People v. Johnson
| Decision Date | 05 March 2021 |
| Docket Number | No. 2-18-0775,2-18-0775 |
| Citation | 180 N.E.3d 825,2021 IL App (2d) 180775,449 Ill.Dec. 900 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Wesley JOHNSON Jr., Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James E. Chadd, Thomas A. Lilien, and Vicki P. Kouros, of State Appellate Defender's Office, of Elgin, for appellant.
Marilyn Hite Ross, State's Attorney, of Rockford (Patrick Delfino, Edward R. Psenicka, and Richard S. London, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
¶ 1 Defendant, Wesley Johnson Jr., appeals the five-year consecutive sentences imposed in case Nos. 17-CF-1598 and 17-CF-2030. Defendant argues that the imposition of consecutive sentences was improper. We agree. Thus, we vacate the sentences imposed in both cases and remand this cause for resentencing.
¶ 3 On June 24, 2017, defendant was arrested for domestic battery ( 720 ILCS 5/12-3.2(a)(2) (West 2016)) and interfering with reporting of domestic violence (id. § 12-3.5). He posted bond on June 25, 2017, and was later indicted for both offenses in case No. 17-CF-1598.1
¶ 4 On June 28, 2017, three days after he was released on bond in case No. 17-CF-1598, defendant committed another domestic battery (id. § 12-3.2(a)(2)). Defendant was subsequently indicted for that offense, a Class 4 felony (id. § 12-3.2(b)), in case No. 17-CF-2030.
¶ 5 On September 26, 2017, defendant pleaded guilty to domestic battery in case No. 17-CF-1598 in exchange for 30 months of probation. When the court admonished defendant about the minimum and maximum sentences he faced, the court told defendant that, because he was eligible for an extended-term sentence, he faced a prison term between one and six years.
¶ 6 One month later, on October 25, 2017, defendant pleaded guilty to domestic battery in case No. 17-CF-2030 in exchange for the dismissal of charges brought in two other cases (Nos. 17-CF-2380 and 17-CM-2217) and 30 months of probation, which the court ordered to run concurrently with the 30 months of probation imposed in case No. 17-CF-1598. Although, in imposing concurrent terms of 30 months of probation, the court was reminded that case No. 17-CF-1598 involved a domestic battery, the court was not told when that offense occurred. When the court admonished defendant about the minimum and maximum sentences he faced, the court again advised defendant that, because he was extended-term eligible, he faced a prison term between one and six years. The court never advised defendant that he was subject to mandatory consecutive sentencing because he committed the domestic battery in case No. 17-CF-2030 while released on bond in case No. 17-CF-1598.
¶ 7 On May 2, 2018, the State petitioned to revoke defendant's probation in both cases. The trial court granted the petition, and at the subsequent sentencing hearing, the trial court asked, "And [defendant] is actually mandatory consecutive on these matters if he is sentenced to the Department of Corrections, is that also true?" Although the State agreed that that was correct, defense counsel replied, "I don't believe he is." After the court explained to defense counsel that, according to the presentence investigation report, defendant committed the domestic battery in case No. 17-CF-2030 while released on bond in case No. 17-CF-1598, defense counsel ultimately agreed that defendant was subject to mandatory consecutive sentencing. Thereafter, the court sentenced defendant to consecutive terms of five years’ imprisonment. Given the length of the aggregate sentence, the State dismissed charges brought in another case (No. 18-CF-0723).
¶ 8 Defendant never challenged his sentences in the trial court.
¶ 9 This timely appeal followed.
¶ 11 At issue in this appeal is whether imposition of consecutive sentences was proper, given that defendant was never advised before he pleaded guilty in case No. 17-CF-2030 that he was subject to mandatory consecutive sentencing. We review this issue de novo. See People v. Guzman , 2015 IL 118749, ¶ 13, 398 Ill.Dec. 44, 43 N.E.3d 954 ().
¶ 12 In making his argument, defendant recognizes that he never raised this issue in the trial court. "It is well settled that, to preserve a claim of sentencing error, both a contemporaneous objection and a written postsentencing motion raising the issue are required." People v. Walsh , 2016 IL App (2d) 140357, ¶ 16, 403 Ill.Dec. 338, 53 N.E.3d 392 ; see also 730 ILCS 5/5-4.5-50(d) (West 2016) (). If a defendant fails to challenge his sentence in the trial court, issues related to the defendant's sentence are subject to forfeiture on appeal. See In re Angelique E. , 389 Ill. App. 3d 430, 432, 329 Ill.Dec. 740, 907 N.E.2d 59 (2009) ().
