                                                    NO. 5-08-0166
                   NOTICE

 Decision filed 10/19/09. The text of
                                                       IN THE
 this decision may be changed or

 corrected prior to the filing of a
                                            APPELLATE COURT OF ILLINOIS
 Peti tion   for    Rehearing   or   th e

 disposition of the same.
                             FIFTH DISTRICT
________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                       ) Circuit Court of
   Plaintiff-Appellee,                 ) Perry County.
                                       )
v.                                     ) No. 04-CF-107
                                       )
KEVIN D. McBRIDE,                      ) Honorable
                                       ) James W. Campanella,
   Defendant-Appellant.                ) Judge, presiding.
________________________________________________________________________

             PRESIDING JUSTICE WEXSTTEN delivered the opinion of the court:

             After the trial court sentenced him to a 12-year extended term of imprisonment with

credit for time served on probation, the defendant, Kevin D. McBride, filed a motion to

reconsider, challenging the extended-term portion of the sentence. Thereafter, the trial court

reduced the defendant's sentence to a seven-year nonextended term but denied him the

previously awarded probation credit. On appeal, the defendant maintains that the trial court's

modification of his sentence improperly increased it in violation of section 5-8-1(c) of the

Unified Code of Corrections (the Code) (730 ILCS 5/5-8-1(c) (West 2006)). For the reasons

that follow, we agree and reverse.

                                                   BACKGROUND

             In March 2004, in Perry County case number 04-CF-50, the defendant was charged

with one count of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West

2004)) and one count of criminal trespass to state-supported land (720 ILCS 5/21-5(a) (West

2004)). In July 2004, in Perry County case number 04-CF-107, the defendant was charged

with one count of harassment of a witness (720 ILCS 5/32-4a(a)(2) (West 2004)) and one


                                                         1
count of aggravated battery (720 ILCS 5/12-4(b)(8) (West 2004)).

       In November 2004, pursuant to negotiations with the State, the defendant pled guilty

to the weapons charge in case number 04-CF-50 and the harassment-of-a-witness charge in

case number 04-CF-107. In exchange for his plea, the remaining counts in both cases were

dismissed, and he was sentenced to a four-year term of imprisonment in case number 04-CF-

50 and a 30-month term of probation in case number 04-CF-107. The term of probation was

ordered to run consecutively to the term of imprisonment.

       In August 2005, in Perry County case number 05-CF-108, the defendant was charged

with one count of residential burglary (720 ILCS 5/19-3(a) (West 2004)), one count of

criminal trespass to state-supported land (720 ILCS 5/21-5(a) (West 2004)), and one count

of resisting a peace officer (720 ILCS 5/31-1(a) (West 2004)). In November 2005, pursuant

to negotiations with the State, the defendant pled guilty to the residential burglary charge in

exchange for a five-year prison sentence and the dismissal of the remaining counts against

him. The term of probation imposed in case number 04-CF-107 was deemed to have begun

on August 12, 2005–the day that the defendant was released from prison in case number 04-

CF-50–and was ordered to run concurrently with the five-year prison sentence imposed in

case number 05-CF-108.

       In October 2007, after the defendant had been charged with three counts of resisting

a peace officer (720 ILCS 5/31-1(a) (West 2006)) and one count of battery (720 ILCS 5/12-

3(a)(1) (West 2006)), the State filed a petition to revoke his probation in case number 04-CF-

107. In November 2007, following a hearing on the petition, the trial court revoked the

defendant's probation after finding that he had violated its terms.

       In January 2008, the cause proceeded to a resentencing hearing in case number 04-

CF-107. Arguing that the defendant's previous convictions in case numbers 04-CF-50 and

05-CF-108 made him eligible for an extended-term sentence pursuant to section 5-5-


                                              2
3.2(b)(1) of the Code (730 ILCS 5/5-5-3.2(b)(1) (W est 2004)), the State asked the trial court

to impose the maximum available prison sentence of 14 years. See 720 ILCS 5/32-4a(a)(2)

(West 2004); 730 ILCS 5/5-8-2(a)(4) (West 2004). Defense counsel argued that, because

the defendant's conviction in case number 04-CF-50 was entered at the same time as his

conviction in case number 04-CF-107 and because the defendant's conviction in case number

05-CF-108 was entered after he had been convicted in case number 04-CF-107, the

defendant's convictions in case numbers 04-CF-50 and 05-CF-108 did not constitute previous

convictions for purposes of section 5-5-3.2(b)(1). The trial court ultimately resolved the

issue in the State's favor and determined that the defendant's conviction in case number 04-

CF-50 made him eligible to receive an extended-term sentence. Thereafter, the court

sentenced the defendant to a 12-year extended-term prison sentence with credit for time

served while on probation pursuant to section 5-6-4(h) of the Code (730 ILCS 5/5-6-4(h)

(West 2004)). The court then admonished the defendant that, to properly challenge his

sentence on appeal, he needed to file a motion for reconsideration within 30 days.

