People v. Lappin

Case Date: 11/20/2002
Court: 4th District Appellate
Docket No: 4-02-0138 Rel

NO. 4-02-0138

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT



THE PEOPLE OF THE STATE OF ILLINOIS,
                          Plaintiff-Appellee,
                          v.
WILLIAM E. LAPPIN,
                          Defendant-Appellant.
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Appeal from
Circuit Court of
McLean County
No. 96CF1303

Honorable
W. Charles Witte,
Judge Presiding.




JUSTICE TURNER delivered the opinion of the court:

In March 1997, pursuant to a plea agreement, defendant,William E. Lappin, pleaded guilty to two counts of aggravatedcriminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 1994)). The plea agreement was open as to sentencing except that, if thetrial court sentenced defendant to prison, the court would notimpose consecutive terms. After a July 1997 hearing, the trialcourt sentenced defendant to 48 months' probation, including 5months of periodic imprisonment. In December 2000, the Statefiled a petition for revocation of probation, asserting defendantcommitted the offense of child pornography (720 ILCS 5/11-20.1(a)(6) (West 2000)) as alleged in Sangamon County case No.00-CF-1113 (People v. Lappin, No. 00-CF-1113 (Cir. Ct. SangamonCo.)). In October 2001, defendant admitted the allegations inthe petition. After a December 2001 hearing, the trial courtresentenced defendant to two concurrent terms of five years'imprisonment to run consecutive to the imprisonment term imposedin Sangamon County case No. 00-CF-1113.

Defendant appeals, arguing the December 2001 consecutive sentence must be vacated because it violates the terms ofthe March 1997 plea agreement. We affirm.

I. BACKGROUND

In November 1996, a grand jury indicted defendant onone count of aggravated criminal sexual abuse for his actions onor about June 1, 1994, through August 31, 1994 (720 ILCS 5/12-16(c)(1)(i) (West 1994)), and one count of predatory criminalsexual assault of a child for his actions on or about October 1,1996, through October 31, 1996 (720 ILCS 5/12-14.1(a)(1) (West1996)). In March 1997, defendant and the State entered into aplea agreement under which the predatory criminal sexual assaultcount was to be amended to aggravated criminal sexual abuse (720ILCS 5/12-16(c)(1)(i) (West 1994)) and, if defendant was sentenced to prison, the court would not impose consecutive sentences. At the plea hearing, the trial court admonished defendant in accordance with Supreme Court Rule 402 (134 Ill. 2d R.402), including that the agreement was open to sentencing exceptthat the court would not give defendant consecutive sentences. In July 1997, the trial court sentenced defendant as stated.

In December 2000, the State filed a petition forrevocation of probation, asserting defendant committed theoffense of child pornography (720 ILCS 5/11-20.1(a)(6) (West2000)), as charged in Sangamon County case No. 00-CF-1113. At anOctober 2001 hearing, defendant admitted he had committed theoffense charged in the Sangamon County case. The prosecutornoted that defendant had already pleaded guilty in that case andwas awaiting sentencing.

In December 2001, the trial court held a resentencinghearing. The prosecutor noted the Sangamon County State'sAttorney and McLean County State's Attorney agreed to recommendthat the sentences in the two cases be served concurrently. Defense counsel asserted defendant was also a party to thatagreement. The trial court sentenced defendant to two concurrentterms of five years' imprisonment to run consecutive to theimprisonment term imposed in Sangamon County case No. 00-CF-1113. This appeal followed.

II. ANALYSIS

Defendant asserts his consecutive sentence should bevacated because it violates the terms of the original March 1997plea agreement. The State argues we should dismiss this appealbecause defendant failed to file a motion to reconsider pursuantto Rule 604(d) (188 Ill. 2d R. 604(d)). We disagree with bothparties.

