                                  Illinois Official Reports

                                          Appellate Court



                             People v. Williams, 2014 IL App (3d) 120824



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      ADRIAN WILLIAMS, Defendant-Appellant.


District & No.               Third District
                             Docket Nos. 3-12-0824, 3-12-0825 cons.


Filed                        August 1, 2014
Rehearing denied             September 15, 2014

Held                         Where defendant was improperly informed multiple times that he
(Note: This syllabus         could be sentenced to up to 60 years’ imprisonment for unlawful
constitutes no part of the   delivery of a controlled substance based on the statutes related to Class
opinion of the court but     X sentencing, extended-term sentencing and sentence doubling when
has been prepared by the     the correct application of the statutes resulted in defendant being
Reporter of Decisions        subject to a maximum term of 30 years’ imprisonment, the denial of
for the convenience of       defendant’s motion to withdraw his guilty plea with a cap of 25 years’
the reader.)                 imprisonment based on his claim that he was improperly admonished
                             that he faced up to 60 years’ imprisonment was reversed and the cause
                             was remanded for further proceedings, since the improper
                             admonishments led defendant to believe he had negotiated a 35-year
                             reduction of his maximum sentence when he actually received a
                             reduction of only 5 years from the maximum term of 30 years and
                             defendant was entitled to an opportunity to negotiate a lesser term.


Decision Under               Appeal from the Circuit Court of Tazewell County, Nos. 11-CF-119,
Review                       11-CF-355; the Hon. Paul P. Gilfillan and the Hon. Scott A. Shore,
                             Judges, presiding.



Judgment                     Reversed and remanded.
     Counsel on               Bryon Kohut, of State Appellate Defender’s Office, of Ottawa, for
     Appeal                   appellant.

                              Stewart Umholtz, State’s Attorney, of Pekin (Judith Z. Kelly, of
                              State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                              People.



     Panel                    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.



                                                  -2-
¶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’ 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
       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).


                                                  -3-
       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
       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 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

           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).

                                                       -4-
       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.

¶ 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 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.

                                                  -5-
¶ 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.




                                             -6-
