                         No. 3--09--0248
_________________________________________________________________
Filed September 7, 2010
                              IN THE

                         APPELLATE COURT OF ILLINOIS

                               THIRD DISTRICT

                                    A.D., 2010

THE PEOPLE OF THE STATE OF    )    Appeal from the Circuit Court
ILLINOIS,                     )    of the 10th Judicial Circuit,
                              )    Peoria County, Illinois
     Plaintiff-Appellee,      )
                              )
     v.                       )    No. 08--CF--1011
                              )
DEANDRA SNYDER,               )    Honorable
                              )    Stuart P. Borden
     Defendant-Appellant.     )    Judge Presiding
________________________________________________________________

     JUSTICE LYTTON delivered the opinion of the court:
_________________________________________________________________

     Defendant, Deandra Snyder, pled guilty to intimidation (720

ILCS 5/12-6(a)(1) (West 2008)) and criminal damage to property (720

ILCS 5/21-1(1)(a) (West 2008)), pursuant to a partially negotiated

guilty plea.    The court sentenced defendant to concurrent prison

terms of 10 and 6 years, respectively, and ordered her to pay

$2,891 in restitution.        On appeal, defendant argues that (1) the

court   erred       in   imposing     extended-term   sentences     on     both

convictions; (2) her sentence was excessive; (3) the court should

not have ordered her sentences to be served consecutively to any

punishment she received for a parole violation in an unrelated

case;   and   (4)    the   court    failed   to   admonish   her   about   the

possibility of restitution.           We affirm in part as modified and

vacate in part.
                                   BACKGROUND

     On August 20, 2008, defendant arrived at the apartment of

Corey Simmons’ mother.        Defendant and Simmons were dating, and

defendant was pregnant with Simmons’ child.             Upon her arrival,

defendant noticed a parked car belonging to Jessica King, Simmons’

former paramour.     Defendant retrieved a knife from her vehicle and

repeatedly stabbed the convertible top of King’s car.               Simmons and

King came out of the apartment and confronted defendant. Defendant

began yelling and swinging her knife at them.              After a while,

defendant got in her vehicle and left.          Defendant caused $2,891.20

in damage to King’s vehicle.

     Defendant had had several altercations with King in the past,

including an incident when she set fire to King’s car.              At the time

of the August 20, 2008, incident, defendant was on mandatory

supervised release (MSR) and probation. In addition, defendant was

previously ordered to have no contact with King or Simmons.

     In connection with the August 20, 2008, incident, defendant

was charged with armed violence (720 ILCS 5/33A-2(a) (West 2008)),

two counts of attempted first degree murder (720 ILCS 5/8-4(a), 9-1

(West 2008)), unlawful possession of a weapon by a felon (720 ILCS

5/24-1.1(a) (West 2008)), intimidation (720 ILCS 5/12-6(a)(1) (West

2008)), and criminal damage to property (720 ILCS 5/21-1(1)(a)

(West 2008)).    On November 18, 2008, defense counsel notified the

court   that   the   State   and    defendant   had   reached   a    partially

negotiated plea agreement.          Defendant agreed to plead guilty to

intimidation and criminal damage to property in exchange for the


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State’s agreement to dismiss the remaining charges.        There was no

agreement    on   sentencing.      Defense   counsel   agreed   that   all

sentencing options would be available to the court.

     Before accepting defendant’s guilty plea, the trial court

informed defendant that she was facing a minimum of probation on

the intimidation and criminal damage to property charges.               At

maximum, she was facing extended terms of between 2 and 10 years of

imprisonment for intimidation and 1 and 6 years of imprisonment for

criminal damage to property, followed by a 1-year period of MSR.

The court did not inform defendant that she may be ordered to pay

restitution.

     At the sentencing hearing, the court stated that it considered

aggravating and mitigating factors in imposing its sentence on

defendant.     The aggravating factors included defendant’s prior

history of criminal activity and that defendant committed the

offenses when she was on probation and MSR.             The court also

emphasized the need to deter others from committing the same or

similar offenses.     In mitigation, the court noted that defendant

had a newborn child and that there was some culpability by King and

Simmons, who are involved in a "love triangle" with defendant. The

court further found that defendant is "a very dangerous person"

with "serious mental issues and anger management issues she needs

to come to grips with."

