
NO. 4-97-1016



November 25, 1998



IN THE APPELLATE COURT



OF ILLINOIS



FOURTH DISTRICT



THE PEOPLE OF THE STATE OF ILLINOIS,   )   Appeal from

Plaintiff-Appellee,          )   Circuit Court of

v.                           )   Adams County

RANDALL J. VAUGHN,                     )   No. 95CF569

Defendant-Appellant.         )   

                                       )   Honorable 

                                       )   Mark A. Schuering,

                                       )   Judge Presiding.

_________________________________________________________________



JUSTICE STEIGMANN delivered the opinion of the court:  

In January 1996, defendant, Randall J. Vaughn, pleaded guilty pursuant to a plea agreement in case No. 95-CF-569 to posses­sion of a con­trolled sub­stance (less than 15 grams of a substance contain­ing cocaine) (720 ILCS 570/402(c) (West 1994)) and he was sen­tenced to 30 months' probation.  Earlier during that same January 1996 proceeding and pursuant to the same plea agreement, defendant also pleaded guilty to aggra­vated battery and two counts of criminal sexual abuse.  All of these charges arose in unrelated cases.  The trial court sentenced defendant to 2½ years in prison on the aggravated battery conviction and 364 days in jail on each of the criminal sexual abuse convictions and ordered all of these sen­tences to run concurrently.  The court then ordered defendant's sen­tence of proba­tion in case No. 95-CF-

569 to be served consecu­tively--that is, after defendant was released from prison on the other sen­tences.  

In September 1997, the trial court found that defendant had violated a condition of probation and ordered his probation revoked.  The court later sentenced him to an extended term of six years in prison and ordered defendant to pay for the servic­es of his court-appointed counsel.  

Defendant appeals, arguing that (1) his extend­ed-term sentence is void because it is not authorized by law; and (2) the order direct­ing defen­dant to pay for the services of his court-

ap­pointed counsel must be vacated and remanded because the trial court did not conduct the statuto­rily required hearing.  We disagree with defendant's first argument but agree with his second.  Thus, we affirm in part, vacate in part, and remand with directions. 

I. BACKGROUND

On January 25, 1996, defendant pleaded guilty to count  I in case No. 95-CF-331, charging him with aggravated battery (720 ILCS 5/12-4(b)(8) (West 1994)), count II in case No. 95-CF-

401, charg­ing him with criminal sexual abuse (720 ILCS 5/12-15(c) (West 1994)), and count I in case No. 95-CM-429, also charging him with crimi­nal sexual abuse (720 ILCS 5/12-15(c) (West 1994)).  The trial court sen­tenced him to 2½ years on the aggra­vat­ed battery convic­tion, which is a Class 3 felony (720 ILCS 5/12-4(e) (West 1994)), and to 364 days in jail on each of the crimi­nal sexual abuse convictions, which are Class A misde­meanors (720 ILCS 5/12-15(d) (West 1994)).  The court ordered each of these sentences to run concur­rently with the others.  

During the same proceeding on January 25, 1996, and as part of the same plea agreement, defendant also pleaded guilty to count I of the charge in the present case, No. 95-CF-569, charg­

ing him with possession of a controlled substance, a Class 4 felony (720 ILCS 570/402(c) (West 1994)).  During the guilty plea proceed­ings, the trial court admonished defendant regarding both consec­utive and extended-term sentences.  Specifi­cally, the court informed defendant that, according to the plea agree­ment, (1) he was to be sentenced to probation on the drug conviction, and (2) his probationary sentence would run consecutively to the prison and jail sentences in the other three cases--that is, he would have to serve his probationary sentence once he was re­leased from prison.  See 
People v. Wendt
, 163 Ill. 2d 346, 352, 645 N.E.2d 179, 182 (1994) (in which the supreme court held that a sentence of probation may be imposed consecutively to a prison sentence when the crimes underlying the convictions are unrelated.  The court also ex­plained to defen­dant that on his convic­tion in the drug case, he could be sen­tenced to an extend­ed-term sentence of three to six years).  

After carefully admonishing defendant regarding his understanding of the rights he was giving up and his willingness to do so, the trial court accepted his offers to plead guilty to all these charges.  The court also specifically stated for the record that it was taking defendant's guilty plea on the aggra­

vated battery convic­tion first so that defendant's convic­tion of posses­sion of a con­trolled substance would be deemed the second convic­tion.  As an addition­al precau­tionary step, the court accepted defendant's guilty pleas to aggravated battery and criminal sexual abuse and sentenced him for those crimes before the court sentenced defen­dant to probation for posses­sion of a con­trolled substance.    

