People v. Wendt

• Decision Date: 22 December 1994
• Docket Number: No. 75622,75622
• Citation: 206 Ill.Dec. 174,645 N.E.2d 179,163 Ill.2d 346
• Parties: , 206 Ill.Dec. 174 The PEOPLE of the State of Illinois, Appellee, v. Alesia Johnson WENDT, Appellant.
• Court: Illinois Supreme Court

Page 179

645 N.E.2d 179

163 Ill.2d 346, 206 Ill.Dec. 174

The PEOPLE of the State of Illinois, Appellee, v. Alesia Johnson WENDT, Appellant.

No. 75622.

Supreme Court of Illinois.

Dec. 22, 1994.

[163 Ill.2d 347] [206 Ill.Dec. 175] L. Stanton Dotson, Matoon, for appellant.

Roland W. Burris, Atty. Gen., Springfield, and Kevin Parker, State's Atty., Effingham, Rosalyn B. Kaplan, Solicitor Gen., and Terence M. Madsen and Bradley P. Halloran, Asst. Attys. Gen., Chicago, for the People of State of Illinois.

Justice MILLER delivered the opinion of the court:

On October 4, 1990, defendant, Alesia Johnson Wendt, entered a negotiated plea of guilty in the circuit court of Effingham County to four felony drug charges. She was subsequently sentenced to three concurrent five-year terms of imprisonment for three of the offenses and to a consecutive 30-month period of probation for the remaining offense. Defendant appealed her sentence, and the appellate court affirmed. (No. 5-92-0221 (unpublished order under Supreme Court Rule 23).) The appellate court then granted defendant's petition for rehearing to address whether a defendant sentenced to a term of imprisonment may also be sentenced to a consecutive period of probation. The court found that the sentence was authorized and again affirmed defendant's sentence. (245 Ill.App.3d 440, 184 Ill.Dec. 514, 613 N.E.2d 831.) We allowed defendant's petition for leave to appeal (145 Ill.2d R. 315(a)) and now affirm the judgment of the appellate court. The primary issue on appeal is whether under the Unified Code of Corrections (Code) (Ill.Rev.Stat.1989, ch. 38, par. 1005-1-1 et seq.) a court may impose a sentence of probation to be served consecutively to a simultaneously imposed sentence of imprisonment.

FACTS

On June 20, 1990, defendant was charged by indictment in the circuit court of Effingham County in case No. 90-CF-82 with one count of unlawful possession of cannabis with intent to deliver (count I) (Ill.Rev.Stat.1989, ch. 56 1/2, par. 705(d)) and one count of unlawful possession of a controlled substance with intent to deliver (count II) (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1401(b)(2)). On July 17, 1990, defendant was additionally charged by information in case Nos. 90-CF-129, 90-CF-130, and 90-CF-132 with single counts of unlawful possession of a controlled substance with intent to deliver (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1401(b)(2)). The cases were consolidated during plea negotiations, and defendant later entered negotiated guilty pleas to two Class 1 felonies (case Nos. 90-CF-130 and 90-CF-132) and two Class 2 felonies (case No. 90-CF-129 and count II in case No. 90-CF-82).

In exchange for defendant's guilty pleas, the remaining charges against defendant were dismissed. The State also agreed not to request a sentence of more than a total of Defendant appealed her sentence, arguing (1) that the State's Attorney violated the negotiated plea agreement by recommending a 30-month period of probation to be served consecutively to the sentences of imprisonment; (2) that her constitutional rights were violated because she was the subject of selective prosecution; (3) that her sentence was excessive in view of her first-offender status; and (4) that the court erred by failing to admonish her of the availability of alternative treatment for drug addicts under the Illinois Alcoholism and Other Drug Dependency Act (Ill.Rev.Stat.1991, ch. 111 1/2, par. 6351--1 et seq.). Defendant sought a reduction in sentence to three years' probation and drug counseling. The appellate court affirmed defendant's convictions and sentences. No. 5-92-0221 (unpublished order under Supreme Court Rule 23).

                [206 Ill.Dec. 176] five years in the Department of Corrections.  At the sentencing hearing, the State recommended that defendant be sentenced to concurrent five-year terms of imprisonment in case Nos. 90-CF-82, 90-CF-130, and 90-CF-132 and to a consecutive 30-month period of probation in case No. 90-CF-129.   The sentence of probation was conditioned on defendant (1) contributing $500 to the Southeastern Illinois Drug Task Force, (2) paying a $675 fine, representing the street value of the controlled substance, (3) paying a $250 fine plus court costs, and (4) submitting to an evaluation upon her release from the Department of Corrections, and then engaging in any counseling recommended.  The court followed the State's recommendation
                

Following the issuance of the Rule 23 order (134 Ill.2d R. 23), the appellate court granted defendant's petition for rehearing to address the sole issue of the propriety of imposing a sentence of probation to be served consecutively to a term of imprisonment. Although this issue was raised for the first time in the petition for rehearing, the appellate court found that deciding the issue was more appropriate than disposing of it on grounds of waiver. (245 Ill.App.3d at 442, 184 Ill.Dec. 514, 613 N.E.2d 831.) The appellate court then affirmed defendant's sentence, finding that the Code authorized the court to impose a sentence of probation consecutive to a term of imprisonment. (245 Ill.App.3d at 444-47, 184 Ill.Dec. 514, 613 N.E.2d 831.) Defendant petitioned this court for leave to appeal, arguing that no statutory provision authorizes such a sentence. We allowed defendant's petition for leave to appeal (134 Ill.2d R. 315(a)) and, for the reasons that follow, affirm the judgment of the appellate court.

