                                        2014 IL App (3d) 120824

                                Opinion filed August 1, 2014
     _____________________________________________________________________________

                                                IN THE

                                   APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                               A.D., 2014

     THE PEOPLE OF THE STATE OF                      )      Appeal from the Circuit Court
     ILLINOIS,                                       )      of the 10th Judicial Circuit,
                                                     )      Tazewell County, Illinois,
            Plaintiff-Appellee,                      )
                                                     )      Appeal Nos. 3-12-0824 and 3-12-0825
            v.                                       )      Circuit Nos. 11-CF-119 and 11-CF-355
                                                     )
     ADRIAN WILLIAMS,                                )      Honorable
                                                     )      Paul P. Gilfillan and Scott A. Shore,
            Defendant-Appellant.                     )      Judges, Presiding.
     _____________________________________________________________________________

           JUSTICE O'BRIEN delivered the judgment of the court, with opinion.
           Presiding Justice Lytton and Justice Carter concurred in the judgment and opinion.
     _____________________________________________________________________________

                                               OPINION

¶1          Defendant, Adrian Williams, pled guilty to unlawful delivery of a controlled substance

     (720 ILCS 570/401(d)(i) (West 2010)) in exchange for a sentencing cap of 25 years'

     imprisonment. Defendant was informed by the court on multiple occasions that, but for his plea

     agreement, he faced a maximum sentence of 60 years' imprisonment. Defendant later filed a

     motion to withdraw his guilty plea, claiming that the plea was not knowing and voluntary

     because he had been improperly admonished regarding the maximum sentence that he faced.

     The court denied the motion, and defendant appeals. We reverse and remand.
¶2                                                FACTS

¶3          On July 7, 2011, defendant was charged with unlawful delivery of a controlled substance

     (720 ILCS 570/401(d)(i) (West 2010)), a Class 2 felony. Defendant had previously been

     convicted of a Class 1 violation of the Illinois Controlled Substances Act (Act) in 2004. 720

     ILCS 570/401 et seq. (West 2004). In addition, defendant's record showed three previous

     convictions for Class 2 felonies: burglaries committed in 1984 and 2000, and a robbery

     committed in 1991.

¶4          At a pretrial hearing held on February 21, 2012, the State informed the court that

     defendant was eligible for Class X sentencing because of his prior felonies and that he was also

     "extended-term eligible." The court admonished defendant to this effect, informing defendant

     that he faced a sentence of anywhere from 6 to 60 years' imprisonment.

¶5          On March 5, 2012, defendant entered into a guilty plea. As a part of the plea agreement,

     defendant's possible sentence would be capped at 25 years. The State reiterated that defendant

     would face a maximum sentence of 60 years' imprisonment without the sentencing agreement.

     Defense counsel stated that, at a hearing earlier that morning, the court had found that defendant

     faced a maximum sentence of 60 years. Although there was no transcript of that hearing, the

     parties agreed as to its substance. At sentencing, the State again explained that defendant faced

     Class X sentencing based on prior felonies, as well as a doubling of the potential maximum

     sentence because this was his second violation of the Act.

¶6           On July 13, 2012, defendant filed a motion to withdraw his guilty plea. Counsel

     subsequently filed an amended motion to withdraw stating that the plea was not knowing and

     voluntary because defendant was improperly admonished that he faced a maximum of 60 years'




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       imprisonment. Following a hearing on the motion, the court found that defendant had been

       properly admonished and denied the motion. Defendant appeals.

¶7                                                 ANALYSIS

¶8            On appeal, defendant argues that his plea was not knowing and voluntary and that this

       court should remand the matter to allow him to plead anew. Specifically, defendant contends

       that section 408 of the Act does not permit the doubling of a maximum sentence where that

       maximum sentence has already been enhanced to Class X. A trial court's decision to deny a

       motion to withdraw a guilty plea is reviewed for an abuse of discretion. People v. Guzman, 2014

       IL App (3d) 090464. Where an issue requires this court to construe a statute, our review is de

       novo. People v. Gutman, 2011 IL 110338.

