People v. Dover
Case Date: 04/12/2000
Court: 2nd District Appellate
Docket No: 2-98-0711
People v. Dover, No. 2-98-07112nd District, 12 April 2000
JUSTICE HUTCHINSON delivered the opinion of the court: Following a partially negotiated plea agreement, defendant, Michael T. Dover, pleaded guilty to second-degree murder (720ILCS 5/9--2(a)(1) (West 1994)) and concealment of a homicidal death (concealment) (720 ILCS 5/9--3.1(a) (West 1994)).In exchange for the plea, the State agreed that it would dismiss the previously filed indictment charging defendant withfirst-degree murder (720 ILCS 5/9--1(a)(2) (West 1994)), would not request an extended-term sentence, and wouldrecommend only a "substantial" prison sentence. The trial court sentenced defendant to 15 years' imprisonment for theoffense of second-degree murder and a consecutive term of 5 years' imprisonment for the offense of concealment. The trialcourt subsequently denied defendant's motion to reconsider his sentence. On appeal, this court is called upon to determine(1) whether we have jurisdiction to entertain this appeal and, if so, (2) whether the trial court erred when it sentenceddefendant on the charge of concealment. We conclude that this court does have jurisdiction, and we vacate the sentencesimposed by the circuit court and remand for resentencing. In March 1996 defendant and Marcie Evans were indicted for the first-degree murder (720 ILCS 5/9--1(a)(2) (West 1994))of the victim, Jeff Suski. Another codefendant, Nicole Downing, was indicted for concealment. After Downing pleadedguilty to concealment and received probation with 90 days in jail, a superseding indictment charged defendant with bothfirst-degree murder and concealment. On November 18, 1997, after voir dire commenced but before a jury was seated, theparties indicated to the trial court that they had reached an agreement. Defense counsel represented to the trial court: "The agreement is in this case that [defendant] would plead guilty to the offense of second degree murder as stated inCount One of this information that we have before us. He will further plead guilty to Count Two, which isconcealment of a homicidal death. Your Honor, these would be open pleas which would necessitate a sentencing hearing. The [S]tate has promised onlythat in consideration for this--for pleas to Count One and Count Two, they would dismiss the Bill of Indictmentpreviously filed, including, obviously, the first degree murder count. They would agree that there is no extended termapplication which would apply to this plea. And further, they would agree that at sentencing they would state thatthey seek substantial prison time." The State also noted for the trial court, "based upon the statute[,] that the sentence would be consecutive; that theconcealment of the homicidal death is a mandatory consecutive sentence pursuant to the statute and that's a Class Threefelony." The trial court questioned defendant regarding his ability to understand the procedures for pleading guilty. The trial courtalso explained to defendant the possible penalties for the offense of second-degree murder and concealment. With respect tothe offense of concealment, the trial court stated that it required a consecutive sentence. Defendant indicated to the trialcourt that he understood its admonitions. The State next gave the factual basis for defendant's guilty plea. The trial court found that defendant understood the charges,consequences, and possible penalties of sentencing and fines and that defendant freely, knowingly, and voluntarily waivedhis rights. The trial court further found that a factual basis existed to support the convictions and entered judgment as toeach count. Thereafter, the trial court ordered a presentence investigation report. In February 1998 the trial court conducted hearings on defendant's sentencing issues. The trial court heard testimony inaggravation and mitigation. At a hearing conducted on March 2, 1998, the trial court announced its sentencing decision.The trial court discussed defendant's presentence investigation report; testimony from family members of the victim anddefendant; expert testimony regarding defendant's mental state; arguments made by both counsel; and the statutory factorsin mitigation and aggravation. The trial court noted that defendant had a negligible prior criminal record that includedoffenses for criminal damage to property, a conviction of driving under the influence, and minor traffic offenses. The trialcourt also noted defendant's alcohol and substance abuse, his work history, his violent nature, his mental state, the potentialfor rehabilitation, and defendant's involvement in the offense. The trial court proceeded: "[P]erhaps most important, involving *** defendant and the victim, was what occurred on the day that [the victim]died. [Defendant] has *** stated that he was either upstairs or downstairs at the time when [the victim] was strangled.The question of whether he hit and wrestled the victim or just hit the victim was also presented. Evidence waspresented that he tied up the victim