People v. Elliott

• Citation: 167 Ill.Dec. 370,587 N.E.2d 639,225 Ill.App.3d 747
• Decision Date: 20 February 1992
• Docket Number: No. 4-91-0517,4-91-0517
• Parties: , 167 Ill.Dec. 370 The PEOPLE of the State of Illinois Plaintiff-Appellee, v. Ronald Blaine ELLIOTT, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 639

587 N.E.2d 639

225 Ill.App.3d 747, 167 Ill.Dec. 370

The PEOPLE of the State of Illinois Plaintiff-Appellee, v. Ronald Blaine ELLIOTT, Defendant-Appellant.

No. 4-91-0517.

Appellate Court of Illinois,

Fourth District.

Feb. 20, 1992.

Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Springfield, for defendant-appellant.

Lawrence R. Fichter, State's Atty., Decatur, Kenneth R. Boyle, Director, State's Attys. Appellate Prosecutor, Robert J. Biderman, Deputy Director, James Majors, Staff Atty., Springfield, for plaintiff-appellee.

Justice LUND delivered the opinion of the court:

On May 28, 1991, defendant Ronald Elliott entered a plea of guilty to one count of aggravated criminal sexual abuse, a Class 2 felony, (Ill.Rev.Stat.1989, ch. 38, pars. 12-16(c)(1)(i), (g)) in the circuit court of Macon County. Under the terms of a negotiated plea agreement, the trial court sentenced him to a two-year term of periodic imprisonment, consisting of work release while confined to the county jail. At the hearing, it was revealed that defendant had served sentences in the penitentiary on four prior occasions.

At a further hearing on July 12, 1991, the trial court acknowledged this sentence exceeded the maximum allowed by law. Section 5-7-1(d) of the Unified Code of Corrections (Code) (Ill.Rev.Stat.1989, ch. 38, par. 1005-7-1(d)) provides for a maximum sentence of one year of periodic imprisonment, when the sentence is to be served in a county jail facility on work release. The prosecutor suggested a modification of defendant's sentence to two years' probation, with the first year to be served on work release. Defense counsel acknowledged the advantage to defendant of such a modification by elimination of one year of his work release, but defendant himself objected. He expressed the conviction that such a modification was somehow an increase in the severity of his sentence. He indicated he believed he could be resentenced to a greater term of imprisonment if he violated the terms of probation than if he violated the terms of work release. The trial court attempted to explain to defendant the error of this reasoning, without success. Over defendant's objection, the trial court modified defendant's sentence to two years' probation, with the first year to be served in the county jail on work release. This appeal followed.

The maximum term of periodic imprisonment which could be imposed upon defendant in the instant case was one year, as provided in section 5-7-1(d) of the Code:

"A sentence of periodic imprisonment shall be for a definite term of from 3 to 4 years for a Class 1 felony, 18 to 30 months for a Class 2 felony, and up to 18 months, or the longest sentence of imprisonment that could be imposed for the offense, whichever is less, for all other offenses; however, no person shall be sentenced to a term of periodic imprisonment longer than one year if he is committed to a county correctional institution or facility, and in conjunction with that sentence participate in a county work release program comparable to the work and day release program provided for in Article 13 of the 'Unified Code of Corrections' in state facilities." (Emphasis added.) Ill.Rev.Stat.1989, ch. 38, par. 1005-7-1(d).

The trial court may modify or revoke a term of periodic imprisonment, as permitted by section 5-7-2 of the Code:

"(a) A sentence of periodic imprisonment may be modified or revoked by the court if:

(1) the offender commits another offense; or

(2) the offender violates any of the conditions of the sentence; or

(3) the offender violates any rule or regulation of the institution, agency or Department to which he has been committed.

* * * * * *

(c) * * * Where a sentence of periodic imprisonment is revoked, the court may impose any other sentence that was available at the time of initial sentencing." Ill.Rev.Stat.1989, ch. 38, pars. 1005-7-2(a), (c).

The court retains jurisdiction of a defendant during the term of his periodic imprisonment and may order a diminution of his term if his conduct, diligence, and general attitude merit such action. Ill.Rev.Stat.1989, ch. 38, par. 1005-7-7.

Defendant argues on appeal that the trial court erred in modifying his sentence. He claims his sentence should instead have been reduced to the maximum one year of periodic imprisonment allowed by law. The gist of his complaint is that the trial court should not have imposed probation, which was not a part of his original sentence under his plea agreement. He believes the trial court was without power to modify his sentence except as allowed under section 5-7-2 of the Code as quoted above.