¶9                                         I. Improper Admonishment

¶ 10                                        A. Sentencing Provisions

¶ 11                                          1. Class X Sentencing

¶ 12          Defendant was eligible for Class X sentencing pursuant to section 5-4.5-95 of the Unified

       Code of Corrections (Code). 730 ILCS 5/5-4.5-95 (West 2010). Section 5-4.5-95 provides that,

       subject to limitations not relevant here:

                  "When a defendant *** is convicted of a Class 1 or Class 2 felony, after having twice

                  been convicted in any state or federal court of an offense that contains the same

                  elements as an offense now (the date the Class 1 or Class 2 felony was committed)

                  classified in Illinois as a Class 2 or greater Class felony ***, that defendant shall be

                  sentenced as a Class X offender." 730 ILCS 5/5-4.5-95(b) (West 2010).

       Because of his previous burglary and robbery convictions, defendant was eligible for Class X

       sentencing. For Class X felonies, "[t]he sentence of imprisonment shall be a determinate

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       sentence of not less than 6 years and not more than 30 years." 730 ILCS 5/5-4.5-25(a) (West

       2010).

¶ 13                                          2. Extended-term Sentencing

¶ 14            Under section 5-4.5-25 of the Code, "[t]he sentence of imprisonment for an extended-

       term Class X felony, as provided in Section 5-8-2 [citation], shall be not less than 30 years and

       not more than 60 years." 730 ILCS 5/5-4.5-25(a) (West 2010). Section 5-8-2 of the Code,

       enacted in January of 1973 (Pub. Act 77-2097 (eff. Jan. 1, 1973)), provides the exclusive

       authority for sentencing an offender to a term of imprisonment greater than the base level

       prescribed by statute:

                      "A judge shall not sentence an offender to a term of imprisonment in excess of the

                      maximum sentence authorized by Article 4.5 of Chapter V for an offense or offenses

                      within the class of the most serious offense of which the offender was convicted

                      unless the factors in aggravation set forth in Section 5-5-3.2 or clause (a)(1)(b) of

                      Section 5-8-1 were found to be present." 730 ILCS 5/5-8-2 (West 2010).

       A Class X offender then, for example, may not be sentenced to a term of imprisonment

       exceeding 30 years unless some factor set forth in section 5-5-3.2 is satisfied. 1

¶ 15                                       3. Sentencing-doubling Provision

¶ 16            The sentence-doubling provision is found in section 408 of the Act, which was enacted

       and became effective in August 1971. Pub. Act 77-757 (eff. Aug. 16, 1971); 720 ILCS 570/408

       (West 2010). It provides that "[a]ny person convicted of a second or subsequent offense under
                1
                    Clause (a)(1)(b) of section 5-8-1, which permits a court to sentence certain offenders

       convicted of first degree murder to life imprisonment, is a narrow provision and not relevant to

       the case at hand. 730 ILCS 5/5-8-1(a)(1)(b) (West 2010).


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       this Act may be sentenced to imprisonment for a term up to twice the maximum term otherwise

       authorized." 720 ILCS 570/408(a) (West 2010). Because defendant's conviction on the unlawful

       delivery of a controlled substance charge would be his second violation of the Act, he was

       eligible to have his sentence doubled.

¶ 17                                             B. Application

¶ 18          The State and, in turn, the court applied section 5-4.5-95 and section 408 in conjunction

       with one another. Defendant's maximum sentence for the Class 2 felony of unlawful delivery of

       a controlled substance first became 30 years' imprisonment under the Class X sentencing

       enhancer (730 ILCS 5/5-4.5-95(b) (West 2010)), and then became 60 years' imprisonment under

       the sentence-doubling provision of the Act (720 ILCS 570/408(a) (West 2010)). By the court's

       reasoning, defendant faced an extended-term Class X sentence.

¶ 19          The plain language of section 5-8-2 of the Code makes clear, however, that an extended-

       term sentence is only permitted under the specific circumstances enumerated in section 5-5-3.2.

       730 ILCS 5/5-8-2 (West 2010). The sentence-doubling provision of the Act, therefore, may only

       apply where a factor listed in section 5-5-3.2, authorizing extended-term sentences, is satisfied.

¶ 20          Subsection (b)(1) of section 5-5-3.2 is the only portion of that statute applicable here.

       That subsection provides:

              "The following factors, related to all felonies, may be considered by the court as reasons

              to impose an extended term sentence under Section 5-8-2 upon any offender:

                              (1) When a defendant is convicted of any felony, after having been

                      previously convicted in Illinois or any other jurisdiction of the same or similar

                      class felony or greater class felony, when such conviction has occurred within 10

                      years after the previous conviction, excluding time spent in custody, and such


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                      charges are separately brought and tried and arise out of different series of acts[.]"