or helped tie up the victim. There is no dispute as to *** defendant's involvementwith actively concealing [the victim's] body. Whatever [defendant's] exact role in the victim's death was, it is clear that he was legally accountable for the actionsof others. *** [H]e actively participated and legally, actively aided in the death of [the victim]. This was a beating. A concussion resulted. The deceased died from suffocation. There is a factual basis forstrangulation. A death of this type is particularly personal. It is a hands-on affair. It is one that involves a personal decision to endthe life of another person. * * * *** [T]he seriousness of the offense is the most important factor, not necessarily the lack of other aggravating factors,nor the presence of mitigating factors, which in fact the defense *** has presented. Considering all the factors ***, I find in this case that probation would deprecate the seriousness of *** defendant'sconduct and would be inconsistent with the ends of justice." The trial court sentenced defendant to 15 years' imprisonment for the offense of second-degree murder and 5 years'imprisonment for the offense of concealment, the sentences to run consecutively. The trial court next advised defendant of his rights to appeal. The trial court stated: "You have the right to appeal the sentence which I have entered today. But if you wish to do so, you must file awritten motion within 30 days asking me to reconsider the sentence. *** *** [Y]ou also have the right to appeal your plea of guilty. If you wish to do that, you must file a motion within 30days asking that your plea of guilty be withdrawn or thrown out of court, in a sense, to allow you to continue with theplea of not guilty to the charge of first degree murder. *** If you do not file either of these two motions within 30 days, you are giving up your rights to appeal both the sentenceand your plea of guilty. If you did file a motion to withdraw your plea of guilty and that were granted, the State could then prosecute you forthe charge of first degree murder without any agreement as to what the sentence would be if you were later foundguilty or if you later plead guilty to that offense." On March 4, 1998, defendant filed a motion to reconsider sentence. The record reflects that, on March 17, 1998,defendant's counsel filed an attorney certificate pursuant to Supreme Court Rule 604(d) (145 Ill. 2d R. 604 (d)). Theattorney certificate stated that the trial court sentenced defendant to 15 years' imprisonment for the offense of second-degree murder and 5 years' imprisonment for the offense of concealment, "to be served consecutively as mandated bystatute." The attorney certificate also stated that defense counsel had "consulted with the defendant in person to ascertain hiscontentions of error in the sentences imposed by the court," and they agreed that no amendments to the motion werenecessary for an adequate presentation of the defects in the proceedings. The certificate does not indicate, however, the dateon which defense counsel consulted with defendant to ascertain his claim of error in sentencing. Also on March 17, 1998,the trial court conducted a hearing on defendant's motion to reconsider his sentence. Defendant argued, inter alia, that thesentences were excessive, the trial court failed to consider all of the mitigating factors, and that it considered improperfactors in aggravation. The trial court responded: "[Defendant] was characterized as being passive. But he was much more active than what the defense would argue.He was not the individual *** that actually strangled [the victim]. But by his own account, and it varied depending onwhen he spoke to someone, whether he was down in the basement at the time that the victim was actually strangled.And certainly he had the opportunity to stop what was going on from, his own point of view, and yet he chose not todo so. But prior to that time he was actively involved. There was also evidence that I commented upon that was brought out concerning prior discussions by NicoleDowning with *** defendant's mother and what was going to be done to [the victim], and the motives ***. That'swhat was being used to tie [defendant]. The same evidence tying [defendant] into this." The trial court denied defendant's motion to reconsider and reiterated its instructions for defendant should he wish toappeal: "[I]f you wish to appeal the sentence that I have imposed you have the duty to file a notice of appeal." Defendant timely appeals. Before addressing the merits of defendant's appeal, the State contends that defendant is not entitled to challenge hissentence, based upon the decisions of our supreme court in People v. Evans, 174 Ill. 2d 320 (1996), and People v. Linder,186 Ill. 2d 67 (1999). The State argues that, because his sentence was entered as part of a negotiated guilty plea, defendantwas bound to file a motion to withdraw the negotiated guilty plea. Because defendant did not do so, the State maintains, heis precluded from challenging his sentence on appeal. In Evans, the defendants pleaded