People v. Hamilton

• Decision Date: 02 March 1990
• Docket Number: No. 2-88-0440,2-88-0440
• Citation: 144 Ill.Dec. 426,555 N.E.2d 785,198 Ill.App.3d 108
• Parties: , 144 Ill.Dec. 426 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Louis HAMILTON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 785

555 N.E.2d 785

198 Ill.App.3d 108, 144 Ill.Dec. 426

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Louis HAMILTON, Defendant-Appellant.

No. 2-88-0440.

Appellate Court of Illinois Second District.

March 2, 1990.

As Modified on Denial of

Rehearing June 6, 1990.

G. Joseph Weller, Deputy Defender, Daniel D. Yuhas, 4th District Appellate Defender, and Jane Raley, Asst. Defender, Office of State Appellate Defender, Springfield, for Louis Hamilton.

Paul A. Logli, Winnebago County State's Atty., William L. Browers, Deputy Director, Robert J. Biderman, and James Majors, State's Attys. Appellate Prosecutor Office, Springfield, for the People.

Justice DUNN delivered the opinion of the court:

Defendant, Louis Hamilton, was found guilty by a jury of residential burglary and robbery. He was sentenced only on the residential burglary conviction to a term of 20 years' imprisonment. No sentence was imposed on the robbery conviction. Residential burglary is a Class 1 felony carrying a sentencing range of not less than 4 years and not more than 15 years (Ill.Rev.Stat.1987, ch. 38, par 1005-8-1(a)(4)). The trial court did not sentence defendant as a Class 1 felon, however, because it found defendant's prior convictions elevated his sentencing range to that of a Class X felon. The sentencing range for a Class X felony is not less than 6 years and not more than 30 years (Ill.Rev.Stat.1987, ch. 38, par 1005-8-1(a)(3)). Defendant was also ordered to pay $571.87 in restitution to Ms. Collingwood and was fined $25.

Defendant appeals from his sentence, contending the court erred in sentencing him as a Class X offender and in ordering him to pay restitution. For the reasons stated below, we reverse and remand for new sentencing.

The trial court sentenced defendant as a Class X offender pursuant to section 5-5-3(c)(8) of the Unified Code of Corrections (Code) (Ill.Rev.Stat.1987, ch. 38, par. 1005-5-3(c)(8)) after finding defendant had two prior Class 2 felony convictions. Section 5-5-3(c)(8) provides:

"When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second." Ill.Rev.Stat.1987, ch. 38, par. 1005-5-3(c)(8).

Defendant contends the State failed to offer competent evidence to prove the elements stated in section 5-5-3(c)(8). At the sentencing hearing, the State did not offer evidence to prove defendant's prior convictions. The trial court relied on the presentence report, which listed defendant's convictions. The State contends defendant's prior convictions were sufficiently established by the presentence report, to which defendant did not object, and by defendant's motion to suppress prior convictions, in which he stated his prior convictions.

We need not decide whether the presentence report or defendant's motion to suppress his convictions sufficiently prove the prior convictions because, even if we accepted this proof, we still find no evidence to prove when the offenses were committed, which is a prerequisite to application of the statute. The provision only applies if "(1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second." (Ill.Rev.Stat.1987, ch. 38, par. 1005-5-3(c)(8).) The presentence report lists the dates of defendant's arrests and convictions, but it is not possible to tell when the past offenses were committed. Thus, without this proof, it was error to sentence defendant as a Class X offender. (People v. Parks (1988), 168 Ill.App.3d 978, 987, 119 Ill.Dec. 662, 523 N.E.2d 130.) The sentence is reversed and the cause is remanded for new sentencing.

Next, we must address whether defendant may be sentenced as a Class X felon on remand. Defendant contends this would be a violation of the double jeopardy clause of the fifth amendment. We agree.

