People v. Kinne

• Decision Date: 29 October 2018
• Docket Number: NO. 4-16-0444,4-16-0444
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY L. KINNE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (4th) 160444-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY L. KINNE, Defendant-Appellant.

NO. 4-16-0444

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

October 29, 2018

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Pike County

No. 15CF75

Honorable Charles H.W. Burch, Judge Presiding.

JUSTICE TURNER delivered the judgment of the court.

Justices Steigmann and DeArmond concurred in the judgment.

ORDER

¶ 1 Held: While the trial court mentioned defendant could have been subjected to a Class X sentence prior to the plea agreement in this case, the court clearly stated it was bound by the terms of the plea agreement and was sentencing defendant pursuant to the plea agreement. Defendant forfeited his argument the court improperly considered the Class X sentencing range when sentencing defendant in this case because he failed to raise the issue in his posttrial motion. Defendant cannot establish the trial court made a clear or obvious error for purposes of allowing review pursuant to the plain-error doctrine.

¶ 2 On December 14, 2015, defendant Jeffrey L. Kinne entered a partially negotiated guilty plea to the offense of failure to register as a sex offender. As part of the plea, the State agreed to an eight-year sentencing cap. On March 28, 2016, the trial court sentenced defendant to eight years in prison. On June 13, 2016, defendant filed a second amended motion to reconsider sentence, which the trial court denied. Defendant appeals, arguing he should receive a new sentencing hearing because the trial court relied on an improper factor in aggravation by explicitly considering defendant had been subject to a Class X sentence of 6 to 30 years' imprisonment before the State agreed to lower the charge in this case from a Class 2 to a Class 3 offense. We affirm.

¶ 3 I. BACKGROUND

¶ 4 In September 2015, the State charged defendant by information with knowingly or willfully providing false material information by a sex offender in violation of the Sex Offender Registration Act (Registration Act) (730 ILCS 150/10(a) (West 2014)). The State originally charged this offense as a Class 2 felony because defendant had previously been convicted of a violation of the Registration Act. According to the charge, defendant was extended-term eligible, subject to a Class X sentence of 6 to 30 years in prison, and the offense was nonprobationable.

¶ 5 On December 7, 2015, the trial court held a conference pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 2012). The State informed the court it was trying to determine whether the underlying offense could be charged as a Class 3 felony. The State noted the Registration Act states that a second or subsequent violation of the Registration Act is a Class 2 felony. If convicted of a Class 2 felony, defendant would face a Class X sentence for lying to the police about having a Facebook page. The trial court told the parties the State could amend the charge as it wished. According to the court, "Anyway, so a simple answer to your question is, can you amend that to reflect a lesser classification charge, I would say that you have that authority and you can do it and that I will be bound upon a plea or finding of guilt to sentence in that [Class 3 sentencing] range." The State did note defendant would still be eligible for an extended term sentence, which meant defendant could be sentenced anywhere from 2 to 10 years in prison. For a Class 3 felony, the normal sentencing range is two to five years' imprisonment,and the extended sentencing range is 5 to 10 years' imprisonment (730 ILCS 5/5-4.5-40(a) (West 2014)).

¶ 6 Defense counsel then made an argument it was her legal opinion that defendant could only be convicted of a Class 3 felony in this case, regardless of any plea agreement, based on the plain language of the statute. The trial court noted it understood defendant's argument but disagreed with her on the law. The State responded defense counsel's legal question would likely be moot in this case because the State believed the parties would reach an agreement for defendant to plead guilty to a Class 3 felony with an extended sentence. The court responded, "I think you—well, the short answer to your question, I believe you have the authority to do that and if you amend it to a lesser class offense, I'm bound to sentence in that range, so."

¶ 7 On December 14, 2015, defense counsel indicated to the trial court defendant and the State had come to an agreement in the case. The State agreed to (1) amend count I of the complaint, striking any reference to a prior Registration Act conviction, (2) not proceed on any Class X sentencing notice, and (3) cap defendant's sentence at eight years' imprisonment in exchange for defendant's guilty plea to the amended Class 3 charge. Defendant agreed he was eligible for an extended-term sentence and probation and would pay a $500 fine, court costs, and a $150 public defender reimbursement. If sentenced to prison, defendant's sentence would include a one-year period of mandatory supervised release (MSR).

