                                2020 IL 124337



                                   IN THE
                          SUPREME COURT
                                      OF
                    THE STATE OF ILLINOIS




                              (Docket No. 124337)

          THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
               PHOUVONE V. SOPHANAVONG, Appellee.


                         Opinion filed August 20, 2020.



   JUSTICE GARMAN delivered the judgment of the court, with opinion.

   Justices Kilbride, Theis, and Michael J. Burke concurred in the judgment and
opinion.

   Chief Justice Anne M. Burke specially concurred, with opinion.

   Justice Karmeier dissented, with opinion.

   Justice Neville dissented, with opinion.
                                          OPINION

¶1      Section 5-3-1 of the Unified Code of Corrections (Code) (730 ILCS 5/5-3-1
     (West 2012)) requires a circuit court to consider a presentence investigation (PSI)
     report prior to sentencing a defendant for a felony offense. However, with one
     exception,

        “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.” Id.

¶2       This appeal asks whether a circuit court’s failure to strictly comply with the
     requirements to forgo a PSI report requires remand for a new sentencing hearing or
     whether a defendant can waive the issue by pleading guilty as well as forfeit the
     claim by failing to raise it in a postplea motion. We find waiver and forfeiture apply.
     Thus, we reverse the appellate court’s judgment and affirm the circuit court’s
     judgment.


¶3                                     BACKGROUND

¶4       In December 2013, a Tazewell County grand jury indicted defendant on three
     counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2012)) in
     connection with the death of Laongdao Phangthong. The grand jury also indicted
     defendant on single counts of aggravated kidnapping (id. § 10-2(a)(8)) and
     violating an order of protection (id. § 12-3.4(a)(1)).

¶5       In April 2014, defendant agreed to plead guilty to one count of first degree
     murder. In return, the State agreed to dismiss the remaining charges in the
     indictment and to recommend a sentence of 55 years in prison, which included 30
     years for first degree murder and a 25-year firearm enhancement (730 ILCS 5/5-8-
     1(a)(1)(d)(iii) (West 2012)).

¶6       At the plea hearing, defense counsel asked that the record reflect that the
     agreed-upon terms were “effectively a life sentence” for defendant and, against
     counsel’s advice, defendant insisted on accepting those terms. Although he



                                              -2-
       expressed dissatisfaction with the agreed-upon sentence, defendant chose to “take
       it.”

¶7         At the circuit court’s request, the State offered a factual basis for defendant’s
       guilty plea. On October 11, 2013, defendant’s estranged wife, Laongdao
       Phangthong, obtained a plenary order of protection against him, after she alleged
       that he threatened to shoot and kill her, then commit suicide. Less than a month
       later, on November 4, 2013, defendant parked his car at the factory where he
       worked and took something from the trunk. Shortly thereafter, defendant
       confronted Phangthong at a nearby factory where she worked, and an argument
       ensued. He then forced her into the passenger seat of her car and drove away.

¶8          The next day, police officers discovered Phangthong’s car in a hospital parking
       lot. She was inside, dead from gunshot wounds. Officers later found defendant,
       armed with a handgun, in the basement of his home. During negotiations with
       police, he admitted kidnapping and then killing Phangthong. He stated that he “was
       going to jail for a long time” and shot himself in the chest. Bullets recovered from
       Phangthong matched the gun that defendant used. Police later recovered a note in
       defendant’s handwriting, indicating that he did not intend to kill her but only did so
       after she tased him.

¶9        The circuit court accepted the factual basis, found defendant guilty per the
       negotiated plea agreement, and dismissed the remaining counts. The court then
       proceeded to sentencing and inquired about defendant’s criminal history.

¶ 10       The State informed the circuit court that defendant had previously been
       convicted of manufacture or delivery of cannabis, a Class 1 felony, in 2004 and had
       also been convicted of a speeding offense and a seatbelt offense. The State did not
       mention the disposition of any of defendant’s prior offenses. Upon inquiry, the
       parties informed the court that they were waiving a PSI report.

¶ 11       The circuit court concluded the sentencing hearing by sentencing defendant to
       55 years in prison. The court then addressed him directly:

              “Mr. Sophanavong, even though you have plead[ed] guilty, you do have
          rights of appeal. But before taking an appeal you must file a Motion in this




                                               -3-
          Court within 30 days seeking leave to withdraw your plea of guilty and vacate
          this judgment and sentence.

              That Motion must be in writing and set forth with particularity why it ought
          to be granted, or any claim not stated may be waived for purposes of appeal.”

¶ 12       The following month, May 2014, defendant filed a timely pro se motion to
       withdraw his guilty plea, claiming he was not “in a coherent state of mind when
       [he] accepted the plea” and counsel was ineffective. He did not raise a claim that
       the circuit court failed to comply with section 5-3-1.

¶ 13       In October 2014, newly appointed counsel filed an amended motion to
       withdraw the guilty plea, alleging defendant had been suffering from extreme
       anxiety and duress when he pleaded guilty, he was unaware of potential lesser
       included offenses, he was actually innocent of first degree murder, and he was
       denied the effective assistance of counsel. Counsel did not raise any claim
       pertaining to section 5-3-1. After the circuit court denied the amended motion,
       defendant appealed, and the cause was remanded 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).

¶ 14       On remand, the circuit court appointed new counsel, who filed a second
       amended motion to withdraw the guilty plea in May 2017. Counsel alleged that
       defendant did not knowingly, understandingly, and voluntarily enter his guilty plea
       and that he received ineffective assistance of counsel. The motion did not raise any
       issue regarding section 5-3-1. In July 2017, the court denied the second amended
       motion.

¶ 15       On appeal, defendant abandoned his challenge to the circuit court’s ruling on
       his second amended motion to withdraw his guilty plea. Instead, he argued his
       sentence should be vacated and the cause remanded for a new sentencing hearing
       because the court failed to strictly comply with section 5-3-1 of the Code when it
       accepted the parties’ plea agreement without ordering a PSI report or being
       informed of the dispositions of defendant’s prior criminal offenses. 2018 IL App
       (3d) 170450, ¶ 9.




                                              -4-
¶ 16       In response, the State relied on People v. Haywood, 2016 IL App (1st) 133201,
       ¶ 41, which found that the defendant could not challenge his sentence on appeal
       because his guilty plea and the negotiated plea agreement were still in effect. 2018
       IL App (3d) 170450, ¶ 10. In the alternative, the State asserted that section 5-3-1
       was complied with because the circuit court had been sufficiently informed of
       defendant’s criminal history and the court could reasonably infer the range of
       sentences defendant had received for his prior convictions. Id.

