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                              Appellate Court                            Date: 2018.07.10
                                                                         08:44:59 -05'00'




                  People v. Belmont, 2018 IL App (2d) 150886



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           ADAM D. BELMONT, Defendant-Appellant.



District & No.    Second District
                  Docket No. 2-15-0886



Filed             March 26, 2018



Decision Under    Appeal from the Circuit Court of Du Page County, No. 12-CF-2510;
Review            the Hon. Liam C. Brennan, Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier, Thomas A. Lilien, and Kerry Goettsch, of State
Appeal            Appellate Defender’s Office, of Elgin, for appellant.

                  Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman
                  and Kristin M. Schwind, Assistant State’s Attorneys, of counsel), for
                  the People.



Panel             JUSTICE BIRKETT delivered the judgment of the court, with
                  opinion.
                  Justices Hutchinson and Jorgensen concurred in the judgment and
                  opinion.
                                             OPINION

¶1       Defendant, Adam D. Belmont, appeals his sentence of 12 years’ incarceration for
     aggravated criminal sexual assault with a dangerous weapon (720 ILCS 5/11-1.30(a)(1) (West
     2012)). He contends that the sentence was plain error when the trial court was not informed of,
     and thus did not apply, a sentencing enhancement that required the court to add 10 years to the
     sentence, making the lowest legal sentence 16 years. The State contends that the matter is not
     plain error or that defendant is estopped from challenging the sentence when he benefited from
     the error. We determine that plain error does not apply because defendant was not prejudiced
     or deprived of a fair sentencing hearing. Accordingly, we affirm.

¶2                                        I. BACKGROUND
¶3       Defendant was initially charged in January 2013 with 22 counts of various crimes in
     connection with the sexual assault and murder of his former girlfriend. In May 2015, defendant
     entered a blind guilty plea to one count of aggravated criminal sexual assault with a dangerous
     weapon and one count of first-degree murder (id. § 9-1(a)(1)). In exchange, the State dismissed
     the remaining counts.
¶4       At the plea hearing, the trial court clarified with the State that the sentencing ranges were
     20 to 60 years for murder and 6 to 30 years for aggravated criminal sexual assault, with the
     sentences to run consecutively. The court also asked: “[B]ased upon the defendant’s criminal
     history, there are no issues of extended term eligibility; correct?” The State replied that
     defendant had no criminal history. There was no discussion of a mandatory enhancement of 10
     years because the crime was committed with a dangerous weapon (id. § 11-1.30(d)(1)). The
     factual basis for the plea showed that defendant sexually assaulted and murdered the victim
     using a knife.
¶5       At sentencing, the State sought sentences of at least 50 years for murder and 15 years for
     aggravated criminal sexual assault. The defense asked for sentences closer to the minimum. A
     lengthy and thorough sentencing hearing was held, with both the parties and the court
     assuming that no sentencing enhancements applied. Without discussion of the minimum and
     maximum sentences, the court sentenced defendant to consecutive terms of 35 years for
     murder and 12 years for aggravated criminal sexual assault. Defendant moved to reconsider
     the sentences, arguing that they were excessive. The motion was denied, and he appeals.

¶6                                        II. ANALYSIS
¶7       Defendant contends that the court plainly erred when it sentenced him because it failed to
     apply a mandatory 10-year enhancement to his sentence for aggravated criminal sexual assault.
     The State contends that there was no plain error or, alternatively, that defendant is estopped
     from raising the matter when he helped create the error to his benefit.
¶8       Defendant was convicted under section 11-1.30(a)(1) of the Criminal Code of 2012, which
     defines aggravated criminal sexual assault in instances where the defendant displays, threatens
     to use, or uses a dangerous weapon other than a firearm. Id. § 11-1.30(a)(1). The crime is a
     Class X felony, which generally carries a minimum sentence of six years’ incarceration. Id.
     § 11-1.30(a)(1), (d)(1); 730 ILCS 5/5-4.5-25(a) (West 2012). However, when a defendant is
     convicted under section 11-1.30(a)(1), section 11-1.30(d)(1) provides that “10 years shall be


