                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Deng, 2013 IL App (2d) 111089




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    GARENG DENG, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-11-1089


Filed                      June 14, 2013


Held                       Defendant’s agreement to plead guilty to first-degree murder in exchange
(Note: This syllabus       for a sentence of 35 years’ imprisonment for shooting the victim of a
constitutes no part of     residential burglary was void, since he was not admonished about the
the opinion of the court   mandatory sentencing enhancement of 25 years to life that applied to his
but has been prepared      offense; therefore, the judgment was vacated and the cause was remanded
by the Reporter of         to allow defendant to withdraw his plea and proceed to trial.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Kane County, No. 07-CF-2958; the
Review                     Hon. Allen M. Anderson, Judge, presiding.



Judgment                   Vacated and remanded.
Counsel on                  Thomas A. Lilien and Steven E. Wiltgen, both of State Appellate
Appeal                      Defender’s Office, of Elgin, for appellant.

                            Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                            Bauer and Aline Dias, both of State’s Attorneys Appellate Prosecutor’s
                            Office, of counsel), for the People.


Panel                       JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                            Justices Hutchinson and Jorgensen concurred in the judgment and
                            opinion.




                                           OPINION
¶1          Defendant, Gareng Deng, appeals his sentence of 35 years’ incarceration for first-degree
        murder (720 ILCS 5/9-1(a)(3) (West 2004)). He contends that his sentence and plea
        agreement are void because he did not receive, and was not admonished about, a mandatory
        sentencing enhancement. We agree. Accordingly, we vacate the sentence and remand to
        allow defendant to withdraw his plea.

¶2                                        I. BACKGROUND
¶3           In November 2007, defendant was charged with multiple counts in connection with
        events that occurred in October 2005. He later pleaded guilty to count III, which charged that
        defendant, without lawful justification, while committing the forcible felony of residential
        burglary, shot Marilyn Bethell with a firearm, causing her death. 720 ILCS 5/9-1(a)(3) (West
        2004). Other counts also involved the use of a firearm. In particular, count I alleged that
        defendant, without lawful justification and with the intent to kill, shot Bethell with a firearm,
        causing her death when he personally discharged the firearm. 720 ILCS 5/9-1(a)(1) (West
        2004). Count II alleged that defendant, without lawful justification, shot Bethell, knowing
        that the act created a strong probability of death or great bodily harm when he personally
        discharged the firearm. 720 ILCS 5/9-1(a)(2) (West 2004).
¶4           At the preliminary hearing, the State told the court that counts I and II alleged that
        defendant personally discharged a firearm, such that a mandatory enhancement of 25 years
        to life applied to those counts. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2004). The court asked
        for clarification, inquiring if an enhancement was alleged only in counts I and II, and the
        State affirmed this. The court then admonished defendant that counts I and II subjected him
        to 20 to 60 years’ incarceration, 3 years of mandatory supervised release, fines of up to
        $25,000, and a 25-year-to-life enhancement. Defendant was admonished that count III
        subjected him to 20 to 60 years’ incarceration, 3 years of mandatory supervised release, and
        fines of up to $25,000. Defendant stated that he understood.

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¶5         On May 9, 2009, defendant pleaded guilty to count III under a negotiated plea agreement.
       Defendant stipulated to a factual basis that restated the charge, including that he shot Bethell
       during a residential burglary. The factual basis also included that Bethell was found dead
       along a path, with a gunshot wound to the head, and that she was shot at the location where
       her body was found. Defendant was seen exiting Bethell’s vehicle after an accident and then
       entering another vehicle. His DNA was recovered from Bethell’s home and from a bicycle
       found near her home. A “CZ caliber” Torkerev weapon was recovered and compared to
       bullets recovered from Bethell’s body, but no match could be made. However, a bullet
       showed the class characteristics of a Torkerev.
¶6         The State informed the court that, in exchange for the plea, defendant would be sentenced
       to 35 years’ incarceration to be served at 100% and the other counts would be dismissed. The
       court admonished defendant that the offense carried a penalty of 20 to 60 years’ incarceration
       and it accepted the plea.
¶7         Defendant moved to withdraw his plea, arguing ineffective assistance of counsel and
       alleging that a person named Robert actually committed the crime. The motion was denied.
       Defendant appeals.