¶ 17       The appellate court, with one justice dissenting, agreed with defendant, vacated
       his sentence, and remanded for a new sentencing hearing in strict compliance with
       section 5-3-1. Id. ¶ 1. The court disagreed with Haywood and found the PSI
       requirement of section 5-3-1 is a mandatory legislative requirement that cannot be
       waived by the defendant. Id. ¶ 12.

¶ 18       In December 2018, the State filed a petition for leave to appeal, which we
       allowed. Ill. S. Ct. R. 315(a) (eff. July 1, 2018).


¶ 19                                        ANALYSIS

¶ 20       This case requires discussion of the doctrines of forfeiture and waiver. Over the
       years, this court has noted that the terms forfeiture and waiver have, at times, been
       used interchangeably, and often incorrectly, in criminal cases. People v. Hughes,
       2015 IL 117242, ¶ 37; People v. Blair, 215 Ill. 2d 427, 443 (2005). Forfeiture is
       defined “as the failure to make the timely assertion of [a] right.” People v. Lesley,
       2018 IL 122100, ¶ 37; see also Buenz v. Frontline Transportation Co., 227 Ill. 2d
       302, 320 n.2 (2008) (stating “forfeiture is the failure to timely comply with
       procedural requirements”). Waiver, on the other hand, “is an intentional
       relinquishment or abandonment of a known right or privilege.” Lesley, 2018 IL
       122100, ¶ 36.

¶ 21       In this appeal, the State has abandoned its arguments made in the appellate court
       and now argues that defendant forfeited his section 5-3-1 claim, under Illinois
       Supreme Court Rule 604(d) (eff. July 1, 2017), by failing to raise the issue in his
       postplea motions. We note the State failed to raise the issue of defendant’s
       forfeiture in the appellate court. As the doctrine of forfeiture applies to the State as
       well as to defendant (People v. Artis, 232 Ill. 2d 156, 178 (2009)), the State has




                                                -5-
       forfeited its ability to raise its argument now on appeal (People v. McKown, 236 Ill.
       2d 278, 308 (2010)). However, because forfeiture is a limitation on the parties and
       not the court, we will consider the State’s argument. People v. Custer, 2019 IL
       123339, ¶ 19. A claim of forfeiture raises a question of law, which we review
       de novo. Id. ¶ 17.

¶ 22       In the context of guilty pleas, Rule 604(d) states that “[n]o appeal shall be taken
       upon a negotiated plea of guilty challenging the sentence as excessive unless the
       defendant, within 30 days of the imposition of sentence, files a motion to withdraw
       the plea of guilty and vacate the judgment.” Ill. S. Ct. R. 604(d) (eff. July 1, 2017).
       Moreover, “[u]pon appeal any issue not raised by the defendant in the motion to
       reconsider the sentence or withdraw the plea of guilty and vacate the judgment shall
       be deemed waived.” Id.; see also People v. Evans, 174 Ill. 2d 320, 329 (1996) (“Any
       issue not raised in the motion to reconsider or to withdraw the plea shall be deemed
       waived.”). 1

           “ ‘A few years after the effective date of our 1970 Constitution, it came to the
           attention of this court that a large number of appeals in criminal cases were
           being taken from pleas of guilty. *** A review of the appeals in those cases
           revealed that many of the errors complained of could and undoubtedly would
           be easily and readily corrected, if called to the attention of the trial court. The
           rule was designed to eliminate needless trips to the appellate court and to give
           the trial court an opportunity to consider the alleged errors and to make a record
           for the appellate court to consider on review in cases where defendant’s claim
           is disallowed.’ ” People v. Tousignant, 2014 IL 115329, ¶ 13 (quoting People
           v. Wilk, 124 Ill. 2d 93, 106 (1988)).

       See also People v. McLaurin, 235 Ill. 2d 478, 488 (2009) (stating the “[f]ailure to
       raise claims of error before the trial court denies the court the opportunity to correct
       the error immediately and grant a new trial if one is warranted, wasting time and
       judicial resources”); People v. Tye, 323 Ill. App. 3d 872, 886 (2001) (stating a
       postsentencing motion “serves the important goal of promoting judicial economy


           1
             Although this aspect of Rule 604(d) has been referred to as the “waiver rule” (People v.
       Stewart, 123 Ill. 2d 368, 374 (1988)), it is more appropriate to “use ‘forfeited’ to mean issues that
       could have been raised but were not, and are therefore barred” (People v. Allen, 222 Ill. 2d 340, 350
       n.1 (2006)).




                                                      -6-
       and finality of judgments by highlighting any alleged error for the circuit court and
       granting it the opportunity to reconsider the appropriateness of the sentence and to
       correct any errors made”).

¶ 23      Along with allowing the circuit court to immediately correct any errors that may
       have led to the guilty plea or the length of the sentence, Rule 604(d)

          “ensures that fact finding takes place and a record is made at a time when
          witnesses are still available and memories are fresh. If the motion to withdraw
          the plea is denied, that decision can be considered on review. If the motion is
          granted, the need for an appeal has been eliminated.” Evans, 174 Ill. 2d at 329.

¶ 24       In the case sub judice, defendant pled guilty in April 2014, and he had 30 days
       to file a motion to withdraw his guilty plea and raise any allegations of error.
       However, defendant did not raise the issue of section 5-3-1 compliance he now
       argues on appeal in his May 2014 motion to withdraw the guilty plea. He also did
       not raise the current issue in his October 2014 amended motion to withdraw the
       guilty plea or in his May 2017 second amended motion to withdraw the guilty plea.
       In fact, defendant has never raised the issue in the circuit court.

¶ 25        Instead, now more than six years after pleading guilty, defendant seeks a new
       sentencing hearing based on the circuit court’s failure to comply with section 5-3-
       1, an issue that could have readily been raised and addressed in May 2014. We find
       defendant long ago forfeited any claim of noncompliance with section 5-3-1 by
       failing to raise the issue in any of his three motions to withdraw the guilty plea. In
       the absence of a postplea “ ‘motion limiting the consideration to errors considered
       significant, the appeal is open-ended. Appellate counsel may comb the record for
       every semblance of error and raise issues on appeal whether or not trial counsel
       considered them of any importance.’ ” People v. Enoch, 122 Ill. 2d 176, 186 (1988)
       (quoting People v. Caballero, 102 Ill. 2d 23, 31-32 (1984)). If Rule 604(d)’s
       requirement that issues be raised in a motion to withdraw the guilty plea or
       otherwise risk forfeiture is to have any force, defendant’s failure to raise the issue
       within 30 days of the imposition of sentence must be found to be what it is—
       forfeited.

