People v. Watkins

• Decision Date: 10 October 2001
• Docket Number: No. 2-00-0644., No. 2-00-0643
• Citation: 258 Ill.Dec. 732,325 Ill. App.3d 13,757 N.E.2d 117
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronald L. WATKINS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

757 N.E.2d 117

325 Ill. App.3d 13

258 Ill.Dec. 732

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronald L. WATKINS, Defendant-Appellant.

Nos. 2-00-0643, 2-00-0644.

Appellate Court of Illinois, Second District.

October 10, 2001.

Rehearing Denied October 19, 2001.

G. Joseph Weller, Deputy Defender (Court-appointed), Darren E. Miller (Court-appointed), Office of the State Appellate Defender, Elgin, for Ronald L. Watkins.

Joseph E. Birkett, Du Page County State's Attorney, Wheaton, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Peter N. Stein, Lincolnshire, for the People.

Justice BYRNE delivered the opinion of the court:

Pursuant to a plea negotiation, defendant, Ronald L. Watkins, pleaded guilty to one count of retail theft (720 ILCS 5/16A-10(1) (West 1998)) in case No. 98-CF-1246 ('98 offense) and to one count of retail theft in case No. 99-CF-749 ('99 offense). Defendant was sentenced to two consecutive three-year terms of imprisonment. Thereafter, defendant filed motions to vacate the pleas and to reconsider the sentences, which were subsequently denied. Defendant contends on appeal that the sentences (1) are improperly enhanced; (2) violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and (3) are excessive. We affirm.

BACKGROUND

The relevant facts may be briefly stated. In 1998, defendant was charged by indictment with retail theft for allegedly stealing merchandise valued at $22.98 from a Sears store. In 1999, while out on bond for the '98 offense, defendant was indicted with, inter alia, retail theft for stealing merchandise totaling less than $150 from a Dominicks store.

Defendant pleaded guilty to both offenses at one hearing. During the factual basis hearing for both the '98 and '99 offenses, the State introduced, without objection, a prior '93 conviction as the basis for enhancing each respective retail theft charge to a Class 4 felony. The court informed defendant that both cases were Class 4 felonies, punishable by terms of imprisonment of one to three years and a one-year period of mandatory supervised release. Defendant indicated that he understood the charges and possible penalties. The State noted that, because the '99 offense was committed while defendant was out on bond for the '98 offense, it was mandatory that the sentences be served consecutively. After the court explained the differences between sentences and admonished that consecutive sentences were required, defendant indicated that he was still willing to plead guilty to both offenses. Thereafter, the court noted that defendant had signed a jury waiver in open court, that the pleas were being entered into freely and voluntarily, and that there was a factual basis for accepting the pleas. The court then entered findings of guilt and judgments of conviction on both offenses.

Evidence presented at the sentencing hearing indicated that the 45-year-old defendant had an extensive criminal history, consisting mostly of retail thefts and thefts. In addition, defendant had a hearing impairment and had used cocaine or heroin "on an almost daily basis" since the age of 17. The court noted that it considered defendant's statement, the non-violent nature of the crimes, defendant's acknowledgment of guilt, and his recent efforts to address his drug problem. The court also considered defendant's "history and character," as well as "his current status." The court found that it was indisputable that defendant was a drug addict and that there was a relationship between defendant's addiction and the crimes he committed. However, after considering the testimony of defendant and the Treatment Alternatives for Safe Communities (TASC) report, the court believed that there was no likelihood that defendant could be rehabilitated. The court concluded that a period of incarceration was necessary to protect the public and that probation would be inconsistent with the ends of justice and would deprecate the seriousness of defendant's conduct. The court sentenced defendant to two three-year terms of imprisonment "to run consecutively."

On January 13, 2000, defendant filed pro se motions to withdraw his pleas. On April 19, 2000, new defense counsel filed a superceding motion to withdraw the plea under the '99 offense and also filed Supreme Court Rule 604(d) (188 Ill.2d R. 604(d)) certificates and motions to reconsider the sentences under both cases.

The trial court denied the motion to withdraw the plea, finding that defendant was properly admonished, that his plea was made freely and voluntarily, and that he understood the consequences of his plea. The trial court also denied the motions to reconsider the sentences following a hearing on the motions.

