2012 IL App (4th) 100973
Ill. App. Ct.2012Background
- Defendant Mark A. Burse was sentenced in April 2009 to 24 months' probation after a fully negotiated plea to attempt (delivery of a controlled substance).
- The plea stipulation acknowledged sufficient evidence to convict, and two related counts were dismissed as part of the deal.
- Defendant admitted probation violations in 2010, leading to resentencings including probation extensions and periods of imprisonment, then a modification to straight time with credit.
- In November 2010 through January 2011, Burse pursued an appeal after probation-related rulings and sentence modifications.
- Defendant argued on appeal that the conviction for attempt (delivery of a controlled substance) was void because the general attempt statute was preempted by the Illinois Controlled Substances Act (Act).
- The court held that Burse benefited from the negotiated plea and declined to vacate the conviction or permit withdrawal of the plea on the preemption theory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Act preempt the general attempt statute | Burse argues the Act's delivery provisions preempt the general attempt statute. | People argues the preemption is not voiding the plea; preemption does not automatically nullify the conviction. | Preemption not determined; court upholds conviction and declines to void plea |
| May defendant vacate the conviction or withdraw the plea based on preemption | Burse seeks vacatur or withdrawal of plea due to alleged nullity of the offense. | Burse contends the plea was based on a nonexistent crime; the bargain should be undone. | Court refuses to vacate or allow withdrawal; benefits of bargain sustain conviction |
Key Cases Cited
- People v. Gregory, 379 Ill. App. 3d 414 (2008) (preliminary review limitations after probation order; void judgments analysis)
- People v. Johnson, 327 Ill. App. 3d 252 (2002) (review limitations after probation; void judgments when underlying conviction void)
- People v. Isreal, 31 Ill. App. 3d 744 (1975) (plea bargains affecting jurisdiction and sentence; estoppel/rationale for accepting bargain)
- People v. Clark, 80 Ill. App. 3d 46 (1979) (nullity of statute distinguished from Isreal; negotiated disposition context)
- People v. Stupka, 226 Ill. App. 3d 567 (1992) (preemption of delivery statute by Act; attempted transfer within substantive offense)
- People v. Lev, 166 Ill. App. 3d 173 (1988) (effects of Act on construction of delivery vs. general offenses)
- People v. Echols, 282 Ill. App. 3d 185 (1996) (analysis of statutory overlap between Act provisions and general crimes)
- People v. Taylor, 18 Ill. App. 3d 480 (1974) (special statutes vs. general statutes and legislative intent)