People v. DeRosa

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People v. DeRosa

State: Illinois

Court: 5th District Appellate

Docket No: 5-08-0069 Rel

Case Date: 11/25/2009

Preview:NO. 5-08-0069
N O T IC E Decision filed 11/25/09. The text of this dec ision m ay b e changed or corrected prior to the P e t i ti o n for filing of a or the

IN THE APPELLATE COURT OF ILLINOIS

Re hea ring

FIFTH DISTRICT ________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Randolph County. ) v. ) No. 07-CF-205 ) DANNY A. DeROSA, ) Honorable ) William A. Schuwerk, Jr., Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________ JUSTICE CHAPMAN delivered the opinion of the court: The defendant, Danny A. DeRosa, pled guilty to two counts of home invasion (720 ILCS 5/12-11(a)(2) (West 2006)). In exchange for the defendant's guilty plea, the State dropped two additional charges and agreed that the sentences imposed on the two remaining charges would be served concurrently. The court sentenced the defendant to extended-term sentences of 45 years on each count, and he filed a motion to reconsider that sentence, arguing that extended-term sentences were improper under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). He did not file a motion to withdraw his guilty plea, and his counsel did not file a certificate of compliance with Supreme Court Rule 604(d) (210 Ill. 2d R. 604(d)). The defendant appeals from the trial court's order denying his motion to reconsider. Because of the defendant's failure to comply with the requirements of Rule 604, the merits of the appeal are not before us. Rather, we must determine whether to dismiss the appeal outright or remand to the trial court to allow defense counsel to comply with the certification requirements of Rule 604. We dismiss the appeal. On August 31, 2007, the State filed a two-count information charging the defendant

disposition of the same.

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with one count each of residential burglary (720 ILCS 5/19-3 (West 2006)) and theft (720 ILCS 5/16-1(a)(1)(A) (West 2006)). On September 5, 2007, the State filed a four-count amended information adding two counts of home invasion (720 ILCS 5/12-11(a)(2) (West 2006)). The four charges stemmed from three separate incidents that all occurred on August 30, 2007. In December 2007, the defendant agreed to plead guilty to the two counts of home invasion. In exchange for his plea, the State agreed to withdraw the charges of residential burglary and theft. The State further agreed that the sentences imposed for the home invasion charges would be served concurrently rather than consecutively. agreements were made with respect to sentencing. On December 5, the court held a guilty plea hearing. Defense counsel outlined the plea agreement for the court. The court then advised the defendant that he could be sentenced to anywhere from 6 to 30 years in prison for home invasion but that if the court found that an extended term was appropriate, he could be sentenced to up to 60 years. The court further advised the defendant that it was up to the judge to decide whether the defendant would be sentenced to "6 years in the penitentiary, 30 years, or 60 years." The defendant indicated that he understood this. The State then presented a factual basis, and the court accepted the defendant's plea. On January 3, 2008, the court held a sentencing hearing. The victims of the home invasion charges both testified. The first man testified that he was 70 years old at the time of the crime. The second victim was 76 years old when the crime occurred. Both described the serious injuries they sustained as a result of the defendant's attacks. The presentence investigation report, which had been filed with the court a few days earlier, indicated that the defendant had numerous prior felony convictions in Missouri and one in Illinois, most of which were for violent crimes. The report also indicated that the defendant was serving a No other

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mandatory-supervised-release term for the Illinois conviction when he committed the crimes involved in this case. In light of the victims' ages and the defendant's criminal history, the State argued that extended-term sentences were appropriate. The defendant argued that the State could not seek extended-term sentences because it had failed to either (1) allege in the charging instrument the facts upon which it relied to enhance the defendant's sentence or (2) provide him with written notice of these facts. See 725 ILCS 5/111-3(c-5) (West 2006). The court found that extended-term sentences were appropriate based on the following aggravating factors: (1) both victims suffered serious harm, (2) both victims were older than 60 years old, (3) the defendant had numerous prior felony convictions, and (4) the offenses were committed while the defendant was on mandatory supervised release. The court sentenced the defendant to terms of 45 years on each conviction, to be served concurrently. The court then advised the defendant that he must file a motion to withdraw his guilty plea if he wanted to appeal these sentences. On January 15, 2008, the defendant filed a motion to reconsider the sentence, without filing a motion to withdraw his guilty plea. In it, he alleged that he had entered into an " 'open' plea" agreement, under which the only agreement on sentencing was that the sentences would be served concurrently, not consecutively. He argued, as he did at the hearing, that the State may only seek an extended-term sentence if it alleges in the charging instrument any facts relied upon to qualify for the extended-term sentence or subsequently gives the defendant written notice. See 725 ILCS 5/111-3(c-5) (West 2006). He alleged that the State did neither in this case. The court held a hearing on the defendant's motion to reconsider his sentence on February 4, 2008. The defendant argued, as he did in his motion, that the relevant statute provides that any facts relied upon to increase the range of penalties must be alleged in the charging instrument or must be otherwise provided to the defendant in writing. See 725

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ILCS 5/111-3(c-5) (West 2006). He acknowledged that the statute specifically excludes prior convictions, one of the factors used here to enhance the defendant's sentence. The State argued that a guilty plea waives these requirements. See People v. Jackson, 199 Ill. 2d 286, 298, 769 N.E.2d 21, 28 (2002). At the end of the hearing, the court denied the motion to reconsider and admonished the defendant as follows: "If you wish to appeal from this order, you've got 30 days to file your Notice of Appeal with the Fifth District Appellate Court by filing a motion

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