People v. Jones

• Decision Date: 21 December 1995
• Docket Number: No. 78948,78948
• Citation: 213 Ill.Dec. 659,659 N.E.2d 1306,168 Ill.2d 367
• Parties: , 213 Ill.Dec. 659 The PEOPLE of the State of Illinois, Appellee, v. Zettie JONES, Jr., Appellant.
• Court: Illinois Supreme Court

Page 1306

659 N.E.2d 1306

168 Ill.2d 367, 213 Ill.Dec. 659

The PEOPLE of the State of Illinois, Appellee, v. Zettie JONES, Jr., Appellant.

No. 78948.

Supreme Court of Illinois.

Dec. 21, 1995.

Daniel D. Yuhas, Deputy Defender, and Lawrence J. Essig, Assistant Defender, of the Office of the State Appellate Defender, Springfield, for appellant.

James E. Ryan, Attorney General, Springfield, and Michael D. Clary, State's Attorney, Danville (Norbert J. Goetten, Robert J. Biderman and Leslie Hairston, of the Office of the State's Attorneys Appellate Prosecutor, Springfield, of counsel), for the People.

Justice McMORROW delivered the opinion of the court:

In this appeal we conclude, consistent with our ruling in People v. Kilpatrick (1995), 167 Ill.2d 439, 212 Ill.Dec. 660, 657 N.E.2d 1005, that the trial court is not authorized to increase a term of imprisonment when the court reconsiders the criminal sentence it originally imposed. In addition we determine that a reviewing court has the power and authority to reduce, on appeal, the sentence imposed by the trial court.

I

Defendant, Zettie Jones, Jr., was convicted of attempted murder, armed robbery, and aggravated battery with a firearm, upon his entry of a guilty plea with respect to a September 1991 incident in which defendant shot and robbed a convenience store clerk in Danville, Illinois. The trial court imposed consecutive sentences of 25 years' imprisonment for the attempted murder and armed robbery convictions.

Defendant subsequently filed a motion to withdraw his guilty plea and reconsider his sentences. Following a hearing, the trial court denied the request to vacate defendant's plea. However, the court granted defendant's request to reconsider his sentences. The trial court determined that it had committed error when, in admonishing the defendant during his guilty plea, the court neglected to advise the defendant that he might receive consecutive sentences. Because of this error, the trial court vacated defendant's sentences for attempted murder and armed robbery. The trial court resentenced the defendant to a single term of 30 years' imprisonment with respect to his attempted murder conviction. No new sentence was imposed for defendant's armed robbery conviction.

The defendant appealed from the trial court's sentencing decision, arguing inter alia that the trial court was not authorized to increase the term of imprisonment from 25 years to 30 years when the trial court resentenced the defendant for his attempted murder conviction. The appellate court affirmed the trial court's sentencing decision (271 Ill.App.3d 264, 207 Ill.Dec. 367, 647 N.E.2d 598), and we allowed defendant's petition for leave to appeal (145 Ill.2d R. 315(a)).

II

The defendant contends that the trial court erred when it increased the term of imprisonment with respect to his attempted murder conviction from 25 years to 30 years. We agree.

In People v. Kilpatrick, we held that section 5-8-1(c) of the Unified Code of Corrections (730 ILCS 5/5-8-1(c) (West 1992)) does not permit a trial court to increase a sentence after it has been imposed. In that case, the circuit court initially imposed two consecutive sentences of six and nine years' imprisonment for the defendant's home invasion and attempted murder convictions, but vacated these sentences upon defendant's motion for reconsideration. In resentencing the defendant, the trial court imposed a "single sentence" of 15 years' imprisonment. Upon review, we held that the new sentence imposed by the trial court violated section 5-8-1(c), which provides that a "motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 30 days after the sentence is imposed. However, the court may not increase a sentence once it is imposed." (Emphasis added.) 730 ILCS 5/5-8-1(c) (West 1992).

We reasoned that the trial court's imposition of a "single sentence" of 15 years' imprisonment was an "improper attempt[ ] to circumvent the clear and express language of section 5-8-1(c) of the Unified Code of Corrections." 167 Ill.2d at 442-43, 212 Ill.Dec. at 661, 657 N.E.2d at 1006. We noted that this section is consistent with the United States Supreme Court's decision in North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, in which the Court stated that due process may prohibit a judge from imposing a more severe sentence when the defendant has been convicted following a retrial because a greater sentence may penalize the defendant's right to challenge his conviction and sentence. 167 Ill.2d at 443, 212 Ill.Dec. at 661, 657 N.E.2d at 1006.

