*1 promise simply to Blair was a term of the asset sale Blair not a contract. The addendum —to which was party separate no contractual relation- create —could allega- ship Therefore, Blair. between Sexton and payments to Blair tions of Sexton’s counterclaim that its legal perpetual were or excessive fees constituted properly contract were also dismissed.
Conclusion judg- We reverse the court and affirm the dismissing ment of the circuit court Sexton’s amended against counterclaim Blair. reversed;
Appellate court circuit court affirmed. CHIEF JUSTICE BILANDICand JUSTICE HARRI- part in SON took no or consideration decision of this case.
(No. 78948. Appel- THE ILLINOIS, PEOPLE OF THE STATE OF Appellant. lee, JR., v. ZETTIE JONES, Opinion 1995. December filed *2 HARRISON, J., part. took no
HEIPLE, J., BILANDIC, joined by C.J., dissenting. Yuhas, Defender,
Daniel D. Deputy and Lawrence J. *3 Essig, Defender, Assistant of the of Ap- Office the State pellate Defender, Springfield, of for appellant. Ryan, Attorney General,
James E. of Springfield, Clary, Michael D. State’s Attorney, of Danville (Norbert Goetten, J. Robert J. Biderman and Leslie Hairston, of the Office of the State’s Attorneys Appel- Prosecutor, late of Springfield, counsel), for the People.
JUSTICE the opinion McMORROW delivered of the court: conclude, we appeal this consistent with our rul
ing in People Kilpatrick that the trial court is not authorized term to increase a the court reconsiders the criminal
imprisonment when originally imposed. In addition determine we authority a court has the reduce, on the sentence the trial appeal, court.
I Defendant, Jones, Jr., was of at- Zettie convicted murder, aggravated armed bat- tempted robbery, firearm, upon entry guilty plea a his of a with tery with defen- respect September 1991 incident which in Dan- dant shot and robbed convenience store clerk ville, Illinois. trial court sen- imposed The consecutive years’ imprisonment attempted of 25 for the tences robbery and armed convictions. murder a motion to subsequently Defendant filed withdraw Following a guilty plea and reconsider his his sentences. hearing, request court denied the to vacate However, granted court defen- plea. reconsider his The trial request dant’s sentences. when, it had committed error court determined admonishing during his guilty plea, the defendant might neglected to advise the defendant that he court error, Because of this receive consecutive sentences. attempted court vacated defendant’s sentences trial robbery. trial resentenced murder and armed The single years’ imprison- of 30 the defendant term to his murder conviction. respect attempted ment with new sentence was for defendant’s armed No robbery conviction. court’s appealed
The defendant from trial inter alla trial sentencing decision, arguing to increase the term court was not authorized when the trial years years from 25 to 30 imprisonment mur attempted for his resentenced the defendant court affirmed the der conviction. (271 264), and we decision court’s
371 (145 petition appeal allowed defendant’s leave Ill. 315(a)).
2d R.
II that defendant contends court erred of imprisonment when increased term with re- spect attempted years to his murder conviction from 25 years. agree. to 30 We
In Kilpatrick, we held that section 5 — 8— 1(c) (730 of the Unified Code of Corrections ILCS 5/5— 1(c) (West 1992)) permit does not a trial court 8 — increase imposed. a sentence after it has been In that case, initially the circuit court imposed two consecutive sentences of six and nine years’ imprisonment for the attempted home invasion and murder convictions, but these sentences upon vacated defen dant’s motion for resentencing reconsideration.
defendant, "single trial court a sentence” years’ review, of 15 imprisonment. Upon held we new sentence the trial court violated 8—1(c), section which a provides "motion 5 — made, reduce may a sentence may or the court reduce a motion, sentence without 30 days within after the However, imposed. sentence is may not increase added.) a sentence once it is imposed.” (Emphasis 730 8—1(c) (West 1992). ILCS 5/5 —
We reasoned that imposition trial court’s of a "single sentence” of years’ imprisonment was an "improper attempt! ] circumvent the clear and 8—1(c) express language of section of the Unified 5 — 442-43.) Code of (Kilpatrick, Corrections.” 2d at We noted that this section is consistent with the United Supreme States Court’s decision in North Carolina v.
