                           NO. 4-07-0677             Filed 3/3/08

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )  Appeal from
          Plaintiff-Appellee,          )  Circuit Court of
          v.                           )  Vermilion County
JOHN T. GREGORY,                       )  No. 05CF460
          Defendant-Appellant.         )
                                       )  Honorable
                                       )  Claudia S. Anderson,
                                       )  Judge Presiding.
_________________________________________________________________

           JUSTICE TURNER delivered the opinion of the court:

           In August 2005, the State charged defendant, John T.

Gregory, with burglary (720 ILCS 5/19-1(a) (West 2004)) and

retail theft over $150 (720 ILCS 5/16A-3(a) (West 2004)).

Defendant and the State entered into a plea agreement, under

which defendant would plead guilty to the burglary charge with a

sentencing cap of three years' imprisonment and the State would

dismiss the retail-theft charge.   At the June 2006 plea hearing,

the trial court admonished defendant that burglary was punishable

by 3 to 7 years in prison or it could be 7 to 14 years in prison

if aggravating factors were present.   Defendant pleaded guilty to

the burglary charge, and the court accepted the plea agreement

and dismissed the retail-theft charge.     After an August 2006

sentencing hearing, the court sentenced defendant to 24 months'

probation.

           In November 2006, the State filed a petition to revoke

defendant's probation for failure to report to his probation

officer.   After a March 2007 hearing, the trial court found
defendant had violated his probation but reserved revocation.     At

the May 2007 resentencing hearing, the court found defendant was

to be sentenced as a Class X felon based on his prior convictions

(see 730 ILCS 5/5-5-3(c)(8) (West 2004) (all four versions apply

in this case)), for which probation is not available (730 ILCS

5/5-5-3(c)(2)(C) (West 2004)).    Thus, the court found defendant's

probation sentence was void and resentenced him to 15 years'

imprisonment.   Defendant filed a motion to reconsider his sen-

tence, which the court denied.

           Defendant appeals, contending (1) his 15-year sentence

must be vacated since he was not admonished about being sentenced

as a Class X offender before he pleaded guilty and, (2) upon

resentencing, he cannot be subject to an extended-term sentence.

We vacate defendant's burglary conviction and sentence and remand

with directions.

                           I. BACKGROUND

           The burglary and retail-theft charges in this case

arise from defendant's actions on July 31, 2005.   The same

charges were brought against defendant's codefendant, Christine

Fields.   At the initial hearing in August 2005, the trial court

addressed defendant's bond, and defendant was asked whether he

had any serious criminal convictions and whether he had done time

in the Department of Corrections (DOC).    Defendant indicated he

had convictions years ago in 1994 and had been in DOC once.     At

another bond hearing in August 2005, defendant testified he had

been to prison in 1994 for aggravated battery and served eight


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months of a three-year sentence.    He was then placed on parole

and completed it.   Defendant further testified he had not been on

probation since his prison sentence.     We also note that, at

another hearing in August 2005, defendant explained he had fallen

down and cracked his skull about three years ago.     Since the head

injury, defendant had suffered grand mal seizures.

           As stated, defendant and the State entered into a plea

agreement, under which defendant would plead guilty to the

burglary charge with a sentencing cap of three years' imprison-

ment and the State would dismiss the retail-theft charge.     Fields

reached the same deal with the State.     In June 2006, the trial

court held a joint plea hearing for defendant and Fields.     At the

hearing, the court explained the sentencing possibilities for the

burglary charge, a Class 2 felony (720 ILCS 5/19-1(b) (West

2004)), as follows:

           "It's punishable by three to seven years in

           the penitentiary.   It could be [7] to [14]

           years if there were aggravating factors pres-

           ent; two years['] mandatory supervised re-

           lease; up to four years on probation; and up

           to a $25,000 fine."

Defendant did not have any questions about the possible penal-

ties.   After finding the State's factual basis was sufficient,

the court accepted the plea agreement.

           The State's July 2006 presentence report stated the

following information.   Defendant had been convicted of two


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counts of "theft over," a Class 3 felony and, in October 1993,

was sentenced to 30 months' probation and ordered to pay $6,364

in restitution, fines, and court costs.    People v. Gregory, No.

