THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WESLEY JOHNSON JR., Defendant-Appellant.
No. 2-18-0775
Appellate Court of Illinois, Second District
March 5, 2021
Rehearing denied March 30, 2021
2021 IL App (2d) 180775
Decision Under Review: Appeal from the Circuit Court of Winnebago County, Nos. 17-CF-1598, 17-CF-2030; the Hon. Randy Wilt, Judge, presiding. Judgment: Vacated and remanded.
Counsel on Appeal: James E. Chadd, Thomas A. Lilien, and Vicki P. Kouros, of State Appellate Defender‘s Office, of Elgin, for appellant. Marilyn Hite Ross, State‘s Attorney, of Rockford (Patrick Delfino, Edward R. Psenicka, and Richard S. London, of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
OPINION
¶ 1 Defendant, Wesley Johnson Jr., appeals the five-year consecutive sentences imposed in case Nos. 17-CF-1598 and 17-CF-2030. Defendant argues that the imposition of consecutive sentences was improper. We agree. Thus, we vacate the sentences imposed in both cases and remand this cause for resentencing.
I. BACKGROUND
¶ 3 On June 24, 2017, defendant was arrested for domestic battery (
¶ 4 On June 28, 2017, three days after he was released on bond in case No. 17-CF-1598, defendant committed another domestic battery (
¶ 5 On September 26, 2017, defendant pleaded guilty to domestic battery in case No. 17-CF-1598 in exchange for 30 months of probation. When the court admonished defendant about the minimum and maximum sentences he faced, the court told defendant that, because he was eligible for an extended-term sentence, he faced a prison term between one and six years.
¶ 6 One month later, on October 25, 2017, defendant pleaded guilty to domestic battery in case No. 17-CF-2030 in exchange for the dismissal of charges brought in two other cases (Nos. 17-CF-2380 and 17-CM-2217) and 30 months of probation, which the court ordered to run concurrently with the 30 months of probation imposed in case No. 17-CF-1598. Although, in imposing concurrent terms of 30 months of probation, the court was reminded that case No. 17-CF-1598 involved a domestic battery, the court was not told when that offense occurred. When the court admonished defendant about the minimum and maximum sentences he faced, the court again advised defendant that, because he was extended-term eligible, he faced a prison term between one and six years. The court never advised defendant that he was subject to mandatory consecutive sentencing because he committed the domestic battery in case No. 17-CF-2030 while released on bond in case No. 17-CF-1598.
¶ 8 Defendant never challenged his sentences in the trial court.
¶ 9 This timely appeal followed.
II. ANALYSIS
¶ 11 At issue in this appeal is whether imposition of consecutive sentences was proper, given that defendant was never advised before he pleaded guilty in case No. 17-CF-2030 that he was subject to mandatory consecutive sentencing. We review this issue de novo. See People v. Guzman, 2015 IL 118749, ¶ 13 (de novo review applied where the defendant argued that the trial court did not properly admonish him before he pleaded guilty).
¶ 12 In making his argument, defendant recognizes that he never raised this issue in the trial court. “It is well settled that, to preserve a claim of sentencing error, both a contemporaneous objection and a written postsentencing motion raising the issue are required.” People v. Walsh, 2016 IL App (2d) 140357, ¶ 16; see also
¶ 13 Here, defendant never objected to the imposition of consecutive sentences at the sentencing hearing or in a motion to reconsider the sentence. Thus, the issue he raises now is subject to forfeiture.