Pearce 656, 395 U.S. 23 L. Ed. S. Ct. 2072, in which the Court stated due process may prohibit judge from imposing more severe sentence when the defendant has following been convicted *5 greater may penalize sentence
retrial because challenge right his conviction defendant’s Ill. 2d at 443. Kilpatrick, sentence. 8—1(c),
Bearing purpose in mind the of section 5 — in agreed appellate reasoning with the court’s we App. Rivera that consecutive single are not as a sentence under section sentences treated 1(c). Accordingly, 5— a trial court’s modification 8 — concurrently that are to served they of sentences so be consecutively justify rather than does not court’s in the terms of for each imprisonment increase 525.) (Rivera, Similarly, sentence. at single not an imposition permit sentence does years increase in the number of which defendant must for that sentence. concluded in Kil serve We 8—1(c) it interpreting that section so that patrick 5 — increasing trial from the defendant’s prevented the court term of lessened the risk that the defen imprisonment penalized be for his efforts to seek relief dant would alleged respect with errors. term imprisonment
The 30-year same trial court in the instant cause suffers from the in in Kil apparent Kilpatrick. infirmities that were As initially the present the trial court in case patrick, imposed Upon consecutive sentences. reconsidera two tion, however, the trial court discerned that it should have vacated imposed not consecutive sentences and to a The court the defendant them. trial then sentenced his longer imprisonment respect term of with one of regard to imposed no sentence with convictions Kilpatrick, such remaining conviction. As violates section imprisonment an increased term of 8—1(c). appellate court and the Accordingly, the 5 — term they when concluded that court were in error attempted murder of sentence for defendant’s upon conviction could be increased reconsideration. the court erred light conclusion of our at- for defendant’s imprisonment increasing the term years, from 25 conviction tempted murder sentence proper court to decide remains this attempted for his should receive the defendant which does not Although the defendant murder conviction. court, he in his brief to this this issue
directly address imposed by the imprisonment term of argues of discretion and should trial court an abuse was this rejected court appeal. reduced on lacks the reasoning that a argument, on 30- appeal to reduce not an year imposed by the circuit was our these mat- of discretion. We turn attention to abuse *6 ters. holding with appellate consider first the court’s
We reviewing power a to a sentence respect to court’s reduce that under Rule appeal. appellate on The court reasoned 615(b)(4), reviewing may a disturb a criminal court only in by the trial court two in sentence (1) statutory stances: either when the sentence exceeds (2) limits, sentence, although lawful, or the never when App. theless to an abuse of discretion. 271 Ill. amounts at 273. 3d court has long
It has been established that choosing the discretionary powers appropriate broad a should receive. It has been sentence defendant superior position in a emphasized that the trial court is weigh the and to credibility to assess the witnesses sentencing hearing. at the presented the evidence 422, 427, (1986), quoting v. 112 Ill. 2d (People Younger 492-93.) (1981), 482, La 88 Ill. Where People v. Pointe 2d the trial court is the by the sentence chosen within for the criminal statutory range permissible pertinent has been tried and offense for which the defendant reviewing disturb the charged, a court has the to only if the trial court abused its discretion in v.
the (People Hicks imposed. (1984), sentence it 101 Ill. 366, 375; People v. Godinez (1982), 47, 2d 54, v. 55; People Cox (1980), 268, 275; People v. Per 2d 154.) ruquet (1977), 149, Ill. reviewing 2d The court discretion, need not reach question the of abuse of but may proceed to a reduction of the sentence on appeal, where it is determined that by the sentence chosen the trial court was not authorized by (People v. Hooper law. (1989), 469, 498; Ill. Collins 2d 285-86.) precedent Ill. This supports appel late court’s initial determination trial court’s may decision disturbed upon only review when it either was unlawful or amounted to an abuse of discretion. court appellate adopted in the case present an ruling
additional prece which we find inconsistent with dent of this court. Specifically, 615(b)(4) observed that Rule "requires review, a court of having determined that an otherwise lawful sentence an discretion, constitutes abuse of the trial court’s to vacate that sentence and remand matter trial (271 imposition court for of proper sentence.” 273.) at The court stated that rule "does not au thorize a court of review select lesser some impose” that, and determined when the circuit court sentence, has in selecting abused its discretion always court must remand cause sentencing proceedings. further The ap *7 pellate power court concluded that the to select and impose granted a is solely exclusively and to court. 271 Ill. 3d at 274.
