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                                 Appellate Court                             Date: 2019.04.16
                                                                             11:30:15 -05'00'




                  People v. Sophanavong, 2018 IL App (3d) 170450



Appellate Court      THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption              PHOUVONE V. SOPHANAVONG, Defendant-Appellant.



District & No.       Third District
                     Docket No. 3-17-0450


Filed                November 14, 2018



Decision Under       Appeal from the Circuit Court of Tazewell County, No. 13-CF-613;
Review               the Hon. Michael E. Brandt and the Hon. Stephen A. Kouri, Judges,
                     presiding.



Judgment             Sentence vacated; cause remanded.


Counsel on           James E. Chadd, Peter A. Carusona, and Santiago A. Durango, of
Appeal               State Appellate Defender’s Office, of Ottawa, for appellant.

                     Stewart J. Umholtz, State’s Attorney, of Pekin (Patrick Delfino, David
                     J. Robinson, and Mark A. Austill, of State’s Attorneys Appellate
                     Prosecutor’s Office, of counsel), for the People.



Panel                PRESIDING JUSTICE CARTER delivered the judgment of the court,
                     with opinion.
                     Justice McDade concurred in the judgment and opinion.
                     Justice Schmidt dissented, with opinion.
                                             OPINION

¶1       Pursuant to a fully-negotiated plea agreement, defendant, Phouvone V. Sophanavong, pled
     guilty to first degree murder (720 ILCS 5/9-1(a)(3) (West 2012)) and was sentenced to 55
     years in prison. Defendant filed a second amended motion to withdraw his guilty plea, alleging
     that his plea was not knowingly, understandingly, and voluntarily made and that he had been
     denied effective assistance of counsel at the time of the plea. Following a hearing, the trial
     court denied defendant’s motion. Defendant appeals, arguing that the trial court’s acceptance
     of the plea agreement was improper because the trial court did not have before it at the time a
     presentence investigation or any information regarding the dispositions that defendant
     received on his prior convictions as required by section 5-3-1 of the Unified Code of
     Corrections (Code) (730 ILCS 5/5-3-1 (West 2012)). We agree with defendant. We, therefore,
     vacate defendant’s sentence and remand for a new sentencing hearing in strict compliance with
     section 5-3-1 of the Code.

¶2                                              FACTS
¶3       In December 2013, defendant was charged by indictment with three counts of first degree
     murder, one count of aggravated kidnapping, and one count of violation of an order of
     protection for the November 2013 kidnapping and shooting death of his estranged wife.
¶4       In April 2014, pursuant to a fully negotiated plea agreement, defendant pled guilty to one
     count of first degree murder and was sentenced to 55 years in prison (30 years for murder plus
     a 25-year sentencing enhancement for personally discharging a firearm during the offense that
     proximately caused the victim’s death). Pursuant to the terms of the plea agreement, the State
     nol prossed the remaining charges and agreed not to file certain other charges. During the plea
     hearing, the State provided a factual basis for the plea and defense counsel confirmed that the
     State’s rendition of the facts was consistent with the discovery that defense counsel had
     received. The trial court found that a factual basis existed for the plea and that the plea was
     knowingly and voluntarily made. The trial court inquired as to defendant’s criminal history.
     The State informed the trial court that defendant had previously been convicted of manufacture
     or delivery of cannabis, a Class 1 felony, in a 2004 Tazewell County case and that defendant
     had also been convicted of a speeding offense and of a seatbelt offense. The State did not,
     however, report to the trial court the disposition on any of defendant’s prior offenses. Upon
     inquiry, the parties informed the trial court that they were waiving a presentence investigation
     report (PSI). The trial court accepted the plea agreement and entered the agreed-upon
     conviction and sentence.
¶5       The following month, in May 2014, defendant filed a pro se motion to withdraw his guilty
     plea and raised, among other things, claims of ineffective assistance of counsel. Defendant did
     not raise, however, any claim regarding the waiver of a PSI or as to the lack of a disposition
     history for defendant’s prior criminal offenses at the time of the plea. After inquiring into
     defendant’s pro se claims of ineffective assistance of counsel, the trial court appointed new
     defense counsel (postplea counsel) to represent defendant in the proceedings on the motion.
¶6       In October 2014, postplea counsel filed an amended motion to withdraw guilty plea. In the
     amended motion, postplea counsel alleged that defendant’s plea was not knowingly,
     understandingly, and voluntarily made for various reasons and that defendant had been denied
     effective assistance of counsel at the time of the plea. In the amended motion, however,

