People v. Donelson

• Decision Date: 05 December 2011
• Docket Number: No. 1–09–2594.,1–09–2594.
• Citation: 356 Ill.Dec. 106,2011 IL App (1st) 092594,960 N.E.2d 1229
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Charles DONELSON, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 092594
356 Ill.Dec. 106
960 N.E.2d 1229

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Charles DONELSON, Defendant–Appellant.

No. 1–09–2594.

Appellate Court of Illinois, First District, Third Division.

Nov. 9, 2011.Rehearing Denied Dec. 5, 2011.

[960 N.E.2d 1230]

Michael J. Pelletier, Deputy Defender, Office of the State Appellate Defender (Jessica D. Pamon, of counsel), for Defendant–Appellant.

Anita M. Alvarez, State's Attorney, State's Attorney of Cook County (Alan J. Spellberg, Douglas P. Harvath,

[960 N.E.2d 1231]

Sheilah C. O'Grady, of counsel), for Plaintiff–Appellee.

OPINION Justice NEVILLE delivered the judgment of the court, with opinion.

[356 Ill.Dec. 108] ¶ 1 Charles Donelson, the defendant, appeals from the dismissal of his pro se petition for relief from judgment under section 2–1401(f) of the Code of Civil Procedure. 735 ILCS 5/2–1401(f) (West 2008). On appeal, he contends that the concurrent sentences imposed on his plea of guilty are void and that this court should vacate his plea and remand the cause to allow him to withdraw his plea. The State responds with three arguments: (1) that the concurrent sentencing was proper; (2) that defendant should be equitably estopped from withdrawing his plea; and (3) that the appropriate remedy is a remand for resentencing. Defendant also maintains that his mittimus must be corrected as it reflects the wrong count to which he pled guilty. For the reasons stated below, we vacate defendant's sentences and remand for resentencing consistent with both the plea agreement and relevant statutes.

¶ 2 BACKGROUND

¶ 3 Defendant was charged in indictment number 98 CR 11525 with first degree murder, home invasion, residential burglary, and aggravated criminal sexual assault stemming from an incident in the afternoon on March 28, 1998, where defendant allegedly forcibly entered the home of Matthew Flowers and Sarah Tyler, forced Flowers and Tyler to have intercourse, and shot and killed Flowers. Defendant was also charged in indictment number 98 CR 11527 with aggravated criminal sexual assault stemming from an incident in the morning on March 28, 1998, where defendant allegedly forced Tyler to have sex with him. On January 30, 2001, pursuant to a guilty plea, defendant was convicted of first degree murder (count V: felony murder based on the aggravated sexual assault of Tyler) and home invasion (count VI) under indictment number 98 CR 11525, and aggravated criminal sexual assault (count I) under indictment number 98 CR 11527. The trial court admonished defendant of the rights he was relinquishing by pleading guilty and sentenced him to 55 years' imprisonment for first degree murder, 30 years for home invasion, and 30 years for aggravated criminal sexual assault, all to be served concurrently.

¶ 4 On February 27, 2001, defendant filed a pro se motion to withdraw his guilty plea. The trial court denied the motion to withdraw and defendant appealed. The State confessed error based on erroneous plea admonishments, and this court remanded the case. People v. Donelson, No. 1–01–2127 (2002) (unpublished order pursuant to Supreme Court Rule 23). On remand, defendant filed a new motion to withdraw his pleas of guilty under both indictments. Ultimately, on May 22, 2003, defendant agreed to withdraw his motions in exchange for the State's offer of a five-year sentence reduction on his first degree murder conviction. The court agreed to reduce his 55–year sentence for murder to 50 years and vacated his original 55–year sentence. The court did not address defendant's concurrent 30–year sentences. A new mittimus was issued reflecting defendant's reduced sentence of 50 years for murder and 30 years for home invasion. When the State expressed concern that defendant would receive double credit, the trial court clarified that, “[t]he original sentence was vacated. It is not a corrected mittimus. A new sentence is imposed.”

¶ 5 On April 23, 2009, defendant filed a pro se motion for leave to file a petition for relief from judgment pursuant to section [356 Ill.Dec. 109]

[960 N.E.2d 1232]

2–1401(f), along with the petition itself. Defendant challenged various aspects of his guilty plea, including that he received ineffective assistance of trial counsel, that the trial court failed to comply with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006), and that his plea was involuntary. He did not raise the issue of improper concurrent sentences in his motion. The circuit court dismissed defendant's petition on July 17, 2009. On July 27, 2009, defendant filed a motion to reconsider the dismissal of his petition for relief from judgment, which the circuit court denied on August 14, 2009. This appeal followed.