Bearing in mind the purpose of section 5-8-1(c), we agreed with the appellate court's reasoning in People v. Rivera (1991), 212 Ill.App.3d 519, 156 Ill.Dec. 615, 571 N.E.2d 202, that consecutive sentences are not treated as a single sentence under section 5-8-1(c). Accordingly, a trial court's modification of sentences so that they are to be served concurrently rather than consecutively does not justify the trial court's increase in the terms of imprisonment for each sentence. (Rivera, 212 Ill.App.3d at 525, 156 Ill.Dec. 615, 571 N.E.2d 202.) Similarly, the imposition of a single sentence does not permit an increase in the number of years which the defendant must serve for that sentence. We concluded in Kilpatrick that interpreting section 5-8-1(c) so that it prevented the trial court from increasing the defendant's term of imprisonment lessened the risk that the defendant would be penalized for his efforts to seek relief with respect to alleged sentencing errors.

The 30-year term of imprisonment imposed by the trial court in the instant cause suffers from the same infirmities that were apparent in Kilpatrick. As in Kilpatrick, the trial court in the present case initially imposed two consecutive sentences. Upon reconsideration, however, the trial court discerned that it should not have imposed consecutive sentences and vacated them. The trial court then sentenced the defendant to a longer term of imprisonment with respect to one of his convictions and imposed no sentence with regard to defendant's remaining conviction. As in Kilpatrick, such an increased term of imprisonment violates section 5-8-1(c). Accordingly, the appellate court and the trial court were in error when they concluded that the term of sentence imposed for defendant's attempted murder conviction could be increased upon reconsideration.

In light of our conclusion that the court erred in increasing the term of imprisonment for defendant's attempted murder conviction from 25 to 30 years, it remains for this court to decide the proper sentence which the defendant should receive for his attempted murder conviction. Although the defendant does not directly address this issue in his brief to this court, he argues that the term of imprisonment imposed by the trial court was an abuse of discretion and should be reduced on appeal. The appellate court rejected this argument, reasoning that a reviewing court lacks the power to reduce a sentence on appeal and that the 30-year sentence imposed by the circuit court was not an abuse of discretion. We turn our attention to these matters.

We consider first the appellate court's holding with respect to a reviewing court's power to reduce a sentence on appeal. The appellate court reasoned that under Rule 615(b)(4), a reviewing court may disturb a criminal sentence imposed by the trial court only in two instances: either (1) when the sentence exceeds statutory limits, or (2) when the sentence, although lawful, nevertheless amounts to an abuse of discretion. 271 Ill.App.3d at 273, 207 Ill.Dec. 367, 647 N.E.2d 598.

It has long been established that the trial court has broad discretionary powers in choosing the appropriate sentence a defendant should receive. It has been emphasized that the trial court is in a superior position to assess the credibility of the witnesses and to weigh the evidence presented at the sentencing hearing. (People v. Younger (1986), 112 Ill.2d 422, 427, 98 Ill.Dec. 218, 494 N.E.2d 145, quoting People v. La Pointe (1981), 88 Ill.2d 482, 492-93, 59 Ill.Dec. 59, 431 N.E.2d 344.) Where the sentence chosen by the trial court is within the statutory range permissible for the pertinent criminal offense for which the defendant has been tried and charged, a reviewing court has the power to disturb the sentence only if the trial court abused its discretion in the sentence it imposed. (People v. Hicks (1984), 101 Ill.2d 366, 375, 78 Ill.Dec. 354, 462 N.E.2d 473; People v. Godinez (1982), 91 Ill.2d 47, 54, 55, 61 Ill.Dec. 524, 434 N.E.2d 1121; People v. Cox (1980), 82 Ill.2d 268, 275, 45 Ill.Dec. 190, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill.2d 149, 154, 11 Ill.Dec. 274, 368 N.E.2d 882.) The reviewing court need not reach the question of abuse of discretion, but may proceed to a reduction of the sentence on appeal, where it is determined that the sentence chosen by the trial court was not authorized by law. (People v. Hooper (1989), 133 Ill.2d 469, 498, 142 Ill.Dec. 93, 552 N.E.2d 684; People v. Collins (1985), 106 Ill.2d 237, 285-86, 87 Ill.Dec. 910, 478 N.E.2d 267.) This precedent supports the appellate court's initial determination that a trial court's sentencing decision may be disturbed upon review only when it either was unlawful or amounted to an abuse of discretion.

The appellate court in the present case adopted an additional ruling which we find inconsistent with precedent of this court. Specifically, the appellate court observed that Rule 615(b)(4) "requires a court of review, having determined that an otherwise lawful sentence constitutes an abuse of the trial court's discretion, to vacate that sentence and remand the matter to the trial court for imposition of a proper sentence." (271 Ill.App.3d at 273, 207 Ill.Dec. 367, 647 N.E.2d 598.) The court stated that the rule "does not authorize a court of...