People v. Gregory

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People v. Gregory

State: Illinois

Court: 4th District Appellate

Docket No: 4-07-0677 Rel

Case Date: 03/03/2008

Preview:NO. 4-07-0677 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN T. GREGORY, Defendant-Appellant.

Filed 3/3/08

) Appeal from ) Circuit Court of ) Vermilion County ) No. 05CF460 ) ) Honorable ) Claudia S. Anderson, ) Judge Presiding. _________________________________________________________________ JUSTICE TURNER delivered the opinion of the court: In August 2005, the State charged defendant, John T. Gregory, with burglary (720 ILCS 5/19-1(a) (West 2004)) and retail theft over $150 (720 ILCS 5/16A-3(a) (West 2004)). Defendant and the State entered into a plea agreement, under which defendant would plead guilty to the burglary charge with a sentencing cap of three years' imprisonment and the State would dismiss the retail-theft charge. At the June 2006 plea hearing,

the trial court admonished defendant that burglary was punishable by 3 to 7 years in prison or it could be 7 to 14 years in prison if aggravating factors were present. Defendant pleaded guilty to

the burglary charge, and the court accepted the plea agreement and dismissed the retail-theft charge. After an August 2006

sentencing hearing, the court sentenced defendant to 24 months' probation. In November 2006, the State filed a petition to revoke defendant's probation for failure to report to his probation officer. After a March 2007 hearing, the trial court found

defendant had violated his probation but reserved revocation.

At

the May 2007 resentencing hearing, the court found defendant was to be sentenced as a Class X felon based on his prior convictions (see 730 ILCS 5/5-5-3(c)(8) (West 2004) (all four versions apply in this case)), for which probation is not available (730 ILCS 5/5-5-3(c)(2)(C) (West 2004)). Thus, the court found defendant's

probation sentence was void and resentenced him to 15 years' imprisonment. Defendant filed a motion to reconsider his sen-

tence, which the court denied. Defendant appeals, contending (1) his 15-year sentence must be vacated since he was not admonished about being sentenced as a Class X offender before he pleaded guilty and, (2) upon resentencing, he cannot be subject to an extended-term sentence. We vacate defendant's burglary conviction and sentence and remand with directions. I. BACKGROUND The burglary and retail-theft charges in this case arise from defendant's actions on July 31, 2005. The same

charges were brought against defendant's codefendant, Christine Fields. At the initial hearing in August 2005, the trial court

addressed defendant's bond, and defendant was asked whether he had any serious criminal convictions and whether he had done time in the Department of Corrections (DOC). Defendant indicated he At

had convictions years ago in 1994 and had been in DOC once.

another bond hearing in August 2005, defendant testified he had been to prison in 1994 for aggravated battery and served eight - 2 -

months of a three-year sentence. and completed it.

He was then placed on parole

Defendant further testified he had not been on We also note that, at

probation since his prison sentence.

another hearing in August 2005, defendant explained he had fallen down and cracked his skull about three years ago. injury, defendant had suffered grand mal seizures. As stated, defendant and the State entered into a plea agreement, under which defendant would plead guilty to the burglary charge with a sentencing cap of three years' imprisonment and the State would dismiss the retail-theft charge. reached the same deal with the State. Fields Since the head

In June 2006, the trial At the

court held a joint plea hearing for defendant and Fields.

hearing, the court explained the sentencing possibilities for the burglary charge, a Class 2 felony (720 ILCS 5/19-1(b) (West 2004)), as follows: "It's punishable by three to seven years in the penitentiary. It could be [7] to [14]

years if there were aggravating factors present; two years['] mandatory supervised release; up to four years on probation; and up to a $25,000 fine." Defendant did not have any questions about the possible penalties. After finding the State's factual basis was sufficient,

the court accepted the plea agreement. The State's July 2006 presentence report stated the following information. Defendant had been convicted of two - 3 -

counts of "theft over," a Class 3 felony and, in October 1993, was sentenced to 30 months' probation and ordered to pay $6,364 in restitution, fines, and court costs. 92-CF-296 (Cir. Ct. Vermilion Co.). People v. Gregory, No.

Defendant's probation was

later revoked, and in February 1994, he received a three-year prison term. Defendant also received convictions for aggravated

battery and escape, both Class 3 felonies, for which he was sentenced in February 1994 to three years' imprisonment to run concurrent with his sentence in case No. 92-CF-296. Gregory, No. 93-CF-463 (Cir. Ct. Vermilion Co.). People v.

