People v. Wilkins

Case Date: 09/19/2003
Court: 2nd District Appellate
Docket No: 2-02-0252 Rel

No. 2--02--0252


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
              Plaintiff-Appellee, )
)
v. ) No. 01--CF--1744
)
JERRY A. WILKINS, ) Honorable
) K. Craig Peterson,
             Defendant-Appellant. ) Judge, Presiding.

 

JUSTICE CALLUM delivered the opinion of the court:

Defendant, Jerry A. Wilkins, was convicted of possession of cannabis with intent to deliverwithin 1,000 feet of a school (720 ILCS 550/5.2(b) (West 2000)). The fact that the offense tookplace within 1,000 feet of a school raised the offense from a Class 3 to a Class 2 felony. Defendantwas sentenced to 10 years' imprisonment, 3 years more than the maximum sentence for a Class 2felony. The trial court denied his motion to reconsider his sentence. He appeals, arguing that thecourt erred in sentencing him because (1) the court erroneously believed the offense wasnonprobationable, (2) the court's comments at the sentencing hearing indicate it did not intend tosentence defendant to an extended term, and (3) the record before the court at sentencing did notsupport an extended-term sentence. We vacate and remand.

At the sentencing hearing, the court did not state that it was sentencing defendant to anextended term. The court, did, however, make the following statements:

"In looking at the presentence report and taking into account the comments of [theassistant State's Attorney], which I think was quite accurate, it is clear, Mr. Wilkins, that youare a threat to the public at this point in time.

Even if this were not a Class 2 felony, nonprobationable offense, because of the drug-free zone language, this dropping then to a Class 3 offense, the sentence which I am goingto impose would fall within the range of a Class 3 felony under the extended term.

***

Based upon my assessment of the defendant's prior record and the types of offensesfor which he has been convicted, the recency of this offense to his date of parole, I believea sentence of ten years in the department of corrections is appropriate." As an initial matter, the State argues that defendant has waived his arguments on appealbecause he did not object to the imposition of an extended-term sentence at the sentencing hearingor raise the issue in his motion to reconsider his sentence. The State is correct. However, "[p]lainerrors or defects affecting substantial rights may be noticed although they were not brought to theattention of the trial court." 134 Ill. 2d R. 615(a). Under the plain error exception, reviewing courtsmay address a waived issue where (1) the evidence is closely balanced or (2) an error is sofundamental that the defendant may have been denied a fair sentencing hearing. People v. Hausman,287 Ill. App. 3d 1069, 1071 (1997). A claim that the trial court misunderstood the minimum andmaximum sentences for the offense falls within the second prong of the plain error rule. Hausman,287 Ill. App. 3d at 1071-72. Also, reviewing courts regularly have applied the plain error rule toaddress claims that an extended-term sentence was not authorized by law. People v. Kyles, 303 Ill.App. 3d 338, 354 (1998); People v. Bahena, 296 Ill. App. 3d 67, 69 (1998); People v. Hurley, 277Ill. App. 3d 684, 686 (1996). Therefore, we will address defendant's challenges to his extended-termsentence under the plain error exception to the waiver rule.

Defendant first argues that he is entitled to a new sentencing hearing because the courterroneously believed that the offense of possession of cannabis with intent to deliver within 1,000feet of a school was nonprobationable. "A trial court's misapprehension of a minimum sentencenecessitates a new sentencing hearing when it appears that the trial court's misunderstandingarguably influenced the sentencing decision." Hurley, 277 Ill. App. 3d at 687. The record reflectsthat the indictment and the presentence report both stated that the offense was nonprobationable. Additionally, the court referred to the offense as nonprobationable at the sentencing hearing. Theoffense, however, is probationable. See 730 ILCS 5/5--5--3(b), (c)(2) (West 2000). Accordingly,the court misapprehended the minimum sentence.

