the sentence for the Du Page County armed robbery. Thus, on those particular facts, both statutes would apply and both would mandate consecutivesentences. A defendant in that situation would not benefit from making an argument that section 32--10 was superfluous, because he would receive mandatory consecutive sentences anyway pursuant tosection 5--8--4(h).

A final note is warranted on this issue. In asserting that section 32--10 should apply to theexclusion of section 5--8--4(h), defendant asserts that when two apparently competing statutesaddress the same subject, we must read them in pari materia and adopt an interpretation that giveseffect to both provisions. See Dundee Township v. Department of Revenue, 325 Ill. App. 3d 218,223 (2001). However, as the State points out, we may invoke the doctrine of in pari materia onlyto resolve an issue of statutory ambiguity. People v. 1946 Buick, 127 Ill. 2d 374, 377 (1989). Nosuch ambiguity is present here. Section 5--8--4(h) clearly applies, and section 32--10 clearly doesnot. Thus, to the extent that defendant relies on the rule of in pari materia, it does not assist him.

In sum, because section 32--10 of the Criminal Code mandates consecutive sentences onlywhen a defendant is convicted of both a bail bond violation and the charge for which the bail had beengranted, section 32--10 does not mandate that defendant serve his bail bond sentence consecutivelyto his Cook County armed robbery sentence. In fact, as noted, section 32--10 does not apply at allsince defendant was not convicted of the charge (armed robbery in Du Page County) for which bailhad been set. However, because defendant committed the bail bond violation, a felony, while onpretrial release for the Cook County armed robbery, another felony, the trial court properlydetermined that he must serve his sentences consecutively pursuant to section 5--8--4(h) of theCorrections Code.

B. Propriety of Sentence

1. Excessiveness of Sentence

Defendant next argues that his six-year sentence for the bail bond violation is excessive. Inreviewing the appropriateness of a sentence, we must defer to the trial court, which is uniquelyqualified to weigh the pertinent sentencing factors. People v. Stacey, 193 Ill. 2d 203, 209 (2000). We will not disturb a sentence within the statutory guidelines unless the trial court abused itsdiscretion. Stacey, 193 Ill. 2d at 209-10. A sentence is not an abuse of discretion unless it is at greatvariance with the spirit and purpose of the law or manifestly disproportionate to the nature of theoffense. Stacey, 193 Ill. 2d at 210.

Here, defendant posted bond for armed robbery, a Class X felony. See Ill. Rev. Stat. 1991,ch. 38, par. 18--2(b). As such, defendant's violation of his bail bond was of the next lower class offelony, Class 1. See Ill. Rev. Stat. 1991, ch. 38, pars. 32--10, 1005--5--1 (delineating classificationof offenses). A sentence for a Class 1 felony must be between 4 and 15 years' imprisonment. See Ill.Rev. Stat. 1991, ch. 38, par. 1005--8--1(a)(4). Defendant's six-year sentence fell within the lowerportion of this range.

Defendant argues that his six-year sentence is improper because he was sentenced to that termtwice despite the fact that the trial court found an important aggravating factor lacking at the secondsentencing hearing. Specifically, defendant notes that at the first sentencing hearing, the trial courtfound the Du Page County armed robbery an essential aggravating factor, but, at the secondsentencing hearing, the trial court gave little weight to that robbery.

Although the trial court did indicate that it was relying on different aggravating factors at eachsentencing hearing, we cannot conclude that a change in the amount of weight afforded varioussentencing factors amounted to an abuse of discretion. In contrast to defendant's assertion, the trialcourt did not first find that the Du Page County armed robbery was significant, to the exclusion ofall the other aggravating factors, and then find that it was improper to consider that armed robbery. Rather, at the second sentencing hearing, the trial court merely reweighed and reevaluated all of thesentencing factors.

2. Officer Costopoulos's Testimony

Defendant claims that the trial court erred when it considered Officer Costopoulos's testimonybecause it was based on hearsay. We disagree. At the first sentencing hearing, the trial court stressedthat two victims of the Du Page County armed robbery identified defendant as one of the robbers. Officer Costopoulos was the officer who took these statements from the victims, and he directlyrelayed to the trial court the details of the photo lineup, describing the immediacy with which thevictims identified defendant. Given that hearsay evidence is not per se inadmissible at sentencing andthat Officer Costopoulos's testimony was based on his official investigation of the armed robbery, wecannot conclude that the trial court erred when it considered this evidence. People v. Morgan, 112Ill. 2d 111, 143-44 (1986). The cases on which defendant relies are clearly distinguishable becausethey involve situations where the witness's testimony was based on a third party's investigation. SeePeople v. Blanck, 263 Ill. App. 3d 224, 236 (1994) (presentence investigator obtained informationabout the defendant's prior bad acts from Milwaukee detective, who talked with the defendant's familyand acquaintances, and the presentence investigator never personally communicated with theseindividuals); People v. Wallace, 145 Ill. App. 3d 247, 254-55 (1986) (identification of the defendantas the rapist in South Carolina case came from testimony of naval intelligence officer, who contactedfellow officer in South Carolina, and South Carolina officer gave photo lineup to local authorities,who showed photos to the victim).

3. Prior Conviction vs. Prior Bad Act

Finally, defendant contends that the trial court erred in giving any consideration to the DuPage County armed robbery after the State nol-prossed that charge. Defendant likens his situationto that of a defendant who has a prior conviction reversed after sentencing in another case. In suchcircumstances, the defendant is entitled to a new sentencing hearing if the trial court considered thereversed conviction as a factor in aggravation. People v. Scott, 318 Ill. App. 3d 46, 57 (2000) (causemust be remanded for new sentencing hearing when trial court considers prior conviction that hasbeen vacated and not prior act itself). That is not the same situation defendant faces. Here, as therenever was a conviction, the trial court considered the prior act itself, i.e., the facts surrounding theDu Page County armed robbery. The only thing that changed between defendant's first sentencinghearing and the second is that the State opted not to prosecute defendant for the Du Page Countyarmed robbery, which occurred eight years earlier. The State could have chosen this tactic for anyof a number of reasons, some of which would have no bearing on defendant's guilt. Moreover, incontrast to what defendant claims, the trial court specifically noted at the first sentencing hearing thatit was considering the evidence of the Du Page County armed robbery because it was relevant andreliable. This was proper, even though defendant was never convicted of that robbery. See Peoplev. Jackson, 149 Ill. 2d 540, 551-52 (1992) (trial court may consider at sentencing prior act that didnot lead to conviction because acquittal of charges does not mean that evidence of crime, forsentencing purposes, is untrue). Given all of these facts, we hold that the trial court did not abuseits discretion when it sentenced defendant to six years' imprisonment.

III. CONCLUSION

In conclusion, we hold that the trial court did not err in determining that section 5--8--4(h)of the Corrections Code mandates that he serve his bail bond sentence consecutively to his CookCounty armed robbery sentence. Moreover, we hold that the trial court did not abuse its discretionin imposing a six-year sentence for the bail bond violation.

For these reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

BOWMAN and BYRNE, JJ., concur.