                       Illinois Official Reports

                              Appellate Court



                  People v. Melvin, 2015 IL App (2d) 131005



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



District & No.    Second District
                  Docket No. 2-13-1005



Filed             July 16, 2015



Decision Under    Appeal from the Circuit Court of Kane County, No. 09-CF-653; the
Review            Hon. Timothy Q. Sheldon and the Hon. James C. Hallock, Judges,
                  presiding.



Judgment          Vacated and remanded.



Counsel on        Thomas A. Lilien and Paul Alexander Rogers, 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 David A. Bernhard, both of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.


Panel             JUSTICE McLAREN delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Schostok and Justice Birkett concurred in the
                  judgment and opinion.
                                               OPINION

¶1       Defendant, James Melvin, entered a negotiated guilty plea to attempted predatory criminal
     sexual assault of a child (720 ILCS 5/8-4(a), 12-14.1(a)(1) (West 2008)). Per the plea
     agreement, he was sentenced to 60 years’ imprisonment. After the dismissal of his first
     postconviction petition, defendant moved for leave to file a second one, asserting that his
     60-year sentence was void. The trial court denied the motion, and defendant timely appealed.
     On appeal, defendant reiterates that his sentence is void because, inter alia, it is the product of
     a double enhancement.1 We agree, and therefore we vacate the judgment and remand the cause
     so that he may plead anew.
¶2       Defendant was originally charged with 1 count of predatory criminal sexual assault of a
     child (720 ILCS 5/12-14.1(a)(1) (West 2008)) and 10 counts of aggravated criminal sexual
     abuse (720 ILCS 5/12-16(b), (c)(1)(i) (West 2008)). Per the plea agreement, the State amended
     the first count to charge attempted predatory criminal sexual assault of a child, to which
     defendant pleaded guilty, and dismissed the remaining counts. Attempted predatory criminal
     sexual assault of a child is a Class 1 felony. 720 ILCS 5/8-4(c)(2), 12-14.1(b)(1) (West 2008).
     However, the 60-year sentence to which the parties agreed is a Class X, extended-term
     sentence. 730 ILCS 5/5-8-2(a)(2) (West 2008). In presenting the agreement, the State
     explained: “In terms of criminal history, defendant has a ’98 predatory criminal sexual assault,
     [a] Class X [felony]. [And a] ’96, Class 2 [felony], manufacture of [a] controlled substance[,]
     which are the basis for the mandatory Class X [sentence] and extended term.” Specifically,
     although defendant’s present offense is a Class 1 felony, the two prior offenses, having been at
     least Class 2 felonies, subjected him to a Class X sentence of 6 to 30 years’ imprisonment. 730
     ILCS 5/5-5-3(c)(8), 5-8-1(a)(3) (West 2008). Further, the prior Class X felony, having been
     greater than a Class 1 felony, subjected him to an extended-term sentence of up to 60 years’
     imprisonment. 730 ILCS 5/5-5-3.2(b)(1) (West 2008).
¶3       As defendant asserts, his sentence was thus the product of a double enhancement. “Double
     enhancement occurs when a factor already used to enhance an offense or penalty is reused to
     subject a defendant to a further enhanced offense or penalty.” People v. Thomas, 171 Ill. 2d
     207, 223 (1996). Here, the specific factor so used (and reused) was defendant’s prior Class X
     felony. Per the parties’ agreement, as the State articulated it, that offense (along with
     defendant’s prior Class 2 felony) subjected him to the enhanced penalty of a Class X sentence,
     and then it also subjected him to the further enhanced penalty of an extended-term sentence.
     “This is the very definition of a double enhancement.” People v. Milka, 336 Ill. App. 3d 206,
     236 (2003), aff’d, 211 Ill. 2d 150 (2004) (victim’s age, as element of predicate felony, exposed
     defendant to “a sentence for felony murder” and then “an extended-term sentence for felony
     murder”); see also People v. Griham, 399 Ill. App. 3d 1169, 1172 (2010) (double enhancement
     where same prior felony enhanced present offense from Class 3 felony to Class 2 felony and
     then subjected defendant to Class X sentencing). Thus, the Class X, extended-term sentence, to
     which the parties agreed, was not statutorily authorized and was, in turn, void. See id. (absent


         1
          We note that, because a void judgment may be attacked in any court with jurisdiction of the case,
     we may address defendant’s argument without addressing the trial court’s ruling on his motion for
     leave to file a second postconviction petition. See People v. Thompson, 209 Ill. 2d 19, 27 (2004).