¶ 14 Nevertheless, recognizing that he raises an issue not properly preserved, defendant asks us to apply the plain error rule. “Plain error is a limited and narrow exception to the general forfeiture rule.” Walsh, 2016 IL App (2d) 140357, ¶ 17. “To obtain relief under the plain-error rule, a defendant must show that a clear or obvious error occurred.” Id. “If a clear or obvious error is identified, a defendant may obtain relief if the error complained of meets either prong of the two-pronged plain-error rule.” Id. “That is, ‘[i]n the sentencing context, a defendant must *** show either that (1) the evidence at the sentencing hearing was closely balanced, or (2) the error was so egregious as to deny the defendant a fair sentencing hearing.’ ” Id. (quoting People v. Hillier, 237 Ill. 2d 539, 545 (2010)). The defendant bears the burden
¶ 15 Defendant argues that plain error review is appropriate because the court did not properly admonish him pursuant to
¶ 16 We note that the parties agree that defendant was subject to mandatory consecutive sentencing, as he was released on bond for a felony in case No. 17-CF-1598 when he committed the felony charged in case No. 17-CF-2030. See
¶ 17 The parties disagree about whether, despite the above, consecutive sentences were proper because nothing indicated that the trial court knew that consecutive sentences were mandatory. In making their arguments, both parties rely on People v. Butler, 186 Ill. App. 3d 510 (1989). In that case, we noted that, “where the court is aware of the possibility of consecutive sentences, such sentences may not be imposed in the absence of an admonishment as to that possibility prior to plea.” (Emphasis added.) Id. at 521. Defendant argues that the trial court was aware that consecutive sentences were mandatory because “the same court *** accepted both guilty pleas less than one month apart and *** [that court] advised [defendant] that probation in case 17 CF 2030 would run concurrently with his probation in case 17 CF 1598.” The State claims that the trial court was unaware that consecutive sentencing was mandatory because the pleas were not entered during the same proceeding or on the same day, and the court did not have the benefit of a presentence investigation report at the time defendant pleaded guilty in case No. 17-CF-2030.
¶ 18 We determine that the parties have misinterpreted Butler. In relying on Butler, the parties presume that what the trial court knew at the time a defendant pleaded guilty is decisive. We disagree. The fact, as we stated in Butler, that consecutive sentences may not be imposed when the trial court is aware of the possibility of such sentencing—yet fails to admonish the defendant about it—does not mean that the inverse is also true, i.e., that a trial court‘s unawareness of the possibility of consecutive sentencing—and thus failure to admonish the defendant about it—allows a trial court to subsequently impose consecutive sentences.
¶ 20 In reaching that conclusion, we stressed that “the record not only fails to rebut the presumption that [the] defendant did not know that extended-term sentencing was possible; it reinforces that presumption.” Id. On that point, we noted that the record reflected that, at both the guilty-plea proceeding and resentencing, the trial court and the parties were uncertain about defendant‘s prior convictions, which would provide the basis for extended-term sentencing. Id. Given that, we observed that “the record creates doubt that, when [the] defendant pleaded guilty, anyone realized that [the defendant] was eligible for extended-term sentencing.” (Emphasis in original.) Id. at 708-09.
¶ 21 Here it is even less likely that defendant knew he was subject to mandatory consecutive sentencing. Unlike in Taylor, the record reflects that neither the court nor the parties even thought that defendant might be subject to mandatory consecutive sentences. That is, unlike in Taylor, where the trial court admonished the defendant about the sentences he would face if he were eligible for extended-term sentencing, the court here never mentioned consecutive sentencing at all. Moreover, as in Taylor, the proceeding at the resentencing hearing confirmed that, at the very least, defense counsel was mistaken about the fact that mandatory consecutive sentencing applied. Given (1) that the trial court, by failing to admonish defendant about mandatory consecutive sentencing, did not know that defendant was subject to mandatory consecutive sentencing and (2) that defense counsel did not believe that mandatory consecutive sentencing applied, we fail to see, as in Taylor, how defendant could be expected to know that consecutive sentences were mandatory in his case. See id. Accordingly, we determine, like in Taylor, that imposition of mandatory consecutive sentences at resentencing was improper. See id. at 709.
¶ 22 The question becomes what remedy must be afforded defendant. Defendant contends that this court must modify his sentences to run concurrently, suggesting that “this Court *** reduce each sentence to three years, making them
¶ 23 When a defendant is not properly admonished pursuant to
¶ 24 In this case, before the trial court accepted defendant‘s guilty plea in both cases, it admonished defendant that, because he was eligible for an extended-term sentence, he faced a prison term between one and six years.
III. CONCLUSION
¶ 26 For these reasons, we vacate the order sentencing defendant to consecutive terms of five years’ imprisonment in case Nos. 17-CF-1598 and 17-CF-2030 and remand this cause for resentencing in both cases.
¶ 27 Vacated and remanded.