No. 3--01--0537

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

JUSTICE HOLDRIDGE delivered the opinion of the court:

The defendant, Wayne M. Dorethy, Jr., pled guilty tocriminal sexual assault (720 ILCS 5/12--13 (West 2000)). Inanother case that is not the subject of this appeal, he pledguilty to aggravated robbery (720 ILCS 5/18--5 (West 2000)). Both pleas were fully negotiated. The defendant was admonishedthat he could be ordered to serve his sentences for theseoffenses either consecutively or concurrently. The defendant wassentenced to concurrent terms of six and four years'imprisonment, respectively, for these offenses. His motion towithdraw his guilty plea was denied.

For the first time on appeal, the defendant argues that hissentence is void because consecutive sentences were mandatoryunder the applicable sentencing statute (730 ILCS 5/5--8--4(b)(West 2000)). He contends that because his sentence is void, wemay consider this argument for the first time on appeal. Thedefendant further submits that his plea was not given knowinglyand voluntarily because he was not admonished that consecutivesentences were mandatory rather than discretionary. He argues,therefore, that he should be allowed to withdraw his guilty plea. He also contends that his attorney failed to comply with thecertificate requirements of Supreme Court Rule 604(d) (188 Ill.2d R. 604(d)). We reverse and remand.

BACKGROUND

The defendant was charged with having committed armedrobbery on January 5, 2000, in case No. A0--CF--95. In case No.A0--CF--61, he was charged with having committed criminal sexualassault on January 10, 2000. After negotiating with theprosecutor, the defendant agreed to plead guilty to aggravatedrobbery rather than armed robbery in case No. A0--CF--95 and toplead guilty to criminal sexual assault in case No. A0--CF--61. In exchange for the defendant's guilty pleas, the State would (1)dismiss a charge for driving while license revoked or suspendedin case No. A0--TR--3536; (2) recommend a six-year sentence foraggravated robbery; (3) recommend a four-year sentence forcriminal sexual assault; and (4) recommend that the sentences beserved concurrently rather than consecutively.

At the plea hearing held on February 5, 2001, the judgeadmonished the defendant that his sentences "could runconsecutively, one after the other; or concurrently, at the sametime." The judge concurred in the terms of the plea agreement. The defendant was sentenced consistently with this agreement atthe conclusion of the hearing.

On March 7, 2001, the defendant filed a pro se motion towithdraw his guilty pleas in both cases. In his motion, heargued that (1) he was not guilty, and (2) he had entered hisplea without fully understanding the nature of the agreement andthe consequences of his plea. He contended that he had not beeninformed that he would serve 85% of his sentence under the truth-in-sentencing statute. The court denied the defendant's motionto withdraw. The defendant appealed.

ANALYSIS

I. Consecutive Sentencing

For the first time on appeal, the defendant contends thatthe court's sentencing order is void because consecutivesentences were mandatory.

When multiple sentences are imposed, and one of the offensesfor which the defendant was convicted was section 12--13 of theCriminal Code of 1961 (720 ILCS 5/12--13 (West 2000)), the courtshall enter sentences to run consecutively. 730 ILCS 5/5--8--4(a, b) (West 2000).

The State relies upon People v. Maxwell, 264 Ill. App. 3d323, 636 N.E.2d 980 (1994), and People v. Caruth, 322 Ill. App.3d 226, 751 N.E.2d 1160 (2001), for the proposition thatconsecutive sentences were discretionary rather than mandatory inthis case. Maxwell concerned the 1987 version of section 5--8--4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1987,ch. 38, par. 1005--8--4(a)), which was substantially differentfrom the statute under which the defendant was sentenced. Wefind Maxwell to be inapposite to the present case.

In Caruth, the defendant pled guilty to home invasion in onecase, and he was found guilty of residential burglary andaggravated criminal sexual assault in another case. At a jointsentencing hearing, the trial court imposed consecutive sentencesfor all three offenses. This court stated in Caruth that"consecutive sentencing is mandatory for certain triggeringoffenses" under section 5--8--4(a), (b). Caruth, 322 Ill. App.3d at 230, 751 N.E.2d at 1163. The triggering offense in Caruthwas aggravated criminal sexual assault (720 ILCS 5/12--14 (West1998)).

In the present case, Caruth is helpful to the defendant, butnot to the State. This defendant was convicted of criminalsexual assault (section 12--13), which is listed as a triggeringoffense in section 5--8--4(b) just before aggravated criminalsexual assault (section 12--14). Under Caruth, we agree with thedefendant that consecutive sentences were mandatory in this case.

The State contends that the defendant's argument is waivedbecause he failed to raise it in his motion to withdraw theguilty plea. Supreme Court Rule 604(d) states that on appeal,any issue not raised in a defendant's motion to withdraw shall bedeemed waived. 188 Ill. 2d R. 604(d). Therefore, we agree withthe State that the defendant's argument was waived. Thedefendant's rejoinder is that we may consider his argumentregardless of waiver because his sentencing order is void.

A sentence that does not conform to statutory requirementsis void. People v. Arna, 168 Ill. 2d 107, 658 N.E.2d 445 (1995). A void sentence may be challenged at any time. People v. Ortiz,321 Ill. App. 3d 920, 748 N.E.2d 793 (2001).

In this case, the defendant's sentences are void becausethey do not conform to the statutory requirement makingconsecutive sentences mandatory under these circumstances. Because his sentences are void, we may consider his argumentregardless of waiver.

II. Admonishments

The defendant further submits that he was not properlyadmonished that consecutive sentences were mandatory rather thandiscretionary.

At the guilty plea hearing, the trial court mustsubstantially comply with admonishing the defendant by informinghim of the minimum and maximum sentences prescribed by law,including consecutive sentencing. 177 Ill. 2d R. 402(a). Informing a defendant of the possibility of consecutive sentenceswhen consecutive sentences are mandatory is an inadequateadmonishment under Rule 402. Under such circumstances, thedefendant should be allowed to withdraw his guilty plea and pleadanew. People v. Hampton, 249 Ill. App. 3d 873, 620 N.E.2d 3(1993).

In this case, the defendant was improperly admonished thatconsecutive sentences were discretionary rather than mandatory. Therefore, we rule that he should be permitted to withdraw hisguilty plea and plead anew. Because of this ruling, we need notaddress the defendant's argument concerning his attorney's Rule604(d) certificate.

CONCLUSION

For the foregoing reasons, we reverse the judgment of theMcDonough County circuit court and remand for furtherproceedings.

Reversed and remanded.

LYTTON, P.J., and MCDADE, J., concur.