¶ 26      This court’s decision in People v. Youngbey, 82 Ill. 2d 556 (1980), does not
       compel a different result. In that case, the circuit court found the defendants guilty




                                               -7-
       of unlawful use of weapons. Id. at 558. After denying their motions for a new trial,
       both defendants, as well as the State, waived the PSI report and proceeded to the
       sentencing hearing. Id. at 559. No specific sentence had been agreed to by the
       parties, and the State presented evidence of the defendants’ criminal history. Id.
       The State also requested the court consider verified copies of conviction and
       represented one of the defendants spent “ ‘nine days in the House’ ” for aggravated
       assault. Id. The court sentenced the defendants to prison. Id. Two days later, the
       court, sua sponte, held section 5-3-1 of the Code unconstitutional. Id.

¶ 27       On appeal, this court found the circuit court erred in declaring section 5-3-1
       unconstitutional. Id. at 560. This court then went on to consider whether, in the
       absence of a sentencing agreement, a PSI report is a mandatory requirement in
       felony cases under section 5-3-1 and, if so, whether such a requirement can be
       waived by a defendant. Id. at 560-61. After examining the language of section 5-3-
       1, the court held the PSI report “is a mandatory legislative requirement which
       cannot be waived except in accordance with the exception in the statute.” Id. at 562.

¶ 28       In contrast to Youngbey, the case before us does not involve a similar act of
       waiver. Instead, it involves defendant’s forfeiture of the issue by his repeated failure
       to raise his claim in the circuit court. The State did not raise a forfeiture argument
       in Youngbey, and this court did not address it. Thus, we find that case
       distinguishable.

¶ 29       Contrary to the argument raised by Justice Karmeier’s dissent, this case is also
       not controlled by this court’s decision in People v. Harris, 105 Ill. 2d 290 (1985).
       There, both defendants were convicted of burglary in separate cases. Id. at 294-95.
       In one case, after being convicted in a bench trial, the defendant, David Harris,
       waived a PSI report, and the circuit court proceeded to a sentencing hearing and
       sentenced him to probation. Id. at 294. After Harris violated his probation, the court
       sentenced him to prison. Id. On appeal, the appellate court found no error in the
       circuit court’s failure to order a PSI report, concluding Harris voluntarily waived
       his right to a PSI report when originally placed on probation. Id. at 295.

¶ 30       In the other case, the defendant, Raymond Coleman, pleaded guilty and was
       sentenced to probation. Id. Both parties waived the PSI report. Id. At a sentencing
       hearing following Coleman’s violation of probation, an “updated” report was filed,
       but it did not contain any information on his background prior to being placed on



                                                -8-
       probation. Id. at 295-96. The circuit court sentenced him to prison. Id. at 296. On
       appeal, the appellate court reversed, finding the circuit court’s failure to consider a
       PSI report was plain error. Id.

¶ 31       In the consolidated appeal, this court considered the question of whether, after
       revocation of probation, a circuit court must consider a PSI report before sentencing
       a defendant on a felony conviction. Id. at 297. This court held the PSI requirement
       in section 5-3-1 did indeed apply to resentencing following probation revocation.
       Id. at 299. As one of its arguments, the State contended the defendants waived their
       right to protest the absence of a PSI report. Id. at 301-02. This court, however, found
       waiver could not be inferred from the defendants’ failure to object in their
       respective cases. Id. at 302.

¶ 32       As we found with Youngbey, we likewise find Harris distinguishable. Youngbey
       involved bench trials, and only one of the defendants in Harris pleaded guilty.
       Waiver was at the heart of those cases, and as we have stated, waiver is different
       than forfeiture. Here, defendant’s failure to raise the section 5-3-1 issue in accord
       with the requirements of Rule 604(d) goes above and beyond the doctrine of waiver.
       While defendant Coleman pleaded guilty in Harris, this court did not address
       forfeiture in the context of Rule 604(d), which specifically requires a defendant
       who pleaded guilty to raise any claims of error or otherwise risk forfeiting those
       issues on appeal.

¶ 33        Moreover, defendant’s act of pleading guilty forecloses any claim of error. “It
       is well established that a voluntary guilty plea waives all non-jurisdictional errors
       or irregularities, including constitutional ones.” People v. Townsell, 209 Ill. 2d 543,
       545 (2004); see also People v. Jackson, 199 Ill. 2d 286, 295 (2002) (finding “that
       by a guilty plea a criminal defendant does waive Apprendi-based sentencing
       objections on appeal”); Apprendi v. New Jersey, 530 U.S. 466 (2000). Defendant
       entered into a negotiated plea agreement, pleading guilty to one count of first degree
       murder in exchange for the State’s recommendation of an aggregate sentence of 55
       years in prison and the dismissal of the remaining charges. Despite his attorney’s
       stated willingness to take the case to trial, defendant persisted in taking the plea
       deal. To grant relief in this case would give defendant a second bite at the apple,
       well beyond the applicable time constraints of Rule 604(d), in his quest for a new
       hearing on his sentence, one that he voluntarily agreed to. Given that he waived all




                                                -9-
       nonjurisdictional errors by pleading guilty, defendant should not be rewarded after
       standing silent all these years.


¶ 34                                          CONCLUSION

¶ 35      As defendant forfeited his claim by failing to raise it in his postplea motions
       and waived any error by pleading guilty, we find the appellate court erred in
       considering the merits of his claim and in granting him a new sentencing hearing.
       Accordingly, we reverse the appellate court’s judgment and affirm the circuit
       court’s judgment.


¶ 36       Appellate court judgment reversed.

¶ 37       Circuit court judgment affirmed.


¶ 38       CHIEF JUSTICE ANNE M. BURKE, specially concurring:

¶ 39       In the case at bar, defendant pled guilty, pursuant to a fully negotiated plea
       agreement, to one count of first degree murder in exchange for the dismissal of all
       remaining criminal charges pending against him and a sentence of 55 years’
       imprisonment. 2 Because a specific sentence was agreed to by the parties, the parties
       waived a presentence investigation report (PSI), and the circuit court sentenced
       defendant in accord with the plea agreement after considering defendant’s criminal
       history.

¶ 40       Defendant later moved to withdraw his guilty plea, which the circuit court
       denied. On appeal from that denial, defendant argued that he was entitled to a new
       sentencing hearing because the circuit court failed to strictly comply with section
       5-3-1 of the Unified Code of Corrections (Code) (730 ILCS 5/5-3-1 (West 2012))
       when it sentenced defendant in accord with the parties’ plea agreement without
       ordering a PSI report or being informed of the dispositions of defendant’s prior
       criminal offenses. 2018 IL App (3d) 170450, ¶ 9.


           2
             The 55-year sentence consisted of a 30-year sentence for the offense of first degree murder
       plus the 25-year mandatory firearm enhancement (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012)).




