                             2018 IL App (2d) 170405 

                                  No. 2-17-0405

                            Opinion filed June 27, 2018 

______________________________________________________________________________

                                            IN THE


                             APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Boone County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 14-CF-0312
                                       )
SHANE M. AMANS,                        ) Honorable
                                       ) C. Robert Tobin III
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE BIRKETT delivered the judgment of the court.
       Presiding Justice Hudson and Justice Jorgensen concurred in the judgment.

                                           OPINION

¶1     Defendant Shane Amans pled guilty to possession with the intent to deliver more than

2000 but not more than 5000 grams of cannabis. 720 ILCS 550/5(f) (West 2014). Defendant

was originally sentenced to a four-year term of imprisonment. After granting his motion to

reconsider, the trial court resentenced defendant to a term of 48 months’ probation. The State

filed a motion to reconsider that order.      The trial court granted the State’s motion and

resentenced defendant to four years’ imprisonment. On appeal, defendant argues that (1) the trial

court abused its discretion when it originally sentenced him to four years’ imprisonment and

(2) the trial court erred in reconsidering his sentence of probation on the State’s motion and

reimposing the original sentence. For the following reasons, we vacate the trial court’s order
2018 IL App (2d) 170405


resentencing defendant to four years’ imprisonment, we reinstate its order sentencing defendant

to 48 months’ probation, and we remand this cause with directions.

¶2                                      I. BACKGROUND

¶3     At the sentencing hearing, Detective Patrick Imrie testified for the State in aggravation.

Imrie had been a narcotics detective for nine years and he had extensive training and experience

in cannabis investigations. He had dealt with cannabis hundreds of times and had seen cannabis

in almost all of its varieties. He had taken several courses in identifying different types of plants

and their strengths as a psychoactive drug.

¶4     Imrie was part of a team that executed a search warrant of defendant’s home and he

recorded a video of the home where the cannabis was found, in two “growrooms” in the

basement. The basement was unfinished, with the exception of two dry-walled rooms. The

growrooms were behind a large, white bookcase. The bookcase was on a hinge and, if closed, it

would block access into the growrooms. Inside the growrooms were numerous black plastic tubs

that were used for housing water and plants in “grow cubes.” There were numerous fans and

“electronic ballasts for converting electricity to make the electricity go into these specific types

of grow lights from a standard electrical setup in [the] house.” Imrie said that there were

machines similar to air purifiers in the rooms. The machines, one of which was connected to

electricity, would “basically suck in the smell of the cannabis” so that neighbors or anyone

coming into the house could not smell it.

¶5     In the smaller of the growrooms, several grow lights were hung from the ceiling, over the

plastic tubs. The grow lights were on when Imrie entered that room, and they were above 12 live

cannabis plants that were in plastic tubs. In each room, the tubs were connected by PVC piping

and water was being pumped into those tubs. Aeration systems were set up and there was a 55­



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2018 IL App (2d) 170405


gallon barrel full of water that was actively feeding the plants in each room. In both rooms, fans

were blowing at the plants. Imrie explained that fans are used so the plants have to resist the

wind, which typically makes a plant grow stronger.

¶6     Imrie said that the approximate street value of the cannabis found in defendant’s house

was around $300 per ounce or $10 per gram. At that price, the cannabis found would be worth

approximately $39,000. Imrie said that the plants were very large, around two to three feet high

and a couple of feet around. However, the plants were not ready to be harvested yet.

¶7     Imrie opined that the cannabis found in defendant’s house was of high quality. The buds

on the plants were mature and they had a lot of crystallized THC on the outside of them. People

buy cannabis for the psychoactive properties of THC. According to Imrie, the buds on these

particular plants seemed to have a high quality of THC based upon the resin that he could see on

the buds.

¶8     Imrie then identified several photographs that were taken at the scene. He described the

grow cubes that were found in the house. He explained that grow cubes are used instead of dirt

because they give the roots of the plants room to grow. Imrie also identified nutrients that were

used to grow cannabis plants along with bags of processed cannabis and a digital scale that were

found in an upstairs room in the house. He also identified three bags of cannabis that were found

in a freezer in the home. Finally, he identified a photograph of a humidistat, a machine that

measures humidity, that was used in the growrooms.

¶9     On cross-examination, Imrie said that he was not sure if the bookcase that hid the grow

rooms was on a hinge. When asked whether it was much more common for cannabis to sell for

$6 per gram, rather than the $10 valuation Imrie had assigned to the cannabis on direct




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examination, Imrie said that there were huge fluctuations in the price of cannabis. As for the

cannabis found in the bags upstairs, Imrie said that he did not go through and inspect all of it.