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       added to the term of imprisonment imposed by the court.” 720 ILCS 5/11-1.30(d)(1) (West
       2012). Accordingly, with the enhancement, defendant’s total sentence for aggravated criminal
       sexual assault should have been at least 16 years.
¶9         Defendant concedes that he forfeited the issue by failing to raise the matter in the trial
       court. See People v. Price, 2016 IL 118613, ¶ 27 (a defendant may no longer argue that a
       statutorily unauthorized sentence is void). However, under the plain-error rule, reviewing
       courts may address a forfeited issue when (1) the evidence is closely balanced or (2) an error is
       so serious that the defendant was denied a fair sentencing hearing. People v. Wilkins, 343 Ill.
       App. 3d 147, 149 (2003). “The right to be lawfully sentenced is a substantial right.” People v.
       Whitney, 297 Ill. App. 3d 965, 967 (1998). Thus, generally, “impermissible or illegal sentences
       may be attacked on appeal as plainly erroneous.” Id. For example, “reviewing courts regularly
       have applied the plain error rule to address claims that an extended-term sentence was not
       authorized by law.” Wilkins, 343 Ill. App. 3d at 149.
¶ 10       Here, however, defendant claims that an enhanced sentence was required by law. “The
       plain-error rule is not a general saving clause for all trial errors.” People v. Scott, 2015 IL App
       (4th) 130222, ¶ 41. “Rather, it is a limited and narrow exception ‘designed to redress serious
       injustices.’ ” Id. (quoting People v. Baker, 341 Ill. App. 3d 1083, 1090 (2003)). We see no such
       injustice here.
¶ 11       First, defendant was not prejudiced by the error. Instead he benefited from it, with an
       unlawfully lenient sentencing range. In the absence of prejudice, defendant cannot show plain
       error under the first prong of the plain-error rule. See People v. Johnson, 2017 IL App (2d)
       141241, ¶ 50. Second, and similarly, we fail to see how the application of an unlawfully lenient
       sentencing range deprived defendant of a fair sentencing hearing. To whatever extent that the
       outcome of the hearing was unfair, it was unfair only to the State. The parties and the court
       were misinformed, but the hearing itself was lengthy, thorough, and fair. Thus, the plain-error
       rule does not apply here.
¶ 12       At oral argument, defendant suggested that the State could wait until his imminent release
       from incarceration and bring a mandamus action seeking to correct the illegal sentence. See
       People v. Castleberry, 2015 IL 116916, ¶¶ 26-27. Thus, he argued that he has been denied
       certainty in his sentence. However, the State, which alternatively argued that estoppel barred
       defendant from raising the illegal sentence, specifically conceded that it too would be estopped
       from changing its position and raising the matter in the future. Further, such an action by the
       State would be subject to a valid argument by defendant for the application of laches to bar the
       State’s action. See People ex rel. Alvarez v. Gaughan, 2016 IL 120110, ¶ 16 (distinguishing a
       timely brought mandamus action from one in which the inmate is about to walk out the prison
       door when the State seeks correction of his sentence). Were the State to timely bring such an
       action, defendant arguably would not be prejudiced because he would not be close to the date
       of his release and he would be provided with the corrected sentence that he himself seeks. In
       any event, we accept the State’s concession that it would be estopped from changing its
       position on the matter in the future.
¶ 13       Defendant also suggested at oral argument that he was precluded from raising an
       excessive-sentence claim because doing so could lead the State to discover the illegal sentence
       and seek to correct it. But defendant raised an excessive-sentence argument in his motion to
       reconsider and then raised the illegal sentence himself on appeal; thus, he also could have
       raised an excessive-sentence claim on appeal. Instead, it appears that defendant is seeking

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       another bite at the sentencing apple, through a creative legal avenue. Defendant’s bare
       speculation that a resentencing would ultimately benefit him, despite an increase in his
       sentence for aggravated criminal sexual assault, is insufficient to establish plain error. See
       People v. Borys, 2013 IL App (1st) 111629, ¶ 29. Thus, we simply find the matter forfeited,
       and we do not address the parties’ remaining arguments.

¶ 14                                       III. CONCLUSION
¶ 15       Defendant forfeited his argument that his sentence was too lenient. Accordingly, the
       judgment of the circuit court of Du Page County is affirmed. As part of our judgment, we grant
       the State’s request that defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a)
       (West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178 (1978).

¶ 16      Affirmed.




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