                                          2018 IL App (3d) 170450

                              Opinion filed November 14, 2018
     _____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                     2018

     THE PEOPLE OF THE STATE OF            )    Appeal from the Circuit Court
     ILLINOIS,                             )    of the 10th Judicial Circuit,
                                           )    Tazewell County, Illinois.
           Plaintiff-Appellee,             )
                                           )    Appeal No. 3-17-0450
           v. 	                            )    Circuit No. 13-CF-613

                                           )

     PHOUVONE V. SOPHANAVONG,              )    The Honorable

                                           )    Michael E. Brandt and Stephen A. Kouri,
           Defendant-Appellant.            )    Judges, presiding.
     ____________________________________________________________________________

           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




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     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 (post-plea counsel) to represent defendant in the proceedings on the motion.

¶6          In October 2014, post-plea counsel filed an amended motion to withdraw guilty plea. In

     the amended motion, post-plea 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, post-plea

     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 (post-remand counsel). In May 2017,

     post-remand counsel filed a second amended motion to withdraw guilty plea. In the second

     amended motion, post-remand 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


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       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




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       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 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


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       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.


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       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.

¶ 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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