¶ 10   Imrie said that defendant was very cooperative when the police were executing the search

warrant. In fact, one of the first things defendant said to the police after they told him that they

had a search warrant was, “[y]ou won’t need it. It’s all downstairs.”

¶ 11   On redirect examination, Imrie said that he had purchased cannabis for as much as $500

per ounce and as little as $125 per ounce. Based upon his training and experience, he reiterated

that he considered the cannabis in defendant’s home to be high quality. Finally, Imrie said that

the amount of cannabis indicated that it was not for personal use.

¶ 12   The defense then called Sam Maurici as a character witness. Maurici testified that he and

defendant had been friends for the last 20 years. They met in high school and played football

together. Maurici had contact with defendant around every two weeks. Maurici’s family and

defendant’s family took vacations together and their children played together. Defendant was a

very involved father who watched his three-year-old daughter almost every day when

defendant’s wife was at work. If the trial court were to incarcerate defendant, Maurici believed

that it would cause a hardship to defendant’s family.

¶ 13   Maurici had spent time with defendant over the last two years since his arrest for the

instant offense. He did not believe that defendant would be likely to commit additional crimes in

the future, but he also did not know that defendant was committing this crime. If he had, he

would have persuaded defendant to think differently about his actions and take a different

course. Defendant had not expressed his feelings to Maurici about the instant offense, because

defendant is a private person. Based upon his relationship with defendant and his knowledge of




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2018 IL App (2d) 170405


defendant’s character, Maurici believed that, if the trial court placed defendant on probation,

defendant would likely comply with any conditions placed on him.

¶ 14   The defense then called Ryan Curry as a character witness. Curry testified that he had

known defendant for 20 years and that they met in high school. He spoke to defendant every

day. He did not know that defendant had a grow operation in his basement. If he had known, he

would have persuaded defendant to make other decisions and explained to defendant the

ramifications of his actions. Curry said that he did not believe that defendant was likely to

commit another crime in the future. Defendant is a great father and husband and Curry would

not trust anyone more than he did defendant. Defendant told Curry that if he were incarcerated it

would not only affect him financially, such as by causing him to lose his house, but it would

affect his family as well. Defendant had expressed extreme remorse to Curry over committing

this crime. He believed that defendant would comply with all conditions placed upon him if the

trial court were to sentence him to probation. Curry had been wounded in Iraq in 2006 was now

medically retired. Defendant is one of Curry’s closest friends and Curry could completely rely

on defendant if he ever needed anything.

¶ 15   Defendant then spoke in allocution. He said that a year prior to his arrest his family had a

lot of bills. He and his wife were having a lot of financial difficulties and he thought that

marijuana could get him out of his financial problems. Instead, it only caused his family

hardship and worry. He intended to do it only long enough to get caught up with his bills, and at

the time he thought that it was his only option. He now realized what a mistake he had made.

¶ 16   Defendant knew that he had to be punished for his decisions and he would accept any

punishment that the court would impose. However, if he were sentenced to incarceration, his

wife and daughter would struggle financially. Their childcare costs would go up and they would



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not have any means to pay all of their bills. They would almost certainly lose their home. His

previous job allowed him to be flexible with his hours so that he could be with his daughter most

of the day while his wife was gone 10 hours a day and traveled for work about two months of the

year. He and his wife do not have parents who live close enough to help out, and he was unsure

what it would do to his daughter emotionally not to see him every day. Defendant said that he

could not believe what an idiot he was to put his family in this position. He gave the trial court

his word that it would never see him in the courtroom again, and he asked the trial court not to

make his family pay for his mistakes.

¶ 17    The State then argued that a sentence of probation would deprecate the seriousness of the

offense and be inconsistent with the ends of justice. It said that it was clear that a lot of thought

and planning had been put into this offense and that a sentence of imprisonment would deter

other people who wanted to start up this type of operation and make fast money. The State said

that probation was an option but that the legislature also set a prison range of 4 to 15 years.

Therefore, the State requested that defendant be sentenced to a term of four years’ imprisonment.

¶ 18    Defense counsel argued that there was a statutory presumption of probation in a case like

this.   As for mitigation, counsel argued that several statutory mitigating factors applied:

(1) defendant’s conduct did not cause or threaten serious harm to another, (2) defendant had no

history of prior delinquency or criminal activity and had led a law-abiding life for a substantial

period of time before the commission of the instant offense, (3) defendant was unlikely to

commit another crime, (4) defendant was likely to comply with the conditions of a probation

period, and (5) a sentence of imprisonment would cause excessive hardship to his dependents.

After further argument, counsel requested that defendant be sentenced to a term of probation.