92-CF-296 (Cir. Ct. Vermilion Co.).    Defendant's probation was

later revoked, and in February 1994, he received a three-year

prison term.   Defendant also received convictions for aggravated

battery and escape, both Class 3 felonies, for which he was

sentenced in February 1994 to three years' imprisonment to run

concurrent with his sentence in case No. 92-CF-296.    People v.

Gregory, No. 93-CF-463 (Cir. Ct. Vermilion Co.).    Besides traffic

offenses, the report did not list any other offenses.

          At the August 2006 sentencing hearing, defendant again

testified he had only been to prison once.    When asked whether it

was for two cases, defendant stated he could not "even really go

back that far."   He did not remember 1994.   The trial court

sentenced defendant to 24 months' probation.

          In November 2006, the State filed a petition to revoke

defendant's probation because he had failed to report to proba-

tion on three occasions.   In March 2007, the trial court held a

hearing on the State's petition.   The court found the State had

proved its petition and reserved the issue of whether defendant's

probation should be revoked pending sentencing.

          In April 2007, the State submitted an updated

presentence report, which listed two more convictions than the

original presentence report.   One conviction was for possession

of a controlled substance with the intent to deliver, a Class 2


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felony, for which defendant pleaded guilty and received 30

months' probation in February 1996.     People v. Gregory, No. 95-

CF-310 (Cir. Ct. Vermilion Co.).    The other conviction was for an

August 1997 residential burglary, a Class 1 felony, for which

defendant received a four-year prison term.    People v. Gregory,

No. 97-CF-2163 (Cir. Ct. Winnebago Co.).

            In May 2007, the trial judge, who was not the judge who

presided over defendant's original plea and sentencing hearing,

held a resentencing hearing.    The State noted that, based upon

defendant's prior convictions listed in the presentence report,

defendant was subject to Class X sentencing.    See 730 ILCS 5/5-5-

3(c)(8) (West 2004).    The prosecutor further stated, "It's not

like his admonishment is incorrect."    The trial court indicated

defendant's probation sentence was void, and it would sentence

defendant as a Class X offender.    After hearing all of the

evidence, the court resentenced defendant to 15 years' imprison-

ment.

            In June 2007, defendant filed a motion to reconsider,

contending the sentence was a hardship and excessive.    After a

July 2007 hearing, the trial court denied defendant's motion.

This appeal followed.

                            II. ANALYSIS

            On appeal, defendant contends his 15-year sentence must

be vacated because the trial court in the original plea hearing

failed to admonish him that he could be sentenced as a Class X

offender.   Defendant acknowledges he failed to raise this issue


                                - 5 -
in the trial court but asserts it is plain error.   See 134 Ill.

2d R. 615(a); People v. Fuller, 205 Ill. 2d 308, 322-23, 793

N.E.2d 526, 537 (2002) (recognizing a trial court's noncompliance

with Supreme Court Rule 402 (177 Ill. 2d R. 402) in admonishing a

defendant may amount to plain error).   He further argues he

should be resentenced with a maximum sentence of seven years'

imprisonment based on the court's original admonishment as the

court failed to inform him he was eligible for an extended term.

           The State agrees the trial court's admonishment was

defective and the sentence cannot stand but disagrees with

defendant about the appropriate remedy.   It argues defendant's

guilty plea should be vacated and he be allowed to replead.    The

State also contends that, if the plea is not vacated, then

defendant's sentence should be reduced to 14 years' imprisonment

or he be resentenced with a maximum of 14 years' imprisonment

based on the extended-term-sentencing admonishment.   We note the

appropriate remedy for this situation is a matter of first

impression in Illinois.

           "When no direct appeal is taken from an order of

probation and the time for appeal has expired, a reviewing court

is precluded from reviewing the propriety of that order in an

appeal from a subsequent revocation of that probation, unless the

underlying judgment of conviction is void."   People v. Johnson,

327 Ill. App. 3d 252, 256, 762 N.E.2d 1180, 1183 (2002) (Johnson

I).   Thus, the State's remedy of vacation of the plea and having

defendant plead anew is only available if defendant's burglary


                               - 6 -
conviction is void.   The State contends this case is actually an

appeal from the trial court's resentencing on the original

conviction, not a resentencing after a probation revocation.