Defendant was released from prison in March 1997, and shortly there­after his probationary period started.  In June 1997, the State filed a petition to revoke defendant's proba­tion, alleg­ing that he had violated a condition thereof by using canna­

bis.  The trial court later conducted a hearing on that petition, found in the State's favor, and ordered defendant's proba­tion revoked.  In October 1997, the court resentenced defendant to an extended term of six years in prison.  This appeal fol­lowed.

II. ANALYSIS

A. The Extended-Term Sentence

Defendant first argues that the trial court erred when it sentenced him to an extended term of six years in prison after it revoked his probation for possession of a controlled sub­

stance.  Specifically, defendant contends that the extended-term sentence was void because it was based upon his having been previously convicted of aggravated battery, but that convic­tion occurred during the same proceeding in which he was con­vict­ed of posses­sion of a controlled substance.  We disagree.

The trial court found defendant eligible for an extend­

ed-term sentence pursuant to the provisions of section 5-5-

3.2(b)(1) of the Unified Code of Corrections (Unified Code), which provides as follows:

"The following factors 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
 
charges
 
are
 
separately
 
brought
 
and
 
tried
 
and
 
arise
 
out
 
of
 
different
 
series
 
of
 
acts
."  (Emphasis added.)  730 ILCS 5/5-5-3.2(b)(1) (West 1994).

Thus, as the supreme court recently explained, "a defendant is eligible for an extended-term sentence when he is convicted of any felony where that defendant has previously been convicted of the same or greater class felony."  
People v. Olivo
, 183 Ill. 2d 339, 340, 701 N.E.2d 511, 512 (1998).  Accordingly, defendant in the present case is eligi­ble for an extend­ed-term sentence only if his aggravated battery convic­tion fits within the defini­tion of a previous felony conviction for a charge that was separately brought and tried and arose out of different series of acts, within the meaning of section 5-8-2(b)(1) of the Unified Code.  We hold that it does.  

Section 5-5-3.2(b)(1) of the Unified Code speaks of a defen­dant "having been previously convicted" of the same or greater class felony.  730 ILCS 5/5-5-3.2(b)(1) (West 1994).  Section 5-1-5 of the Code defines "conviction" as meaning "a judgment of convic­tion or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense."  730 ILCS 5/5-1-5 (West 1994).  Thus, in the present case, defendant stood "convicted" of aggravated battery (which was the greater class felony within the meaning of section 5-5-3.2(b)(1) of the Code) because the trial court had accepted his guilty plea to that offense and sentenced him upon it 
before
 the court concluded the guilty plea proceeding and sentenced defendant upon his convic­

tion of possession of a controlled substance.  As we noted earlier, this sequence of events was no inadvertence; instead, the court explicitly pro­ceeded in this fashion for the specif­ic purpose of rendering defendant eligi­ble for an extend­ed-term sen­

tence in the event he subse­quently violat­ed a condi­tion of his probation for posses­sion of a con­trolled sub­stance.

In support of our conclusion that the se­quence of events in this case rendered defendant eligi­ble for an extend­ed-

term sen­tence--even though that se­quence shows the defen­dant had "been previ­ously convict­ed" of the earlier felony only by min­

utes--we note that the legislature has demon­strat­ed the ability to impose specific timing re­quire­ments when it wishes to do so.  Article 33B, dealing with habitual crimi­nals, was added to the Criminal Code of 1961 (Criminal Code) when the legislature enacted Public Act 80-1099 (Pub. Act 80-1099, §1 eff. February 1, 1978 (1977 Ill. Laws 3264, 3269-70)), Gover­nor Thompson's famous "Class X pack­age," effec­tive Febru­ary 1, 1978.  Ill. Rev. Stat., 1978 Supp., ch. 38, art. 33B.  Section 33B-1(a) of the Crimi­nal Code provid­ed that those who had been twice con­vict­ed in Illinois of the most serious crimes of vio­lence shall, upon the third such conviction, "be adjudged a habitual criminal and be imprisoned in the peni­tentia­ry for life."  Ill. Rev. Stat., 1978 Supp., ch. 38, par. 33B-1(a)).  However, section 33B-1(c) limited the appli­ca­

tion of the habitual criminal article as follows:  

"(c)  This Article shall not apply un­

less (1) the first felony was committed after the effective date of this Act; and (2) the sec­ond felony was committed after conviction on the first; and (3) the third felony was com­mitted after conviction on the second."  Ill. Rev. Stat., 1978 Supp., ch. 38, par. 33B-1(c).