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2018 IL App (2d) 170405


¶ 19   The court said that it had heard some evidence from two of defendant’s close friends

about defendant’s good character. However, it was not sure whether those men knew defendant

as well as they thought they did, because defendant was able to hide the grow operation from

them. With regard to excessive hardship to his dependents, the court said that it did not doubt

that if defendant were sentenced to imprisonment he would likely lose the family home, his wife

would incur a huge financial burden, and his incarceration would be an emotional burden on his

whole family. However, it did not think that defendant’s wife “got to play innocent bystander.”

It could reasonably infer that she knew that there was a grow operation going on in her basement.

The court then noted that defendant had pleaded guilty, thereby avoiding the cost to the State of a

trial, and that he had taken responsibility for his conduct and cooperated fully with law

enforcement.

¶ 20   The court then discussed whether it believed that a sentence of imprisonment was

necessary to deter others from committing the same crime. It noted that, although it could not

compare defendant’s grow operation to any others, it found defendant’s operation to be extensive

and sophisticated. The court said that, with the decriminalization of cannabis for personal use,

the State of Illinois had created a new market of people who might not go to housing projects in

Rockford, for example, to purchase cannabis, but would go to a beautiful subdivision like the one

defendant lived in, knock on the door, purchase the drug, and go home. It said that this type of

new market was ripe for a markup, since people would pay more if they did not have to go to a

seedy neighborhood to buy cannabis. Therefore, there needed to be consequences for people

who started these types of grow operations. Accordingly, the court sentenced defendant to four

years’ imprisonment and imposed upon him a $37,000 street-value fine.




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2018 IL App (2d) 170405


¶ 21      Defendant filed a motion to reconsider his sentence, and then an amended motion. At the

hearing on the motion, the trial court rejected each of the grounds he raised as meritless. It

reaffirmed that at the time of sentencing it believed that a sentence of incarceration was

necessary to deter others. It said that it could not do anything about the minimum that was

required for this offense. Curiously, the court then said that it did not think that four years’

imprisonment was the correct sentence at the original sentencing hearing, and it did not think that

the sentence was any better today. It noted that, since defendant was originally sentenced, he

had served four months in prison, which it did not have to consider at the original hearing. In

ruling on the motion to reconsider, the court then said:

                 “And while I don’t intend to circumvent any of the mandatory minimums nor set

          up a process that I believe is appropriate to do so, on this particular case I am hoping and

          trusting that the message has been sent not just to you but to other people who are in your

          situation, otherwise law-abiding people that are interested in making a quick buck and

          getting a grow operation in their basement. And based upon all of this now with the

          additional factor that as you sit here [today] have served at least four months in the

          Department of Corrections, I am going to reconsider my sentence. I’m going to sentence

          you to 48 months of probation, time served for the time you’ve been in the Department of

          Corrections or actually in custody.”

¶ 22      The State argued that on a motion to reconsider it was improper to consider factors that

had occurred after the sentencing hearing. In response, the trial court said that the State could

appeal.     It then vacated defendant’s four-year term of imprisonment and entered an order

sentencing defendant to 48 months of probation with credit for time served.




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2018 IL App (2d) 170405


¶ 23   On March 1, 2017, the State filed a motion to reconsider the court’s ruling on defendant’s

motion to reconsider his sentence. At a hearing on the State’s motion, defense counsel argued

that the State had no authority to even make its motion and that therefore the court should not

hear it. If the court decided to hear it, counsel contended, then the court could not increase the

sentence beyond the 48 months of probation to which it had sentenced defendant when it granted

his motion to reconsider. The court then gave the parties time to research the issue of whether

the court had the authority to hear the State’s motion at all, particularly in light of People v.

Castleberry, 2015 IL 116916.

¶ 24   At the hearing on the issue of the court’s authority to hear the State’s motion, the court

agreed with defendant that, on a motion to reconsider a sentence, it could not vacate the sentence

imposed and instead order a more severe sentence. However, the court said that here it was not

reconsidering a sentence but instead reconsidering its ruling on the motion to reconsider the

sentence. Specifically, the court said:

               “But really I think the reason that I keep jurisdiction over these things for 30 days

       is so I can clear up any mistakes that I make. And again, this is not the State asking for a

       greater sentence. It’s asking for them to—for me to correct a mistake I made in granting

       the motion itself to reconsider. I considered a thing that I ought not have. This is not a

       discretionary thing. Clearly, my findings were a sentence—as originally sentenced based

       upon the evidence provided at the sentencing hearing was proper. I considered things

       that happened subsequent to that, in particular his incarceration to the Department of

       Corrections, and I shouldn’t have. And ultimately the State has not asked me to go back

       and take a look at what otherwise would be discretionary. Clearly once I make a finding

       that the sentence itself based upon the evidence is proper and the minute I deviate from



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       denying the motion to reconsider the sentence based upon the evidence that I ought not to

       have considered, the answer to the original motion to reconsider is pretty straightforward

       and non-discretionary. I should have denied it.