       In February 2008, the defendant filed a timely motion to reconsider the sentence (see

730 ILCS 5/5-8-1(c) (West 2006)), in which he reiterated his contention that, because his

convictions in case numbers 04-CF-50 and 04-CF-107 were entered simultaneously, his

conviction in case number 04-CF-50 did not constitute a previous conviction for purposes

of section 5-5-3.2(b)(1). The defendant maintained that a seven-year prison sentence was

the maximum sentence that he could have properly received following the revocation of his

probation in case number 04-CF-107, and he asked that the trial court reduce his sentence

accordingly.

       In March 2008, the trial court held a hearing on the defendant's motion to reconsider.

In addition to raising the defendant's section 5-5-3.2(b)(1) argument, defense counsel noted,

inter alia, that when the defendant entered his plea in case number 04-CF-107, the court and


                                              3
the State had both stated that he was not eligible to receive an extended-term sentence.

Acknowledging that was the case, the trial court vacated the extended-term portion of the

defendant's sentence, thus reducing it to a seven-year prison term. The court then announced

that it was denying the defendant the previously awarded credit for time served on probation

and was only awarding him credit for his time served following his arrest on the charges

underlying the State's petition to revoke probation. The defendant complained about the

court's denial of his probation credit, but the court noted that the defendant would ultimately

be released from prison "about two months earlier that what [he had been] originally

scheduled out for on the 12 years." The trial court did not admonish the defendant that he

had needed to file a second motion to reconsider sentence to preserve any sentencing issue

that he might want to raise on appeal. In April 2008, the defendant filed a timely notice of

appeal.

                                          DISCUSSION

       Section 5-8-1(c) of the Code states, in pertinent part, as follows: "A motion to reduce

a sentence may be made, or the court may reduce a sentence without motion, within 30 days

after the sentence is imposed. *** However, the court may not increase a sentence once it

is imposed." 1 730 ILCS 5/5-8-1(c) (West 2006). " 'Sentence' is the disposition imposed by

the court on a convicted defendant." 730 ILCS 5/5-1-19 (West 2006).

       On appeal, the defendant argues that, when modifying his sentence in case number

04-CF-107, the trial court violated section 5-8-1(c)'s prohibition against increasing a sentence

       1
           We note that the legislature recently repealed section 5-8-1(c), and it recodified the

rules governing motions to reduce sentence, in a newly created section 5-4.5-50(d), which

also states, "The court may not increase a sentence once it is imposed" (730 ILCS 5/5-4.5-

50(d) (West 2008)). Pub. Act 95-1052, eff. July 1, 2009 (amending 730 ILCS 5/5-8-1 (West

2008) and adding 730 ILCS 5/5-4.5-50).

                                                 4
by denying him the credit for time served on probation that it had previously awarded him.

In response, the State suggests that the defendant has forfeited this claim by not filing a

second motion to reconsider his sentence and that, forfeiture aside, the defendant's argument

is without merit because he ultimately received a sentence less than that originally imposed.

       We first address the State's forfeiture argument. "Normally, any sentencing issues not

raised in a motion to reconsider the sentence are forfeited." In re Angelique E., 389 Ill. App.

3d 430, 432 (2009). Here, although the defendant did not file a second motion to reconsider

his sentence, he complained when the court stated that it was denying him the previously

awarded probation credit, and he was not admonished that he needed to file a second motion

to reconsider to preserve his complaint for appellate review. Under the circumstances, a

relaxation of the forfeiture rule is appropriate. See People v. Dowding, 388 Ill. App. 3d 936,

942 (2009). Furthermore, because an improper increase in sentence is a matter affecting a

defendant's substantial rights, the instant claim is reviewable as plain error. See People v.

Barnes, 194 Ill. App. 3d 527, 529 (1990). We will therefore address the merits of the

argument that the defendant raises on appeal.

       "Under well-settled rules of statutory construction, section 5-8-1(c) is to be interpreted

according to the plain meaning of its terms, in order to ascertain and give effect to the intent

of the legislature, bearing in mind the reasons for the provision, the harms to be remedied,

and the goals to be achieved." People v. Kilpatrick, 167 Ill. 2d 439, 443 (1995). "Because

the construction of a statute is a matter of law, review is de novo." In re Application of the

County Treasurer & ex officio County Collector, 389 Ill. App. 3d 398, 401 (2009).

       "[Section 5-8-1(c)] is consistent with the United States Supreme Court's decision in

North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072, in which

the Court stated that due process may prohibit a judge from imposing a more severe sentence

when the defendant has been convicted following a retrial because a greater sentence may


                                               5
penalize the defendant's right to challenge his conviction and sentence." People v. Jones,

168 Ill. 2d 367, 371-72 (1995). Because a defendant should not have to "run the risk" that

challenging his sentence in the trial court might "result in a resentencing of increased length,"

section 5-8-1(c) should be interpreted so that it does not lend itself to the possibility that a

defendant will be "penalized for his efforts to seek and obtain relief with respect to alleged

errors in the sentence he received." Kilpatrick, 167 Ill. 2d at 447. We must also presume

that, as used in section 5-8-1(c), the word "sentence" refers to a valid sentence or the valid

portion of a sentence. See People v. Garcia, 179 Ill. 2d 55, 73 (1997); People v. Lee, 376

Ill. App. 3d 951, 967 (2007).

