People v. Bruer

Case Date: 12/10/2002
Court: 4th District Appellate
Docket No: 4-02-0259 Rel

NO. 4-02-0259

 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
                       Plaintiff-Appellee, ) Circuit Court of
                       v. ) McLean County
HEATHER JEAN BRUER, ) No. 01CF830
                       Defendant-Appellant. )
) Honorable
) W. Charles Witte,
) Stephen R. Pacey,
) Judges Presiding.

JUSTICE KNECHT delivered the opinion of the court:

In October 2001, defendant, Heather Jean Bruer, pleadedguilty to one count of burglary (720 ILCS 5/19-1(a) (West 2000)). In November 2001, the trial court sentenced defendant to threeyears in prison, consecutive to two other sentences of imprisonment. The trial court denied defendant's motion to reconsidersentence. Defendant appeals, arguing the trial court committedplain error in refusing to sentence her to probation based on anerroneous belief consecutive probation sentences are prohibited.

I. BACKGROUND

In August 2001, police arrested defendant after she wascaught stealing seven packs of cigarettes from a Schnuck's storein Bloomington. A grand jury indicted defendant on one count ofburglary (720 ILCS 5/19-1(a) (West 2000)) and one count ofmisdemeanor retail theft (720 ILCS 5/16A-3(a) (West 2000)).

In September 2001, McLean County Judge W. Charles Wittesentenced defendant as follows on three other pending McLeanCounty felony cases: two years' imprisonment in No. 00-CF-1490(forgery), five years' imprisonment in No. 01-CF-173 (retailtheft over $150), and 30 months' probation in No. 01-CF-416(retail theft over $150), with all sentences to run consecutively. Judge Witte recommended defendant for impact incarceration.

In October 2001, the trial court convened for a jurytrial on the burglary and retail theft charges. Defendanttendered a blind guilty plea to the burglary charge in exchangefor the State's agreement to nol-pros the retail theft charge,dismiss a petition to revoke court supervision in another retailtheft case, and dismiss a traffic case. In admonishing defendantof the possible penalties, Judge Witte indicated he could placedefendant on probation. In explaining the nature of a blindplea, the Judge Witte stated, "there is no agreement what thesentence will be. The judge will make the determination withinthe statutory guidelines, anything from no prison time, probation, all the way up to 14 years consecutive." The State presented a factual basis, and Judge Witte accepted the plea.

In November 2001, the trial court held a sentencinghearing. The State argued for a seven-year consecutive sentence. Defense counsel requested the trial court to impose probation. Judge Witte noted he was mandated to give her a consecutivesentence, and he had already sentenced her to 30 months' probation. Judge Witte noted, "[t]he [a]ppellate [c]ourts have heldthat I cannot give consecutive probation terms." Judge Wittesentenced defendant to three years in prison, stating it was theminimum sentence authorized by law. He recognized defendantwould lose eligibility for impact incarceration. Defendant'smother inquired why the trial court eliminated probation as anoption. Judge Witte stated he had originally sentenced defendantto two consecutive terms in prison and consecutive probation inhopes defendant could succeed with impact incarceration. He hadgiven defendant the standard guilty plea admonishments and didnot have the other cases in front of him.

In December 2001, defendant filed a motion to reconsider sentence. Defendant's only contention was her sentence wasexcessive. In January 2001, defense counsel filed a certificatepursuant to Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)). The cause was assigned to Judge Stephen R. Pacey following JudgeWitte's retirement. Judge Pacey heard argument on the motion toreconsider and continued the hearing to read the report ofproceedings and study the file. At a later hearing, Judge Paceydenied defendant's motion to reconsider, concluding Judge Wittehad no alternative other than to do what he did.

This appeal followed.

II. ANALYSIS

Defendant argues the trial court erred in refusing tosentence her to probation based on an erroneous belief consecutive probation sentences are prohibited by the Unified Code ofCorrections (Unified Code) (730 ILCS 5/1-1-1 through 8-6-1 (West2000)).