¶ 8 The trial court then asked defendant if he understood he would be pleading guilty to a Class 3 felony, he would not be subject to Class X sentencing, and, if he was sentenced to prison, his sentence would be between two and eight years' imprisonment followed by one year of MSR. The court also advised defendant he would be eligible for probation or conditional discharge.

¶ 9 The trial court then allowed the State to amend the charge from a Class 2 felony to a Class 3 felony by interlineation and advised defendant:

"Okay. [Defendant], the information has been amended on its face to reflect this is now a Class 3 felony and it has stricken the language indicating that you have previously been convicted of a violation of the Sex Offender Registration Act in Pike County, Illinois, on September the 4th, 2003. That has been removed and thus would make this a Class 3 felony, carrying with it a possible range of penalties of two to ten years['] imprisonment, plus one year of mandatory supervised release, or what used to be called [']parole,['] fine of up to $25,000, and up to 30 months of probation or conditional discharge, which as a part of that could be sentenced up to 364 days periodic imprisonment or 180 days of straight time imprisonment in the county jail.

So do you believe you understand the charge you would be pleading guilty to at this point and the possible penalties associated with that? And, for the record, the charge is knowingly or willfully providing false material information by a sex offender."

Defendant responded he understood and entered his guilty plea.

¶ 10 On March 28, 2016, the trial court held a sentencing hearing in this case. At the hearing, the court told the parties:

"All right. And just so we're all clear on the parameters on which we're operating today, this was an open plea with a—sentencing alternatives available to the court would be up to eight years['] imprisonment in the Illinois Department of Corrections, as few as two years['] imprisonment in the Department ofCorrections, or in lieu of a Department of Corrections sentence, up to 30 months of probation, conditional discharge or any conditions that would be available to the court or that would be properly included in an order of probation, $500 fine plus costs as agreed, and $150 public defender reimbursement as likewise agreed."

The parties agreed. The State did not introduce any evidence in aggravation, and defense counsel did not introduce any evidence in mitigation. The State recommended defendant be sentenced to eight years' imprisonment, which was the maximum sentence agreed upon pursuant to the plea bargain. Defense counsel asked for 30 months' probation.

¶ 11 The trial court's explanation for its sentencing decision is approximately nine pages long. The court noted it had considered the presentence investigation report, the respective parties' arguments, and defendant's statement in allocution. In the trial court's lengthy explanation of its sentencing decision, the court made the following statement, quoted below, which forms the basis for defendant's argument in this appeal.

"The court has before it any number of options here as to what to do with [defendant's] case. The court does note that your exposure in this matter has been limited significantly than what it was—as opposed to what it was when this case was begun.

When this started, we were—you were facing the prospect of a mandatory six to 30 years['] imprisonment in the Department of Corrections and three years of parole, which is mandatory supervised release, as this was alleged to be a Class 2 felony, and because of prior history of criminality, you would have been eligible for Class X sentencing when this case was begun."

After making this statement, the court immediately noted the State exercised its discretion and amended the charge against defendant by reducing the charged offense to a Class 3 felony.

¶ 12 The court specifically noted it could sentence defendant to 30 months' probation, conditional discharge, or from two to eight years in the Department of Corrections under the plea agreement reached between defendant and the State. With regard to mitigating factors, the court found defendant's conduct neither caused nor threatened serious physical harm to another. The court also noted in mitigation that defendant's imprisonment would impose an excessive hardship on defendant's child.

¶ 13 The trial court did note this was defendant's second violation of the Registration Act. The court also stated defendant's history of criminality, which began more than 20 years earlier, was an aggravating factor. According to the court:

"And, as I indicated, the history of criminality exhibited by [defendant] is—that it does weigh heavily on the court's mind in

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