We note that defendant was sentenced for both offenses on December 17, 1999. On January 13, 2000, defendant filed timely pro se motions to withdraw his pleas. Although the motions to vacate were filed within 30 days of sentencing, the motions to reduce the sentences were not filed until April 19, 2000, beyond the 30-day time limit set forth under Supreme Court Rule 604(d). However, neither the trial court nor the State complained of the untimeliness of the motions to reduce the sentences, and a full hearing was conducted on the motions. We agree with defendant that the revestment doctrine allows the parties to revest a court with jurisdiction when the parties "actively participate in proceedings which are inconsistent with the merits of the prior judgment." People v. Hubbard, 170 Ill.App.3d 572, 576, 121 Ill.Dec. 215, 524 N.E.2d 1263 (1988). The State does not challenge the trial court's jurisdiction. We therefore conclude that the trial court had jurisdiction to consider defendant's motions. Because defendant filed his notices of appeal within 30 days from the date of the denial of the motions, his appeals are timely. We consolidated the '98 and '99 cases on appeal.

ANALYSIS

I. Double Enhancement

On appeal, defendant challenges only his sentences. He first contends that the trial court's imposition of consecutive sentences was the result of improper double enhancement. The State responds that defendant has waived this issue by failing to raise it during the sentencing hearing or in the motion to reconsider the sentences. Defendant does not dispute that he failed to raise this issue below. Therefore the issue ordinarily would be deemed waived. See People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988). However, defendant argues that we should address the issue as plain error pursuant to Supreme Court Rule 615(a) (134 Ill.2d R. 615(a)) because the error is so fundamental that it could result in an illegal sentence. We agree with defendant and will therefore review the issue under the plain error rule.

On the merits, defendant argues that the trial court improperly used the '93 conviction twice to enhance both the '98 and the '99 retail theft offenses to felonies and then improperly used the '93 conviction to impose consecutive sentences. Defendant reasons that his "status as a felon" was used twice to "upgrade" his crimes from misdemeanors to felonies, and then used again to "enhance" his sentences to consecutive sentences. In other words, defendant reasons that, because he committed the '99 offense, now classified as a felony, while he was on pretrial release from the '98 felony, consecutive sentences were mandated. According to defendant, this constituted an impermissible "double enhancement" and the reversal of his sentences is required. We disagree.

This case revolves around the application of the retail theft and consecutive sentencing statutes. Because it involves only a pure question of law, our review is de novo. See People v. Wright, 183 Ill.2d 16, 21, 231 Ill.Dec. 908, 697 N.E.2d 693 (1998); People v. Becker, 315 Ill.App.3d 980, 994, 248 Ill.Dec. 696, 734 N.E.2d 987 (2000).

The offenses of which defendant was convicted, felony retail thefts, are Class 4 felonies. Section 16A-10 of the Criminal Code of 1961, provides:

"(1) Retail theft of property, the full retail value of which does not exceed $150, is a Class A misdemeanor.

(2) A person who has been convicted of retail theft of property, the full retail value of which does not exceed $150, and who has been previously convicted of any type of theft, robbery, armed robbery, burglary, residential burglary, possession of burglary tools or home invasion is guilty of a Class 4 felony." 720 ILCS 5/16A-10 (West 1998).

During the factual basis hearing, the State introduced the same prior '93 conviction as the basis for upgrading both the '98 and '99 retail theft charges from misdemeanors to Class 4 felonies. The requirements for enhancing Class A misdemeanor retail thefts to Class 4 felonies were present in both the '98 and '99 offenses.

Moreover, it is undisputed that defendant committed the '99 offense while out on bond for the '98 felony. Mandatory consecutive sentences are required when a person charged with a felony commits a separate felony while on pretrial release. 730 ILCS 5/5-8-4(h) (West 1998). All of the requirements for the enhancement of the offenses and the imposition of consecutive sentences were therefore fulfilled in each case. Nevertheless, defendant challenges the application of the '93 conviction on the ground that it constitutes improper double enhancement.

Improper double enhancement occurs when the court uses a single factor both as an element of a defendant's crime and as an aggravating factor to justify the imposition of a harsher sentence than might otherwise have been imposed. People v. Gonzalez, 151 Ill.2d 79, 83-84, 175 Ill.Dec. 731, 600 N.E.2d 1189 (1992). The legislature prescribes the sentencing range for an offense by putting the offense into a specific class, such as a Class A misdemeanor or a Class 4 felony, and then designating the sentences that may be imposed for each class of offenses. Accordingly,...