     After     considering   the   presentence   report,   arguments   of

counsel, evidence in mitigation and aggravation, and defendant’s

statement in allocution, the trial court sentenced defendant to


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concurrent     extended-term   prison   sentences   of   10   years   for

intimidation and 6 years for criminal damage to property.             The

court also ordered the sentences to be served consecutive to any

penalty or sentence she would receive for violating her MSR in a

separate case.    The court also ordered defendant to pay $2,891 in

restitution.     Defendant filed a posttrial motion to reconsider

sentence, which the court denied.

                               ANALYSIS

                                   I

     First, defendant argues, and the State concedes, that the

trial court erred in imposing extended-term sentences on both of

defendant’s convictions.

     Section 5-8-2(a) of the Unified Code of Corrections (Unified

Code) authorizes the trial court to impose an extended term of

imprisonment only on the offense within the most serious class.

730 ILCS 5/5-8-2(a) (West 2008); People v. Jordan, 103 Ill. 2d 192,

206, 469 N.E.2d 569, 575 (1984).

     Here, defendant was convicted of intimidation, a Class 3

felony (720 ILCS 5/12-6(b) (West 2008)), and criminal damage to

property, a Class 4 felony (720 ILCS 5/21-1(2) (West 2008)).

Intimidation was the most serious offense.      Thus, the trial court

could only impose an extended-term sentence on the intimidation

conviction.    See 730 ILCS 5/5-8-2(a) (West 2008).       We vacate the

extended-term portion of defendant’s criminal damage to property

sentence, thereby reducing the sentence to three years.          See 730

ILCS 5/5-8-1(a)(7) (West 2008).


                                   4
                                        II

       Next, defendant argues that her prison sentence was excessive.

       A trial court has broad discretionary powers in sentencing.

People v. Stacey, 193 Ill. 2d 203, 209, 737 N.E.2d 626, 629 (2000).

The trial court is granted such deference because it is in the best

position to determine a sentence that balances the need to protect

society with the rehabilitation of the defendant.                         People v.

Spencer, 303 Ill. App. 3d 861, 871, 709 N.E.2d 687, 694 (1999).

When sentencing a defendant, the trial court must carefully weigh

both the mitigating and aggravating factors to reach a fair and

just result, based on the particular circumstances of the offense

and the defendant.     Spencer, 303 Ill. App. 3d at 871, 709 N.E.2d at

694.    A sentence within the statutory range will not be deemed

excessive unless it varies greatly with the spirit and purpose of

the law or is manifestly disproportionate to the nature of the

offense.    Spencer, 303 Ill. App. 3d at 871, 709 N.E.2d at 694.

       We will not disturb the court’s sentencing decision absent an

abuse of discretion.         People v. Streit, 142 Ill. 2d 13, 19, 566

N.E.2d 1351, 1353 (1991).         "An abuse of discretion will be found

only   where   the   trial    court’s    ruling         is   arbitrary,   fanciful,

unreasonable, or where no reasonable person would take the view

adopted by the trial court."       People v. Caffey, 205 Ill. 2d 52, 89,

792 N.E.2d 1163, 1188 (2001).

       Here, the trial court properly considered the presentence

report,    defendant’s   statement,          the   arguments      of   counsel   and

aggravating    and   mitigating    factors         in   determining    defendant’s


                                        5
sentence.      The court noted factors in aggravation, including

defendant’s significant criminal history and that she was on MSR

and probation when she committed the instant offenses.                    The court

found that defendant was a dangerous person with serious mental and

anger management issues.           The court also discussed mitigating

factors,     including     defendant’s        newborn     child    and   defendant’s

involvement in a "love triangle."

     Other than the extended-term sentence issue corrected above,

we find that the trial court did not abuse its discretion in

sentencing defendant.         Considering the significant aggravating

factors in this case, prison sentences of 10 years for intimidation

and 3 years for criminal damage to property are not excessive.

                                      III

     Additionally, defendant argues that the court erred when it

ordered her sentences in this case to be served consecutive to any

punishment handed out for an MSR violation in an unrelated case.

     "A court may order a sentence to run consecutive to any prior

convictions, even where sentencing on those convictions has not yet

occurred but is anticipated in an upcoming                        parole revocation

proceeding."    People v. Byrd, 285 Ill. App. 3d 641, 652, 673 N.E.2d

1071, 1078 (1996).       This is precisely what occurred in this case.