Regardless of the posture of this case, the result is the same

since the original plea agreement and conviction are void.

           "A void judgment is one entered by a court (1) without

jurisdiction or (2) that exceeded its jurisdiction by entering an

order beyond its inherent power."       Johnson I, 327 Ill. App. 3d at

256, 762 N.E.2d at 1183.   We note improper admonishments them-

selves do not render the defendant's conviction and sentence

void.   People v. Jones, 213 Ill. 2d 498, 509, 821 N.E.2d 1093,

1099 (2004).

           Defendant acknowledges his original sentence of proba-

tion was void.    However, as the State points out, the three-year

sentencing cap contained in the plea agreement was also void

since probation is not available for a Class X felony (730 ILCS

5/5-5-3(c)(2)(C) (West 2004)) and the minimum prison sentence is

6 years (730 ILCS 5/5-8-1(a)(3) (West 2004) (as amended by Pub.

Act 94-165, §5, eff. July 11, 2005 (2005 Ill. Legis. Serv. 1538,

1544 (West)))).   This point raises the issue of whether the

underlying burglary conviction was void.

           In People v. Hare, 315 Ill. App. 3d 606, 609-11, 734

N.E.2d 515, 517-19 (2000), the Second District addressed the

impact of a void sentencing concession on the plea agreement in

determining the defendant's appeal from the denial of his request

for "specific performance" of his plea agreement.      There, the


                                - 7 -
defendant contended the plea agreement demonstrated the parties

had intended the State would recommend the minimum sentence,

which the parties erroneously believed was four years' imprison-

ment rather than six years' imprisonment.     Hare, 315 Ill. App. 3d

at 609, 734 N.E.2d at 517-18.   The Second District rejected

defendant's argument.

          In rejecting the argument, the Second District found

that, while no Illinois case was precisely on point, the language

utilized by our supreme court in People v. Wade, 116 Ill. 2d 1,

506 N.E.2d 954 (1987), appeared to control.    Hare, 315 Ill. App.

3d at 609, 734 N.E.2d at 518.   In Wade, 116 Ill. 2d at 7-8, 506

N.E.2d at 956-57, the defendant asserted Supreme Court Rule

402(d)(2) (87 Ill. 2d R. 402(d)(2)) had required the trial judge

to recuse himself at the defendant's trial because the judge had

vacated the defendant's negotiated sentence of probation because

it was less than the statutory minimum and then presided over the

defendant's subsequent trial.   The Hare court quoted the follow-

ing language the Wade court used in rejecting the defendant's

assertion:

          "'[T]he agreement was no longer effective

          after the probation term was vacated.    [Cita-

          tions.]   The judge permitted Wade to plead

          not guilty after the probation term was va-

          cated because it was clear there was no lon-

          ger an agreement between the parties on the

          plea.   With no plea agreement before the


                                - 8 -
          court, Rule 402(d)(2) did not apply ***.'"

          Hare, 315 Ill. App. 3d at 610, 734 N.E.2d at

          518, quoting Wade, 116 Ill. 2d at 9, 506

          N.E.2d at 957.

The Second District concluded the aforementioned language meant

that, "when a trial court vacates an illegal sentence that it

entered in accordance with a plea agreement, the illegality voids

the entire agreement and not merely the sentence."     Hare, 315

Ill. App. 3d at 610, 734 N.E.2d at 518.