                                                    - 10 -
¶ 41       The appellate court agreed that the circuit court had not strictly conformed to
       section 5-3-1 of the Code, finding that “no information whatsoever was presented
       as to the dispositions defendant received in his prior criminal cases.” Id. ¶ 14. The
       appellate court 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.” Id.

¶ 42       Now, a majority of this court, applying principles of waiver and forfeiture, finds
       that defendant is not entitled to a new sentencing hearing and reverses the appellate
       court judgment. Although I agree that the appellate court judgment must be
       reversed, my reasoning differs from that of the majority. In my view, defendant is
       not entitled to a new sentencing hearing because the circuit court’s failure to strictly
       comply with section 5-3-1 of the Code was harmless error under the circumstances
       of this case.

¶ 43      Since 1978, section 5-3-1 of the Code has provided:

          “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, *** 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.” 730 ILCS 5/5-3-1
          (West 2012) (recodified from Ill. Rev. Stat. 1979, ch. 38, ¶ 1005-3-1).

       See also Pub. Act 80-1099, § 3 (eff. Feb. 1, 1978).

¶ 44      Prior to 1978, this section of the Code permitted a defendant to waive a PSI at
       any time. See People v. Youngbey, 82 Ill. 2d 556, 561 (1980). The statute was
       amended, as Representative Getty explained in the House debates of May 19, 1977,
       because requiring a PSI

          “would *** bring an end to the unfortunate system where we have people
          placed on probation, placed on probation and placed on probation again.
          Sometimes only the defendant knows he’s already on probation. This would
          bring that sort of thing to an end so a Judge would know when he makes his




                                                - 11 -
          sentence that a man is already on probation.” 80th Ill. Gen. Assem., House
          Proceedings, May 19, 1977, at 106 (statements of Representative Getty).

       See also Youngbey, 82 Ill. 2d at 564.

¶ 45       With the 1978 amendment, the legislature made obtaining a PSI “a mandatory
       legislative requirement which cannot be waived except in accordance with the
       exception in the statute.” (Emphasis added.) Id. at 561. If the exception must apply
       before a PSI can be knowingly waived, it is counterintuitive to find that the PSI
       requirement can be forfeited. Thus, I find, as we did in Youngbey, that the PSI
       requirement is mandatory and can be neither waived nor forfeited, unless there is
       compliance with the statutory exception. In this case, the parties waived the PSI,
       but the waiver was inoperative because the circuit court made no finding for the
       record as to “defendant’s history of delinquency or criminality, including any
       previous sentence to a term of probation, periodic imprisonment, conditional
       discharge, or imprisonment.”

¶ 46       Of course, finding that the circuit court erred does not necessarily mean that
       remand for a new sentencing hearing is required. In this case I would find the error
       to be harmless.

¶ 47        Defendant pled guilty on April 24, 2014, to the November 4, 2013, shooting
       death of his estranged wife, Laongdao Phangthong. The record shows that after
       hearing a factual basis for the plea the court gave both defendant and his counsel
       the opportunity to dispute the facts as presented by the State but that neither did so.
       In fact, counsel agreed that evidence obtained in discovery supported the factual
       basis recited by the State. Accordingly, the court pronounced defendant guilty of
       first degree murder and proceeded to sentencing.

¶ 48       Prior to imposing sentence, the court asked about defendant’s criminal record.
       The State responded, “Your Honor, we would refer the Court to the pre-trial
       services criminal history filed November 18th, 2013. That is an accurate reflection
       of his criminal history.” When the court could not find that document in the file,
       the State responded, “I can recite it, Judge. It is fairly short.” The State then
       informed the court that defendant’s criminal history consisted of a 2004 conviction
       for the manufacture and delivery of cannabis and two traffic offenses—speeding
       and not wearing a seatbelt. The court then remarked, “Obviously the State has made




                                               - 12 -
       a thorough investigation and believes the agreement and sentence that is imposed
       here is in the best interest of justice.” The State agreed. Although defendant
       expressed some disappointment with the 30-year sentence for murder—which is 10
       years over the minimum—he was adamant that, nevertheless, he wanted to accept
       the plea agreement.

¶ 49       Under the circumstances outlined above, I would find that that the circuit
       court’s failure to comply with the requirements of section 5-3-1 of the Code was
       harmless. The parties agreed to a particular sentence, and the court was fully aware
       of facts giving rise to the plea, as well as defendant’s criminal history. While it is
       true that the circuit court made no finding on the record regarding the dispositions
       that had been imposed for defendant’s prior convictions, it is impossible to believe
       that any dispositions imposed on a nearly 10-year-old cannabis conviction and two
       traffic offenses would have had any significant impact on the court’s assessment of
       the appropriate sentence in this first degree murder case.

¶ 50       For the above reasons, I would reverse the appellate court judgment and affirm
       the circuit court’s denial of defendant’s motion for a new sentencing hearing.


¶ 51      JUSTICE KARMEIER, dissenting:

¶ 52       I like the result the majority reaches and would like to join them. It is a simple
       resolution; it is clean; it ends the litigation efficiently; however, it does so at the
       expense of reaching a desired result in the face of a statute that does not permit that
       result. Accordingly, I must respectfully dissent.

¶ 53       Pursuant to forfeiture principles and Rule 604(d), generally, “any issue not
       raised by the defendant in the motion to reconsider the sentence or withdraw the
       plea of guilty and vacate the judgment shall be deemed waived.” Ill. S. Ct. R. 604(d)
       (eff. July 1, 2017). This rule, however, is not ironclad and is relaxed under
       appropriate circumstances. One such common circumstance is plain error. People
       v. Fuller, 205 Ill. 2d 308, 323 (2002); People v. Davis, 145 Ill. 2d 240, 251 (1991)
       (“Although this court overruled Adkisson, it was because the trial court’s error [did
       not amount] to [plain] error, and not because an exception was not available to Rule
       604(d).”); People v. Walker, 109 Ill. 2d 484, 497 (1985).




                                               - 13 -
¶ 54       This case presents another—unique and limited—circumstance that requires
       relaxation of defendant’s forfeiture. This is so because, in Youngbey, this court
       determined that section 5-3-1 of the Unified Code of Corrections (Ill. Rev. Stat.
       1979, ch. 38, ¶ 1005-3-1 (now 730 ILCS 5/5-3-1)) does not provide a personal right
       to defendants that can be waived. People v. Youngbey, 82 Ill. 2d 556, 565 (1980).
       Instead, it imposes a mandatory obligation on the trial court, under the mandatory-
       directory dichotomy, that cannot be waived. Id. at 564.

