People v. King - Supplemental filed 1/7/10

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State: Illinois

Court: 4th District Appellate

Docket No: 4-08-0847 Rel

Case Date: 11/09/2009

Preview:NO. 4-08-0847 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICKY KING, Defendant-Appellant.

Filed 11/9/09

) Appeal from ) Circuit Court of ) Champaign County ) No. 02CF1610 ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding. _________________________________________________________________ JUSTICE POPE delivered the opinion of the court: In September 2002, the State charged defendant, Ricky King, with five counts of first degree murder (720 ILCS 5/91(a)(1), (a)(2) (West 2000)). Later that month, the trial court

granted the State's motion to dismiss the criminal charges on the belief defendant had not yet reached 15 years of age at the time of the alleged crime. That same day, the State filed a

delinquency petition under the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1 through 7-1 (West 2000)). In December 2002, having learned defendant was actually over 15 years of age at the time of the alleged crime, the State moved to dismiss the juvenile case and reinstate the original criminal charges. In June 2003, the State filed an additional

count of attempt (first degree murder) (720 ILCS 5/8-4(a), 91(a)(West 2000)). That same day, defendant entered a negotiated

plea to the attempt (first degree murder) charge in exchange for dismissal of the first-degree-murder charges and a 15-year sentence to the Department of Corrections (DOC). The trial court

dismissed the remaining first-degree-murder charges and immediately sentenced defendant to 15 years' imprisonment. October 2008, defendant filed a petition for postconviction relief seeking a modification of his sentence on the grounds the court failed to admonish him of the mandatory-supervised-release (MSR) term that would follow his imprisonment. The petition was In

dismissed as frivolous and patently without merit. This appeal followed. I. ANALYSIS We initially note defendant states in the "Nature of the Case" portion of his brief that he appeals from the judgment dismissing his petition for postconviction relief. However, he

does not address the trial court's failure to admonish him as to MSR in the "Argument" section of his brief. Nonetheless, we have

reviewed the record on the MSR issue and find it supports the court's dismissal as defendant was explicitly admonished as to MSR at his June 2003 hearing. Defendant did not address in his

postconviction petition the issue he argues on appeal. Defendant argues his sentence is void because the State failed to make the statutorily required request for a sentencing hearing before the trial court sentenced him as an adult. A

defendant may attack a void judgment at any time, and a reviewing court has an independent duty to vacate a void order. People v. If

Jardon, 393 Ill. App. 3d __, __, 913 N.E.2d 171, 186 (2009).

the trial court lacked subject-matter or personal jurisdiction, or the power to enter a particular judgment or sentence, the - 2 -

judgment is void. 186.

Jardon, 393 Ill. App. 3d at __, 913 N.E.2d at

Likewise, a sentence that violates a statutory requirement People v. Arna, 168 Ill. 2d 107, 113, 658 N.E.2d 445, A

is void.

448 (1995); Jardon, 393 Ill. App. 3d at __, 913 N.E.2d at 186. defendant's claim that his judgment is void is not subject to waiver. Jardon, 393 Ill. App. 3d at __, 913 N.E.2d at 186.

Thus, we reject any assertion from the State that defendant may not raise this issue for the first time on appeal. Ill. App. 3d at __, 913 N.E.2d at 186. We apply the de novo standard of review to dismissal of a first-stage postconviction petition (People v. Gulley, 383 Ill. App. 3d 727, 731, 891 N.E.2d 441, 445-46 (2008)) and to issues of statutory construction (Jardon, 393 Ill. App. 3d at __, 913 N.E.2d at 187). Section 5-130 of the Act states the following: "(1)(a) The definition of delinquent minor under [s]ection 5-120 of this [a]rticle shall not apply to any minor who at the time of an offense was at least 15 years of age and who is charged with (i) first degree murder ***. These charges and all other charges arising out of the same incident shall be prosecuted under the criminal laws of this State. * * * - 3 Jardon, 393

(b)(i) If before trial or plea an information or indictment is filed that does not charge an offense specified in paragraph (a) of this subsection (1)[,] the State's Attorney may proceed on any lesser charge or charges, but only in [j]uvenile [c]ourt under the provisions of this [a]rticle. The

