People v. DonelsonPeople v. Donelson
¶ 1 Charles Donelson, the dеfendant, appeals from the dismissal of his pro se petition for relief from judgment under
¶ 2 BACKGROUND
¶ 3 Defendant was charged in indictment number 98 CR 11525 with first degree murder, home invasion, residential burglary, and aggravated criminal sexual assault stemming from an incident in the afternoon on March 28, 1998, where defendant allegedly forcibly entered the home of Matthew Flowers and Sarah Tyler, forced Flowers and Tyler to have intercourse, and shot and killed Flowers. Defendant was also charged in indictment number 98 CR 11527 with aggravated criminal sexual assault stemming from an incident in the morning on March 28, 1998, where defendant allegedly forced Tyler to have sex with him. On January 30, 2001, pursuant to a guilty рlea, defendant was convicted of first degree murder (count V: felony murder based on the aggravated sexual assault of Tyler) and home invasion (count VI) under indictment number 98 CR 11525, and aggravated criminal sexual assault (count I) under indictment number 98 CR 11527. The trial court admonished defendant of the rights he was relinquishing by pleading guilty and sentenced him to 55 years’ imprisonment for first degree murder, 30 years for home invasion, and 30 years for aggravated criminal sexual assault, all to be sеrved concurrently.
¶ 4 On February 27, 2001, defendant filed a pro se motion to withdraw his guilty plea. The trial court denied the motion to withdraw and defendant appealed. The State confessed error based on erroneous plea admonishments, and this court remanded the case. People v. Donelson, No. 1-01-2127 (2002) (unpublished order pursuant to
¶ 5 On April 23, 2009, defendant filed a pro se motion for leave to file a petition for relief from judgment pursuant to
¶ 6 ANALYSIS
¶ 7 On appeal, defendant abandons the issues raised in his petition and claims for the first time that the trial court erred in sentencing him to concurrent sentences where
¶ 8 We initially note that the State maintains that defendant forfeited review of his claim. The State indicates that defendant filed a pro se petition for relief from judgment pursuant to
¶ 9 Turning to the merits of defеndant‘s appeal, our supreme court has held that concurrent sentences are void where the statutory requirements for mandatory consecutive sentences are met. People v. Bishop, 218 Ill.2d 232, 254, 300 Ill.Dec. 107, 843 N.E.2d 365 (2006). A conviction of aggravated criminal sexual assault (
¶ 10 The State‘s arguments to the contrary are meritless. First, under
“When multiple sentences of imprisonment are imposed on a defendant at the same time, or when a term of imprisonment is imposed on a defendant who is already subject to sentence in this State, * * * the sentences shall run concurrently or consecutively as determined by the court.”
730 ILCS 5/5-8-4(a) (West 1998) .
However, this language applies to both subsections (a) and (b). See People v. Hayes, 336 Ill.App.3d 145, 152, 270 Ill.Dec. 228, 782 N.E.2d 787 (2002).
¶ 11 Furthermore, the State‘s argument that defendant‘s murder sentence was separately imposed from the sentence for his aggravated criminal sexual assault conviction is unpersuasive. Defendant‘s reduced murder sentence, although entered in 2003, was entered to take effect as of February 2001, when he filed his motion to withdraw his entire plea. That plea encompassed all three offenses under both indictments, including the first degree murder and aggravated criminal sexual assault charges. In reducing defendant‘s murder sentence, the court stated, “I‘m allowing you to make а motion to reduce the sentence as of February 28, [20]01, within 30 days, the date I sentenced you, from 55 years to 50 years and the State is not objecting to that as part of the agreement.” Defendant thus withdrew his motion to withdraw his plea, leaving the plea and the resulting convictions and sentence intact but for the reduced murder sentence. Therefore, although defendant‘s murder sentence was reduced after the original plea, and a new mittimus was issued, the new sentence was entered as part of that original sentence from two years earlier.