       Here, when entering his guilty plea in case number 04-CF-107, the defendant was not

advised that an extended-term sentence was a possibility. As a result, the extended-term

portion of his sentence was void pursuant to section 5-8-2(b) of the Code (730 ILCS 5/5-8-

2(b) (West 2006)), and the trial court properly vacated it. See People v. Taylor, 368 Ill. App.

3d 703, 707-08 (2006). Whether to award the defendant sentencing credit for his time spent

on probation was a matter within the trial court's discretion. See People v. Whitfield, 228 Ill.

2d 502, 507 (2007); 730 ILCS 5/5-6-4(h) (West 2006). Had the defendant not challenged

his sentence in the trial court, however, he could have had the extended-term portion vacated

on direct appeal without losing the probation credit that he had previously been awarded.

If the extended-term portion of a sentence is void, a defendant can attack it any time, and

such a challenge "is not subject to waiver." People v. Thompson, 209 Ill. 2d 19, 27 (2004);

see also People v. Muntaner, 339 Ill. App. 3d 887, 889 (2003) ("When a sentence greater

than that authorized by statute is imposed, the excess portion of that sentence is void and

may be attacked at any time"). Thus, by denying the defendant the probation credit that it

had previously awarded him, the trial court, in effect, penalized him for correcting the error

in the sentence that he received, because the court, in effect, increased the length of the valid


                                               6
sentence that had been originally imposed. See People v. Hills, 78 Ill. 2d 500, 507-08

(1980).   "[T]he trial court may not increase a sentence once it has been imposed by

subsequently denying credit for time served on probation since such a denial would result

in an increased length of sentence." People v. Tackett, 130 Ill. App. 3d 347, 349 (1985).

The State's argument that section 5-8-1(c) was not violated in the present case ignores that

the extended-term portion of the sentence originally imposed was "void from its inception"

and that only the "legally authorized portion" was valid (People v. Brown, 225 Ill. 2d 188,

203, 205 (2007)).

       The valid sentence that the trial court originally imposed when resentencing the

defendant in case number 04-CF-107 was a seven-year term of imprisonment with credit for

time served on probation. By taking away the previously awarded probation credit when

vacating the void portion of the sentence, the trial court impermissibly increased the

previously imposed sentence in violation of section 5-8-1(c).

       The defendant's term of probation commenced on August 12, 2005. When modifying

the defendant's sentence, the trial court awarded him sentencing credit from October 3, 2007.

As a result of the court's modification, the defendant lost 782 days of sentencing credit.

Pursuant to Supreme Court Rule 615(b)(1) (134 Ill. 2d R. 615(b)(1)), we therefore order that

the defendant's mittimus be amended to reflect credit for the 782 days that the defendant

served on probation. See People v. McCray, 273 Ill. App. 3d 396, 403 (1995).

                                      CONCLUSION

       For the foregoing reasons, we reverse the trial court's judgment and order that the

defendant's mittimus be amended accordingly.



       Reversed; mittimus to be corrected.




                                             7
CHAPMAN and STEWART, JJ., concur.




                             8
                                          NO. 5-08-0166

                                              IN THE

                               APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                            ) Circuit Court of
         Plaintiff-Appellee,                ) Perry County.
                                            )
      v.                                    ) No. 04-CF-107
                                            )
      KEVIN D. McBRIDE,                     ) Honorable
                                            ) James W. Campanella,
         Defendant-Appellant.               ) Judge, presiding.
___________________________________________________________________________________

Opinion Filed:        October 19, 2009
___________________________________________________________________________________

Justices:           Honorable James M. Wexstten, P.J.

                 Honorable Melissa A. Chapman, J., and
                 Honorable Bruce D. Stewart, J.,
                 Concur
___________________________________________________________________________________

Attorneys        Michael J. Pelletier, State Appellate Defender, Jo Beth W eber, Deputy Defender,
for              Rita K. Peterson, Assistant Appellate Defender, Office of the State Appellate
Appellant        Defender, Fifth Judicial District, 117 North Tenth Street, Suite #300, Mt. Vernon,
                 IL 62864
___________________________________________________________________________________

Attorneys        Hon. David Stanton, State's Attorney, Perry County Courthouse, P.O. Box 377,
for              Pinckneyville, IL 62274; Pat Delfino, Director, Stephen E. Norris, Deputy Director,
Appellee         Kelly M. Stacey, Staff Attorney, Office of the State's Attorneys Appellate
                 Prosecutor, 730 E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL
                 62864
___________________________________________________________________________________