¶ 55        The mandatory-directory dichotomy concerns the consequences of a
       governmental entity’s failure to fulfill an obligation. People v. Robinson, 217 Ill.
       2d 43, 52 (2005). When a statute is found mandatory under this dichotomy,
       noncompliance renders the subsequent action to which the statutory requirement
       relates invalid. 3 Id. at 51-52. Accordingly, this court has repeatedly addressed
       issues involving mandatory statutes, and adhered to the consequences specified by
       such statutes in cases of noncompliance, despite a party’s forfeiture. People v.
       Hardman, 2017 IL 121453, ¶ 49; People v. Love, 177 Ill. 2d 550, 556 (1997) (“The
       trial court’s failure to adhere to the procedural safeguards mandated by section 113-
       3.1 [of the Code of Criminal Procedure of 1963 (725 ILCS 5/113-3.1 (West 1994))]
       requires vacatur of the reimbursement order, despite defendant’s failure to
       object.”); People v. Partee, 125 Ill. 2d 24 (1988) (although the issue was not raised
       in the trial court (People v. Partee, 153 Ill. App. 3d 841, 844 (1987)), this court
       addressed whether a defendant can waive the trial court’s violation of the
       mandatory requirements prescribed by section 113-4(e) of the Code of Criminal
       Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, ¶ 113-4(e))); People v. Porter, 122
       Ill. 2d 64, 84 (1988) (vacating the trial court’s dismissal of a postconviction petition
       for its failure to adhere to the mandatory requirements of section 122-2.1(b) of the
       Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, ¶ 122-2.1(b)), although
       issue was apparently not raised in appellate court (People v. Porter, 141 Ill. App.
       3d 208 (1986))); People v. Singleton, 103 Ill. 2d 339, 346 (1984) (declining to apply

           3
              This is not to be confused with the mandatory-permissive dichotomy, which addresses whether
       the trial court has an obligatory duty or the discretionary power to perform a legislative directive.
       People v. Delvillar, 235 Ill. 2d 507, 514 (2009). Under the principles of both dichotomies, a statute
       could be mandatory, in that the trial court has no discretion to ignore the directive, but
       noncompliance nevertheless does not require automatic relief absent prejudice. Id. at 519. Yet, if
       mandatory under a mandatory-directory dichotomy, the duty is necessarily mandatory under both
       dichotomies, and the governmental action to which the requirement relates is invalid. Robinson, 217
       Ill. 2d at 51-52.




                                                      - 14 -
       forfeiture to an argument that the trial court violated a mandatory provision by
       sentencing defendant to consecutive terms, rather than concurrent terms).

¶ 56       Here, it is undisputed that the trial court failed to comply with the mandatory
       requirements of section 5-3-1. Consequently, the trial court’s acceptance and
       imposition of the agreed-upon sentence is invalid, and the cause must be remanded
       for compliance with section 5-3-1. People v. Harris, 105 Ill. 2d 290, 300-03 (1985).

¶ 57       In an attempt to reconcile its opinion with our precedent, the majority finds
       Youngbey and Harris inapposite because they involve waiver, not forfeiture. This
       reasoning not only misapprehends the mandatory nature of section 5-3-1, it
       misconstrues Harris. Id.

¶ 58        Although the term “waiver” was used in Harris, the substance of the State’s
       argument in that case clearly asserted that the defendants forfeited the trial court’s
       section 5-3-1 error. It contended that the defendants “waived” the error because
       they failed to object during the trial court proceedings. Id. at 301-02. 4 The root of
       this contention was not that the defendants somehow intentionally relinquished the
       requirements of section 5-3-1 but that they could have raised the issue earlier in the
       trial court. Under the majority’s own definition of the term, this is a claim of
       forfeiture. Supra ¶ 20. (“Forfeiture is defined ‘as the failure to make the timely
       assertion of [a] right.’ ” (quoting People v. Lesley, 2018 IL 122100, ¶ 37)). 5

¶ 59       While defendant here forfeited his argument pursuant to Rule 604(d), rather
       than by failing to object at trial, Harris nevertheless controls this case. Because the
       rule codifies a well-established legal term of art stemming from common law—
       absent an intent to the contrary—it encompasses all the legal ramifications of that
       term, including that forfeiture is relaxed under appropriate circumstances.
       Millennium Park Joint Venture, LLC v. Houlihan, 241 Ill. 2d 281, 305 (2010);
       People v. De La Paz, 204 Ill. 2d 426, 432 (2003). Despite the majority’s contention
       otherwise, Rule 604(d) lacks any indication that it involves a more stringent version

            4
              The State presented other arguments involving waiver or the intentional relinquishment of a
       right. My discussion, however, is limited only to the portion of Harris that discusses “waiver” based
       on defendants’ failure to object in the trial court proceedings.
            5
              Interestingly, the majority recognizes and clarifies the same confusion in the context of Rule
       604(d) but then overlooks the distinction in Harris. Supra ¶ 22 n.1 (explaining that, although Rule
       604(d) uses the term “waived,” it is more appropriate to use the term “forfeited” because the
       provision regards issues that could have been raised but were not).




                                                      - 15 -
       of forfeiture or an intent to depart from the common-law rule of forfeiture and its
       exceptions. The rule simply restates the general principle of forfeiture without
       stipulations. In fact, the purposes behind this provision—to promote judicial
       economy and fairness to the parties—are the same purposes underlying the general
       rules of forfeiture in any case. Compare People v. Adkisson, 83 Ill. 2d 1, 7-8 (1980),
       with People v. Lampkin, 98 Ill. 2d 418, 436 (1983). Consequently, once Harris was
       filed, our holding that section 5-3-1 is not subject to forfeiture became part of the
       law, even in the context of Rule 604(d). Moon v. Rhode, 2016 IL 119572, ¶ 33.

¶ 60       Moreover, it is incongruous to apply forfeiture when a defendant cannot waive
       the requirement. See Harris, 105 Ill. 2d at 302; Freytag v. Commissioner, 501 U.S.
       868, 894 n.2 (1991) (Scalia, J., concurring in part and concurring in the judgment,
       joined by O’Connor, Kennedy, and Souter, JJ.) (“A right that cannot be waived
       cannot be forfeited by other means (at least in the same proceeding), but the
       converse is not true.”). Simply because there are differences between waiver and
       forfeiture does not mean the concepts are wholly disconnected. Waiver requires an
       intentional act. In contrast, forfeiture may occur regardless of a party’s intent.
       People v. Blair, 215 Ill. 2d 427, 444 n.2 (2005). 6 The consequence of relinquishing
       a right, however, occurs in both instances.