DISCUSSION

A. Waiver

Before addressing the primary issue on appeal, we must first address the State's waiver argument. The State initially argues that defendant has waived the right to challenge the propriety of imposing a sentence of probation to be served consecutively to a sentence of imprisonment for failure to raise the issue in her original appeal to the appellate court. As previously noted, defendant raised this issue for the first time in her petition for rehearing in the appellate court. The appellate court chose to address the issue rather than disposing of it on grounds of waiver and decided the question against defendant.

Generally, points not raised or argued in an opening appellate brief are waived. (See 134 Ill.2d R. 341(e)(7).) Consequently, even though the appellate court addressed the issue, it may still be considered waived. (People v. Pecor (1992), 153 Ill.2d 109, 116, 180 Ill.Dec. 50, 606 N.E.2d 1127; People v. Hicks (1984), 101 Ill.2d 366, 371, 78 Ill.Dec. 354, 462 N.E.2d 473.) However, because a conflict exists within the appellate court as to whether a court may impose a sentence of probation to be served consecutively to a term of imprisonment, we choose to address the issue at this time. See American Federation of State, County & Municipal Employees, Council 31 v. County of Cook (1991), 145 Ill.2d 475, 480, 164 Ill.Dec. 904, 584 N.E.2d 116 (a reviewing court may consider issues not properly preserved for review to achieve a just result and for the maintenance of a sound and uniform body of precedent).

B. Consecutive Sentence of Probation

The question before us is whether the imposition of a sentence of probation to be served consecutively to a simultaneously imposed term of imprisonment is authorized under the Code.

Relying primarily on People v. Mack (1985), 133 Ill.App.3d 788, 88 Ill.Dec. 832, 479 N.E.2d 445, and People v. Dailey (1989), 188 Ill.App.3d 683, 135 Ill.Dec. 953, 544 N.E.2d 449, defendant argues that a court is not authorized to impose a sentence of probation to be served consecutively to a period of incarceration. In Mack, the appellate court found that a sentence of probation consecutive to a term of imprisonment had the effect of increasing the penalty. Citing Fitzsimmons v. Norgle (1984), 104 Ill.2d 369, 84 Ill.Dec. 665, 472 N.E.2d 802, the court found that the law does not permit the enhancement of a penalty without a clear indication of a legislative intent to accomplish that result. The Mack court further held that any ambiguity in a statute calling for the enhancement of a penalty required the application of a rule of lenity and strict construction in favor of the defendant. (Mack, 133 Ill.App.3d at 794, 88 Ill.Dec. 832, 479 N.E.2d 445.) Because the Mack court found that the Code provisions on sentencing did not expressly authorize a consecutive sentence of probation (Ill.Rev.Stat.1989, ch. 38, par. 1005-1-1 et seq.), it held that the rules of lenity and strict construction precluded a sentence of probation from running consecutively to a term of imprisonment. Mack, 133 Ill.App.3d at 795, 88 Ill.Dec. 832, 479 N.E.2d 445.

The court in Dailey summarily followed the rationale in Mack. (Dailey, 188 Ill.App.3d at 688, 135 Ill.Dec. 953, 544 N.E.2d 449; see also People v. Lowery (1988), 177 Ill.App.3d 639, 126 Ill.Dec. 729, 532 N.E.2d 414 (reaffirming the decision in Mack ); People v. Jocelyn (1989), 181 Ill.App.3d 774, 130 Ill.Dec. 757, 537 N.E.2d 1086 (holding that a sentence of probation running consecutively to a term of imprisonment was an available sentencing option following a conviction of escape because the legislature specifically provided for an increased penalty); People v. Gerdes (1990), 196 Ill.App.3d 133, 142 Ill.Dec. 758, 553 N.E.2d 108 (finding it impermissible to require periodic imprisonment be served consecutive to the sentence of imprisonment); People v. Sweeney (1990), 200 Ill.App.3d 218, 146 Ill.Dec. 659, 558 N.E.2d 622 (finding a defendant charged with committing a separate felony while on pretrial release could receive a probationary sentence consecutive to incarceration because the legislature provided for an increased penalty).) The appellate court in the present case, however, disagreed with the Mack court and found that a consecutive sentence of probation was an allowable sentencing disposition. (See also People v. Gischer (1977), 51 Ill.App.3d 847, 9 Ill.Dec. 264, 366 N.E.2d 521 (holding that terms of probation not imposed at the same time and not for the same offense may run...