The "Class X package" was designed to be a comprehen­sive revision of Illinois criminal law with the goal, in part, of strengthening the powers of the trial courts to deal with repeat or violent criminals.  This commendable revision gave trial courts the authority to impose life sen­tences upon habitu­al crimi­nals or extended-term sen­tences upon those con­victed of multi­ple crimes.  As part of the same "Class X pack­age," the legis­la­ture enacted section 5-5-3.2(b)(1), the extend­ed-term provision at issue in this case.  Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-5-3.2(b)(1).  That section, as originally enacted, contains sub­stan­tially the same language as the current version does.  730 ILCS 5/5-5-3.2(b)(1) (West 1994).  We find it signif­icant that the legis­la­ture, when engag­ing in a sub­stantial overhaul of the criminal law of this state, chose to include the timing re­straints present in section 33B-1(c) of the Criminal Code but did not include those same restraints in section 5-5-

3.2(b)(1) of the Unified Code.  Because we conclude that this differ­ence between these two statutory provi­sions is not inadver­

tent, we decline to add timing re­strictions to section 5-5-

3.2(b)(1) by judicial fiat.

We also reject defendant's argument that his aggra­vated battery conviction may not be used as a prior conviction for purposes of the extended-term statute because it was not "sepa­rately brought and tried [nor did it] arise out of differ­ent series of acts."  730 ILCS 5/5-5-3.2(b)(1) (West 1994).  Clearly, the aggravated battery charge was entirely unrelated to--and arose out of a different series of acts from--defendant's charge for possession of a controlled substance.  Further, those charges were "separately brought and tried" within the meaning of section 5-5-3.2(a)(1) of the Unified Code because (1) no trial oc­curred regard­ing either; and (2) the guilty plea proceedings regarding the two charges were combined simply as a matter of judicial efficiency.  

The parties in this case clearly intend­ed, by the plea agree­ment they reached, that defen­dant would plead­ guilty to posses­sion of a con­trolled sub­stance and be subject to an extend­

ed-term sentence if he violated his condi­tions of proba­tion.  To hold that the proceedings in this case were not appro­priate to accomplish that purpose would require the trial court to adjourn the first guilty plea pro­ceed­ings, during which it accepted defendant's guilty pleas to aggravated battery and criminal sexual abuse, and then state for the record it had begun anew guilty plea proceedings regarding the possession of a con­trolled substance charge against defendant.  Such a requirement would make no sense and could not be what the legislature intend­ed by the language it used in section 5-5-3.2(b)(1) of the Unified Code.  

B. The Defendant's Payment Order

Last, defendant argues that the trial court erred by order­ing him to pay for the services of his court-ap­point­ed counsel without first conducting the statutorily required hearing that must precede such an order.  725 ILCS 5/113-3.1(a) (West 1996).  The State concedes this point and the applicability of the case defendant relies upon, 
People v. Love
, 177 Ill. 2d 550, 687 N.E.2d 32 (1997).  We accept the State's concession and agree with defendant's argument.  Accord­ingly, we vacate the order for reimbursement of attorney fees and remand for a new hearing on that issue.  See 
People v. Johnson
, 297 Ill. App. 3d 163, 164-65, 696 N.E.2d 1269, 1270 (1998) (for a further description of what the statutorily re­quired hearing under section 113-3.1(a) of the Code of Criminal Procedure of 1963 requires).

III. CONCLUSION

For the reasons stated, we affirm the trial court's judgment in all respects, except that we vacate the order for payment for court-appointed counsel and remand with direc­tions.

Affirmed in part and vacated in part; cause remanded with directions. 

GREEN, J., concurs.

COOK, J., dissents.

JUSTICE COOK, dissenting:

I respectfully dissent.  I do not read section 5-5-

3.2(b)(1) of the Unified Code to provide for extended-term sen­

tenc­es when defen­dant is convicted of two offenses at the same hearing.