¶ 61       In light of this similarity, it is clear that applying forfeiture here conflicts with
       the legislative intent underlying section 5-3-1. In enacting section 5-3-1, the
       legislature intended to ensure courts impose meaningful sentences by requiring the
       sentencing judge to have all the necessary information regarding a defendant and
       defendant’s criminal history, including any disposition as to any convictions, before
       imposing the sentence. Youngbey, 82 Ill. 2d at 565; Harris, 105 Ill. 2d at 304. By
       subsequently amending section 5-3-1 in 1978 to remove defendant’s ability to

           6
             The definitions and consequences of “waiver” and “forfeiture” have been a point of confusion
       for both parties and courts. In Blair, this court attempted to clarify the terms. In doing so, it
       oversimplified the interplay between waiver and forfeiture. See Blair, 215 Ill. 2d 427. Waiver, being
       an intentional relinquishment of a right or privilege, “is merely one means by which a forfeiture
       may occur. Some rights may be forfeited by means short of waiver.” Freytag, 501 U.S. at 895 n.2
       (Scalia, J., concurring in part and concurring in the judgment, joined by O’Connor, Kennedy, and
       Souter, JJ.). For example, “procedural default refers to the failure to adequately preserve an issue
       for later appellate review” (Blair, 215 Ill. 2d at 457 n.3 (Freeman, J., dissenting, joined by
       McMorrow and Kilbride, JJ.)), which also results in the forfeiture of defendant’s right to raise that
       error on appeal (id. at 444 n.2 (majority opinion)). Because the majority equates procedural default
       with forfeiture, I do the same.




                                                      - 16 -
       waive the requirements, the legislature indicated that the importance of this public
       policy necessitates strict compliance, such that defendant could not hinder the
       public policy by waiving it. Youngbey, 82 Ill. 2d at 563; Harris, 105 Ill. 2d at 304. 7

¶ 62       Forfeiture, like the effect of a waiver, would also stifle this public policy.
       Considering that parties often fail to timely assert their rights, it is arguable the
       application of forfeiture presents the greater risk of nullifying the mandatory
       requirements. As such, to effectuate the legislature’s intent, neither waiver nor
       forfeiture can impede the public policy of ensuring meaningful sentences.

¶ 63        The majority further overlooks the irrational result of its conclusory assertion
       that forfeiture applies because it differs from waiver. Under its reasoning, a party
       may unintentionally forgo the mandatory requirements of section 5-3-1 by failing
       to timely assert them, despite the legislature’s determination that the public policy
       underlying the provision is so imperative that no party may intentionally forgo the
       requirements. This conclusion is nonsensical, as it would place consequences that
       the legislature prohibited for an intentional action on a less culpable inaction. The
       legislature could not have intended such an absurd result. People v. Clark, 2019 IL
       122891, ¶ 20 (courts presume that the legislature did not intend absurd results).

¶ 64      Accordingly, where the trial court failed to comply with the mandatory
       requirements of a statute that cannot be waived and the case is properly before this
       court on direct appeal, the application of forfeiture is not appropriate. See Hardman,
       2017 IL 121453, ¶ 49; Harris, 105 Ill. 2d at 302; Singleton, 103 Ill. 2d at 346;
       People v. Evans, 273 Ill. App. 3d 252, 256-57 (1994).

¶ 65       The fact that this case involves a guilty plea rather than sentencing after a trial
       is of no consequence. Unlike the errors and constitutional rights that are waived by
       a voluntary guilty plea, section 5-3-1 provides mandatory requirements that—not
       being a personal right to defendant—are not subject to waiver except in accordance
       with the statute. Youngbey, 82 Ill. 2d at 561-62; Harris, 105 Ill. 2d at 304.



           7
             Prior to 1978, section 5-3-1 specifically provided that “The defendant may waive the
       presentence investigation and written report.” Ill. Rev. Stat. 1977, ch. 38, ¶ 105-3-1. The 1978
       amendment removed this sentence. Consequently, this court found section 5-3-1 is for the
       enlightenment of the court and, not being a personal right of the defendant, cannot be waived.
       Youngbey, 82 Ill. 2d at 564-65.




                                                   - 17 -
       Therefore, absent compliance with section 5-3-1, defendant has no ability to waive
       section 5-3-1 requirements by any means, including pleading guilty.

¶ 66       The majority’s contrary decision departs from precedent and allows an invalid
       action to stand despite the legislature’s unambiguous directive otherwise. “We are
       not free to ignore the requirements set forth by the General Assembly in
       constitutionally valid legislation.” People ex rel. Department of Public Health v.
       Wiley, 218 Ill. 2d 207, 228-29 (2006). 8

¶ 67       For similar reasons, the special concurrence’s argument that a new sentencing
       hearing is not required where the court’s noncompliance results in harmless error
       is equally unavailing. In Harris, the State posited a similar argument that
       defendants were not entitled to a new sentencing hearing because there was
       substantial compliance based on the fact that the trial courts were aware of all the
       relevant information before imposing the sentences. Harris, 105 Ill. 2d at 302-03.
       This court rejected the State’s argument and found that, due to the mandatory nature
       of the statute, section 5-3-1 was a per se rule. Id. at 303. Consequently, we cannot
       depart from the plain language of section 5-3-1—which explicitly provides the sole
       exception to the presentence investigation report requirement—because the error is
       perceived as harmless. See People v. Ramirez, 214 Ill. 2d 176, 183 (2005) (this
       court determined, because section 115-4.1(a) of the Code of Criminal Procedure of
       1963 (725 ILCS 5/115-4.1(a) (West 1992)) was mandatory, it is “constrained to
       apply the plain language as written and without exception,” including harmless
       error review).

¶ 68       The majority and special concurrence mistakenly center their analyses around
       defendant’s actions or the consequences of the trial court’s error on defendant.
       While defendant may benefit from section 5-3-1, its primary intent is to be a useful
       tool for the sentencing judge to ensure the court imposes a meaningful sentence that
       serves society’s best interest. Youngbey, 82 Ill. 2d at 565; Harris, 105 Ill. 2d at 304.
       As such, the legislature’s principal objective was not to protect defendants but to
       protect society from the lenient treatment of defendants who lack rehabilitative
       potential. 80th Ill. Gen. Assem., House Proceedings, May 19, 1977, at 106

           8
            In Youngbey, this court found section 5-3-1 does not constitute an unconstitutional
       encroachment upon either the judicial or executive powers. Youngbey, 82 Ill. 2d at 560.




                                                - 18 -
       (statements of Representative Getty) (Representative Getty hoped the removal of
       the ability to waive the requirements of section 5-3-1 would end “the unfortunate
       system” where people are repeatedly placed on probation because no one knew of
       the defendant’s history).