Initially, we note defendant failed to properly preserve this issue for review by including it in her written motionto reconsider sentence. However, we may review defendant'scontention under the plain error rule (134 Ill. 2d R. 615(a))because sentencing issues are regarded as matters affecting adefendant's substantial rights. See People v. Baaree, 315 Ill.App. 3d 1049, 1050, 735 N.E.2d 720, 722 (2000); see also Peoplev. McCaskill, 298 Ill. App. 3d 260, 264-65, 698 N.E.2d 690, 693(1998) (waiver is an admonition to the parties and not a limitation upon the reviewing court).

The trial court has broad discretion in sentencing, anda sentence within statutory limits will not be disturbed absentan abuse of discretion. People v. Pippen, 324 Ill. App. 3d 649,651, 756 N.E.2d 474, 477 (2001). However, to the extent thiscase presents a question of statutory interpretation, our reviewis de novo. People v. Lewis, 325 Ill. App. 3d 435, 437, 758N.E.2d 438, 440 (2001). The principal rule of statutory construction is to ascertain and give effect to the legislature'sintent. To determine the legislature's intent, we first look tothe statute's language. People v. Slover, 323 Ill. App. 3d 620,623, 753 N.E.2d 554, 557 (2001). A court must not depart fromthe statute's plain language by reading into it exceptions,limitations, or conditions the legislature did not express. People v. Ellis, 199 Ill. 2d 28, 39, 765 N.E.2d 991, 997 (2002).

The plain language of section 5-6-1(a) of the UnifiedCode (730 ILCS 5/5-6-1(a) (West 2000)) reflects the legislature'sintent to authorize a sentence of probation unless "specificallyprohibited" by other provisions of the Unified Code. Section 5-6-1(a) of the Unified Code states:

"Except where specifically prohibited byother provisions of this [Unified] Code, thecourt shall impose a sentence of probation orconditional discharge upon an offender unless, having regard to the nature and circumstance of the offense, and to the history,character[,] and condition of the offender,the court is of the opinion that:

(1) his imprisonment or periodic imprisonment is necessary for the protection of thepublic; or

(2) probation or conditional dischargewould deprecate the seriousness of the offender's conduct and would be inconsistentwith the ends of justice." (Emphases added.) 730 ILCS 5/5-6-1(a) (West 2000).

We must therefore determine whether any provision ofthe Unified Code specifically prohibits a sentence of probationin this case. No exception in section 5-5-3(c)(2) of the UnifiedCode (730 ILCS 5/5-5-3(c)(2) (West 2000)) applies to this case.

A. Section 5-8-4(h) of the Unified Code

The State maintains section 5-8-4(h) of the UnifiedCode (730 ILCS 5/5-8-4(h) (West 2000)) mandated the trial courtto sentence defendant to a consecutive term of imprisonmentbecause she committed the burglary while on pretrial release forseparate felonies. Section 5-8-4(h) provides:

"If a person charged with a felony commits a separate felony while on pre[]trialrelease or in pretrial detention in a countyjail facility or county detention facility,the sentences imposed upon conviction ofthese felonies shall be served consecutivelyregardless of the order in which the judgments of conviction are entered." 730 ILCS5/5-8-4(h) (West 2000).

We disagree with the State and determine the plainlanguage of section 5-8-4(h) of the Unified Code does not mandateimprisonment or prohibit probation. The State's interpretationof section 5-8-4(h) would depart from the statute's plain language and read into the Unified Code a limitation the legislaturedid not express. We note section 5-8-4(h) does not mentionimprisonment or probation. Instead, section 5-8-4(h) merelystates the "sentences imposed upon conviction of these feloniesshall be served consecutively" (emphasis added). 730 ILCS 5/5-8-4(h) (West 2000). "Sentence" is defined in the Unified Code as"the disposition imposed by the court on a convicted defendant." 730 ILCS 5/5-1-19 (West 2000). Section 5-5-3(b)(1) of theUnified Code (730 ILCS 5/5-5-3(b)(1) (West 2000)) lists probationas a disposition.