guilty to certain charges in return for specific sentences and the dismissal of other pendingcharges. They appealed their sentences without moving to withdraw their guilty pleas. Our supreme court applied theprinciples of contract law to the plea bargain and stated, "[U]nder these circumstances, the guilty plea and the sentence 'gohand in hand' as material elements of the plea bargain." Evans, 174 Ill. 2d at 332. The Evans court held that, "following theentry of judgment on a negotiated guilty plea, even if a defendant wants to challenge only [her or] his sentence, [she or] hemust move to withdraw the guilty plea and vacate the judgment." Evans, 174 Ill. 2d at 332. Following the filing of Evans, reviewing courts of Illinois, including our supreme court, were fraught with appeals thatcontinually and consistently requested appellate review of a trial court's ruling on a defendant's motion to reconsider thetrial court's discretion in the imposition of a sentence subsequent to either an open plea of guilty or a type of negotiatedguilty plea. See Linder, 186 Ill. 2d at 75 (Freeman, C.J., specially concurring). In Linder, our supreme court augmented the rule announced in Evans to include challenges to a trial court's ruling on adefendant's motion to reconsider sentence when the plea agreement called for a sentencing range or cap. Linder, 186 Ill. 2dat 74. Thus, a defendant who agrees to plead guilty in exchange for the State's recommendation of a sentencing cap(notwithstanding whether charges are dismissed or reduced) may not move the trial court to reconsider a sentence withinthat cap without also moving to withdraw the guilty plea. Linder, 186 Ill. 2d at 74. At first blush, the present case appears to fall within the scope of Evans and Linder. However, a careful reading of oursupreme court precedent decided in the interim of Evans and Linder leads us to determine that the Evans-Linder doctrine isinapplicable to the present case. In People v. Williams, 179 Ill. 2d 331 (1997), our supreme court held that a statutory challenge was not barred by Evans. InWilliams, the defendant and the State entered into an agreement whereby the defendant would plead guilty to the offense ofretail theft; in exchange, the State agreed to drop a charge of burglary and recommend a sentencing cap. The trial courtaccepted the defendant's plea and sentenced him to 3 years' imprisonment, followed by 40 months' probation. Thedefendant moved the trial court to reconsider the sentence, contending that the trial court violated statutory authority inimposing the sentence. The defendant did not file a motion to withdraw his guilty plea. Following a hearing on thedefendant's motion to reconsider sentence, the trial court reduced the term of probation but denied the remainder of themotion. The appellate court affirmed. See People v. Williams, 284 Ill. App. 3d 681 (1996). On review to the supreme court, the Statecontended that, because the defendant failed to file a motion to withdraw his guilty plea pursuant to Evans, he wasprecluded from challenging the sentence. The Williams court distinguished Evans and noted that, in Evans, the defendants'sentences were within statutory limits and the defendants asserted only that their sentences were excessive. On the contrary,the defendant in Williams did not challenge his sentence as excessive but, rather, challenged the trial court's statutoryauthority to impose the sentence he received. The Williams court held that Evans was inapplicable and could not serve tobar the defendant's claim on appeal. Williams, 179 Ill. 2d at 332-33. Our supreme court next reviewed People v. Wilson, 181 Ill. 2d 409 (1998). In Wilson, the defendant entered a negotiatedplea of guilty to various offenses. In exchange, the State agreed to nol-pros one charge and recommend a sentence cap ofnine years' imprisonment for the other charges. The trial court accepted the plea agreement and imposed concurrentsentences of nine years' imprisonment. Defendant appealed. On appeal to this court, we distinguished Evans in that thedefendants in Evans agreed to specific sentences in exchange for their guilty pleas and the trial courts exercised nodiscretion in sentencing the defendants. We thus held that, because the trial court exercised discretion to determine theappropriate sentence for the defendant, the defendant could, without moving to withdraw his plea, raise the issue on appealas to whether the trial court abused its discretion when it sentenced the defendant. People v. Wilson, 286 Ill. App. 3d 169,172-73 (1997). Our supreme court affirmed but found Evans inapplicable to the resolution of the controversy. Relying on its rationale andholding of Williams, the Wilson court determined that the defendant's claim was not barred, notwithstanding the defendant'sfailure to move to withdraw his guilty plea. Wilson's claim could be considered on appeal because the issue was whetherthe trial court violated statutory requirements in its imposition of the defendant's sentence and not merely a claim as to theexcessiveness of the defendant's sentence. Wilson, 