The appellate interpretation scope court’s of the of a reviewing power court’s to a criminal reduce appeal ruling is overly on an restrictive to fails give plain of language supreme content the our court
375 Rule this court. precedent conflict with and is in rules 615(b)(4) "On the review pertinent part, appeal states *** by imposed the ing may punishment court reduce (134 615(b)(4).) Rule Similarly, Ill. 2d R. the trial court.” 615(b)(1) has the reviewing power that a court states "reverse, affirm, from modify judgment or the or order (134 615(b)(1).) 2d R. the is taken.” Ill. appeal which according plain to their are to construed These rules 313) (see 309, (1984), Ill. 2d Pettit 101 language People v. in a that renders interpreted should not be fashion
and (Harris or v. Manor meaningless superfluous their terms 362-63). (1986), 350, 2d 111 Ill. Both Corp. Healthcare (b)(4) 615(b)(1) unambiguously clearly and Rules and and grant reviewing power modify court the the by the trial court. reduce criminal sentence interpretation adopted appellate The the court would by power to reduce deprive reviewing court of such thereby effectively and nul appeal, sentence on would 615(b)(1) 615(b)(4) both in the context lify Rules appellate review criminal sentences. precedent ruling upon court’s relied appellate which, analysis, support
of this court does not upon Perruquet v. appellate People court’s decision. Neither 268, (1977), (1980), 149, 2d 82 2d People Ill. v. Cox Ill. (1988), 291, v. Ill. 2d nor People O’Neal 13, is reviewing
Streit holds that a court imposed by to reduce a sentence without circuit once it has that the circuit court been determined ruling Perruquet, court’s was an abuse of discretion. 149, appellate 2d court court held
must find an abuse of the trial court’s discretion before may court reduce the defendant’s sentence 268, Cox, appeal. Similarly, on the court Ill. Streit, ruled that for that of judgment
could not substitute its could not reduce the sentence *8 trial merely reviewing court because the court would weighed have pertinent differently. factors O’Neal, In 291, this upon court relied Rule 615(b)(4) appellate conclude that the court had acted properly when it modified defendant’s sentences they such that would run concurrently rather than consecutively. This court reasoned as follows:
"Reviewing authority courts have the and under 615(b)(4) Supreme Court Rule a [citation] reduce cases, imposed by sentence trial court. a line of this consistently imposition court has held that the of sentence judicial is a matter of discretion and the standard of review to determine whether a is sentence excessive is whether the trial court abused that [Citations.] discretion. reasoning is, course, that the trial court inis position consider, alia, credibility, demeanor, best inter character, general environment, mentality, moral social age. However, habits and the mere [Citation.] fact that superior opportunity court has amake de- concerning disposition termination punishment final of a imply particular defendant does not that a imposed always just equitable. is [Citations.]
Accordingly,
reviewing
court will not substitute its
judgment
merely
for that
the trial court
because it
would
appropriate sentencing
have balanced the
factors
differently.
Rather, reviewing
[Citation.]
courts exercise
615(b)(4)
authority granted
cautiously,
under Rule
appellate
the scope
of an
court’s examination of a
the trial court is limited to whether
the record discloses that the trial court abused its discre
O’Neal,
tion.”