Defendant contends that this misunderstanding influenced the sentencing decision. Defendant relies on Hausman. In Hausman, the trial court stated that it was imposing "the minimumsentence of three (3) years" imprisonment. Hausman, 287 Ill. App. 3d at 1071. The minimumsentence for the offense, however, was two years. The court remanded for a new sentencing hearing,holding that this misunderstanding arguably influenced the sentencing decision. Hausman, 287 Ill.App. 3d at 1072. The trial court's statement indicated that it may have intended to impose theminimum sentence. Its incorrect belief that the minimum sentence was three years thereforearguably influenced its decision to sentence the defendant to three years' imprisonment.

Hausman is distinguishable. Here, based on the court's comments at the sentencing hearingand the ultimate sentence imposed, the court clearly had no intention of sentencing defendant to theminimum sentence. Accordingly, it does not appear that the court's mistaken belief that theminimum sentence was three years' imprisonment as opposed to probation arguably influenced thecourt in its sentencing decision.

Defendant next argues that the court's comments indicate it did not understand the sentencingrange for a Class 2 offense and did not intend to sentence him to an extended term. Where the trialcourt imposes a sentence due to a misapprehension of the applicable law, the defendant is entitledto a new sentencing hearing. People v. Kang, 269 Ill. App. 3d 546, 553 (1995). At the sentencinghearing, the court stated:

"Even if this were not a Class 2 felony, nonprobationable offense, because of thedrug-free zone language, this dropping then to a Class 3 offense, the sentence which I amgoing to impose would fall within the range of a Class 3 felony under the extended term."Defendant asserts that this statement reflects the court's belief that 10 years is a permissible sentencefor a Class 2 offense without the extended term, or for a Class 3 offense with the extended term. Because the sentencing range for a Class 2 offense is three to seven years (730 ILCS 5/5--8--1(a)(5)(West 2000)), defendant contends that the court's comments indicate it misapprehended thesentencing range. The State responds that the court was only pointing out that a 10-year sentencefell within the extended sentence range for either a Class 2 or Class 3 offense. See 730 ILCS 5/5--8--2(a)(4), (a)(5) (West 2000) (the extended-term sentencing range is 7 to 14 years for a Class 2 offenseand 5 to 10 years for a Class 3 offense).

We agree with the State. The court apparently was stating that even if the offense had notbeen raised to a Class 2 felony, the court still could have sentenced defendant to 10 years, as 10 yearsis a permissible extended-term sentence for either a Class 2 or Class 3 offense. The court'scomments, therefore, do not establish that the court misunderstood the sentencing range for a Class2 offense. Accordingly, defendant is not entitled to a new sentencing hearing on these grounds.

Defendant's final argument is that the record before the court at the sentencing hearing didnot provide a basis for an extended-term sentence. Although the court at the sentencing hearing didnot specifically state what factor it was relying on in sentencing defendant to an extended term, itdid make reference to his criminal record. An extended-term sentence may be imposed when adefendant has been previously convicted of a same or greater class felony within 10 years of thepresent conviction, excluding time spent in custody. 730 ILCS 5/5--5--3.2(b)(1), 5--8--2(a) (West2000).

Defendant was convicted of the current offense in 2002. The record reflects that the onlydocumentation considered by the court at sentencing was the presentence report. The presentencereport indicates that defendant was previously convicted of only one same or greater class felony,residential burglary in 1988 (Ill. Rev. Stat. 1987, ch. 38, par. 19--3 (now 720 ILCS 5/19--3)(West2002)). He was later convicted of two other lower class felonies for which he received sentences ofimprisonment. Because the only prior conviction that could be the basis of an extended termoccurred approximately 14 years before the current conviction, defendant, in order to still qualify foran extended term, must have spent more than 4 years in custody between 1988 and 2002. Thepresentence report reflects that during this period, defendant was sentenced to terms of imprisonmentof 5 years, 180 days, and 7 years. It does not, however, contain a complete record of the timedefendant actually spent in custody, and does not establish that defendant spent four years in custody. Accordingly, the presentence report does not demonstrate that defendant's residential burglaryconviction occurred within 10 years of the current conviction, excluding time in custody. Therefore,the record before the court did not provide a basis for an extended term pursuant to section 5--5--3.2(b)(1).

We vacate the sentence imposed by the circuit court of Winnebago County and remand thecause for a new sentencing hearing.

Vacated and remanded.

KAPALA and GILLERAN JOHNSON, JJ., concur.