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     clear legislative intent to the contrary, a doubly enhanced sentence is statutorily unauthorized
     and void).
¶4       The State asserts that this case is distinguishable from cases like Griham, because here
     defendant’s prior offense was used only “to enhance the punishment, not the class of the
     [present] offense.” But this assertion ignores the supreme court’s definition of a double
     enhancement: “when a factor already used to enhance an offense or penalty is reused to subject
     a defendant to a further enhanced offense or penalty.” (Emphases added.) Thomas, 171 Ill. 2d
     at 223. “For example, the same factor has been used to double enhance an offense [citation], a
     punishment [citation], or some combination of the two [citation].” Id. at 223-24. Thus, a
     double enhancement did not require the enhancement of the offense first and then the
     punishment; it is sufficient that the punishment was enhanced twice.
¶5       The State responds, however, that defendant’s argument is akin to the one rejected in
     Thomas. There, as here, the defendant was convicted of a Class 1 felony, and two prior
     offenses subjected him to a Class X sentence of 6 to 30 years’ imprisonment. Then, relying in
     aggravation on those same prior offenses, the trial court sentenced him to 15 years’
     imprisonment. The defendant argued that the trial court’s reliance in aggravation constituted a
     second enhancement. “However,” the supreme court said, “this ‘second use’ of defendant’s
     prior convictions does not constitute an enhancement, because the discretionary act of a
     sentencing court in fashioning a particular sentence tailored to the needs of society and the
     defendant, within the available parameters, is a requisite part of every individualized
     sentencing determination. [Citation.] The judicial exercise of this discretion, in fashioning an
     appropriate sentence within the framework provided by the legislature, is not properly
     understood as an ‘enhancement.’ ” Id. at 224-25.
¶6       As defendant replies, Thomas is easily distinguishable. There, the defendant’s prior
     offenses increased, only once, the sentencing range within which the trial court could exercise
     its discretion. They increased the range to 6 to 30 years’ imprisonment, and the trial court,
     though relying on those offenses again, imposed a sentence within that range and thus within
     its own discretion. Here, however, if defendant’s prior offenses had merely increased the
     sentencing range to 6 to 30 years’ imprisonment, the trial court would have had no discretion to
     impose a sentence of 60 years. That sentence would have been within its discretion only upon
     the second increase of the sentencing range, to up to 60 years. So, in sum: whereas in Thomas
     the sentence was authorized after only one use of the prior offenses, here the sentence was
     purportedly authorized after only the second use. As a result, here the sentence was not
     authorized at all.
¶7       A trial court may not impose an unauthorized sentence, even if the parties agree to it. See
     People v. Hare, 315 Ill. App. 3d 606, 609 (2000). Thus, defendant’s 60-year sentence cannot
     stand. Defendant suggests that we simply reduce his sentence to the nonextended Class X
     maximum of 30 years, but obviously we cannot do so without substantially altering an
     essential provision of the parties’ agreement. Accordingly, we must vacate the entire
     agreement. See id. at 609-11 (court could not salvage agreement by increasing unauthorized
     four-year prison term to Class X minimum of six years). Per defendant’s alternative
     suggestion, we vacate the trial court’s judgment and remand the cause so that defendant may
     plead anew to whatever charges the State decides to reinstate. However, we recognize the
     importance of plea agreements. Thus, if, upon receiving our opinion, and after consulting with
     the local State’s Attorney, the State wishes to accept defendant’s offer to persist in his guilty

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     plea to attempted predatory criminal sexual assault of a child, in exchange for a 30-year
     sentence, it may file a petition for rehearing to that effect, and, in the interest of judicial
     economy, we will enter a new judgment without a remand. Of course, the State instead may
     accept our remand, reinstate the original charges, and enter a new plea agreement or proceed to
     trial.
¶8        The judgment of the circuit court of Kane County is vacated, and the cause is remanded
     with directions.

¶9      Vacated and remanded.




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