Based these this court in O’Neal found no error court’s decision that imposition trial court’s of consecutive sentences was excessive and appeal. should reduced on This court further discerned no error in the deci- appellate court’s impose sion to concurrent sentences the defendant’s ruling, convictions. In so specifically this court cited and to prior referred case law in which the O’Neal, appeal. sentence on had reduced defendant’s (1969), 42 Ill. v. Walcher citing People at to a term defendant’s death sentence (reducing 2d 159 was found penalty because the death imprisonment alcoholism); in view of the defendant’s to be excessive (appel Treadway People v. term of half by
late reduced *9 original sentence ground imprisonment on it not take into account inasmuch as did was excessive rehabilitation); v. People Gray potential for (1984), (consecutive, extended terms Ill. 3d 867 App. 121 not show evidence did imprisonment of reduced because v. necessary appropriate); People Nelson them to be or (term (1982), imprisonment 838 106 Ill. 3d of original was excessive by half where reduced mitigation). in view of matters similarly reaf
Other decisions of this court have 615(b)(4) authorizes principle firmed the that Rule of a criminal modification or reduction court’s (1994), v. 162 Ill. 2d (People sentence on Palmer appeal. 354, 359; (1993),
465, 487; 156 Ill. 2d People v. Turner 214, 228; (1987), People 118 2d v. People v. James Ill. 492; (1981), 482, People 88 Ill. 2d v. Gleckler
La Pointe (1980), 145, 162; (1979), 77 Ill. Lykins v. People 82 Ill. 2d (1977), 544, 35, 40; 69 Ill. 2d 2d v. Lambrechts People (1976), 485, 490; 559; People v. 64 Ill. 2d v. Butler People (1970), (1972), 170, 172; Hayes People Ill. 2d v. Eubank 52 383, (1968), 364, 41 394; Ill. 2d 46 Ill. 2d v. Nelson People 355-56.) 346, 368; (1968), In v. 39 Ill. Caldwell 2d People 615(b)(4) addition, to reduce this court has utilized Rule upon when it a criminal defendant’s review imposed by the trial court was decided that the sentence (1992), 149 Leger People was an abuse of discretion. v. 256; (1986), 355; v. 113 Ill. 2d People
Ill. 3d Saldivar 284; Gleckler, 82 Ill. (1986), 112 2d People Buggs Ill. 564; (1980), People v. 145; 79 Ill. 2d People
2d v. Carlson 378 People
Viser v. Harper (1975), 568; (1972), 62 Ill. 2d People v. Cannon 301-02; 296, (1971), Ill. 2d People v. Crews People 162; (1969), 60; 2d see also v. Morgan (1977), 1, (affirming appellate Ill. ground court’s reduction in defendant’s sentence on v. Jones excessive); it was (same). 311-12 light
In jurisprudence of this court and the 615(b)(1) plain language (b)(4), of Rules we conclude court of has review to reduce a defendant’s appeal sentence on it once has been determined court’s decision was unlawful or an abuse discretion. appellate Whether court should elect sentence, choose new rather than remand the resentencing court, matter by depends upon all surrounding of the particular circumstances each example, For parties may case. have no new or ad ditional evidence upon offer remand and the proof presented may to the trial relatively have been straightforward uncomplicated. such circum stances, may appropriate for the *10 impose judicial sentence rather than exhaust additional resources, as well as the resources of counsel the for defense, State and the expended by that would be order Saldivar, e.g., ing sentencing (See, a new hearing. 256.) re-emphasize We the to reduce a should be "cautiously sparingly” exercised and (O’Neal, 300), at but note that the authority to reduce a criminal remains an important and valuable tool in the court’s choice of rem edies when sentences the circuit court.