181 Ill. 2d at 412-13. The supreme court further found that, "underWilliams, a challenge to a trial court's statutory authority to impose a particular sentence is not waived when a defendantfails to withdraw [her or] his guilty plea and vacate the judgment." Wilson, 181 Ill. 2d at 413. The issue in People v. Shirley, 181 Ill. 2d 359 (1998), involved the application of the requirements of Supreme Court Rule604(d) (145 Ill. 2d R. 604(d)) when a defendant who pleaded guilty following a negotiated plea agreement subsequentlyappealed the sentence. The State argued that, because the defendant failed to withdraw his plea in its entirety, the Evans ruleprecluded him from maintaining his appeal. Our supreme court found Evans inapplicable and declined to address the meritsof the State's argument because its resolution was not required for the disposition of the issue. Shirley, 181 Ill. 2d at 371-72. Lastly, in People v. Clark, 183 Ill. 2d 261 (1998), the defendant was charged with one count of home invasion. However,during the time the defendant was released on his own recognizance, he committed other offenses in the State of Missouriand received a term of imprisonment there. The defendant and the State then entered into an agreement whereby thedefendant would plead guilty to a charge of home invasion; in exchange, the State agreed to recommend a six-year term ofimprisonment to the trial court. The only question left unresolved was whether the defendant would be subject to astatutorily mandated consecutive sentence. The trial court ultimately determined that the particular statute mandated asentence that was consecutive to the defendant's sentence imposed by the court in Missouri. The defendant filed a motion toreconsider, contending that the particular statute did not mandate consecutive sentencing; the trial court denied thedefendant's motion. Although the defendant failed to file a motion to withdraw his guilty plea, the supreme court addressed the merits of hisappeal. One of the issues on appeal to the supreme court was whether the defendant's plea constituted an open plea asopposed to a negotiated plea. The supreme court determined that, because the defendant's plea was given in exchange for aspecific sentence, it was a fully negotiated plea akin to Evans, regardless of whether the statute mandated a consecutivesentence. Clark, 183 Ill. 2d at 268. Ultimately, though, the Clark court remanded the matter because the trial courterroneously instructed the defendant regarding the proper postplea motion he should file. In each of these four cases, the defendants apparently failed to move to withdraw their guilty pleas. In each of these fourcases, our supreme court permitted review. Based upon our review of supreme court precedent, we conclude that, when adefendant challenges only the duration of the sentence imposed by a trial court, the Evans-Linder doctrine applies and,unless the defendant moves to withdraw the guilty plea, the reviewing court may lack jurisdiction to hear the appeal. Weunderscore the word "may" in the previous sentence merely to emphasize our adherence to our supreme court's proscriptionagainst rendering an advisory opinion. See Berlin v. Sarah Bush Lincoln Health Center, 179 Ill. 2d 1, 8 (1997). Because anydetermination in the present case as to whether defendant, despite his failure to move to withdraw his guilty plea, would beentitled to challenge the excessiveness of his sentence would be purely advisory, we decline any further invitation toaddress it. But see People v. Lumzy, No. 85313 (Ill. March 23, 2000). We also conclude that, pursuant to Williams, when adefendant challenges a trial court's statutory authority to impose a sentence, Evans and Linder do not apply, and thereviewing court has jurisdiction to entertain the defendant's appeal, even though the defendant fails to move to withdrawthe guilty plea. See Williams, 179 Ill. 2d at 333; see also Wilson, 181 Ill. 2d at 413. In the present case, defendant entered a partially negotiated plea of guilty to one count of second-degree murder and onecount of concealment. In return, the State would dismiss the indictment for first-degree murder, would not request anextended term, and would request only a "substantial" sentence. The State informed the trial court that the statute mandateda consecutive sentence for defendant because he was also convicted of second-degree murder. The trial court agreed andinformed defendant of the statutorily mandated consecutive nature of the sentence. The trial court subsequently sentenceddefendant to 5 years' imprisonment for the offense of concealment consecutive to the 15 years' imprisonment for theoffense of second-degree murder. Defendant now appeals, challenging not only the duration of the sentence imposed for the charge of concealment but alsothe trial court's alleged misapprehension of its statutory authority to impose either a concurrent or consecutive sentence forthe offense of concealment. In light of the Williams decision, we find that Evans and Linder are inapplicable to the presentcase and