Besides traffic

offenses, the report did not list any other offenses. At the August 2006 sentencing hearing, defendant again testified he had only been to prison once. When asked whether it

was for two cases, defendant stated he could not "even really go back that far." He did not remember 1994. The trial court

sentenced defendant to 24 months' probation. In November 2006, the State filed a petition to revoke defendant's probation because he had failed to report to probation on three occasions. In March 2007, the trial court held a The court found the State had

hearing on the State's petition.

proved its petition and reserved the issue of whether defendant's probation should be revoked pending sentencing. In April 2007, the State submitted an updated presentence report, which listed two more convictions than the original presentence report. One conviction was for possession

of a controlled substance with the intent to deliver, a Class 2 - 4 -

felony, for which defendant pleaded guilty and received 30 months' probation in February 1996. CF-310 (Cir. Ct. Vermilion Co.). People v. Gregory, No. 95-

The other conviction was for an

August 1997 residential burglary, a Class 1 felony, for which defendant received a four-year prison term. No. 97-CF-2163 (Cir. Ct. Winnebago Co.). In May 2007, the trial judge, who was not the judge who presided over defendant's original plea and sentencing hearing, held a resentencing hearing. The State noted that, based upon People v. Gregory,

defendant's prior convictions listed in the presentence report, defendant was subject to Class X sentencing. 3(c)(8) (West 2004). See 730 ILCS 5/5-5-

The prosecutor further stated, "It's not The trial court indicated

like his admonishment is incorrect."

defendant's probation sentence was void, and it would sentence defendant as a Class X offender. After hearing all of the

evidence, the court resentenced defendant to 15 years' imprisonment. In June 2007, defendant filed a motion to reconsider, contending the sentence was a hardship and excessive. After a

July 2007 hearing, the trial court denied defendant's motion. This appeal followed. II. ANALYSIS On appeal, defendant contends his 15-year sentence must be vacated because the trial court in the original plea hearing failed to admonish him that he could be sentenced as a Class X offender. Defendant acknowledges he failed to raise this issue - 5 -

in the trial court but asserts it is plain error.

See 134 Ill.

2d R. 615(a); People v. Fuller, 205 Ill. 2d 308, 322-23, 793 N.E.2d 526, 537 (2002) (recognizing a trial court's noncompliance with Supreme Court Rule 402 (177 Ill. 2d R. 402) in admonishing a defendant may amount to plain error). He further argues he

should be resentenced with a maximum sentence of seven years' imprisonment based on the court's original admonishment as the court failed to inform him he was eligible for an extended term. The State agrees the trial court's admonishment was defective and the sentence cannot stand but disagrees with defendant about the appropriate remedy. It argues defendant's The

guilty plea should be vacated and he be allowed to replead. State also contends that, if the plea is not vacated, then

defendant's sentence should be reduced to 14 years' imprisonment or he be resentenced with a maximum of 14 years' imprisonment based on the extended-term-sentencing admonishment. We note the

appropriate remedy for this situation is a matter of first impression in Illinois. "When no direct appeal is taken from an order of probation and the time for appeal has expired, a reviewing court is precluded from reviewing the propriety of that order in an appeal from a subsequent revocation of that probation, unless the underlying judgment of conviction is void." People v. Johnson,

327 Ill. App. 3d 252, 256, 762 N.E.2d 1180, 1183 (2002) (Johnson I). Thus, the State's remedy of vacation of the plea and having

defendant plead anew is only available if defendant's burglary - 6 -

conviction is void.

The State contends this case is actually an

appeal from the trial court's resentencing on the original conviction, not a resentencing after a probation revocation. Regardless of the posture of this case, the result is the same since the original plea agreement and conviction are void. "A void judgment is one entered by a court (1) without jurisdiction or (2) that exceeded its jurisdiction by entering an order beyond its inherent power." 256, 762 N.E.2d at 1183. Johnson I, 327 Ill. App. 3d at

We note improper admonishments them-

selves do not render the defendant's conviction and sentence void. People v. Jones, 213 Ill. 2d 498, 509, 821 N.E.2d 1093,

1099 (2004). Defendant acknowledges his original sentence of probation was void. However, as the State points out, the three-year

sentencing cap contained in the plea agreement was also void since probation is not available for a Class X felony (730 ILCS 5/5-5-3(c)(2)(C) (West 2004)) and the minimum prison sentence is 6 years (730 ILCS 5/5-8-1(a)(3) (West 2004) (as amended by Pub. Act 94-165,

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