Turning case, present the we note initially 30-year the imprisonment by term of trial the regard court with attempted murder vacated, conviction must inasmuch as was an in viola- in defendant’s sentence increase improper 8—1(c) addition, In we Code. tion of section 5— 25-year sentences to reinstate the it appropriate find court; unlikely that it is imposed by the originally mat- sentences if the lesser impose trial court would Therefore, we resentencing. remanded for ter were the trial court’s record to determine whether review the original at sentenc- imposition 25-year sentences ing hearing an abuse of discretion. constituted
The record that defendant was convicted shows Danville, Pantry in Finley, Super Todd clerk shooting Illinois, 1991, at 1:30 approximately on September at evidence According a.m. to the State’s offer of defendant hearing plead guilty, in which defendant to take Finley, gunpoint, and at entered the store told register. When Finley all of out of the cash money demand, complied Finley with this defendant ordered money Finley attempted take all of out of the safe. Finley
to do but defendant became frustrated so acting enough. quickly was not Defendant continued to and, moments, money demand more after few more Finley’s in entered left Finley shot the face. bullet neck, lodged in his and caus- jaw requiring surgery damage disability. It was ing permanent established hearing had a crim- sentencing at the that the defendant juvenile inal as a as both an adult. record hearing, own at the defen- his defense mother, testimony Othy his Mae dant offered She testified that defendant had attended Woodfork. classes because he is "a real slow
special education She said that this caused defendant to be learner.” as to attend embarrassed and a result he often failed younger and had difficulties social school when he was his peers. with interactions that he com-
Defendant testified his own behalf friends had caused mitted the offenses because some *11 get "high” drugs, suggested him to on that he "make given hit” and gun had him a to commit the offenses. expressed Defendant for remorse what he had done and stated that he did not he believe would have committed the crimes if he had not been under influence of drugs if companions suggested and his had it not to him.
The trial court’s selection of years’ imprisonment was not an abuse of plainly discretion. The transcript thoroughly shows that the trial court considered the ev- presented weighed idence appropriate factors influencing example, decision. For judge telling” noted that the "most factor imposing sentence was the circumstance that defendant’s conduct physical caused serious harm to the provocation victim there had been no for the attack. The court also took into account the defendant’s prior of criminal history activity, including offenses such as residential burglary expressed and theft. The court the view that the sentence "must necessary deter offense,” from others commission of the of an type same noting that convenience stores that continuously are open, persons frequent and the who early them morning particularly hours are vulnerable to criminal acts.
The court noted the defendant’s contention that he had been under of drugs alcohol, influence but further observed that there "no you was evidence that were forced to consume either substance.” The court also looked to the circumstances the defendant had given differing accounts with respect to how he came attack, into possession weapon during of the he used regard gun during and with what caused the fire the incident. The court stated that believed *** offenses were "a deal planned period some time.”
The court concluded that defendant had committed *12 in our "cannot be tolerated "very serious offenses” "little, if had been It there reasoned society.” mitigation. of by way to the court” anything, shown necessary was substantial court stated that and to remind from the defendant protect public the The court stated of the conduct. others of seriousness be neces- period of incarceration would that a maximum any of rehabilitation.” sary possibility "for trial court at light these of the of observations hearing, the record fails to demonstrate trial court considered the an abuse of discretion. The crime, significant of the defendant’s seriousness victim, upon had inflicted and injuries he physical work vulnerability shop those who special morning The court also took into ac- during early hours. fail- past criminal record and his
count the defendant’s forthright in to the court. The ure to be his accounts explanation court further considered the defendant’s drugs that he been under the influence of had him companions and that his had influenced alcohol Nevertheless, weighing slight commit the crimes. mitigating against aggravating evidence the substantial circumstances, impose lengthy term court chose stating necessary imprisonment, that it to ensure was the defendant’s rehabilitation. stated, judgment appel- the reasons of the
For judgment late court is reversed. The of the circuit court impose is affirmed but modified to concurrent sentences attempted years’ imprisonment of 25 robbery murder and armed convictions. reversed;
Appellate judgment as judgment circuit court modified. affirmed the consider- part JUSTICE HARRISON took no ation or decision this case. HEIPLE, dissenting:
JUSTICE I respectfully dissent for the reasons my stated in dissent in Chief Justice Bilandic’s dissent v. Kilpatrick 448-49.
CHIEF joins BILANDIC in this dissent. JUSTICE
(No. 73235. ILLINOIS, THE PEOPLE OF THE STATE OF Appel- *13 lee, JANES, v. RONALD J. Appellant.
Opinion Rehearing December denied filed 1995. January 29, 1996.