do not bar defendant's appeal of his sentence. According to the reasoning enunciated in Williams, defendant'sclaim of improper sentencing by the trial court is not barred and can be considered regardless of whether defendantcomplied with the requirements of Evans and Linder. Accordingly, defendant's challenge to the trial court's statutoryauthority to impose a mandatory consecutive sentence is not waived, despite defendant's failure to move to withdraw hisguilty plea and vacate the judgment. Therefore, we will address the merits of defendant's claim of improper sentencing. Defendant contends that the trial courterred in its belief that defendant's sentence for the offense of concealment must run consecutive to defendant's sentence forthe offense of second-degree murder. During the November 1997 hearing on defendant's guilty plea, the trial courtadmonished defendant that the sentence for concealment was a mandatory consecutive sentence. At sentencing, the trialcourt later reiterated its understanding of the statute when it stated, "[b]y law these sentences must run consecutively." Section 9--3.1 of the Criminal Code of 1961 (720 ILCS 5/9--3.1 West 1998)) states in pertinent part: "If a person convicted under this Section is also convicted of first degree murder, second degree murder orinvoluntary manslaughter, the penalty under this Section shall be imposed separately and in addition to the penalty forfirst degree murder, second degree murder or involuntary manslaughter." 720 ILCS 5/9--3.1 (West 1998). The gravamen of defendant's claim is whether the requirement that the penalty "be imposed separately and in addition to"that for the second-degree murder means that the offense is not merged in the homicide offense and requires a separatesentence, or a sentence consecutive to the second-degree murder sentence must be imposed. This issue was addressed andresolved in People v. Schlemm, 82 Ill. App. 3d 639 (1980). In Schlemm, the reviewing court noted that "[t]o give the wordsthe first construction makes use of the words 'in addition to' redundant because the word 'separately' is sufficient to indicatethat the convictions are not merged." Schlemm, 82 Ill. App. 3d at 650. The Schlemm court then observed that section 5--8--4of the Unified Code of Corrections (Ill. Rev. Stat. 1991, ch. 38, par. 1005--8--4) comprehensively provided for theimposition of concurrent and consecutive sentences and concluded that, "had the legislature wished to mandate consecutivesentences for other offenses, it would have so provided." Schlemm, 82 Ill. App. 3d at 650. Pursuant to Schlemm, we thusconstrue the words "in addition to" as merely emphasizing the intent that the offense of concealment be separate from theunderlying conviction of second-degree murder. Defendant maintains the trial court's mistaken belief that a consecutive sentence was statutorily mandated is tantamount toplain error and cites to People v. Hausman, 287 Ill. App. 3d 1069, 1071-72 (1997), in support of this proposition. Therecord reflects that defendant did not raise this issue during the proceedings at the trial level or in his motion to reconsiderhis sentence. A defendant should make any challenges to the correctness of a sentence or a sentencing hearing by written motion within30 days of the sentence. People v. Reed, 177 Ill. 2d 389, 393-94 (1997). However, under the plain error doctrine, courts mayaddress a waived issue if the evidence is closely balanced or if the error affects substantial rights. 134 Ill. 2d R. 615(a);People v. Towns, 174 Ill. 2d 453, 464 (1996), citing People v. Carlson, 79 Ill. 2d 564 (1980). Because the "right to belawfully sentenced is a substantial right," "impermissible or illegal sentences may be attacked on appeal as plainlyerroneous even though no postsentencing motion was filed." People v. Whitney, 297 Ill. App. 3d 965, 967 (1998).Therefore, we determine the issue has not been waived and will consider the issue under the plain error rule. Although the trial court could have imposed a concurrent or consecutive sentence upon defendant, the record clearly reflectsthe trial court's erroneous interpretation of the statute caused defendant to receive a consecutive sentence. We agree withdefendant that it was plain error for the trial court to conclude that it was required to impose a consecutive sentence forconcealment. Accordingly, we must vacate defendant's sentences. On remand for resentencing, we instruct the trial courtthat the statute does not require the imposition of consecutive sentences. See People v. Gil, 125 Ill. App. 3d 892, 896-97(1984), citing Schlemm, 82 Ill. App. 3d at 650. Our resolution of this issue obviates the need to address defendant's other contentions on appeal relating to the trial court'sdiscretion in imposing the sentence he received. For the reasons stated, we vacate the sentences imposed by the circuit court of Winnebago County and remand this cause tothe circuit court for resentencing. Sentences vacated; cause remanded. THOMAS and GALASSO, JJ., concur. |
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