Further, we reject the State's reliance on the Code'sarticle and section headings as evidence of legislative intent torequire imprisonment for sentences under section 5-8-4(h). Section 8-3-1 of the Unified Code (730 ILCS 5/8-3-1 (West 2000))states: "Chapter, [a]rticle or [s]ection headings contained inthis [Unified] Code shall not be deemed to govern, limit, modify[,] or in any manner affect the scope, meaning[,] or intent ofthe provisions of any [c]hapter, [a]rticle[,] or [s]ectionhereof."

Finally, we distinguish a case cited by the State,People v. Clark, 183 Ill. 2d 261, 266, 700 N.E.2d 1039, 1042(1998), in which the Supreme Court of Illinois stated, "Byoperation of [section 5-8-4(h)], once a defendant stands guiltyof the felony, the only discretionary option left available tothe circuit court is the duration of the sentence" (emphasisadded). Clark concerned whether a defendant's plea constitutedan open, as opposed to a negotiated, plea agreement. Clark, 183Ill. 2d at 265, 700 N.E.2d at 1042. We consider the quotedstatement to be dictum because a trial court's authority toimpose probation under section 5-8-4(h) was not an issue beforethe court in Clark. The State cites no other case concerningsection 5-8-4(h).

In conclusion, the plain language of section 5-8-4(h)of the Unified Code merely requires a trial court to imposeconsecutive sentences, not imprisonment. Section 5-8-4(h) doesnot specifically prohibit a trial court from imposing a sentenceof probation consecutive to a sentence of imprisonment. Section5-5-3(b) of the Unified Code (730 ILCS 5/5-5-3(b) (West 2000))specifically authorizes such a combination of sentences forseparate offenses. People v. Wendt, 163 Ill. 2d 346, 354, 645N.E.2d 179, 183 (1994); cf. People v. Williams, 179 Ill. 2d 331,335, 688 N.E.2d 1153, 1155 (1997) (consecutive imprisonment andprobation is improper sentence for single offense).

B. Consecutive Terms of Probation

We next decide whether the Unified Code prohibitsconsecutive terms of probation, as the trial court determined. The supreme court in Wendt noted, "the legislature expresslyprohibited consecutive sentences of probation only in a limitedsituation as set forth in section 5-6-2(b)." Wendt, 163 Ill. 2dat 353-54, 645 N.E.2d at 183. Section 5-6-2(b) of the UnifiedCode (730 ILCS 5/5-6-2(b) (West 2000)) provides, in relevantpart: "[m]ultiple terms of probation imposed at the same timeshall run concurrently."

In People v. Gischer, 51 Ill. App. 3d 847, 855, 366N.E.2d 521, 527 (1977), the Fifth District determined a trialcourt has authority to impose consecutive terms of probation notimposed at the same time. In People v. Redman, 122 Ill. App. 3d787, 793, 462 N.E.2d 21, 25 (1984), this court followed Gischer. We adhere to Gischer and Redman and conclude the trialcourt could have imposed a term of probation consecutive to theterm of 30 months' probation imposed earlier in McLean Countycase No. 01-CF-416. The trial court abused its discretion byrefusing to consider probation in the erroneous belief consecutive probation sentences are prohibited.

C. Remand for Resentencing

Citing People v. Washington, 297 Ill. App. 3d 790, 796-97, 697 N.E.2d 1241, 1246 (1998), defendant requests this courtto give effect to Judge Witte's clear intent and modify hersentence to a term of probation. However, this court has noauthority under Supreme Court Rule 615(b) (134 Ill. 2d R. 615(b))to reduce a sentence of imprisonment to a sentence of probation. People v. Bolyard, 61 Ill. 2d 583, 588, 338 N.E.2d 168, 170(1975). Therefore, we vacate defendant's sentence of threeyears' imprisonment and remand for resentencing.

III. CONCLUSION

For the reasons stated, we affirm defendant's conviction, vacate her sentence, and remand forresentencing.

Affirmed in part and vacated in part; cause remandedwith directions.

COOK and TURNER, JJ., concur.