                      730 ILCS 5/5-5-3.2(b)(1) (West 2010).

       In People v. Olivo, 183 Ill. 2d 339 (1998), our supreme court held that a defendant may not be

       sentenced to a Class X extended-term sentence under section 5-5-3.2(b)(1) of the Code if that

       defendant has not been convicted of a Class X felony. Id. In Olivo, as in this case, the defendant

       pled guilty to a Class 2 felony but was eligible for Class X sentencing under section 5-4.5-95(b)

       of the Code because of previous convictions. Id. The Olivo court noted that section 5-5-

       3.2(b)(1) of the Code only refers to previous convictions. Id. Though the defendant faced Class

       X sentencing, he had never been convicted of a Class X felony and was, therefore, not eligible

       for extended-term Class X sentencing. Id.

¶ 21          Insofar as section 408 of the Act authorizes sentences longer than the statutory base

       sentence where section 5-8-2 of the Code (and, by incorporation, section 5-5-3.2 of the Code)

       would not, those statutes are in conflict. Where two statutes are in apparent conflict, "we will

       presume that the legislature intended the more recent statutory provision to control." Moore v.

       Green, 219 Ill. 2d 470, 480 (2006) (citing State v. Mikusch, 138 Ill. 2d 242, 254 (1990)).

       Because section 5-8-2 was enacted and took effect after section 408, that section should therefore

       control.

¶ 22          Under our supreme court's ruling in Olivo, defendant in the case sub judice was not

       eligible for Class X extended-term sentencing under section 5-5-3.2 of the Code. Although

       section 408 of the Act would permit such a sentencing range, sections 5-8-2 and 5-5-3.2 of the

       Code must control. Defendant should only have faced a maximum term of 30 years'

       imprisonment at sentencing and was therefore improperly admonished when the court advised

       him that he faced a maximum term of 60 years' imprisonment.


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¶ 23                                                II. Prejudice

¶ 24          That defendant was improperly admonished, however, does not conclude our analysis.

       An improper admonishment does not automatically establish grounds for the vacating of a plea.

       People v. Davis, 145 Ill. 2d 240 (1991). Defendant must also show that he was prejudiced by the

       inadequate admonition. Id.

¶ 25          In Davis, 145 Ill. 2d 240, the defendant pled guilty after being admonished that he was

       eligible for Treatment Alternatives for Safe Communities (TASC) probation. At sentencing, it

       became clear that the defendant was not eligible for TASC, and he was sentenced to 10 years'

       imprisonment. The supreme court noted:

                  " 'Where it appears that the plea of guilty was entered on a misapprehension of the

                  facts or of the law, or in consequence of misrepresentations by counsel or the State's

                  Attorney or someone else in authority, *** the court should permit the withdrawal of

                  the plea of guilty and allow the accused to plead not guilty.' " Id. at 244 (quoting

                  People v. Morreale, 412 Ill. 528, 531-32 (1952)).

       In concluding that the misadmonishment had been prejudicial, the court relied in part on the fact

       that, "[d]ue to [the defendant's] misapprehension, he did not attempt to negotiate a lesser term of

       incarceration." Davis, 145 Ill. 2d at 250.

¶ 26          In the case at hand, defendant was informed on multiple occasions that he faced up to 60

       years' imprisonment. Defendant has alleged that he relied on the improper admonishments in

       accepting the State's offer to plead guilty in exchange for a sentencing cap of 25 years'

       imprisonment. Because of the court's improper admonishments, defendant was under the

       misapprehension that he was negotiating a 35-year reduction of his maximum possible sentence,

       not a mere 5 years. This is not an insignificant difference. As in Davis, defendant here lost the


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       opportunity to negotiate a lesser term of incarceration because of improper admonishments from

       the court. Defendant was therefore prejudiced by those improper admonishments.

¶ 27          The court's denial of defendant's motion to withdraw his plea is therefore reversed, and

       the matter is remanded for further proceedings.

¶ 28                                           CONCLUSION

¶ 29          The judgment of the circuit court of Tazewell County is reversed, and the cause is

       remanded for further proceedings.

¶ 30          Reversed and remanded.




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