              I believe I have the authority to deny it and I’m going to do that.”

¶ 25   The trial court then reimposed the previously vacated sentence of four years’

imprisonment. Defense counsel objected, arguing that the trial court was ignoring the plain

language of section 5-4.5-50(d) of the Unified Code of Corrections (Code) (730 ILCS 5/5-4.5­

50(d) (West 2014)). Specifically, he said:

              “[DEFENSE COUNSEL]: Judge, respectfully you’ve just created an entire legal

       theory for not following the precise language of 4.5-50(d) from which there is no

       authority in the State of Illinois of any kind for a void imposed sentence that doesn’t

       violate a statutory requirement. There’s no language of any kind—

              “[TRIAL COURT]: Courts have always had the ability to review any sentencing

       irregularities. Looking at People v. Foster which was—in that case the State filed a

       motion to reconsider the sentence; however, the defendant had filed a notice of appeal

       prior to that time. In that case the court of appeals said that normally you would hear the

       motion to reconsider the sentence filed by the State; however, you got—that court had

       already lost its jurisdiction because the defendant had already filed his notice of appeal

       prior to that filing. So even in that case, it is acknowledged that this is a procedural—a

       procedural possibility. So the answer to say that it doesn’t happen, there’s no case law to

       suggest it doesn’t happen, that’s not true.”

¶ 26   Defendant filed a second motion to reconsider his sentence, which the trial court denied.

The court later granted defendant’s motion to stay the sentence pending appeal.



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¶ 27                                       II. ANALYSIS

¶ 28   On appeal, defendant argues that (1) the trial court abused its discretion in entering its

original sentence of incarceration and (2) after reducing that sentence to probation, the trial court

erred in granting the State’s motion to reconsider and reimposing the original sentence. We will

address defendant’s second argument first because, if we find that the trial court violated the

Code when it imposed an increased sentence, we need not address the first argument.

¶ 29   Defendant alleges that it was error for the trial court to even entertain the State’s motion

to reconsider defendant’s sentence of probation. After failing to reject the matter out of hand, he

argues, it was further error to grant the State’s motion to reconsider and reimpose the original

sentence of imprisonment. He argues that such an increase is expressly prohibited by section 5­

4.5-50(d) of the Code (730 ILCS 5/5-4.5-50(d) (West 2014)).              Defendant points out that

imprisonment was not mandatory here and that the court had the option to sentence defendant to

up to 180 days in the county jail along with a term of probation. Id. § 5-6-3(e).

¶ 30   Defendant also argues that whether or not he agreed with the trial court’s reasons for

vacating the original sentence, it was in fact vacated and a term of probation was entered in its

stead. Accordingly, the State should not have been allowed to seek reconsideration of the

sentence of probation that he received when the trial court granted his motion to reconsider the

original sentence. Once the valid sentence of probation was imposed, he argues, the trial court

was without authority to increase his sentence upon the State’s motion to reconsider. Although

the trial court said that it did so to correct an error that it had made in considering postsentencing

evidence at the hearing on defendant’s motion to reconsider, defendant contends that the trial

court’s power to address such a sentencing error was eradicated in Castleberry, 2015 IL

1169616, where our supreme court abolished the “void sentence rule.” Defendant points out that



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the Castleberry court held that the only correct remedy for the State in the face of what it

believed was a “void” sentence was to seek mandamus relief. Specifically, defendant directs us

to Castleberry’s holding that “[t]he remedy of mandamus therefore permits the State to challenge

criminal sentencing orders where it is alleged that the circuit court violated a mandatory

sentencing requirement, but precludes the State from challenging ordinary, discretionary

sentencing decisions.” Id. ¶ 27. Defendant argues that the trial court here seemed to seize on the

concept of a “void” sentence as discussed in Castleberry to justify vacating the sentence of

probation, initially finding that the sentence here was not void but then treating it like a void

sentence even though it did not fit the characteristics of a void sentence as set out in Castleberry.

He argues that the probation sentence was validly imposed and that the second sentence of

imprisonment was clearly an increase from that valid sentence and thus forbidden, as expressly

set out in People v. Foster, 309 Ill. App. 3d 1 (1999).

¶ 31   In response, the State first argues that, contrary to defendant’s reading of the statute, the

plain language of section 5-4.5-50(d) of the Code does not explicitly prohibit the State from

moving to reconsider a court’s sentencing order. In fact, it argues, Illinois Supreme Court Rule

303(a)(2) (eff. Jan. 1, 2015) provides that a timely filed posttrial motion, even if preceded by the

filing of a notice of appeal, shall be heard by the trial court. It notes that, although Rule

303(a)(2) is a civil rule, it has been applied in criminal cases. See People v. Neal, 286 Ill. App.

