People v. Handy

• Decision Date: 20 March 1996
• Docket Number: No. 4-95-0356,4-95-0356
• Citation: 278 Ill.App.3d 829,664 N.E.2d 1042
• Parties: , 216 Ill.Dec. 114 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Perry HANDY, Jr., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1042

664 N.E.2d 1042

278 Ill.App.3d 829, 216 Ill.Dec. 114

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Perry HANDY, Jr., Defendant-Appellant.

No. 4-95-0356.

Appellate Court of Illinois Fourth District.

March 20, 1996.

Supplemental Opinion on Denial of

Rehearing May 2, 1996.

Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Springfield, Arden J. Lang, Asst. Defender, Office of State Appellate Defender, Springfield, for Perry Handy Jr.

Charles Colburn, State's Attorney, Jacksonville, Norbert J. Goetten, Director, State's Attorneys Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, State's Attorneys Appellate Prosecutor, Springfield, David B. Appleman, of counsel, State's Attorneys, Appellate Prosecutor, Springfield, for People.

Justice STEIGMANN delivered the opinion of the court:

In February 1995, defendant, Perry Handy, Jr., pleaded guilty to vehicular invasion (720 ILCS 5/12-11.1 (West 1994)), in an "open plea," meaning that no agreement existed between the State and defendant regarding what sentence the State would recommend to the trial court. The court ordered a presentence report and allotted the sentencing hearing for the following month. In March 1995, the court conducted a sentencing hearing and sentenced defendant to six years in prison. Defendant filed a timely motion to modify sentence, which the court denied.

Defendant appeals, arguing that the trial court erred by (1) imposing a prison sentence because of its mistaken belief that defendant was not eligible for the Treatment Alternative for Special Clients (TASC) program in lieu of a prison sentence; (2) considering in aggravation two factors--namely, compensation and defendant's causing or threatening serious harm--which are inherent in the offense; and (3) abusing its discretion in imposing a six-year sentence.

We affirm.

I. BACKGROUND

At the March 1995 sentencing hearing, neither party presented any evidence. The trial court received the presentence report prepared by the probation department and arguments of counsel. Defense counsel recommended a sentence of probation with 180 days in custody as a condition thereof, emphasizing (1) his client's youth (defendant was then 20 years old), and (2) that because a TASC program report indicated that defendant had a drug or alcohol problem, the court should consider defendant's participation in TASC as an alternative to prison. See section 40-10(a) of the Alcoholism and Other Drug Abuse and Dependency Act (20 ILCS 301/40-10(a) (West 1994)).

The State pointed out that defendant had a prior aggravated battery conviction for which he had served two years on probation and spent 109 days in jail in 1992, as well as some misdemeanor convictions. The State also contended that defendant was not eligible for TASC because of the violent nature of the charge he was convicted of, and the trial court appeared to agree.

The presentence report indicated that the offense in question occurred in the early morning hours when the victim, while returning home from work, stopped her car at a stop sign. Defendant opened her car door, grabbed her by the hair, pulled her head back against the seat, and said, "How much money do you have, bitch?" The victim pleaded with him to take whatever she had and leave her alone. He then took her purse and fled. At the sentencing hearing, the trial court noted that it had "no doubt that [the victim] was terrified" and sentenced defendant to six years in prison with credit for 111 days already served in the county jail.

Defendant filed a timely motion to modify sentence, arguing that his sentence was "excessive under those guidelines set out in [s]ection 5-5-3" of the Unified Code of Corrections. See 730 ILCS 5/5-5-3 (West 1994). In May 1995, the trial court conducted a hearing on that motion and denied it.

II. WAIVER UNDER SUPREME COURT RULE 604(d)

The State contends that defendant's first two arguments regarding his sentence--namely, that the trial court erred by not considering TASC and by considering inherent factors--are waived because defendant failed to include them in his motion to modify sentence. Resolving this issue requires this court to analyze Rule 604(d) (145 Ill.2d R. 604(d)), which addresses appeals in cases like this, which arise from guilty pleas.

In 1975, the supreme court added paragraph (d) to Supreme Court Rule 604 in response to the large number of guilty pleas which defendants were appealing. As originally promulgated, Rule 604(d) provided that a defendant could not appeal from a judgment entered upon a guilty plea unless, within 30 days of his sentencing, he filed a motion in the trial court to withdraw his plea of guilty and vacate the judgment. In 1975, the last sentence of Rule 604(d) provided as follows: "Upon appeal any issue not raised by the defendant in the motion to withdraw the plea of guilty and vacate the judgment shall be deemed waived." 58 Ill.2d R. 604(d).