In People v. Tufte, 165 Ill. 2d 66, 77-78, 649 N.E.2d374, 379-80 (1995), the Supreme Court of Illinois held a defendant's admission to a violation of his conditional discharge wasnot the same as a guilty plea, and thus a reviewing court couldconsider a defendant's argument on its merits where the defendantdid not file a motion to vacate or reconsider. In In reJ.E.M.Y., 289 Ill. App. 3d 389, 391, 682 N.E.2d 451, 452 (1997),this court applied the Tufte holding to an admission to a probation violation and held that, following a probation revocationhearing, the filing of a motion to reconsider and compliance withthe requirements of Rule 604(d) are unnecessary before taking anappeal. Accordingly, defendant did not have to file a motion toreconsider for us to address the merits of his argument.

Defendant contends that since the original plea agreement provided the court would not impose consecutive sentences,the trial court's order that defendant serve his concurrentsentences in this case consecutive to his sentence in SangamonCounty case No. 00-CF-1113 violated the original plea agreement. Defendant's argument fails for two reasons.

First, the record indicates the only offenses beforethe trial court at the time of the original plea agreement werethe two aggravated criminal sexual abuse counts in this case. The offense in the Sangamon County case occurred more than threeyears after the original plea agreement. Accordingly, theoriginal plea agreement only required that the two counts in thiscase be served concurrently to each other. On resentencing, thetwo counts were ordered to be served concurrently. Thus, thetrial court's order did not violate the original plea agreement.

Second, in People v. Johns, 229 Ill. App. 3d 740, 740,593 N.E.2d 594, 595 (1992), this court rejected the defendant'sargument that, after a probation revocation, the trial court waslimited to the terms of the original plea agreement inresentencing the defendant. The limitation that was placed onresentencing in Johns was based on the trial court's error inadmonishing the defendant when he pleaded guilty to the originaloffense. Johns, 229 Ill. App. 3d at 743-44, 593 N.E.2d at 596-97. At the original plea hearing in this case, the trial courtdid not err in failing to admonish defendant about the possibility of his sentence in this case running consecutive to thesentence in the Sangamon County case since the trial court had noway of knowing about the Sangamon County offense, which occurredmore than three years after the plea hearing. See People v.Laws, 200 Ill. App. 3d 232, 239, 558 N.E.2d 638, 642 (1990).

Defendant further asserts his consecutive sentenceshould be vacated because the trial court did not admonish himthat he could receive a consecutive sentence at the revocationhearing and remand for a new hearing is not appropriate becauseof the original plea agreement. However, defendant cites noauthority that a trial court must admonish a defendant that hecould be subject to consecutive sentences before accepting anadmission to a probation violation.

Rule 402(a)(2) (177 Ill. 2d R. 402(a)(2)) requires thatbefore accepting a guilty plea, the trial court must inform thedefendant of "the minimum and maximum sentence prescribed by law,including, when applicable, the penalty to which the defendantmay be subjected because of prior convictions or consecutivesentences." (Emphasis added.) In People v. Hall, 198 Ill. 2d173, 179, 760 N.E.2d 971, 974 (2001), the Supreme Court ofIllinois held that due process concerns did not necessitate Rule402 admonitions for defendants admitting probation violations. However, the court did establish that before accepting a defendant's admission, the trial court should admonish the defendantto determine five things, including whether "the defendantunderstands the consequences of his admission or the sentencingrange for the underlying offense." Hall, 198 Ill. 2d at 181, 760N.E.2d at 975. While Rule 402(a)(2) specifically requires thetrial court to inform the defendant of consecutive sentences,Hall does not include the consecutive-sentence language. Becausethe supreme court specifically stated Rule 402 admonitions didnot apply to probation-violation admissions and then craftedadmonitions without the consecutive-sentence language, we findthe trial court did not have to inform defendant that he waseligible for a consecutive sentence before accepting his admonition.

Defendant also suggests the court failed to ensure hisadmission was voluntary because the court did not inquire whetherdefendant's plea was induced by a promise or plea agreement. However, any error by the trial court is harmless because theState's promises under the two agreements were fulfilled. Thetrial court sentenced defendant to concurrent sentences for thetwo aggravated criminal sexual abuse convictions as required bythe original March 1997 plea agreement, and the State recommendedthose sentences be served concurrently to the sentence in theSangamon County case as promised in the later agreement. Thetrial court merely exercised its discretion and chose to impose aconsecutive sentence.

III. CONCLUSION

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

McCULLOUGH, P.J., and APPLETON, J., concur.