¶8                                         II. ANALYSIS
¶9         Defendant contends that, under People v. White, 2011 IL 109616, his sentence is void
       because it was subject to a mandatory enhancement of 25 years to life and the failure to
       properly admonish him of the enhancement made the plea agreement void.
¶ 10       Under section 5-8-1 of the Unified Code of Corrections (730 ILCS 5/5-8-1 (West 2004)),
       the sentencing range for first-degree murder is 20 to 60 years’ incarceration (730 ILCS 5/5-8-
       1(a)(1)(a) (West 2004)). However, section 5-8-1 requires the imposition of an enhanced
       sentence where a firearm is used in the offense, providing that “if, during the commission of
       the offense, the person personally discharged a firearm that proximately caused *** death
       to another person, 25 years or up to a term of natural life shall be added to the term of
       imprisonment imposed by the court.” 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2004).
¶ 11       Illinois Supreme Court Rule 402(c) (eff. July 1, 1997) provides that a trial court cannot
       enter a final judgment on a plea of guilty without first determining that there is a factual basis
       for the plea. White, 2011 IL 109616, ¶ 17. “The factual basis for a guilty plea generally will
       consist of an express admission by the defendant that he committed the acts alleged in the
       indictment or a recital to the court of the evidence that supports the allegations in the
       indictment.” Id. “[T]he factual basis will be established as long as there is a basis anywhere
       in the record up to the final judgment from which the judge could reasonably reach the
       conclusion that the defendant actually committed the acts with the intent, if any, required to
       constitute the offense to which he is pleading guilty.” People v. Brazee, 316 Ill. App. 3d
       1230, 1236 (2000).
¶ 12       “Once a trial court accepts a plea of guilty, it is the duty of the court to fix punishment.”
       White, 2011 IL 109616, ¶ 20. The supreme court has “ ‘repeatedly recognized that the
       legislature has the power to prescribe penalties for defined offenses, and that power
       necessarily includes the authority to prescribe mandatory sentences, even if such sentences