Thirteen years after the supreme court promulgated Rule 604(d), that court assessed how the lower courts had applied that rule and indicated clearly it was not pleased with the results. In People v. Wilk, 124 Ill.2d 93, 103-05, 124 Ill.Dec. 398, 401-02, 529 N.E.2d 218, 221-22 (1988), the supreme court noted that the lower courts--both appellate and trial--had not been following Rule 604(d) and wrote the following:

"At the risk of stating the obvious, it should be pointed out that the rules adopted by this court concerning criminal defendants and guilty pleas are in fact rules of procedure and not suggestions. It is incumbent upon counsel and courts alike to follow them. * * * These rules are not written in a vacuum and they represent our best efforts at ordering the complex and delicate process of plea bargains and guilty pleas.

In short, Rule 604(d) has a purpose. That purpose is to ensure that before a criminal appeal can be taken from a guilty plea, the trial judge who accepted the plea and imposed sentence be given the opportunity to hear the allegations of improprieties * * *. * * * A hearing under Rule 604(d) allows a trial court to immediately correct any improper conduct or any errors of the trial court that may have produced a guilty plea.

* * * * * *

Rule 604(d) establishes a condition precedent for an appeal from a defendant's plea of guilty."

Effective August 1992, the supreme court amended Rule 604(d) in response to situations in which defendants convicted through guilty pleas wished to challenge only their sentences on appeal, as in this case. The court amended Rule 604(d) to provide that the defendant may not appeal the sentence imposed upon a guilty plea unless, within 30 days of sentencing, he filed in the trial court a motion to reconsider the sentence. Significantly for our purposes, the court also amended the last sentence of Rule 604(d) to read as follows: "Upon appeal any issue not raised by the defendant in the motion to reconsider the sentence or withdraw the plea of guilty and vacate the judgment shall be deemed waived." 145 Ill.2d R. 604(d).

The question this appeal presents is whether the supreme court requires the same literal compliance with Rule 604(d) as amended in 1992 (to pertain to appeals challenging only the sentence) as it required (as explained in Wilk ) regarding that rule prior to the 1992 amendment. We hold that the answer is yes--the supreme court requires the same compliance.

Accordingly, taking the language of the supreme court literally--as we must--we hold that defendant in this case, in order to appeal the sentence the trial court imposed, must first have not only filed in the trial court a motion to reconsider the sentence, but, in addition, must have raised in that motion any issue he might wish to raise on appeal. His failure to do so waives our consideration of any such issue. We further hold that this waiver rule applies to any claim that the trial court erred (1) by improperly finding defendant not eligible for TASC consideration, and (2) by improperly considering at sentencing any factor otherwise inherent in the crime. Because these are the first two sentencing issues defendant raises in his appeal, we deem them waived and will not address them further.

III. DEFENDANT'S CLAIM THAT THE TRIAL COURT ABUSED ITS

DISCRETION IN SENTENCING HIM

Defendant next argues that his six-year prison sentence was excessive and constitutes an abuse of the trial court's discretion. We disagree. Vehicular invasion is a Class 1 felony (720 ILCS 5/12-11.1(b) (West 1994)), which means that the court, within its discretion, could sentence defendant to probation (as defense counsel recommended) or to prison for not less than 4 years nor more than 15 years (730 ILCS 5/5-5-3(b), 5-8-1(a)(4) (West 1994)). Given defendant's criminal history--two misdemeanor convictions and a prior conviction for aggravated battery--defendant can hardly claim that the court abused its discretion by not sentencing him to probation yet again. Further, the crime defendant committed constitutes one of those random acts of violence which most frighten and outrage the public and which call for a serious response from the courts.

In People v. Nussbaum, 251 Ill.App.3d 779, 780-81, 191 Ill.Dec. 165, 167, 623 N.E.2d 755, 757 (1993), this court wrote the following:

"The trial court is in the best position to make a reasoned decision as to the appropriate punishment in each case, and we will not reverse the trial court unless it has abused its discretion when making that decision. (People v. Streit (1991), 142 Ill.2d 13, 19 , 566 N.E.2d 1351, 1353.) That court enjoys wide latitude in determining and weighing factors in mitigation or aggravation, and this court gives great deference and weight to the sentence the trial court thought appropriate in any given case."

Judged in accordance with this standard, we conclude that the six-year prison sentence the trial court imposed in this case is far from...