¶ 13 Here, defendant never objected to the imposition of consecutive sentences at the sentencing hearing or in a motion to reconsider the sentence. Thus, the issue he raises now is subject to forfeiture.
¶ 14 Nevertheless, recognizing that he raises an issue not properly preserved, defendant asks us to apply the plain error rule. "Plain error is a limited and narrow exception to the general forfeiture rule." Walsh , 2016 IL App (2d) 140357, ¶ 17, 403 Ill.Dec. 338, 53 N.E.3d 392. "To obtain relief under the plain error rule, a defendant must show that a clear or obvious error occurred." Id. "If a clear or obvious error is identified, a defendant may obtain relief if the error complained of meets either prong of the two-pronged plain error rule." Id. "That is, ‘[i]n the sentencing context, a defendant must *** show either that (1) the evidence at the sentencing hearing was closely balanced, or (2) the error was so egregious as to deny the defendant a fair sentencing hearing.’ " Id. (quoting People v. Hillier , 237 Ill. 2d 539, 545, 342 Ill.Dec. 1, 931 N.E.2d 1184 (2010) ). The defendant bears the burden of establishing plain error, and if that burden is unmet as to either prong of the plain error rule, the claim raised for the first time on appeal is forfeited. Id.
¶ 15 Defendant argues that plain error review is appropriate because the court did not properly admonish him pursuant to Illinois Supreme Court Rule 402(a)(2) (eff. July 1, 2012). That rule provides, among other things, that a trial court shall not accept a defendant's guilty plea without first advising the defendant in open court about "the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences." Id. Plain error arises when a trial court fails to inform a defendant, pursuant to this rule, that consecutive sentences are mandatory. People v. McCracken , 237 Ill. App. 3d 519, 521, 178 Ill.Dec. 581, 604 N.E.2d 1104 (1992). Thus, we consider defendant's claim here that imposition of consecutive sentences was improper.
¶ 16 We note that the parties agree that defendant was subject to mandatory consecutive sentencing, as he was released on bond for a felony in case No. 17-CF-1598 when he committed the felony charged in case No. 17-CF-2030. See 730 ILCS 5/5-8-4(d)(8) (West 2016) (). The parties also agree that defendant was not advised when he pleaded guilty in case No. 17-CF-2030 that he was subject to mandatory consecutive sentences. See Ill. S. Ct. R. 402(a)(2) (July 1, 2012).
¶ 17 The parties disagree about whether, despite the above, consecutive sentences were proper because nothing indicated that the trial court knew that consecutive sentences were mandatory. In making their arguments, both parties rely on People v. Butler , 186 Ill. App. 3d 510, 133 Ill.Dec. 334, 541 N.E.2d 171 (1989). In that case, we noted that, "where the court is aware of the possibility of consecutive sentences, such sentences may not be imposed in the absence of an admonishment as to that possibility prior to plea." (Emphasis added.) Id. at 521, 133 Ill.Dec. 334, 541 N.E.2d 171. Defendant argues that the trial court was aware that consecutive sentences were mandatory because "the same court *** accepted both guilty pleas less than one month apart and *** [that court] advised [defendant] that probation in case 17 CF 2030 would run concurrently with his probation in case 17 CF 1598." The State claims that the trial court was unaware that consecutive sentencing was mandatory because the pleas were not entered during the same proceeding or on the same day, and the court did not have the benefit of a presentence investigation report at the time defendant pleaded guilty in case No. 17-CF-2030.
¶ 18 We determine that the parties have misinterpreted Butler . In relying on Butler , the parties presume that what the trial court knew at the time a defendant pleaded guilty is decisive. We disagree. The fact, as we stated in Butler , that consecutive sentences may not be imposed when the trial court is aware of the possibility of such sentencing—yet fails to admonish the defendant about it—does not mean that the inverse is also true, i.e. , that a trial court's unawareness of the possibility of consecutive sentencing—and thus failure to admonish the defendant about it—allows a trial court to...
To continue reading
Request your trial