Thus,   we   hold   that    the   court       did   not    err    when   it   ordered

defendant’s sentences to be served consecutively to any punishment

handed out for an MSR violation in an unrelated case.

                                      IV

     Finally, defendant argues that the trial court erred when it


                                          6
failed to admonish her about the possibility of paying restitution.

     Supreme Court Rule 402 requires the trial court to give

certain admonishments to a defendant before accepting a guilty

plea, including "the minimum and maximum sentence prescribed by

law."   177    Ill.   2d   R.   402(a)(2).     The   purpose   of   Rule   402

admonishments is to ensure that a defendant’s guilty plea is

intelligently and voluntarily made.          177 Ill. 2d R. 402, Committee

Comments.

     A trial court’s failure to admonish a defendant regarding the

possibility of restitution is a violation of Supreme Court Rule

402(a)(2).    People v. Petero, 384 Ill. App. 3d 594, 598, 892 N.E.2d

1086, 1090-91 (2008); People v. Thompson, 375 Ill. App. 3d 488,

493, 874 N.E.2d 572, 576 (2007).      A trial court’s violation of Rule

402 is reversible error where a defendant receives a more onerous

sentence than she was told she would receive.         See Petero, 384 Ill.

App. 3d at 599, 892 N.E.2d at 1091; Thompson, 375 Ill. 3d at 494,

874 N.E.2d at 577.         The proper remedy for such an error is to

vacate the restitution award.       See People v. Jenkins, 141 Ill. App.

3d 602, 490 N.E.2d 953 (1986).

     In Jenkins, the defendant argued that his guilty plea should

be vacated because he was ordered to pay restitution but had not

been admonished about restitution.        The Fourth District concluded

that "the restitution order exceeded the 'maximum sentence' of

which the defendant had been admonished upon entry of his guilty

plea." Jenkins, 141 Ill. App. 3d at 609, 490 N.E.2d at 958.            Thus,

the court vacated the defendant’s restitution order, making the


                                      7
defendant’s sentence "within the limits stated to him prior to

entry of the plea."   Jenkins, 141 Ill. App. 3d at 609, 490 N.E.2d

at 958.

     The Jenkins approach has been adopted by our supreme court.

The court has held that when a defendant pleads guilty and receives

a sentence in excess of the trial court’s admonishments, there are

two possible remedies: (1) either the promise must be fulfilled, or

(2) defendant must be given the opportunity to withdraw his guilty

plea.   People v. Whitfield, 217 Ill. 2d 177, 202, 840 N.E.2d 658,

673 (2005); see also People v. Morris, 236 Ill. 2d 345, 358, 925

N.E.2d 1069, 1077 (2010) (citing Whitfield). Courts of appeal will

modify and reduce a defendant’s sentence that does not comport with

a trial court’s admonishments.   See Whitfield, 217 Ill. 2d at 205,

840 N.E.2d at 675 (reducing defendant’s sentence of imprisonment by

three years because the defendant was not admonished regarding the

three-year term of mandatory supervised release that would follow

his prison sentence); People v. Gulley, 383 Ill. App. 3d 727, 891

N.E.2d 441 (2008) (same); People v. Company, 376 Ill. App. 3d 846,

876 N.E.2d 1055 (2007) (same); People v. Welch, 376 Ill. App. 3d

705, 877 N.E.2d 134 (2007) (same).

     Here, the trial court never admonished defendant that she

could be required to pay restitution but, nevertheless, ordered her

to pay it.     The court’s order made defendant’s sentence more

onerous than the court’s admonishments indicated it would be.   The




                                 8
appropriate remedy is to vacate the restitution award.1                                         See

Jenkins, 141 Ill. App. 3d at 609, 490 N.E.2d at 958.

                                           CONCLUSION

       For the foregoing reasons, the judgment of the circuit court

of Peoria County is affirmed in part as modified and vacated in

part.

       Affirmed in part as modified and vacated in part.

       HOLDRIDGE, PJ., concurs.

Filed September 7, 2010 CORRECTION

       JUSTICE SCHMIDT, concurring in part and dissenting in part:

       I concur in the majority opinion with the exception of the restitution issue. With all due

respect, the majority's analysis is seriously flawed for reasons I will discuss below.