The double jeopardy clause does not prevent the retrial of a defendant who succeeds in getting his first conviction set aside on appeal because of a trial error. (Lockhart v. Nelson (1988), 488 U.S. 33, 38, 109 S.Ct. 285, 289, 102 L.Ed.2d 265, 272; Ball v. United States (1896), 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300.) But, when a conviction is reversed on appeal on the sole ground that the evidence was insufficient to sustain the verdict, the double jeopardy clause bars retrial on the same charge. (Burks v. United States (1978), 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1.) In regard to sentencing, the Supreme Court has generally held that the double jeopardy clause imposes no absolute prohibition against imposition of harsher sentences at retrial after defendant has succeeded in having his original conviction set aside. (North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656.) But, the Court has recognized one exception for sentencing determinations involving the death penalty. (Bullington v. Missouri (1981), 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270.) The double jeopardy clause bars a State from seeking the death penalty against a defendant on retrial where, in a death sentencing procedure that resembles a trial on the issue of guilt or innocence, the jury decides against a death sentence after the original conviction. 451 U.S. at 446, 101 S.Ct. at 1862, 68 L.Ed.2d at 284.

In Bullington, Missouri sought to impose the death penalty against a defendant on trial for murder after remand from a successful appeal. After the original conviction, a sentencing hearing was held to determine whether defendant should receive the death penalty. Missouri's statute required the State to prove certain factors beyond a reasonable doubt before the jury could return a death sentence. (451 U.S. at 434, 101 S.Ct. at 1855-56, 68 L.Ed.2d at 276.) The jury sentenced defendant to life imprisonment. (451 U.S. at 435-36, 101 S.Ct. at 1856, 68 L.Ed.2d at 277.) The Court held that, because the sentencing proceeding at defendant's first trial was like the trial on the question of guilt in that certain factors had to be proved beyond a reasonable doubt, the protection afforded by the double jeopardy clause to one acquitted by a jury is available to a defendant with respect to the death penalty at defendant's retrial. 451 U.S. at 446, 101 S.Ct. at 1862, 68 L.Ed.2d at 284.

Bullington involved the unique proceedings of Missouri's death-penalty sentencing procedure. The Supreme Court has not decided whether the double jeopardy clause may apply to similar sentencing proceedings that do not involve the death penalty. At issue in this case is whether the double jeopardy clause applies to a sentencing proceeding where the State may prove certain facts that will cause defendant's possible sentence range to be elevated beyond the range for the crime of which he stands convicted.

In Lockhart v. Nelson (1988), 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265, the court applied the double jeopardy clause to a sentencing proceeding under a habitual criminal statute that did not involve the death penalty, but it stated in a footnote that, because the lower courts had decided that the double jeopardy clause applied, and the State had conceded the issue, it assumed, though it did not decide, that the double jeopardy clause applied to the case. 488 U.S. at 37 n. 6, 109 S.Ct. at 289 n. 6, 102 L.Ed.2d at 271-72 n. 6.

The Supreme Court's reservation aside, we believe it is clear, given the Court's decision in Bullington, that the double jeopardy clause applies to the sentencing procedure in this case. In Bullington, the Court applied the double jeopardy clause because of the procedure used to arrive at the sentence. The Court stated that, unlike the normal sentencing proceeding where the majority of facts considered are nonadversarial in nature, the State was required to prove certain facts beyond a reasonable doubt. Thus, the jury was required to determine whether the State had proved its case. This procedure divested the court of the wide discretion it usually has in sentencing. As a result, the decision differed from the normal sentencing decision where, if the trial court failed to impose the maximum sentence, it could not be said that the State failed to prove its case. 451 U.S. at 438-44, 101 S.Ct. at 1857-61, 68 L.Ed.2d at 278-82.

These factors are present in proceedings where a defendant is sentenced pursuant to section 5-5-3(c)(8). Though the statute is silent as to the burden of proof, it has been held that proof must be beyond a reasonable doubt. (People v. Harris (1987), 157 Ill.App.3d 70, 74, 109 Ill.Dec. 486, 510 N.E.2d 107, citing People v. Casey (1948), 399 Ill. 374, 378-80, 77 N.E.2d 812.) Thus, the trial court must determine whether the State has proved its case. If the State has proved its case, the trial court must use the greater sentencing range in imposing a sentence. The statute provides that, where a defendant has certain prior convictions, a defendant's sentence shall be elevated to a Class X offender. The statute thus takes away some of the normal discretion of the sentencing court. Because we find that sentencing under section 5-5-3(c)(8) involves the same factors outlined in Bullington, we must apply the double jeopardy clause to this case.

The State argues that Bullington only prohibits a State from imposing a harsher sentence on remand. Therefore, defendant may be sentenced again as a Class X offender as long as the sentence...