No. 2--95--0164
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of McHenry County.
)
Plaintiff-Appellee, ) No. 90--CF--509
)
v. )
)
WALTER BLANCK, ) Honorable
) Henry L. Cowlin,
Defendant-Appellant. ) Judge, Presiding.
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JUSTICE McLAREN delivered the opinion of the court:
The defendant, Walter Blanck, appeals from his sentence for
aggravated kidnaping (720 ILCS 5/10--2 (West 1994)). We reverse
and remand for the issuance of a corrected judgment order and
mittimus sentencing the defendant to 13 years' imprisonment.
On February 20, 1992, after a jury trial, the defendant was
convicted of aggravated kidnaping (720 ILCS 5/10--2 (West 1994))
and aggravated criminal sexual assault (720 ILCS 5/12--14 (West
1994)). Aggravated criminal sexual assault is a Class X felony
for which the normal sentence range is 6 to 30 years'
imprisonment, but the extended range is 30 to 60 years'
imprisonment. 720 ILCS 5/12--14(d) (West 1994); 730 ILCS 5/5--8-
-1(a)(3) (West 1994); 730 ILCS 5/5--8--2(a)(2) (West 1994).
Aggravated kidnaping is a Class 1 felony for which the normal
sentence range is 4 to 15 years' imprisonment, but the extended
range is 15 to 30 years' imprisonment. 720 ILCS 5/10--2 (West
1994); 730 ILCS 5/5--8--1(a)(4) (West 1994); 730 ILCS 5/5--8--
2(a)(3) (West 1994). At the defendant's sentencing hearing on
April 9, 1992, the trial court found the defendant eligible for
an extended-term sentence for the crime of aggravated criminal
sexual assault because the offense was accompanied by
exceptionally brutal and heinous behavior indicative of wanton
cruelty. Under Illinois law, the court could not impose an
extended term for aggravated kidnaping because the defendant was
being sentenced for a more serious felony. 730 ILCS 5/5--8--2(a)
(West 1994); People v. Jordan, 103 Ill. 2d 192, 205-06 (1984).
The court imposed a sentence of 60 years' imprisonment for the
aggravated criminal sexual assault and a consecutive 13 years'
imprisonment for aggravated kidnaping.
The defendant appealed to this court, and on April 15, 1994,
we issued an opinion reversing the defendant's conviction of
aggravated criminal sexual assault because the State had failed
to prove sufficiently jurisdiction, i.e., whether the offense
occurred in Illinois or Wisconsin. Further, we vacated the
sentence for aggravated kidnaping and remanded the cause for
resentencing. We denied the defendant's petition for rehearing
but issued a modified opinion on June 15, 1994. See People v.
Blanck, 263 Ill. App. 3d 224 (1994). With respect to the
aggravated kidnaping conviction, our opinion directed the trial
court to consider whether it could, in accordance with law,
impose an extended-term sentence for that conviction because it
was now the most serious offense of which the defendant was
convicted. Blanck, 263 Ill. App. 3d at 231.
Upon remand, the resentencing hearing occurred on January
27, 1995. Neither the State nor the defense offered evidence
based upon conduct on the part of the defendant occurring after
the original sentencing hearing.
The trial court judge decided that he had the authority to
impose an extended-term sentence. He recognized that he could
not originally have set a sentence in the extended-term range for
the Class 1 offense of aggravated kidnaping, but decided that the
range was available after our reversal of the Class X conviction
of aggravated criminal sexual assault. The trial court judge
then sentenced the defendant to 30 years' imprisonment for the
aggravated kidnaping conviction. The defendant appeals.
Section 5--5--3(d) of the Unified Code of Corrections (Code)
provides:
"In any case in which a sentence originally imposed is
vacated, the case shall be remanded to the trial court. The
trial court shall hold a hearing under Section 5--4--1 of
the Unified Code of Corrections which may include evidence
of the defendant's life, moral character and occupation
during the time since the original sentence was passed. The
trial court shall then impose ***. *** any sentence which
could have been imposed at the original trial subject to
Section 5--5--4 of the Unified Code of Corrections." 730
ILCS 5/5--5--3(d) (West 1994).
Section 5--5--4 provides:
"Where a conviction or sentence has been set aside on
direct review or on collateral attack, the court shall not
impose a new sentence for the same offense or for a
different offense based on the same conduct which is more
severe than the prior sentence less the portion of the prior
sentence previously satisfied unless the more severe
sentence is based upon conduct on the part of the defendant
occurring after the original sentencing." 730 ILCS 5/5--5--
4 (West 1994).
The 1973 Council Commentary to section 5--5--4 indicates
that the provision sets out the rule adopted by the United States
Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 23 L.
Ed. 2d 656, 89 S. Ct. 2072 (1969), and followed by the Illinois
Supreme Court as set forth in People v. Baze, 43 Ill. 2d 298,
302-03 (1969). 730 ILCS Ann. 5/5--5--4, Committee Comments--
1973, at 546 (Smith-Hurd 1992). Those decisions recognize that a
defendant is denied due process of law if he receives a heavier
sentence for an offense after successfully obtaining a new trial
through an appeal or collateral challenge unless the longer
sentence is based on conduct occurring after the sentencing date
for the original conviction. Pearce, 395 U.S. at 725, 23 L. Ed.