¶ 12 Our conclusion that defendant‘s sentence is void finds support in our supreme court‘s recent decision in People v. White, 2011 IL 109616, 352 Ill.Dec. 159, 953 N.E.2d 398. In White, the defendant pled guilty to first degree murder and possession of contraband in a penal institution in exchange for consecutive prison sentences of 28 and 4 years, respectively, and the factual basis for the plea establishеd that a firearm was used in the commission of the murder offense. White, 2011 IL 109616, ¶¶ 4-6, 352 Ill.Dec. 159, 953 N.E.2d 398. The supreme court found that the 15-year mandatory sentencing enhancement for committing first degree murder while armed with a firearm applied despite the trial court‘s belief that it did not. White, 2011 IL 109616, ¶ 11, 352 Ill.Dec. 159, 953 N.E.2d 398. The White court reiterated the axiom that a court cannot impose a sentence inconsistent with the governing statutes even where the parties and trial court agree to that sentence. White, 2011 IL 109616, ¶ 23, 352 Ill.Dec. 159, 953 N.E.2d 398. The supreme court thus held that the guilty plea entered into by the defendant was void, remanding the case to the trial court with directions to allow defendant to withdraw his plea. White, 2011 IL 109616, ¶ 31, 352 Ill.Dec. 159, 953 N.E.2d 398.
¶ 13 However, we agree with the State that, under the circumstances of this case, the appropriate remedy for defendant‘s void sentence is a remand for resentencing. While the sentence is void, the plea agreement taken as a whole is not void and defendant is not entitled to withdraw his plea.
¶ 14 Our supreme court has declared that plea agreements, and in particular agreements for fully negotiated pleas where the parties have agreed on the appropriate sentence, are generally governed
¶ 15 We acknowledge that in White, our supreme court remanded the defendant‘s void sentence to the circuit court with directions to allow the defendant to withdraw his guilty plea and proceed to trial. However, White is distinguishable from the instant case on the key issue of whether the plea agreement is vоid. The object of the agreement in White—that the defendant plead guilty to first degree murder and possession of contraband and received a total of 32 years’ imprisonment—was contrary to statutory authority which mandated that he receive at least 35 years’ imprisonment for the murder charge with the firearm enhancement. Had the supreme court remanded only the sentence, the circuit court would not have been able to impose the total number of years to which the defendant agreed. Under those circumstances, the White court concluded that the plea agreement itself was void.1
¶ 16 The case cited by defendant for the proposition that resentencing is an inappropriate remedy, People v. Johnson, 338 Ill.App.3d 213, 272 Ill.Dec. 848, 788 N.E.2d 152 (2003), is similarly distinguishable. The Johnson defendant pled guilty to a particular offense and received a sentence of probation when he was statutorily ineligible for probation. Thus, “defendant pled guilty to that crime upon the representation that hе would receive probation. Because defendant was not eligible for probation, defendant and the State now necessarily lack agreement on the plea offer.” Johnson, 338 Ill.App.3d at 216, 272 Ill.Dec. 848, 788 N.E.2d 152. The agreed-upon sentence was not achievable under the applicable statutes so that the plea agreement was illegal. Under such circumstances, the only method “[t]o return the State and defendant to their positions prior to the trial court‘s erroneous imposition of probation,” was to allow him to withdraw his plea. Johnson, 338 Ill. App.3d at 216, 272 Ill.Dec. 848, 788 N.E.2d 152.
¶ 17 While this court in People v. Hare, 315 Ill.App.3d 606, 248 Ill.Dec. 587, 734 N.E.2d 515 (2000), declined a defendant‘s request for “specific performance” or reformation of a plea agreement, the instant case is distinguishable. The agreement in Hare was to recommend a four-year prison sentence in the mistaken belief that it was the minimum sentence, when the actual minimum prison term was six years. Hare, 315 Ill.App.3d at 607-08, 248 Ill.Dec. 587, 734 N.E.2d 515. The parties did nоt dispute that the sentence was void but joined issue on whether the plea agreement was therefore void; the defendant contended that the nature of the agreement was that the State recommend the minimum sentence, so that he should receive a six-year prison term under the agreement. Hare, 315 Ill.App.3d at 609, 248 Ill.Dec. 587, 734 N.E.2d 515. However, the circuit court found after a hearing, and this court affirmed, that the nature or substance of the agreement was to recommend a four-year term, an illegal sentence and thus an unenforceable plea agreement. Hare, 315 Ill.App.3d at 609-11, 248 Ill.Dec. 587, 734 N.E.2d 515.