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       restrict the judiciary’s discretion in imposing sentences.’ ” Id. (quoting People v. Huddleston,
       212 Ill. 2d 107, 129 (2004)). A court does not have authority to impose a sentence that does
       not conform with statutory guidelines and it exceeds its authority when it orders a lesser or
       greater sentence than mandated by statute. Id. “In such a case, the defendant’s sentence is
       illegal and void.” Id. “Whether a sentence is void is a question of law subject to de novo
       review.” People v. Cortez, 2012 IL App (1st) 102184, ¶ 9.
¶ 13       In White, the defendant pleaded guilty to first-degree murder and possession of
       contraband in a penal institution, in exchange for consecutive prison sentences of 28 and 4
       years. White, 2011 IL 109616, ¶ 4. The factual basis for the plea established that, if the case
       proceeded to trial, the evidence would show that the defendant and a codefendant planned
       to rob a taxi driver and were both inside the taxi when the driver was shot in the temple with
       a handgun. It was further stipulated that, after the driver was shot, the defendant took the
       handgun from the codefendant and put it in his back pocket. Id. ¶ 6. The defendant later
       moved to withdraw his plea, arguing in part that he was not properly admonished about the
       sentencing range because he was subject to a 15-year mandatory enhancement for being
       armed with a firearm while committing the offense. Id. ¶ 9; see 730 ILCS 5/5-8-1(a)(1)(d)(i)
       (West 2004). As a result, the defendant argued, his sentence was void because it was below
       the mandatory minimum. White, 2011 IL 109616, ¶ 9. The trial court denied the motion.
¶ 14       Our supreme court held that the defendant’s sentence was void. Id. ¶ 21. The court noted
       that a trial court may not impose a sentence inconsistent with the governing statutes even
       where the parties and the trial court agree to the sentence. Id. ¶ 23. The court then specifically
       rejected an argument that the intent of the parties to agree to a murder conviction without the
       sentencing enhancement was controlling, noting that, in enacting section 5-8-1(a)(1)(d)(i),
       the legislature took away any discretion the State and the trial court had to fashion a sentence
       that did not include the enhancement. Id. ¶ 26. The court concluded that, since the factual
       basis for the defendant’s plea established that the victim died of a gunshot wound, the
       sentencing enhancement was mandatory and the defendant’s sentence, which did not contain
       the enhancement, was void. Id. ¶ 21. Further, because the defendant was not admonished of
       the enhancement, the plea agreement was void as well. Id. The court remanded the case to
       the trial court with directions to permit the defendant to withdraw his plea. Id. ¶ 31. In a
       special concurrence, Justice Theis observed that, had the State wished to negotiate around
       the enhancement, it should have presented a factual basis that referred to a dangerous weapon
       instead of a firearm. Id. ¶ 41 (Theis, J., specially concurring).
¶ 15       Here, the State presented a factual basis that included the fact that defendant “shot”
       Bethell with a firearm, causing her death. Thus, defendant argues, he was subject to the
       mandatory enhancement. The State attempts to distinguish White, arguing that the factual
       basis did not include the words “personally discharged” or otherwise show that defendant
       “personally discharged” a firearm. Instead, the State suggests, the record shows an intent to
       plead guilty to an offense based on an accountability theory. In doing so, the State relies on
       a case holding that the term “personally discharged” in section 5-8-1 distinguishes cases in
       which the defendant actually fired the shot from cases in which the defendant could be held
       accountable for a shooting done by another. People v. Rodriguez, 229 Ill. 2d 285, 294-95
       (2008). The State then relies on a case in which multiple people fired shots, the defendant

                                                  -4-
       and another were charged with shooting the victim, and the court held that it was not
       necessary to prove that the defendant fired the shot that wounded the victim. People v. Allen,
       56 Ill. 2d 536, 540 (1974). But those cases are not applicable here, because an accountability
       theory was not presented by the factual basis.
¶ 16       The State asserts that the factual basis, by referring to defendant’s entering another
       vehicle, could have implied the involvement of another person. But that reference was not
       sufficient to show that defendant was guilty only under an accountability theory. There was
       no allegation that any other person shot Bethell or was even present when the shooting
       occurred. To the contrary, the charge, which was specifically included in the factual basis,
       stated that defendant “shot” Bethell, causing her death, and the additional facts provided
       served to place defendant at Bethell’s home. The brief mention of another vehicle does not
       transform the matter into one involving accountability.
¶ 17       While it is possible that the State intended to remove the enhancement when it was
       negotiating the plea, as evinced by the State’s telling the court at the preliminary hearing that
       only counts I and II involved the enhancement, it did nothing to remove the enhancement
       from the factual basis for the plea. Had the State wished to negotiate a plea based on an
       accountability theory, it could have amended the factual basis to support such a theory. In the
       alternative, it could have amended the factual basis to allege that defendant caused the death
       with a dangerous weapon, as suggested by Justice Theis specially concurring in White. But
       it did not do so. Accordingly, the trial court was left with no sufficient basis to find that
       anyone other than defendant personally discharged the firearm that caused Bethell’s death.
       It was thus required to sentence defendant with the 25-year-to-life enhancement, making 45
       years the minimum possible sentence. Because defendant was sentenced to less than that
       amount, and was not admonished of the enhancement, his sentence and the plea agreement
       that led to it are void.

¶ 18                                    III. CONCLUSION
¶ 19      Defendant’s sentence and plea agreement are void. Accordingly, under White, the
       judgment of the circuit court of Kane County is vacated and the cause is remanded to the trial
       court with directions to allow defendant to withdraw his guilty plea and proceed to trial if he
       chooses to do so.

¶ 20       Vacated and remanded.




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