THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. DEDRIC T. MOORE, Defendant-Appellant.
Fourth District No. 4-03-0790
Fourth District
September 26, 2005
1090
COOK, P.J., dissenting.
Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender‘s Office, of Springfield, for appellant.
Julia Rietz, State‘s Attorney, of Champaign (Norbert J. Goetten, Robert J. Biderman, and Thomas R. Dodegge, all of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
Defendant, Dedric T. Moore, appeals from a July 2003 order of the trial court resentencing him to a total of 75 years’ imprisonment. Defendant argues that the conversion of formerly concurrent sentences to consecutive sentences constitutes an improper increase in his sentence. We affirm.
I. BACKGROUND
In March 1999, a jury convicted defendant of attempt (first degree murder) (
In May 1999, defendant appealed the convictions and sentences, and this court affirmed in People v. Moore, No. 4-99-0499 (January 11, 2002) (unpublished order under Supreme Court Rule 23). Thereafter, defendant filed a petition for leave to appeal. The Supreme Court of Illinois denied the petition but ordered this court to vacate the judgment and to reconsider in light of People v. Swift, 202 Ill. 2d 378, 392, 781 N.E.2d 292, 300 (2002). People v. Moore, 202 Ill. 2d 688 (2003) (nonprecedential supervisory order).
Upon reconsideration, this court vacated defendant‘s extended-term sentence and remanded for retrial or resentencing аt the election of the State pursuant to
This appeal followed.
II. ANALYSIS
On appeal, defendant argues that by ordering formerly concurrent terms to run consecutively, the trial court improperly increased his
Typically, failure to raise a sentencing issue in a postsentеncing motion forfeits the issue on appeal. People v. Reed, 177 Ill. 2d 389, 393, 686 N.E.2d 584, 586 (1997). However, since the imposition of more severe sentences upon remand would violate defendant‘s fundamental rights, this court will review the sentences at issue to determine if the trial court erroneously increased defendant‘s sentence under section 5-5-4(a) of the Unified Code. See 134 Ill. 2d R. 615. Because the question presented is one of law, our review is de novo. Woods v. Cole, 181 Ill. 2d 512, 516, 693 N.E.2d 333, 335 (1998).
As defendant correctly points out,
Illinois courts have held the length of the individual sentence, rather than the aggregate of several terms, is critical in determining whether a sentence was improperly increased under
Similarly here, upon remand, the court reduced the 60-year extended-term sentences for attempt and home invasion to 30-year terms. Clearly, a 30-year prison term is less than a 60-year term. The aggregate of 75 years remains unchanged by the imposition of the 30-year home-invasion term, consecutive to the 30-year aggravated-arson
This court further notes that the cases relied upon by defendant are distinguishable. In People v. Kilpatrick, 167 Ill. 2d 439, 657 N.E.2d 1005 (1995), the trial court originally sentenced the defendant tо consecutive sentences of six years for home invasion and nine years for attempted murder. Following the defendant‘s motion to reconsider, the court sentenced the defendant to a single 15-year sentence for both offenses. Kilpatrick, 167 Ill. 2d at 441, 657 N.E.2d at 1006. The supreme court reversed, holding that “although the total number of years defendant would be incarcerated was unchanged, consecutive sentences are not treated as a single sentence. Thus, the circuit court‘s action effectively increased defendant‘s sentences for each offense to 15 years.” People v. Carney, 196 Ill. 2d 518, 530, 752 N.E.2d 1137, 1144 (2001) (interpreting Kilpatrick).
In the present case, the trial court did not attempt to convert more than one consecutive sentence into a single, longer sentence. In fact, the sentences for residential burglary, aggravated criminal sexual abuse, and aggravated arson remained unchanged, while the sentences for home invasion and attempt were both reduced from 60-year terms to 30-year terms. Therefore, Kilpatrick does not support defendant‘s argument.