¶ 69       This public policy is particularly germane in the context of fully negotiated
       pleas, where the State and the defendant often find it advantageous to agree upon a
       lesser penalty than might be imposed if there were a guilty verdict after a trial.
       Brady v. United States, 397 U.S. 742, 752 (1970) (explaining the mutual advantages
       of plea deals). Yet, what is advantageous to the State and defendant does not always
       serve society’s best interests. This is why, even where the parties agree to a
       sentence, it remains the sentencing court’s responsibility to determine whether the
       sentence is acceptable. Ill. S. Ct. R. 402(d)(2) (eff. July 1, 2012). Section 5-3-1
       provides not only information relevant to defendant’s rehabilitative potential, both
       in mitigation and aggravation, but also serves as a verification of that information
       for the court before it decides to impose the parties’ agreed-upon sentence. Harris,
       105 Ill. 2d at 302. It thus forms an important protection against a court blindly
       accepting the parties’ agreed-upon sentence that may not correspond with society’s
       interests because it is either too lenient or harsh. E.g., People v. Lambrechts, 69 Ill.
       2d 544, 558 (1977) (“It does not seem to us unusual that a judge, viewing that
       record, would be concerned as to whether society’s best interests were being served
       by the lenient treatment received by defendant in connection with his eight prior
       convictions ***.”).

¶ 70       Defendant’s failure to preserve this issue or the unlikeliness of any resulting
       harm in this case does not diminish the legislature’s purpose underlying section 5-
       3-1 to protect the public or somehow relieve the court of its mandatory obligations.
       Therefore, the focus of the inquiry should be solely whether the trial court complied
       with this societal safeguard.

¶ 71       Because there is no forfeiture, the underlying substantive issue decided below
       of whether defendant may seek a new sentencing hearing based on a section 5-3-1
       error without a separate basis to withdraw his plea remains. Although the State and
       defendant now agree on this issue, there is a conflict between appellate court
       districts, and resolution of the question is pivotal to the relief herein provided by
       the appellate court. Thus, in the interest of maintaining a sound and uniform body




                                                - 19 -
       of precedent, this court should nevertheless address it. People v. Medina, 221 Ill.
       2d 394, 402 (2006).

¶ 72       The appellate split was created by the First District in Haywood, where it
       declined to address a section 5-3-1 noncompliance argument absent a successful
       motion to withdraw guilty plea because, based on contract principles, a defendant
       may not seek to unilaterally reduce his sentence while the State is bound to its part
       of the agreement. People v. Haywood, 2016 IL App (1st) 133201, ¶ 41 (citing
       People v. Evans, 174 Ill. 2d 320, 327, 332 (1996)). On the other hand, the majority
       of appellate districts characterize a section 5-3-1 noncompliance argument as a
       challenge to the trial court’s approval of the sentence, rather than an attack on the
       sentence. People v. Walton, 357 Ill. App. 3d 819 (2005); see People v. Bryant, 2016
       IL App (5th) 140334; Evans, 273 Ill. App. 3d 252 (1994); 2018 IL App (3d)
       170450. I agree with the latter view.

¶ 73       As explained above, in the context of fully negotiated pleas, section 5-3-1
       requires the court to comply with certain mandatory requirements before imposing
       the parties’ agreed-upon sentence. The provision does not directly relate to the
       sentence, itself. Nothing in the statute indicates or directs the court to impose a
       certain sentence or to consider certain sentencing factors in its decision. Instead,
       the provision regards only a presentencing procedure that the trial court must follow
       before it can carry out its duty to impose or deny the agreed-upon sentence.
       Youngbey, 82 Ill. 2d at 560.

¶ 74      As such, section 5-3-1 provides no basis to reduce defendant’s sentence. A
       remand on this basis only affords the trial court an opportunity to fulfill its
       mandatory obligation, which is required to validly accept the agreed-upon sentence.

¶ 75       The possibility that a trial court may reject the agreed-upon sentence after
       compliance with section 5-3-1 on remand, which would then afford defendant the
       ability to withdraw his plea, does not fly in the face of contract principles or
       fundamental fairness. To the contrary, it comports with such principles because no
       party can unilaterally change the terms of the plea agreement. People v. Whitfield,
       217 Ill. 2d 177, 190 (2005). The decision to rescind the plea agreement hinges on
       the trial court’s decision to reject the agreed-upon sentencing term, and therefore
       the agreement itself, after it has complied with the mandatory requirements of
       section 5-3-1. See Evans, 174 Ill. 2d at 332 (“the guilty plea and the sentence ‘go



                                              - 20 -
       hand in hand’ as material elements of the plea bargain”). As the State highlights,
       this will not offend contract principles “because the parties are either held to the
       terms of the agreement or returned to the status quo as it existed prior to the
       acceptance of the plea.”

¶ 76       Thus, defendant may assert a section 5-3-1 noncompliance argument and seek
       a new sentencing hearing without providing another successful basis to withdraw
       his plea, as it is an attack on the validity of the court’s acceptance of the plea rather
       than an excessive sentence challenge.

¶ 77      For these reasons, I dissent. The appellate court judgment should be affirmed
       and the case remanded to the trial court for a new sentencing hearing where the
       court can reconsider the agreed-upon sentence after complying with the
       requirements of section 5-3-1.


¶ 78       JUSTICE NEVILLE, dissenting:

¶ 79      I agree with Justice Karmeier that defendant is entitled to a new sentencing
       hearing because the circuit court failed to comply with the mandatory statutory
       requirements set forth in section 5-3-1 of the Unified Code of Corrections (730
       ILCS 5/5-3-1 (West 2012)). I write separately to emphasize my concerns about the
       majority’s use of the forfeiture doctrine to decide the issue in this appeal.

¶ 80       Defendant’s argument challenges the circuit court’s noncompliance with the
       terms of section 5-3-1 and contests the court’s ability to impose sentence in the
       absence of a presentence investigation report (PSI report) where the requirements
       for the exception have not been satisfied.

¶ 81       As Justice Karmeier explains, the requirement of a PSI report cannot be waived
       unless the statutory exception set forth in section 5-3-1 has been satisfied. People
       v. Youngbey, 82 Ill. 2d 556, 564-65 (1980). The purpose of section 5-3-1 is to
       mandate that the sentencing judge acquire all relevant information about
       defendant’s prior criminal history—including the disposition of previous
       convictions—before a sentence is imposed. Id. at 564; People v. Harris, 105 Ill. 2d
       290, 299 (1985). Here, the circuit court’s noncompliance with the mandate in
       section 5-3-1 denied defendant due process, a fair sentencing hearing (People v.