State's Attorney may proceed under the Criminal Code of 1961 on a lesser charge if before trial the minor defendant knowingly and with advice of counsel waives, in writing, his or her right to have the matter proceed in [j]uvenile [c]ourt. (ii) If before trial or plea an information or indictment is filed that includes one or more charges specified in paragraph (a) of this subsection (1) and additional charges that are not specified in that paragraph, all of the charges arising out of the same incident shall be prosecuted under the Criminal Code of 1961. (c)(i) If after trial or plea the minor is convicted of any offense covered by paragraph (a) of this subsection (1), then, in sentencing the minor, the court shall have available any or all dispositions prescribed - 4 -

for that offense under [c]hapter V of the Unified Code of Corrections [(Unified Code)]. (ii) If after trial or plea the court finds that the minor committed an offense not covered by paragraph (a) of this subsection (1), that finding shall not invalidate the verdict or the prosecution of the minor under the criminal laws of the [s]tate; however, unless the State requests a hearing for the purpose of sentencing the minor under [c]hapter V of the Unified Code, the [c]ourt must proceed under [s]ections 5-705 and 5-710 of this [a]rticle. To request a hearing, the

State must file a written motion within 10 days following the entry of a finding or the return of a verdict. Reasonable notice of

the motion shall be given to the minor or his or her counsel. If the motion is made by the

State, the court shall conduct a hearing to determine if the minor should be sentenced under [c]hapter V of the Unified Code. In

making its determination, the court shall consider among other matters: (a) whether there is evidence that the offense was committed in an aggressive and premeditated manner; (b) the age of the minor; (c) the - 5 -

previous history of the minor; (d) whether there are facilities particularly available to the [j]uvenile [c]ourt or the Department of Juvenile Justice for the treatment and rehabilitation of the minor; (e) whether the security of the public requires sentencing under [c]hapter V of the Unified Code; and (f) whether the minor possessed a deadly weapon when committing the offense. The

rules of evidence shall be the same as if at trial. If after the hearing the court finds

that the minor should be sentenced under [c]hapter V of the Unified Code, then the court shall sentence the minor accordingly having available to it any or all dispositions so prescribed." added.) (Emphasis

705 ILCS 405/5-130(1)(a) through

(1)(c)(ii) (West 2000). In the case sub judice, defendant was originally charged with first degree murder, a section 5-130(1)(a) offense. Exclusive jurisdiction for this offense, when the offender is at least 15 years old, lies in criminal court, not juvenile court. 705 ILCS 405/5-130(1)(b)(ii) (West 2000). If other, non-section

5-130(1)(a) charges arising from the same incident are alleged in an indictment, together with section 5-130(1)(a) charges, the entire prosecution takes place in criminal court. - 6 705 ILCS

405/5-130(1)(b)(ii) (West 2000).

Here, the State added to the

indictment attempt (first degree murder), a non-section 5130(1)(a) charge, which could be prosecuted in criminal court with the first-degree-murder charge because it arose from the same incident. However, the statute provides if a defendant

either pleads or is found guilty of only the non-section 5130(1)(a) charges, then a court is required to proceed under sections 5-705 and 5-710 of the Act, unless the State requests, within 10 days of the plea or trial, a hearing at which the court would determine whether to sentence the defendant as an adult. 705 ILCS 405/5-130(1)(c)(ii) (West 2000). Here, the defendant

pleaded to only the non-section 5-130(a)(1) charge, triggering the requirement that the State request a sentencing hearing within 10 days. The State failed to do this.

The following cases are instructive on the issues raised in this appeal: Jardon, 393 Ill. App. 3d __, 913 N.E.2d

171, People v. Mathis, 357 Ill. App. 3d 45, 827 N.E.2d 932 (2005), People v. Champ, 329 Ill. App. 3d 127, 768 N.E.2d 237 (2002), People v. Brazee, 333 Ill. App. 3d 43, 44, 775 N.E.2d 652, 653 (2002) (Brazee II), and People v. Brazee, 316 Ill. App. 3d 1230, 1231, 738 N.E.2d 646, 647-48 (2000) (Brazee I). In Champ, the 16-year-old defendant was charged with first degree murder. N.E.2d at 238. Champ, 329 Ill. App. 3d at 128-29, 768

A jury found the defendant guilty of involuntary

manslaughter, and the trial court sentenced him to five years in DOC. Champ, 329 Ill. App. 3d at 128, 768 N.E.2d at 238. - 7 On

appeal, the defendant argued he should have been sentenced under the Act, rather than as an adult, because the court was required to sentence him as a juvenile under section 5-4(6)(c)(ii) of the Act (705 ILCS 405/5-4(6)(c)(ii) (West 1996) (repealed by Pub. Act 90-590,

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