¶ 6 ANALYSIS

¶ 7 On appeal, defendant abandons the issues raised in his petition and claims for the first time that the trial court erred in sentencing him to concurrent sentences where section 5–8–4 of the Unified Code of Corrections (730 ILCS 5/5–8–4 (West 1998)) required that defendant's sentences for murder (No. 98 CR 11525) and aggravated criminal sexual assault (No. 98 CR 11527) be imposed consecutively. Defendant maintains that his plea as well as his sentences are void and thus that the judgment and plea must both be vacated. Whether a sentence is void is a question of law subject to de novo review. People v. Hauschild, 226 Ill.2d 63, 72, 312 Ill.Dec. 601, 871 N.E.2d 1 (2007).

¶ 8 We initially note that the State maintains that defendant forfeited review of his claim. The State indicates that defendant filed a pro se petition for relief from judgment pursuant to section 2–1401 of the Code of Civil Procedure, which states that, “the petition must be filed not later than 2 years after the entry of the order or judgment.” 735 ILCS 5/2–1401(c) (West 2008). The State thus asserts that because defendant filed his petition more than two years after the entry of the last order in this case, his claim is waived. However, defendant is challenging his sentence as void, and a void sentence can be corrected at any time and is not subject to waiver or forfeiture. People v. Hillier, 237 Ill.2d 539, 546–47, 342 Ill.Dec. 1, 931 N.E.2d 1184 (2010); People v. Tolentino, 409 Ill.App.3d 598, 604, 351 Ill.Dec. 72, 949 N.E.2d 1167 (2011).

¶ 9 Turning to the merits of defendant's appeal, our supreme court has held that concurrent sentences are void where the statutory requirements for mandatory consecutive sentences are met. People v. Bishop, 218 Ill.2d 232, 254, 300 Ill.Dec. 107, 843 N.E.2d 365 (2006). A conviction of aggravated criminal sexual assault (720 ILCS 5/12–14 (West 1998)) triggers mandatory consecutive sentences where the defendant is convicted of multiple offenses whether the offenses were committed during a single course of conduct (730 ILCS 5/5–8–4(a) (West 1998)) or whether the offenses were committed during separate courses of conduct (730 ILCS 5/5–8–4(b) (West 1998)). People v. Harris, 203 Ill.2d 111, 116–17, 271 Ill.Dec. 238, 784 N.E.2d 792 (2003). Based on section 5–8–4, the court should have imposed consecutive sentences for defendant's convictions of murder and aggravated criminal sexual assault. Thus, we find that the sentence is void.

¶ 10 The State's arguments to the contrary are meritless. First, under subsection (b) of section 5–8–4, as conceded by the State, defendant's conviction of aggravated criminal sexual assault (No. 98 CR 11527) would trigger a consecutive sentence for his conviction of murder (No. 98 CR 11525) even though it occurred in a separate course of conduct and was separately indicted. The State, however, claims that the mandate of subsection (b) does not apply here because the sentences at issue were imposed separately, rather [356 Ill.Dec. 110]

[960 N.E.2d 1233]

than simultaneously. In making its argument, the State relies on the following wording appearing in subsection (a) but not repeated in subsection (b):

“When multiple sentences of imprisonment are imposed on a defendant at the same time, or when a term of imprisonment is imposed on a defendant who is already subject to sentence in this State, * * * the sentences shall run concurrently or consecutively as determined by the court.” 730 ILCS 5/5–8–4(a) (West 1998).

However, this language applies to both subsections (a) and (b). See People v. Hayes, 336 Ill.App.3d 145, 152, 270 Ill.Dec. 228, 782 N.E.2d 787 (2002).

¶ 11 Furthermore, the State's argument that defendant's murder sentence was separately imposed from the sentence for his aggravated criminal sexual assault conviction is unpersuasive. Defendant's reduced murder sentence, although entered in 2003, was entered to take effect as of February 2001, when he filed his motion to withdraw his entire plea. That plea encompassed all three offenses under both indictments, including the first degree murder and aggravated criminal sexual assault charges. In reducing defendant's murder sentence, the court stated, “I'm allowing you to make a motion to reduce the sentence as of February 28, [20]01, within 30 days, the date I sentenced you, from 55 years to 50 years and the State is not objecting to that as part of the agreement.” Defendant thus withdrew his motion to withdraw his plea, leaving the plea and the resulting convictions and sentence intact but for the reduced murder sentence. Therefore, although defendant's murder sentence was reduced after the original plea, and a new mittimus was issued, the new sentence was entered as part of that original sentence from two years earlier.

¶ 12 Our conclusion that defendant's sentence is void finds support in our supreme court's recent decision in People v. White, 2011 IL 109616, 352 Ill.Dec. 159, 953 N.E.2d 398. In White, the defendant pled guilty to first degree murder and possession of contraband in a penal institution in exchange for consecutive prison sentences of 28 and 4 years, respectively, and the factual basis for the plea established that a firearm was used in the...