       Supreme Court Rule 402 requires that the circuit court give

certain admonishments to a defendant before accepting a guilty

plea, including "the minimum and maximum sentence prescribed by

law."        177    Ill.     2d    R.    402(a)(2).           The    purpose       of    Rule   402

admonishments is to ensure that a defendant's guilty plea is

intelligently and voluntarily made.                       177 Ill. 2d R. 402, Committee

Comments.        If the improper admonishments prejudice a defendant or

deny her real justice, the appropriate remedy is to vacate her

guilty plea and allow her to replead.                        People v. Harris, 359 Ill.

App. 3d 931, 835 N.E.2d 902 (2005).

       1
           King may, however, file a civil action against defendant

for the damage defendant caused to her vehicle.                              See Indesco

Products, Inc. v. Novak, 316 Ill. App. 3d 53, 57, 735 N.E.2d

1082, 1086 (2000).
     Defendant and the majority rely heavily on People v. Jenkins,

141 Ill. App. 3d 602, 490 N.E.2d 953 (1986), in support of their

positions.    In Jenkins, the Fourth District held that, generally,

the proper remedy for a court's failure to properly admonish a

defendant about the possibility of restitution is to vacate the

restitution order.     Jenkins, 141 Ill. App. 3d 602, 490 N.E.2d 953.

The line of cases behind the Jenkins decision treated a court's

guilty plea admonitions as implied promises between the court and

a defendant.       People v. Seyferlich, 398 Ill. App. 3d 989, 924

N.E.2d 1212 (2010). However, since Jenkins was decided, the Fourth

District has not repeated the Jenkins holding based on the implied

promise theory.     Seyferlich, 398 Ill. App. 3d 989, 924 N.E.2d 1212

(recognizing that the Fourth District's decision in Harris called

into doubt the continued viability of Jenkins).             I would not follow

Jenkins but instead turn to the more persuasive approach adopted by

the Second     District     in   Seyferlich.      But   first,   the    majority

opinion.

     The majority's train derails when it asserts, "The Jenkins

approach has been adopted by our supreme court.             The court has held

that when a defendant pleads guilty and receives a sentence in

excess of the trial court's admonishments, there are two possible

remedies:    (1)   either    the   promise     must   be   fulfilled,    or   (2)

defendant must be given the opportunity to withdraw his guilty

plea. [Citations.]        Courts of appeal will modify and reduce a

defendant's sentence that does not comport with a trial court's

admonishments.      See Whitfield, 217 Ill. 2d at 205, 840 N.E.2d at


                                      10
675 (reducing defendant's sentence of imprisonment by three years

because the defendant was not admonished regarding the three-year

term of mandatory supervised release that would follow his prison

sentence); [citations]."    Slip op. at 8.    The majority analysis

here is flawed on several levels.

     First of all, the supreme court has neither explicitly nor

implicitly adopted the Jenkins approach.     One can read Whitfield

and find no reference to the Jenkins decision. Likewise, a reading

of Whitfield and Morris should make it plain to anyone that

Whitfield involved entirely different facts and, therefore, a

different issue than that before us and the Jenkins court.       In

Whitfield, the defendant contended that his constitutional right to

due process and fundamental fairness was violated because he pled

guilty in exchange for a specific (25 years) sentence, but received

a different, more onerous (25 years plus 3 years' MSR) sentence

than the one to which he agreed.    Relying on the line of reasoning

set forth in Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d

427, 92 S. Ct. 495 (1971), the Illinois Supreme Court held that

when one pleads guilty in exchange for a specific sentence and the

trial judge sentences the defendant to the specific term agreed to

in addition to a term of MSR, about which defendant was never

admonished, the defendant is denied the benefit of his bargain with

the State.   In these circumstances, addition of the MSR term to the

agreed-upon sentence violates due process because the sentence

imposed is more onerous than the one defendant agreed to at the

time of the plea hearing. The court concluded that the appropriate


                                 11
remedy was to modify defendant's sentence to a term of 22 years of

imprisonment to be followed by the mandatory 3-year term of MSR.

Whitfield, 217 Ill. 2d at 205.                   The key in Whitfield was that

defendant pled guilty in exchange for a promise of a specific term

of imprisonment.      If there is any doubt in one's mind as to the

rule in Whitfield, one need only turn to People v. Morris, 236 Ill.