3d 353, 354-55 (1996).

¶ 32   The State then argues that, at the hearing on its motion to reconsider defendant’s sentence

of probation, the trial court correctly interpreted Castleberry when it found that it retained

jurisdiction to correct any mistakes in sentencing and that granting defendant’s motion to

reconsider his sentence based upon postsentence evidence had been a mistake. It relies upon



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Foster to support the proposition that, as occurred here, the State may seek reconsideration of a

sentencing order as long as the court retains jurisdiction over the matter. It also distinguishes

Foster on the ground that in Foster the State sought reconsideration of the imposition of valid

concurrent sentences, whereas in this case the trial court’s order sentencing defendant to

probation was based on a legal mistake. On the State’s motion, the defendant in Foster was

resentenced to consecutive terms of imprisonment, which represented an increase to his original

sentence. Foster, 309 Ill. App. 3d at 13-14. The State contends that here, unlike in Foster,

defendant’s original sentence was not increased by the court’s order reconsidering its ruling on

his motion to reconsider.

¶ 33   Section 5-4.5-50(d) of the Code provides, in pertinent part:

               “(d) MOTION TO REDUCE SENTENCE. 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. A defendant's challenge to the correctness of a sentence or to any

       aspect of the sentencing hearing shall be made by a written motion filed with the circuit

       court clerk within 30 days following the imposition of sentence. A motion not filed

       within that 30-day period is not timely. The court may not increase a sentence once it is

       imposed. A notice of motion must be filed with the motion. The notice of motion shall

       set the motion on the court’s calendar on a date certain within a reasonable time after the

       date of filing. (Emphasis added.) 730 ILCS 5/5-4.5-50(d) (West 2014).

¶ 34   Illinois Supreme Court Rule 606(b) provides, in pertinent part:

               “When a timely posttrial or postsentencing motion directed against the judgment

       has been filed by counsel or by defendant, if not represented by counsel, any notice of

       appeal filed before the entry of the order disposing of all pending postjudgment motions



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       shall have no effect and shall be stricken by the trial court.” Ill. S. Ct. R. 606(b) (eff.

       Dec. 11, 2014).

¶ 35   We review de novo questions of statutory interpretation. People v. Molnar, 222 Ill. 2d

495, 519 (2006).

¶ 36   In Castleberry, 2015 IL 116916, the defendant was convicted of two counts of

aggravated criminal sexual assault, based on separate acts of oral and vaginal contact with the

victim. At sentencing, the State contended that the defendant was subject to a mandatory 15­

year sentencing enhancement on each of the two counts because the defendant had been armed

with a firearm. Id. ¶ 3. When added to the mandatory minimum term of 6 years’ imprisonment

for each offense, the State claimed, the defendant was subject to a mandatory minimum term of

21 years’ imprisonment on each count. Id. The trial court disagreed about the application of the

15-year enhancement, however, and found that the legislature had intended for the enhancement

to be applied only once. It sentenced the defendant to a 9-year term of imprisonment on each

count and added the 15-year enhancement to only one count, for a total term of 33 years’

imprisonment. Id. ¶ 4. Neither the defendant nor the State moved to reconsider the defendant’s

sentence.

¶ 37   One of the arguments that the defendant raised on appeal was that the mandatory 15-year

sentencing enhancement was unconstitutional, which the appellate court rejected. However, the

court then responded to the State’s argument on appeal and agreed that the mandatory 15-year

enhancement applied to both convictions. Id. ¶ 6. The court held that, because the sentence that

lacked the enhancement did not conform to a statutory requirement, it was void. The court then

remanded the matter to the trial court for resentencing. Id. The defendant filed a petition for

leave to appeal to the supreme court, and it was allowed.



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¶ 38   In reviewing the defendant’s arguments, our supreme court abolished the “void sentence

rule,” which mandated that a sentence that did not conform to a statutory requirement was void.

Id. ¶ 1 (citing People v. Arna, 168 Ill. 2d 107, 113 (1995)). The court held that, because a trial

court’s subject matter jurisdiction over criminal cases comes from the constitution, a trial court

cannot lose jurisdiction over a criminal case through “ ‘the failure to satisfy a certain statutory

requirement or prerequisite.’ ” Id. ¶ 15 (quoting LVNV Funding, LLC v. Trice, 2015 IL 116129,

¶ 30). Instead, the court held that a judgment is void only if it was entered by a court lacking

either subject matter jurisdiction or personal jurisdiction. Id. ¶¶ 11-12.          Subject matter

jurisdiction involves the court’s power “ ‘to hear and determine cases of the general class to

which the proceeding in question belongs.’ ” Id. ¶ 12 (quoting In re M.W., 232 Ill. 2d 408, 415

(2009), quoting Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 334

(2002)).   Personal jurisdiction involves the court’s power “ ‘to bring a person into its

adjudicative process.’ ” Id. (quoting In re M.W., 232 Ill. 2d at 415).