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       postplea counsel did not raise any claim regarding the waiver of a PSI or as to the lack of a
       disposition history for defendant’s prior criminal offenses at the time of the plea. The State
       filed a response and opposed the amended motion. After a hearing, the trial court denied
       defendant’s amended motion to withdraw guilty plea. Defendant appealed, and this court
       remanded the case for compliance with Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013).
       People v. Sophanavong, No. 3-14-0864 (Sept. 19, 2016) (letter ruling vacating and remanding
       with instructions).
¶7         On remand, defendant was again appointed counsel (postremand counsel). In May 2017,
       postremand counsel filed a second amended motion to withdraw guilty plea. In the second
       amended motion, postremand counsel again alleged that defendant’s plea was not knowingly,
       understandingly, and voluntarily made and that defendant had been denied effective assistance
       of counsel at the time of the plea. No issue was raised, however, in the second amended motion
       regarding the waiver of a PSI or as to the lack of a disposition history for defendant’s prior
       criminal offenses. After a hearing, the trial court denied defendant’s second amended motion
       to withdraw guilty plea. Defendant appealed.

¶8                                               ANALYSIS
¶9          On appeal, defendant abandons his challenge to the trial court’s ruling on his second
       amended motion to withdraw guilty plea and argues instead that his sentence should be vacated
       and the case remanded for a new sentencing hearing because the trial court failed to strictly
       comply with section 5-3-1 of the Code when it accepted the parties’ plea agreement. More
       specifically, defendant asserts that vacation and remand are required under section 5-3-1
       because no PSI was ordered and the trial court was not informed of the dispositions on
       defendant’s prior criminal offenses when the trial court accepted the plea agreement and
       sentenced defendant.
¶ 10        The State argues that the trial court properly accepted defendant’s fully negotiated guilty
       plea and that defendant’s assertion on appeal should be rejected. In support of that argument,
       the State asserts first that because defendant’s negotiated guilty plea is still in effect, defendant
       has no ability to challenge his sentence on appeal. The State makes that assertion based upon
       the decision in People v. Haywood, 2016 IL App (1st) 133201, ¶ 41, where the First District
       Appellate Court found, under similar circumstances, that the defendant could not challenge his
       sentence on appeal because his guilty plea and the negotiated plea agreement were still in
       effect. Second, and in the alternative, the State asserts that section 5-3-1 was complied with in
       this case because the trial court was sufficiently informed of defendant’s criminal history; the
       trial court could reasonably infer, based upon its knowledge of the law and the circumstances
       of this case, the range of sentences that the defendant received for his prior convictions; and the
       trial court was able to assess the dangerousness of defendant from the factual basis that was
       provided. The State asks, therefore, that we affirm the trial court’s judgment.
¶ 11        The issue in this case centers around section 5-3-1 of the Code, which states that:
                “A defendant shall not be sentenced for a felony before a written presentence report of
                investigation is presented to and considered by the court.
                    However, other than for felony sex offenders being considered for probation, the
                court need not order a presentence report of investigation where both parties agree to
                the imposition of a specific sentence, provided there is a finding made for the record as
                to the defendant’s history of delinquency or criminality, including any previous