          The Hare court found that conclusion was consistent

with general contract-law principles, in that, "without proper

consideration from both parties, a purported contract is illusory

and cannot be enforced in either law or equity" and "[a]n agree-

ment is not enforceable in part if the unenforceable aspect is an

essential part of the agreed exchange."   Hare, 315 Ill. App. 3d

at 610, 734 N.E.2d at 518-19.   The court concluded the plea

agreement was unenforceable because the infirmity affected an

essential part of the plea agreement and thus the denial of the

defendant's motion for specific performance was proper.     Hare,

315 Ill. App. 3d at 610-11, 734 N.E.2d at 519.

          The Second District has since further expounded upon

its decision in Hare, emphasizing the agreement is only unen-

forceable if the unenforceable portion is an essential part of

the agreement.   See People v. McNett, 361 Ill. App. 3d 444, 448,

837 N.E.2d 461, 465 (2005); People v. Montiel, 365 Ill. App. 3d

601, 606, 851 N.E.2d 725, 729 (2006).   "Whether a term is essen-


                                - 9 -
tial depends on the '"relative importance [of the voided term] in

the light of the entire agreement between the parties."'"

Montiel, 365 Ill. App. 3d at 606, 851 N.E.2d at 729, quoting

McNett, 361 Ill. App. 3d at 448, 837 N.E.2d at 465, quoting

Restatement (Second) of Contracts §184(1), Comment a, at 30

(1981).    The entire agreement in Hare was void because "a large

change would have been needed to bring the agreement in compli-

ance with the statute."    Montiel, 365 Ill. App. 3d at 606, 851

N.E.2d at 729.    However, the conversion of 6 months of 18 months'

probation conditioned on work release to regular probation was

not essential "because of the comparatively minor quantitative

change in the sentence and because the State had achieved the

maximum allowable period of work release."    Montiel, 365 Ill.

App. 3d at 607, 851 N.E.2d at 729, citing McNett, 361 Ill. App.

3d at 445-46, 448-49, 837 N.E.2d at 443, 446.   Moreover, the

imposition of a $2,000 fine that was not part of the plea agree-

ment did not render the entire agreement void because "the fines

and fees are a minor issue and an inessential term of the agree-

ment."    Montiel, 365 Ill. App. 3d at 607, 851 N.E.2d at 729.

            The First District has also touched upon the voidness

issue in addressing the appropriate remedy when a plea agreement

provides for a sentence that is void.   See People v. Caban, 318

Ill. App. 3d 1082, 1086-89, 743 N.E.2d 600, 604-06 (2001); People

v. Johnson, 338 Ill. App. 3d 213, 216, 788 N.E.2d 152, 154-55

(2003) (Johnson II).    The Caban court discussed the Hare decision

and, after reviewing conflicting authority from other states,


                               - 10 -
concluded the better remedy was to vacate the defendant's guilty

plea.    Caban, 318 Ill. App. 3d at 1088, 743 N.E.2d at 605-06.

That conclusion was supported by (1) the supreme court's repeated

statement that trial courts generally lack "authority to impose

punishment other than that provided by statute" and (2) and a

fundamental principle of contract law that "an illegal contract

is void ab initio."    Caban, 318 Ill. App. 3d at 1088-89, 743

N.E.2d at 606.    The Johnson II court concluded the defendant

should be allowed to withdraw his guilty plea since the State and

defendant lacked an agreement due to the void sentencing order.

Johnson II, 338 Ill. App. 3d at 216, 788 N.E.2d at 155.

            In this case, the parties agreed to a sentencing cap of

three years' imprisonment, which was three years less than the

six-year minimum mandated by statute (see 730 ILCS 5/5-5-

3(c)(2)(C) (West 2004); 730 ILCS 5/5-8-1(a)(3) (West 2004) (as

amended by Pub. Act 94-165, §5, eff. July 11, 2005 (2005 Ill.

Legis. Serv. 1538, 1544 (West)))).      This three-year difference is

even greater than the two-year difference in Hare that was found

large enough to be a change in an essential part of the contract.

Further, we note none of the cases addressing the appropriate

remedy for void sentencing orders as the result of a plea agree-

ment discussed which party was at fault for the unlawful sen-

tence.    Thus, we find irrelevant the parties' discussion about

who was responsible for the unlawful sentencing concession.

Under Hare and the subsequent cases, the plea agreement in this

case is void.


                               - 11 -
            Defendant argues we should not follow Hare because it

did not involve improper admonishments and the trial court still

had jurisdiction over the proceedings since the court rescinded

its concurrence with the plea agreement within 30 days of sen-

tencing.    We disagree that those contentions make Hare's analysis

inapplicable to this case.

