THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES MELVIN, Defendant-Appellant.
No. 2-13-1005
Appellate Court of Illinois, Second District
July 16, 2015
2015 IL App (2d) 131005
JUSTICE McLAREN delivered the judgment of the court, with opinion. Presiding Justice Schostok and Justice Birkett concurred in the judgment and opinion.
Appeal from the Circuit Court of Kane County, No. 09-CF-653; the Hon. Timothy Q. Sheldon and the Hon. James C. Hallock, Judges, presiding. Judgment: Vacated and remanded.
Joseph H. McMahon, State‘s Attorney, of St. Charles (Lawrence M. Bauer and David A. Bernhard, both of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
¶ 1 Defendant, James Melvin, entered a negotiated guilty plea to attempted predatory criminal sexual assault of a child (
¶ 2 Defendant was originally charged with 1 count of predatory criminal sexual assault of a child (
¶ 3 As defendant asserts, his sentence was thus the product of a double enhancement. “Double enhancement occurs when a factor already used to enhance an offense or penalty is reused to subject a defendant to a further enhanced offense or penalty.” People v. Thomas, 171 Ill. 2d 207, 223 (1996). Here, the specific factor so used (and reused) was defendant‘s prior Class X felony. Per the parties’ agreement, as the State articulated it, that offense (along with defendant‘s prior Class 2 felony) subjected him to the enhanced penalty of a Class X sentence, and then it also subjected him to the further enhanced penalty of an extended-term sentence. “This is the very definition of a double enhancement.” People v. Milka, 336 Ill. App. 3d 206, 236 (2003), aff‘d, 211 Ill. 2d 150 (2004) (victim‘s age, as element of predicate felony, exposed defendant to “a sentence for felony murder” and then “an extended-term sentence for felony murder“); see also People v. Griham, 399 Ill. App. 3d 1169, 1172 (2010) (double enhancement where same prior felony enhanced present offense from Class 3 felony to Class 2 felony and then subjected defendant to Class X sentencing). Thus, the Class X, extended-term sentence, to
¶ 4 The State asserts that this case is distinguishable from cases like Griham, because here defendant‘s prior offense was used only “to enhance the punishment, not the class of the [present] offense.” But this assertion ignores the supreme court‘s definition of a double enhancement: “when a factor already used to enhance an offense or penalty is reused to subject a defendant to a further enhanced offense or penalty.” (Emphases added.) Thomas, 171 Ill. 2d at 223. “For example, the same factor has been used to double enhance an offense [citation], a punishment [citation], or some combination of the two [citation].” Id. at 223-24. Thus, a double enhancement did not require the enhancement of the offense first and then the punishment; it is sufficient that the punishment was enhanced twice.
¶ 5 The State responds, however, that defendant‘s argument is akin to the one rejected in Thomas. There, as here, the defendant was convicted of a Class 1 felony, and two prior offenses subjected him to a Class X sentence of 6 to 30 years’ imprisonment. Then, relying in aggravation on those same prior offenses, the trial court sentenced him to 15 years’ imprisonment. The defendant argued that the trial court‘s reliance in aggravation constituted a second enhancement. “However,” the supreme court said, “this ‘second use’ of defendant‘s prior convictions does not constitute an enhancement, because the discretionary act of a sentencing court in fashioning a particular sentence tailored to the needs of society and the defendant, within the available parameters, is a requisite part of every individualized sentencing determination. [Citation.] The judicial exercise of this discretion, in fashioning an appropriate sentence within the framework provided by the legislature, is not properly understood as an ‘enhancement.’ ” Id. at 224-25.
¶ 6 As defendant replies, Thomas is easily distinguishable. There, the defendant‘s prior offenses increased, only once, the sentencing range within which the trial court could exercise its discretion. They increased the range to 6 to 30 years’ imprisonment, and the trial court, though relying on those offenses again, imposed a sentence within that range and thus within its own discretion. Here, however, if defendant‘s prior offenses had merely increased the sentencing range to 6 to 30 years’ imprisonment, the trial court would have had no discretion to impose a sentence of 60 years. That sentence would have been within its discretion only upon the second increase of the sentencing range, to up to 60 years. So, in sum: whereas in Thomas the sentence was authorized after only one use of the prior offenses, here the sentence was purportedly authorized after only the second use. As a result, here the sentence was not authorized at all.
¶ 7 A trial court may not impose an unauthorized sentence, even if the parties agree to it. See People v. Hare, 315 Ill. App. 3d 606, 609 (2000). Thus, defendant‘s 60-year sentence cannot stand. Defendant suggests that we simply reduce his sentence to the nonextended Class X maximum of 30 years, but obviously we cannot do so without substantially altering an essential provision of the parties’ agreement. Accordingly, we must vacate the entire agreement. See id. at 609-11 (court could not salvage agreement by increasing unauthorized four-year prison term to Class X minimum of six years). Per defendant‘s alternative suggestion, we vacate the trial court‘s judgment and remand the cause so that defendant may plead anew to whatever charges the State decides to reinstate. However, we recognize the importance of plea agreements. Thus, if, upon receiving our opinion, and after consulting with
¶ 8 The judgment of the circuit court of Kane County is vacated, and the cause is remanded with directions.
¶ 9 Vacated and remanded.