¶ 39   Although the State agreed that the void-sentence rule should be abolished, it argued that,

even if the void-sentence rule did not provide a basis for the appellate court’s decision, there was

nothing wrong with the appellate court’s increasing the defendant’s sentence at the request of the

State. Id. ¶ 20. The court disagreed and noted that Illinois Supreme Court Rule 604(a) (eff. July

1, 2006) did not permit the State to appeal a sentencing order. Id. ¶ 21. Further, because that

rule did not allow the State to appeal a sentencing order, it followed that the State could not have

cross-appealed in the appellate court either, which the supreme court held was essentially what

the State was trying to do. Id. ¶ 22-23. The court also held that Illinois Supreme Court Rule

615(b) (eff. Jan. 1, 1967), granting the appellate court the authority to reverse, affirm or modify

the judgment or order from which the appeal was taken, did not grant it the plenary power to



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increase a sentence. Id. ¶ 24. However, the court held that, where a sentence “is illegally low,

the State may, in appropriate circumstances, seek relief from this court via the writ of

mandamus.”      Id. ¶ 26.   At that time, the court noted, the State had not sought a writ of

mandamus.      Accordingly, the supreme court reversed the appellate court’s judgment that

increased the defendant’s sentence and it affirmed the trial court’s judgment. Id. ¶¶ 27, 31. 1

¶ 40   We first dispose of defendant’s claim that the State did not have the authority to even file

a motion to reconsider the trial court’s order vacating the sentence of imprisonment and

resentencing him to a term of probation. At oral argument, defendant’s counsel conceded that

the trial court had the authority to entertain the State’s motion. Accordingly, we turn to the issue

of whether the trial court erred in granting the State’s motion.

¶ 41   The trial court’s order granting the State’s motion to reconsider its order sentencing

defendant to 48 months’ probation and resentencing him to four years’ imprisonment violated

section 5-4.5-50(d) of the Code and was clearly in error. That section specifically provides that

“[t]he court may not increase a sentence once it is imposed.” (Emphasis added.) 730 ILCS 5/5­

4.5-50(d) (West 2014). However, that is exactly what the court did here.

¶ 42   Our supreme court has long held that “a harsher sentence imposed after a successful

appeal or motion to reconsider is only proper if it is based on additional bad conduct performed

by the defendant after the original sentencing.” People v. Moore, 177 Ill. 2d 421, 433 (1997). A

defendant should not have to run the risk that challenging a sentence might result in a longer

       1
           The State subsequently sought a writ of mandamus to compel the trial court to impose

the mandatory 15-year firearm enhancement on each of the defendant’s two convictions of

aggravated criminal sexual assault. Our supreme court awarded the writ. People ex rel. Alvarez

v. Gaughan, 2016 IL 120110.



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sentence and should not be penalized for his efforts to seek relief from the sentence he received.

People v. McBride, 395 Ill. App. 3d 204, 209 (2009). Foreign jurisdictions have come to similar

conclusions. Bryant v. State, 29 So. 3d 928, 936-37 (Ala. Crim. App. 2009) (“ ‘[o]nce a valid

sentence has been entered, it cannot, in the absence of fraud or another compelling reason, be

altered anytime thereafter so as to increase the severity of the sentence’ ” (quoting Ex parte Tice,

475 So. 2d 590, 591-92 (Ala. 1984))).

¶ 43   Here, the State never alleged that defendant engaged in additional bad conduct after he

was originally sentenced. Instead, the trial court had jurisdiction to grant defendant’s motion to

reconsider his sentence of imprisonment, and it did so. Since the trial court still retained

jurisdiction over this matter when the State filed its motion to reconsider, i.e., 30 days had not

passed since the trial court entered its order sentencing defendant to probation (Ill. S. Ct. R.

606(b) (eff. Dec. 11, 2014)), the trial court could entertain the State’s motion. 2 Moreover, this

court has made it clear that Rule 606(b) applies equally to both a defendant and the State.

Abdullah, 2018 IL App (2d) 150840, ¶ 16.

¶ 44   Nevertheless, although the State believed that the trial court erred in lowering defendant’s

sentence upon reconsideration, based upon the time defendant spent in prison since he was

originally sentenced, the trial court could not resentence defendant based upon that alleged error,

because the order of probation was not illegal. Cf. id. ¶ 17 (the State is entitled to move to

       2
           Even if defendant had filed a notice of appeal before the State filed its motion, as long

as the State filed the motion within 30 days of the final order, defendant’s notice of appeal would

have been considered premature and the trial court would still have had jurisdiction to hear the

State’s motion. Ill. S. Ct. R. 606(b) (eff. Dec. 11, 2014); People v. Abdullah, 2018 IL App (2d)

150840, ¶ 14.