¶ 18 By contrast, the plea agreement in the instant case, taken as a whole, is not contrary to statutory authority and thus not void. Defendant pled guilty to first degree murder, aggravated criminal sexual assault, and home invasion, and maintained that plea, ultimately in exchange for concurrent prison terms of 50, 30, and 30 years respeсtively; that is, in exchange for a total of 50 years’ imprisonment. For the same three offenses, with the sentences to be served consecutively pursuant to
¶ 19 We conclude that the plea agreement here, taken as a whоle, was not void even though the particular sentence imposed in implementation of that agreement was void. Defendant does not have the right to withdraw his plea, as this would be contrary to the State‘s right to the benefit of the parties’ bargain. Instead, the appropriate remedy is to enforce the overall plea agreement consistent with the relevant statutes by vacating the void sentence and remanding for resentenсing of the pled offenses to a total prison term, with mandatory consecutive sentencing, of 50 years.
¶ 20 Defendant further maintains, and the State correctly agrees, that the trial court erred upon resentencing when it entered sentence on count III of defendant‘s indictment, which was first degree murder based on home invasion, where his initial mittimus reflects that he pled guilty to count V, which was first degree murder based on aggravated criminal sexual assault invоlving Flowers and Sarah (No. 98 CR 11525). Thus, the mittimus issued upon resentencing shall reflect that defendant was sentenced on count V, not count III.
¶ 21 Lastly, we note that defendant contended in his initial brief that his sentence is void because the circuit court lacked the authority to reduce his sentence without first vacating his plea. Defendant effectively abandoned this contention in his reply brief, not only by not referring to it but by making arguments in the reply brief utterly contrary to this contention. To the extent that the contention is still an active one, we reject it. Defendant filed a written motion to withdraw his plea, thus vesting the court with
¶ 22 For the foregоing reasons, we vacate the judgment of the circuit court and remand for the court to resentence defendant in accordance with both the plea agreement and the applicable statutes, with the new mittimus reflecting that defendant was sentenced on count V, not count III.
¶ 23 Vacated and remanded with directions.
Justice MURPHY concurred in the judgment and opinion.
Justice QUINN, specially concurred, with opinion.
¶ 24 Justice QUINN, specially concurring:
¶ 25 I agree with the holding of the majority that the concurrent nature of the defendant‘s sentences was improper, and therefore, the sentences are void. I also agree with the majority that this does not make the plea void. I write separately because I am concerned that today‘s decision could be read to require courts to vacate pleas of guilty where a defendant files a
¶ 26 One of the guiding principles determining
¶ 27 In the instant case, defendant filed a
¶ 28 In People v. White, 2011 IL 109616, 352 Ill.Dec. 159, 953 N.E.2d 398, the defendant raised the issue of improper concurrent sentences eight days after he pled guilty, when he timely filed his motion to withdraw his plea. Consequently, while the holding in White makеs clear that the consecutive sentences imposed in the instant case must be vacated as void, White provides little support for allowing defendants who seek to withdraw their pleas of guilty years after entering into them under the equitable remedy available under
¶ 30 In People v. Thompson, 209 Ill.2d 19, 282 Ill.Dec. 183, 805 N.E.2d 1200 (2004), the defendant was sentenced to an extended-tеrm sentence for violating an order of protection. Addressing the State‘s argument that the defendant had waived his argument on appeal that his sentence was void, the supreme court disagreed, holding, “There is no jurisdictional impediment to the granting of relief from the void portion of the circuit court‘s sentencing order.” (Emphasis added.) People v. Thompson, 209 Ill.2d at 29, 282 Ill.Dec. 183, 805 N.E.2d 1200. (Emphasis added.) The court then vacated the extended-term portion of defendant‘s sentence and reduced his sentence to the maximum nonextended term of three years’ imprisonment.
¶ 31 Recently, in People v. Marshall, 242 Ill.2d 285, 351 Ill.Dec. 172, 950 N.E.2d 668 (2011), the court held that defendants cannot be required to supply DNA after a felony conviction when the defendant has previously provided DNA to the State‘s database. In rejecting the State‘s argument that the defendant had waived this argument on appeal, the court cited People v. Arna, 168 Ill.2d 107, 113, 212 Ill.Dec. 963, 658 N.E.2d 445 (1995), for its holding that “a sentence which does not conform to a statutory requirement is void and a reviewing court has the authority to correct it at any time.” (Emphasis added.) People v. Marshall, 242 Ill.2d at 302, 351 Ill.Dec. 172, 950 N.E.2d 668.
¶ 32 In the instant case, it is the order of thе trial court making the sentences to run concurrently which makes the sentences void. In keeping with the equitable nature of relief available under