            As to jurisdiction, as long as a court has jurisdiction

over the defendant's cause, a claim of voidness can be addressed

since "an attack on a void judgment may be raised at any time"

(People v. Brown, 225 Ill. 2d 188, 199, 866 N.E.2d 1163, 1169

(2007)).    Moreover, the First District in Johnson II addressed

the appropriate remedy for a void probation order pursuant to a

plea agreement in the context of a collateral postconviction

proceeding.   See Johnson II, 338 Ill. App. 3d at 214, 788 N.E.2d

at 153.    Thus, the fact the trial court in Hare vacated the

unlawful sentence soon after it was entered does not make Hare

inapplicable to this case.

            While the Hare case did not discuss improper admonish-

ments, it is likely the admonishments were incorrect if neither

the parties nor the trial court realized the negotiated four-year

sentence for a defendant subject to Class X sentencing was

unlawful.   The facts in the Hare decision only indicate the trial

judge recognized the defendant was subject to Class X sentencing

under section 5-5-3(c)(8) of the Unified Code of Corrections (730

ILCS 5/5-5-3(c)(8) (West 1996)) at a bond hearing.    Hare, 315

Ill. App. 3d at 607, 734 N.E.2d at 516.   However, courts can only


                               - 12 -
look to the admonishments given at the guilty-plea hearing to

determine if the admonishment requirements of Rule 402 have been

fulfilled.   People v. Johns, 229 Ill. App. 3d 740, 744, 593

N.E.2d 594, 597 (1992); People v. Blankley, 319 Ill. App. 3d 996,

1007, 747 N.E.2d 16, 25 (2001).

          Moreover, the probation-revocation cases defendant

cites in support of his resentencing argument involved only an

improper sentencing admonishment, not an improper admonishment

along with a void probation order that had the potential to

invalidate the plea agreement.    When only an improper sentencing

admonishment is at issue, withdrawal of the guilty plea is not an

available remedy since improper admonishments do not themselves

render a defendant's conviction void (Jones, 213 Ill. 2d at 509,

821 N.E.2d at 1099) and a reviewing court can only review the

propriety of the underlying judgment in an appeal from a proba-

tion revocation if it is void (Johnson I, 327 Ill. App. 3d at

256, 762 N.E.2d at 1183).   See People v. Taylor, 368 Ill. App. 3d

703, 707-08, 859 N.E.2d 20, 25 (2006) (addressing an unadmonished

extended-term sentence after a probation revocation).   Thus, when

just the admonishment was improper, the only available remedy to

address the error is a sentence in accordance with the improper

admonishment.   Since this case involves a void probation order,

the facts of this case are distinguishable from the ones cited by

defendant.

          Accordingly, we find the plea agreement in this case is

void because the sentencing concession was a significant devia-


                              - 13 -
tion from that provided by statute.     Since defendant's burglary

conviction was based on a void plea agreement, the burglary

conviction is also void.   A judgment is void when the trial court

enters an order beyond its inherent power.     Johnson I, 327 Ill.

App. 3d at 256, 762 N.E.2d at 1183.     A trial court does not have

the authority to accept and enter a judgment on a plea agreement

that contained a sentencing provision that was not provided by

statute.   See Caban, 318 Ill. App. 3d at 1088, 743 N.E.2d at 606

(noting a court generally lacks "authority to impose a punishment

other than that provided by statute").    Since the plea agreement

and conviction are void, "specific performance [is] not a viable

option."   Caban, 318 Ill. App. 3d at 1088, 743 N.E.2d at 605,

citing Hare, 315 Ill. App. 3d at 609-11, 734 N.E.2d at 517-19.

Thus, we find the appropriate remedy is to vacate defendant's

conviction and allow him to withdraw his guilty plea, if he so

desires.

                           III. CONCLUSION

           For the reasons stated, we vacate defendant's burglary

conviction and sentence and remand the cause for further proceed-

ings consistent with this opinion.

           Vacated and remanded with directions.

           MYERSCOUGH and COOK, JJ., concur.




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