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                sentence to a term of probation, periodic imprisonment, conditional discharge, or
                imprisonment.
                    The court may order a presentence investigation of any defendant.” 730 ILCS
                5/5-3-1 (West 2012).
       Whether the trial court has complied with section 5-3-1 of the Code is a question of law that is
       subject to de novo review on appeal. People v. Walton, 357 Ill. App. 3d 819, 822 (2005).
¶ 12        The PSI requirement contained in section 5-3-1 is a mandatory legislative requirement that
       cannot be waived except as provided for in the statute. People v. Youngbey, 82 Ill. 2d 556,
       564-65 (1980); Walton, 357 Ill. App. 3d at 821. The purpose of the requirement is to ensure
       that the trial court has all of the necessary information about the defendant, including the
       defendant’s criminal history, before the trial court imposes a sentence. Youngbey, 82 Ill. 2d at
       564; Walton, 357 Ill. App. 3d at 821. A defendant cannot waive the PSI requirement, other than
       as noted above, because the requirement serves not only to benefit the defendant, but also to
       enlighten the trial court and is a useful tool for the sentencing judge. Youngbey, 82 Ill. 2d at
       565; Walton, 357 Ill. App. 3d at 821-22. Although section 5-3-1 is primarily concerned with
       making the sentencing judge aware of the dangerousness of a particular defendant, the lack of
       a criminal history is also relevant in determining the appropriateness of the sentence. Walton,
       357 Ill. App. 3d at 822.
¶ 13        When the trial court is presented with a negotiated plea for an agreed-upon sentence,
       section 5-3-1 of the Code requires that the trial court be aware of the history of the defendant’s
       criminality and delinquency in determining whether to accept the negotiated plea. People v.
       Bryant, 2016 IL App (5th) 140334, ¶ 49. Strict compliance with section 5-3-1 is mandatory.
       People v. Harris, 105 Ill. 2d 290, 302-03 (1985); Bryant, 2016 IL App (5th) 140334, ¶ 49. If
       the trial court fails to strictly comply with section 5-3-1, the sentence imposed must be vacated,
       and the case must be remanded for a new sentencing hearing so that the trial court can consider
       the defendant’s criminal history before deciding if the negotiated sentence is appropriate.
       Bryant, 2016 IL App (5th) 140334, ¶ 49; Walton, 357 Ill. App. 3d at 824.
¶ 14        In the present case, there can be no dispute that the trial court did not strictly comply with
       section 5-3-1 of the Code when it accepted the fully negotiated plea agreement. See Youngbey,
       82 Ill. 2d at 564-65; Harris, 105 Ill. 2d at 302-03; Walton, 357 Ill. App. 3d at 821-22; Bryant,
       2016 IL App (5th) 140334, ¶ 49. Although the State provided the trial court with some
       information as to defendant’s prior criminal history, no information whatsoever was presented
       as to the dispositions defendant received in his prior criminal cases. Defendant’s sentence,
       therefore, must be vacated and the case remanded for a new sentencing hearing so that the trial
       court can be informed of defendant’s history of delinquency and criminality before it
       determines whether the agreed-upon sentence is appropriate. See Walton, 357 Ill. App. 3d at
       824; Bryant, 2016 IL App (5th) 140334, ¶ 50. Once informed, if the trial court determines that
       the sentence is appropriate, it should resentence defendant in accordance with the terms of the
       plea agreement. See Walton, 357 Ill. App. 3d at 824; Bryant, 2016 IL App (5th) 140334, ¶ 50.
       If the sentence is not appropriate, however, the trial court should allow defendant to withdraw
       his guilty plea. See Walton, 357 Ill. App. 3d at 824; Bryant, 2016 IL App (5th) 140334, ¶ 50.
       To the extent that the appellate court in Haywood reached a different conclusion (see
       Haywood, 2016 IL App (1st) 133201, ¶ 41), we respectfully disagree.



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¶ 15                                         CONCLUSION
¶ 16      For the foregoing reasons, we vacate defendant’s sentence and remand for further
       proceedings consistent with this ruling.

¶ 17      Sentence vacated; cause remanded.

¶ 18      JUSTICE SCHMIDT, dissenting:
¶ 19      I agree with the First District’s opinion in Haywood. Id. I would affirm.




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