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correct a sentence that does not conform to the law). Instead, the probation sentence was lawful,

and any “mistake” in the trial court’s rationale when imposing it did not make the sentence itself

unlawful.

¶ 45   We also disagree with the State’s claim that Foster supports its position that the trial

court had the authority to vacate defendant’s sentence of probation and resentence him to a term

of imprisonment.

¶ 46   In Foster, the defendant was found guilty of second-degree murder, two counts of

attempted first-degree murder, and two counts of aggravated discharge of a firearm. The trial

court originally sentenced him to a total of 18 years’ imprisonment, with concurrent terms of 18,

17, 17, 10, and 10 years in prison, respectively. Foster, 309 Ill. App. 3d at 2. Those sentences

were based on the State’s argument that the offenses were not part of a single course of conduct.

However, the State urged the court to use its discretion to impose consecutive sentences. Id. at

5-6. The court rejected that argument and imposed concurrent sentences. Id. at 6. After the

defendant filed his notice of appeal, the State filed a motion to reconsider the defendant’s

sentence. The court granted the motion, found the original sentence void, and resentenced the

defendant to a total of 35 years’ imprisonment, with an 18-year term for second-degree murder to

run consecutively to concurrent terms of 17, 17, 10, and 10 years, respectively, for the remaining

convictions. Foster, 309 Ill. App. 3d at 3, 6. In doing so, the court found that the offenses

constituted a single course of conduct and were therefore subject to mandatory consecutive

sentencing.

¶ 47   On appeal, the defendant argued that the trial court erred when it reconsidered his

sentence and ordered consecutive sentences, because the court had been divested of jurisdiction

when the defendant filed his notice of appeal. The State argued that the issue of jurisdiction was



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irrelevant because the trial court had the authority to correct a void sentence at any time. Id. at 6.

The Foster court described the issue on appeal as whether, upon a motion by the State to

reconsider a sentence, a trial court may reinstate its own jurisdiction to “correct” a sentence after

a notice of appeal has been filed. Id. at 7. The court held that the State could not seek

reconsideration of the defendant’s sentence in the trial court after the defendant had already filed

a notice of appeal, because that notice divested the trial court of jurisdiction and only the

appellate court had the authority to review the sentence at that time. Id. at 8 (citing People v.

Bounds, 182 Ill. 2d 1, 3 (1991)). The Foster court then said, “[t]he State could have obtained

reconsideration of the sentence order by filing its motion before the notice of appeal was filed by

the defendant.” Id. at 8. However, since the trial court’s order resentencing the defendant to

consecutive sentences was made in the absence of jurisdiction, the Foster court held that it must

be vacated. Id.

¶ 48   The court then determined that the original sentence was valid because it reflected the

fact that the second-degree murder and attempted murders were separate offenses, motivated by

different criminal objectives, and were not committed as part of a single course of conduct. Id. at

10. With regard to the second sentencing hearing, the court held that the State attacked the

concurrent sentences under a different version of the facts from the version it relied upon at the

first sentencing hearing, which was improper. Id. at 12 (citing People v. Summers, 291 Ill. App.

3d 656 (1997)). After discussing Summers, the court held, “[m]oreover, the trial court could not

increase the sentence once a valid sentence was imposed.”            Id. at 13.    It found that the

defendant’s sentence was increased from 18 to 35 years’ imprisonment when the terms were

changed from concurrent to consecutive. Accordingly, it vacated the second, increased sentence

and reinstated the original sentence. Id. at 14.



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¶ 49    We agree with the State that Foster supports its proposition that the State may seek

reconsideration of a sentencing order as long as the court retains jurisdiction over the matter.

However, that does not mean that the State’s motion for reconsideration will be granted, if it is

requesting reconsideration of a sentence that was not unlawful but simply a product of the trial

court’s discretion. 3

¶ 50    The State attempts to distinguish Foster on the ground that, in Foster, the State sought

reconsideration of the imposition of valid concurrent sentences, whereas in this case the trial

court’s order sentencing defendant to probation was due to a “legal mistake.” We are not

persuaded. Again, although the trial court’s reliance on defendant’s time spent in prison might

have been error, that alleged error did not make the sentence itself unlawful. Nothing in the

Code provides that, if the trial court made an error in resentencing a defendant, the trial court

may vacate the valid order that resentenced the defendant and then impose an increased sentence.

See State v. Lehrkamp, 2017 MT 203, ¶ 11, 400 P.3d 697 (review of the legality of a sentence is

confined to determining whether the sentencing court had statutory authority to impose the

sentence).