                                                - 21 -
       Hall, 198 Ill. 2d 173, 177 (2001) (recognizing that fairness is the core meaning of
       due process)), because it contravened the express terms of the statute. See
       Youngbey, 82 Ill. 2d at 564-65; Harris, 105 Ill. 2d at 303. The majority’s affirmance
       of the circuit court’s failure to comply with the mandate in section 5-3-1
       undermines its purpose of having an enlightened trial judge impose the sentence
       and serves to thwart the public policy underlying the statute. See Youngbey, 82 Ill.
       2d at 564-65.

¶ 82       Further, like Justice Karmeier and Chief Justice Burke, I disagree with the
       majority’s analysis because it leads to an incongruous result. In my view, the
       legislature could not have intended that a criminal defendant is precluded from
       knowingly and deliberately waiving the mandatory requirement of a PSI report
       without satisfying the statutory exception but could do so inadvertently through
       forfeiture. See Harris, 105 Ill. 2d at 302 (recognizing that, if an express waiver is
       invalid under the statute, waiver—or forfeiture—cannot be inferred from the
       defendants’ failure to object). Consequently, I cannot concur in the majority’s
       holding that defendant must be denied a new sentencing hearing because he failed
       to assert his section 5-3-1 claim in the circuit court.

¶ 83       To reach that conclusion, the majority has ignored the plain language of section
       5-3-1, which provides 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” where the statutory exception has not been satisfied. (Emphasis added.) 730
       ILCS 5/5-3-1 (West 2012). In doing so, the majority nullifies the mandatory nature
       of the PSI report requirement and renders it merely aspirational and a matter of
       discretion for the sentencing judge.

¶ 84        Moreover, as the majority acknowledges, the State failed to raise the issue of
       defendant’s forfeiture of his section 5-3-1 claim in the appellate court and asserts it
       for the first time in its briefs before this court. Nevertheless, the majority proceeds
       to consider the State’s forfeited argument by relying on the maxim that forfeiture
       is a limitation on the parties and not on the court.

¶ 85       In considering the State’s argument regarding defendant’s forfeiture, the
       majority points out that “ ‘[u]pon appeal any issue not raised by the defendant in
       the motion to reconsider the sentence or withdraw the plea of guilty and vacate the
       judgment shall be deemed waived.’ ” Supra ¶ 22 (quoting Ill. S. Ct. R. 604(d) (eff.



                                               - 22 -
       July 1, 2017)). Further, the majority states that, “[i]f Rule 604(d)’s requirement that
       issues be raised in a motion to withdraw the guilty plea or otherwise risk forfeiture
       is to have any force, defendant’s failure to raise the issue within 30 days of the
       imposition of sentence must be found to be what it is—forfeited.” Supra ¶ 25.

¶ 86       The majority does not rely on the maxim that forfeiture is a limitation on the
       parties and not the court when considering defendant’s forfeiture. In addition, the
       majority does not address Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967),
       which provides that plain errors or defects affecting substantial rights may be
       noticed although they were not brought to the attention of the trial court.

¶ 87       Even more troubling is the fact that the majority excuses the State’s forfeiture
       but then resolves this appeal against defendant solely on the ground that he forfeited
       his section 5-3-1 claim. It is axiomatic that an issue that is not raised in a timely
       manner is subject to forfeiture—also referred to as procedural default. See People
       v. Blair, 215 Ill. 2d 427, 444 n.2 (2005) (distinguishing between waiver and
       forfeiture). Also, this court has repeatedly held that the forfeiture doctrine is
       applicable to the State as well as the defendant in criminal proceedings and that the
       doctrine may be enforced against the State if it fails to timely argue that the
       defendant has forfeited an issue. People v. Artis, 232 Ill. 2d 156, 178 (2009); People
       v. De La Paz, 204 Ill. 2d 426, 433 (2003); People v. Williams, 193 Ill. 2d 306, 347
       (2000). But it should be noted that, although the forfeiture doctrine was applicable,
       it was not enforced against the State in this appeal.

¶ 88       The majority offers no principled reason for excusing the State’s forfeiture but
       not that of defendant. Indeed, the majority’s opinion puts forth no explanation at all
       for its unequal invocation of the forfeiture doctrine in this case. This approach
       grants the State the advantage of having its forfeited argument considered while
       defendant’s similarly forfeited argument is ignored—essentially putting a thumb
       on the scales of justice in favor of the State and against defendant. I believe that
       this court has a duty to promote the consistent and evenhanded application of legal
       doctrines and principles, which serves to promote the fair and equal administration
       of justice. By its disparate application of the forfeiture doctrine in this case, the
       court has breached its fundamental duty to ensure that the law is administered
       equally and fairly.




                                               - 23 -
¶ 89       Lastly, the majority ignores article I, section 11, of the Illinois Constitution,
       which provides that “[a]ll penalties shall be determined both according to the
       seriousness of the offense and with the objective of restoring the offender to useful
       citizenship.” Ill. Const. 1970, art. I, § 11. In my view, it should be recognized as a
       fundamental precept that a court cannot know how to restore the defendant to useful
       citizenship without knowing the defendant’s background. I find, since defendant
       had a constitutional right to be restored to useful citizenship, the circuit court had a
       duty to comply with the mandatory requirement of section 5-3-1 and inform itself
       about the defendant’s criminal background. See Youngbey, 82 Ill. 2d at 565
       (holding that this court “cannot say that a trial judge will be sufficiently apprised
       of the defendant’s criminal record in the absence of the mandatory presentence
       investigation and report”).

¶ 90       As a final point, I must respectfully disagree with the view expressed by Chief
       Justice Burke that the failure to comply with section 5-3-1 in this case amounts to
       harmless error. In my view, the imposition of a prison sentence of 55 years, which
       fairly can be characterized as a de facto life term, is not an inconsequential act. And
       a circuit court’s imposition of a 55-year sentence without being fully informed of
       all relevant factors and circumstances, as required by section 5-3-1, cannot be
       considered harmless. The imposition of a murder sentence that is 10 years longer
       than the minimum sentence for that offense may be justified under certain
       circumstances, but there is no way for this court to know whether the circuit court
       judge would have imposed that same sentence if the dispositions of defendant’s
       prior convictions had been presented as statutorily required. The whole point of
       requiring a PSI report is to ensure that the sentencing judge has the necessary
       information to make a fully informed decision. See id. at 564. The requirements set
       forth in the statutory exception to section 5-3-1 further that goal, and enforcement
       of the forfeiture doctrine against defendant here is unfair and nullifies the statute’s
       PSI report requirement.

¶ 91       For all of the reasons expressed above, I believe this court should remand the
       cause to the circuit court for a new sentencing hearing at which the disposition of
       defendant’s prior convictions is affirmatively presented to and considered by the
       sentencing judge. Consequently, I respectfully dissent.




                                                - 24 -