The only authority cited by defendant in support of his contention is People v. Gentry (1977), 48 Ill.App.3d 900, 6 Ill.Dec. 617, 363 N.E.2d 146. In that case, defendant was convicted of disorderly conduct and resisting arrest. He was sentenced to one year in the House of Corrections on the resisting arrest conviction. He appealed, with one of his contentions being that this sentence went beyond the maximum term permitted by law. The appellate court agreed, noting the maximum term was 364 days, not one year. The court then reduced defendant's sentence by one day--to 364 days.

Defendant maintains that other decisions have similarly reduced to the statutory maximum those sentences which were outside the limits of the law. He claims none of these decisions have allowed the trial courts to impose different sentencing conditions in order to somehow balance the benefit a defendant receives, when he was mistakenly sentenced to a term beyond what the law permitted.

The State argues the court did not modify its sentencing order, but merely "corrected" it. The State's theory is that the record indicates it was the intent of the trial court to monitor defendant for a period of two years, whether that process involved periodic imprisonment or probation. It regards defendant's sentence as being very lenient, given his four prior trips to the penitentiary. The State believes, under this scenario, that the trial court merely corrected its sentencing order to two years' probation, with the first year to be served on periodic imprisonment. The State argues a court has inherent power to reconsider and correct its own rulings, even in the absence of a statute or rule granting it such authority. In People v. Mink (1990), 141 Ill.2d 163, 152 Ill.Dec. 293, 565 N.E.2d 975, cert. denied (1991), 501 U.S. 1235, 111 S.Ct. 2863, 115 L.Ed.2d 1030, the trial court granted defendant's motion for a new trial, finding the State had not established venue on one of the charges of which defendant had been found guilty. The State moved for reconsideration of this order, and its motion was granted by a different judge who then vacated the new trial order and entered judgment on the jury verdicts. Defendant appealed. The Illinois Supreme Court noted that a court in a criminal case has inherent power to reconsider and correct its own rulings, even in the absence of a statute or rule granting such authority. This power extends to interlocutory as well as final orders. The court pointed out that the trial court had set the matter for a new trial and had thereby retained jurisdiction of the defendant and the indictment. As long as the case was pending before it, the trial court had jurisdiction to reconsider any order which it had previously entered. Mink, 141 Ill.2d at 171, 152 Ill.Dec. at 296-97, 565 N.E.2d at 978-79.

In People v. Heil (1978), 71 Ill.2d 458, 17 Ill.Dec. 673, 376 N.E.2d 1002, the defendant made a demand for a speedy trial. Sometime later, the trial court granted defendant's motion for discharge based upon violation of his right to a speedy trial. The State filed a motion the next day asking the trial court to set aside its order of discharge. Prior to the hearing on this motion, defendant's bail was discharged and the bail deposit refunded to his attorney. After a hearing on the State's motion, the trial court vacated its order of discharge and set the case for trial. The appellate court reversed the judgment, holding that although the trial court had jurisdiction over the case when it vacated the discharge order, that order was binding and conclusive and operated to preclude readjudication thereof. The supreme court reversed the appellate court. Pointing out that relevant criminal statutes and rules demonstrate the intent that the trial court have the power to reconsider final appealable orders within 30 days of their entry, it was held that the trial court did indeed have the power to consider the State's motion within 30 days of the entry of the order of discharge. (Heil, 71 Ill.2d at 462-64, 17 Ill.Dec. at 673-75, 376 N.E.2d at 1002-04; see also Ill.Rev.Stat.1989, ch. 38, pars. 116-1, 116-2, 1005-8-1(d); 134 Ill.2d Rules 604(d), 605(b), 606(b).) As the supreme court said in People v. Crilly (1985), 108 Ill.2d 301, 311, 91 Ill.Dec. 601, 605, 483 N.E.2d 1236, 1240, "It would be absurd to suppose that trial judges who conclude they have made mistakes should not be free to correct them within an appropriate time frame." (See also People v. Van Cleve (1982), 89 Ill.2d 298, 303, 59 Ill.Dec. 893, 895, 432 N.E.2d 837, 839 (holding that a trial judge can enter a judgment of acquittal following a guilty verdict, if the judge concludes that the refusal to direct a verdict was erroneous).) We note, however, that in the instant case, the trial court's modification of its sentencing order took place outside that 30-day period.

The State also cites People v. Peatry (1976), 38 Ill.App.3d 332, 347 N.E.2d 169, People v. Clark (1976), 43 Ill.App.3d 117, 1 Ill.Dec. 862, 356 N.E.2d 1144, and People v. Webb (1976), 38 Ill.App.3d 629, 347 N.E.2d 486, in further support of its contention that the trial court intended to monitor defendant for two years and it could therefore add probation to make up for the lost year of periodic imprisonment. In the Peatry and...