¶ 51    The State also notes that here, unlike in Foster, defendant’s original sentence was not

increased by the court’s order reconsidering its ruling on defendant’s motion to reconsider. This

        3
            We note that the Foster court incorrectly held that the trial court was divested of

jurisdiction when the defendant filed a notice of appeal. Id. at 8. The plain language of Rule

606(b) clearly states, “[w]hen a timely posttrial or postsentencing motion directed against the

judgment has been filed by counsel or by defendant, if not represented by counsel, any notice of

appeal filed before the entry of the order disposing of all pending post-judgment motions shall

have no effect and shall be stricken by the trial court.” Ill. S. Ct. R. 606(b) (eff. Dec. 11, 2014).



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argument has no merit. It is clear that the focus here is not on an increase to the original

sentence but on an increase to the sentence of probation that defendant received upon

reconsideration.

¶ 52    Finally, the State argues that, since the trial court still had personal and subject matter

jurisdiction when it granted the State’s motion to reconsider, it had the authority to correct its

order resentencing defendant to a term of probation. Unlike in Castleberry, the State argues, the

voidable sentence here was corrected by the trial court but was not increased upon resentencing.

Therefore, as the trial court concluded, Castleberry is distinguishable and did not limit the

court’s inherent authority to correct its ruling.

¶ 53    Again, we are not persuaded. Although the trial court still had personal and subject

matter jurisdiction when it granted the State’s motion to reconsider and resentenced defendant to

imprisonment, that does not mean that it had the power to ignore the Code’s requirement that

specifically states that a court may not increase a sentence once it has been imposed. 730 ILCS

5/5-4.5-50(d) (West 2014). Here, the trial court did not have “inherent authority” to correct its

ruling, and when it did so it impermissibly increased defendant’s sentence.

¶ 54    Finally, at oral argument, we asked the State to respond to our supreme court’s holding in

Moore that “a harsher sentence imposed after a successful appeal or motion to reconsider is only

proper if it is based on additional bad conduct performed by the defendant after the original

sentencing.” Moore, 177 Ill. 2d at 433. In response, the State referenced our supreme court’s

decision in People v. Garcia, 179 Ill. 2d 55 (1997), where the court referred to the “prophylactic

rule” announced in North Carolina v. Pearce, 395 U.S. 71l (1969). That rule was “designed to

protect a defendant on retrial from the potential vindictiveness of a resentencing judge.” Garcia,

179 Ill. 2d at 74 (citing Pearce, 395 U.S. at 725). Twenty years later, in Alabama v. Smith, 490



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2018 IL App (2d) 170405


U.S. 794 (1989), the United States Supreme Court held that the Pearce presumption of

vindictiveness does not apply when a sentence imposed after trial is greater than that previously

imposed after a guilty plea. Id. at 797-803.

¶ 55    In Moore, our supreme court found that the provisions of section 5-4.5-50(d) of the

Code 4 (titled “Motion to Reduce Sentence”) were consistent with and incorporated the reasoning

in Pearce. Moore, 177 Ill. 2d at 432. Our supreme court has recently reiterated that same

finding. See Alvarez, 2016 IL 120110, ¶ 19. Therefore, we fail to see how Garcia aids the State

here. Since the increased sentence that defendant received after the trial court granted the State’s

motion to reconsider his sentence of probation was not based upon bad conduct that occurred

after he was originally sentenced, the trial court did not have the authority to resentence

defendant to four years’ imprisonment.

¶ 56                                    III. CONCLUSION

¶ 57    In sum, the State had the authority to file a motion to reconsider the trial court’s order

here.   However, the trial court erred in granting the State’s motion, because the order of

probation was not an illegal sentence, even if the court believed that its rationale was flawed

when it entered that sentence. When the trial court vacated the sentence of probation and

resentenced defendant to a four-year term of imprisonment, it impermissibly increased

defendant’s sentence, in violation of section 5-4.5-50(d) of the Code (730 ILCS 5/5-4.5-50(d)

(West 2014)). Having so held, we need not address defendant’s remaining contention that the

trial court abused its discretion in originally sentencing him to four years’ imprisonment.




        4
            Section 5-4.5-50 was then section 5-8-1(c) of the Code. See 730 ILCS 5/5-8-1(c) (West
        1996).


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2018 IL App (2d) 170405


¶ 58   The judgment of the circuit court of Boone County resentencing defendant to four years’


imprisonment is vacated and the trial court’s order sentencing defendant to 48 months’ probation


is reinstated. Upon remand, the trial court shall order defendant to report to the appropriate


probation authority to begin serving his sentence of probation, less credit for time served.


¶ 59   Imprisonment order vacated and probation order reinstated. 


¶ 60   Cause remanded with directions. 





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