People v. Muellner, 70 Ill. App. 3d 671, 388 N.E.2d 851 (1979) (Fifth District), is also distinguishable. The defendant there was convicted of two counts of rape and two counts of deviate sexual assault and was sentenced to indeterminate sentences of four to eight years in prison on each count. Several days later, the trial court, upon the State‘s motion for rehearing, altered the sentence by ordering the terms imposed for rape to run consecutively to those imposed for deviate sexual assault. Muellner, 70 Ill. App. 3d at 677, 388 N.E.2d at 856-57. The appellate court affirmed the judgment as modified, vacating the second sentence and reinstating the sentence originally imposed because the resentence increased the оverall amount of time served from 4 to 8 years to 8 to 16 years. Muellner, 70 Ill. App. 3d at 683-84, 388 N.E.2d at 861.
Here, no such increase occurred. Therefore, Muellner also does not support defendant‘s position.
As defendant‘s individual terms were reduced and the aggregate remained unchanged, the trial court‘s resentence complied with sec-
III. CONCLUSION
For the reasons stated herein, we affirm defendant‘s sentence.
Affirmed.
McCULLOUGH, J., concurs.
PRESIDING JUSTICE COOK, dissenting:
The key components of the May 1999 sentence were the 60-year extended term for attempt (first degree murder), the 60-year extended term for home invasion, and the consecutive 15-year prison term for residential burglary, which produced the 75-year total. We affirmed, one judge dissenting, but the supreme court told us we were wrong, that extended-term sentences could not be imposed by a judge in this case. Extended-term sentencing, requiring the factual finding that the crime was brutal and heinous, must be proved to a jury beyond a reasonable doubt. Swift, 202 Ill. 2d at 392, 781 N.E.2d at 300, citing Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000).
When the case returned to the trial court, that cоurt looked for another way to impose its 75-year sentence. The court did so by imposing the maximum 30-year nonextended sentence for home invasion, the previous 30-year sentence for aggravated arson, and the previous 15-year sentence for residential burglary, this time exercising its discretion to make all those sentences consecutive. The court may impose discretionary consecutive sentences if “it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.”
This case does not involve sentences imposed in violation of section 5-8-4(a), requiring consecutive sentenсes which are said to be void. People v. Garcia, 179 Ill. 2d 55, 73, 688 N.E.2d 57, 65 (1997). This case involves a situation where the trial court had properly chosen to impose concurrent sentences, but on remand changed its mind to impose discretionary consecutive sentenсes, which it had not previously chosen to impose.
Imposition of consecutive sentences has produced difficulties. In People v. Todd, 263 Ill. App. 3d 435, 636 N.E.2d 114 (1994), abrogated in Kilpatrick, 167 Ill. 2d 439, 657 N.E.2d 1005, the defendant was convicted of three counts of criminal sexual assault (
“A defendant should not have to run the risk that a challenge to his consecutive sentencing will result in a resentencing of increased length. Such a risk would have an improper chilling effect on a defendant‘s decision to challenge a consecutive sentence as imposed by the trial court and could violate fundamental principles of due process of law.” Kilpatrick, 167 Ill. 2d at 447, 657 N.E.2d at 1008.
I read Kilpatrick to express real concern about increased sentences on remand, imposing strict rules even where there is only a technical violation and the total sentence is not increased. I do not read Kilpatrick as endorsing a rule that would somehow tolerate an increase in the total sentence on remand. Kilpatrick quoted with approval the language from Muellner that ” ‘the resentencing of defendant to consecutive terms after originally imposing concurrent sentences was in the very real sense an increase in the length of his sentence because his earliest possible parole release will necessarily be delayed to a later date in time.’ ” Kilpatrick, 167 Ill. 2d at 444, 657 N.E.2d at 1007, quoting Muellner, 70 Ill. App. 3d at 683, 388 N.E.2d at 861.
I do not understand how Sanders can approve three discretionary consecutive 10-year terms in place of three concurrent 25-year terms. How can an increase in the total sentence from 25 years to 30 years cоmply with the broad directive that the court “shall not impose a new sentence *** which is more severe than the prior sentence” (
In the prеsent case, the total sentence was unchanged. Under Kilpatrick, however, that is not a safe harbor. After remand, the trial court made findings that it had not previously made and imposed a sentence that it had not previously imposed. Given the strict rules applied by Kilpatrick, I conclude that a more severe sentence was improperly imposed following remand in this case.