2d 345, 925 N.E.2d 1069 (2010).              In Morris, the supreme court was

called to    determine       whether      Whitfield    created      a   new    rule    of

criminal procedure.         Morris, 236 Ill. 2d at 355.             It did.    Morris,

236 Ill. 2d at 361. The supreme court stated in Morris, "we

declared that a defendant has a due process 'contract' right to

enforce   the    terms      of   a   plea    agreement,       and   the    unilateral

modification     of   the      agreement     to    include   a   term     of   MSR    not

previously bargained for amounted to a breach of the plea agreement

and violated principles of fundamental fairness." Morris, 236 Ill.

2d at 357.      Later in Morris, the court once again paraphrased the

rule of Whitfield, acknowledging that Whitfield "marked the first

time this court held that a faulty MSR admonishment deprived a

defendant of his right to due process by denying him the benefit of

his bargain with the State."                Morris, 236 Ill. 2d at 361.               The

Whitfield rule applies to circumstances where a defendant pleads

guilty in exchange for a specific sentence.                  Such was not the case

here.     Whitfield      and     Morris     are   inapposite.        Whitfield       even

distinguished itself from cases where a defendant's guilty plea is

not in exchange for a specific sentence and, therefore, the faulty

admonitions did not deny defendant the benefit of some bargain he


                                            12
made with the State.        The court uses People v. McCoy, 74 Ill. 2d

398 (1979), as an example.          Whitfield, 217 Ill. 2d at 191.

     It is apparent from the majority's language that it has made

the leap in logic to equate a trial court's admonishment with a

promise from the State.       The majority writes, "The court has held

that when a defendant pleads guilty and receives a sentence in

excess of the trial court's admonishments, there are two possible

remedies:   (1)    either    the    promise    must       be   fulfilled,   or   (2)

defendant must be given the opportunity to withdraw his guilty

plea."    (Emphasis added.)        Slip op. at 8.         In the case before us,

one should reasonably ask: What promise?              Since the majority does

not refer to what promise must be fulfilled, it must be referring

to the trial court's admonishments.              When the supreme court in

Whitfield and Morris referred to the promise, it was clearly

referring to the promise between defendant and the State for a

specific sentence in exchange for a guilty plea.                     In the case

before us, defendant agreed to enter an open plea of guilty in

exchange for the State dropping some additional charges. The State

dropped the additional charges.            Defendant does not argue that she

was denied the benefit of a bargain with the State, only that she

was not admonished about restitution.                 The majority makes an

argument for defendant that defendant has not made.                 This is simply

not a Whitfield case.       That being said, let us return to the Second

District's recent opinion in Seyferlich.

     As the Seyferlich court noted, the court's role is not to

bargain   with    the   defendant     to    secure    a    guilty   plea:   "[t]he


                                       13
objective of ensuring that guilty pleas are entered voluntarily and

intelligently is not advanced by a rule that affords defendants a

sentencing windfall by treating misstatements by the trial court as

promises.   If defendant would not have pleaded guilty but for the

incomplete admonition, her remedy was to seek leave to withdraw her

plea."   Seyferlich, 398 Ill. App. 3d 989, 992, 924 N.E.2d 1212,

1215 (2010).   Seyferlich relied heavily upon the Fourth District

post-Jenkins decision in People v. Harris, 359 Ill. App. 3d 931,

835 N.E.2d 902.

     Like the defendant in Harris, defendant in this case asks for

the incorrect remedy--she does not ask this court to vacate her

guilty plea and allow her to replead.   See Harris, 359 Ill. App. 3d

931, 835 N.E.2d 902.

     Additionally, there is no indication that defendant was denied

real justice or was prejudiced by the circuit court's failure to

inform her of the possibility of restitution.     Defendant agreed to

plead guilty to intimidation and criminal damage to property in

exchange for the State's promise to drop the armed violence charge

and two attempted first degree murder charges.         There was no

agreement on sentencing; in fact, it was understood that all

sentencing options were open to the court.       The remedy fashioned

by the majority here is wrong on yet another level.    It defeats the

legislative purpose of trying to make victims whole.     The majority

seems satisfied to add a footnote telling the victim to sue the

defendant in civil court.   Slip op. at 9 n.1.    No doubt the victim

is grateful for this legal advice (assuming she reads appellate


                                14
opinions).   The legislature created restitution awards as another

remedy for crime victims and we ought not be quick to defeat that

remedy.

     For reasons set forth above, I dissent from the decision to

vacate the restitution order.




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