2d at 669, 89 S. Ct. at 2080; Baze, 43 Ill. 2d at 302-03. A
defendant must be able to pursue his right to appeal a conviction
without fear of retaliation from the trial court should he
succeed. Pearce, 395 U.S. at 725, 23 L. Ed. 2d at 669, 89 S. Ct.
at 2080; Baze, 43 Ill. 2d at 302.
Applying the clear terms of section 5--5--4 to the present
case, we determine that the trial court erred in sentencing the
defendant to 30 years' imprisonment for the aggravated kidnaping
conviction. The defendant was originally sentenced to 13 years'
imprisonment for aggravated kidnaping. He then had his sentence
for aggravated kidnaping set aside on direct review by this
court. On remand, he was resentenced for the exact same offense.
No evidence was presented regarding the defendant's conduct after
the date of the original hearing so as to provide a basis for an
increased term. Under the plain language of the statute, the
sentence for aggravated kidnaping could not lawfully be
increased. 730 ILCS 5/5--5--4 (West 1994).
The State contends in this appeal that the defendant was not
being resentenced for the same offense. We find this position
meritless. The offense of aggravated kidnaping is committed when
a person commits a kidnaping as defined by statute (720 ILCS
5/10--1 (West 1994)) with one of five other defined circumstances
(720 ILCS 5/10--2 (West 1994)). The State has not presented any
evidence, nor does the record show, that the defendant was
somehow convicted of another act which constituted aggravated
kidnaping in-between the trial court's original sentencing and
the trial court's resentencing. The reversal or vacation of a
more serious offense that precluded the imposition of an extended
sentence on the charge in question does not transmute the charge
in question into a different offense upon remand.
While a review of Illinois law indicates that the present
factual situation is one of first impression, previous cases lend
support to the decision we reach in the present case. In People
v. Cunitz, 59 Ill. App. 3d 701, 702 (1978), the Appellate Court,
Fifth District, faced a situation where a defendant was convicted
of felony theft and escape and was originally sentenced to an
indeterminate term of 3 years and 4 months' to 10 years'
imprisonment on each count. The trial court made the sentences
consecutive, thus imposing an aggregate sentence of 6 years and 8
months' to 20 years' imprisonment. On direct appeal, the
Appellate Court, Fifth District, reduced the felony theft
conviction to one for misdemeanor theft and remanded the entire
cause for resentencing. See People v. Cunitz, 45 Ill. App. 3d
165 (1977). On remand, the trial court imposed concurrent
sentences of 364 days' imprisonment for theft and 5 to 20 years'
imprisonment for escape. Cunitz, 59 Ill. App. 3d at 703. The
defendant appealed again. See Cunitz, 59 Ill. App. 3d 701.
Relying upon section 5--5--4, the Appellate Court, Fifth
District, found that the defendant had received a more severe
sentence for escape upon remand and that the sentence was not
based upon conduct occurring after the original sentencing
hearing. Cunitz, 59 Ill. App. 3d at 703-04. Consequently, the
court reduced the sentence for escape to the original sentence of
3 years and 4 months' to 10 years' imprisonment. Cunitz, 59 Ill.
App. 3d at 705.
In the present case, one of two of the defendant's
convictions was reversed outright, not just reduced to a
misdemeanor. However, we determine that the defendant should no
more be subject to an increased sentence for aggravated kidnaping
upon remand than the defendant in Cunitz for escape. The trial
court's effort to come as close as possible to the originally
imposed consecutive terms with only one sentence must not succeed
in the present case any more than the trial court's effort in
Cunitz. See Cunitz, 59 Ill. App. 3d at 704.
Two recent decisions of our supreme court also demonstrate
that the defendant at bar should prevail in this appeal. The two
cases interpret section 5--8--1(c) of the Code (730 ILCS 5/5--8--
1(c) (West 1994)). Section 5--8--1(c) is a parallel provision to
section 5--5--4 that applies in the trial court when a motion to
reduce sentence is at issue. Any increase in sentence after the
receipt of a motion to reconsider sentence is barred. 730 ILCS
5/5--8--1(c) (West 1994). In People v. Kilpatrick, 167 Ill. 2d
439, 447 (1995), our supreme court found that this section
prohibited a trial court from vacating two sentences of 6 and 9
years' imprisonment, to be served consecutively, and imposing a
single term of 15 years' imprisonment for both offenses. Our
supreme court found that a defendant should not have to risk an
increase in the individual terms to challenge his consecutive
sentences. Kilpatrick, 167 Ill. 2d at 447.
Similarly, in People v. Jones, 168 Ill. 2d 367, 372 (1995),
our supreme court found that the trial court was barred from
vacating two sentences, to be served consecutively, for 25 years'
imprisonment each with one single sentence of 30 years'
imprisonment to be served for one of the charges. The supreme
court held that the trial court had unlawfully increased the
sentence for the charge of attempted murder from 25 to 30 years'
imprisonment. Jones, 168 Ill. 2d at 372-73.
While the instant case does not involve consecutive
sentences for different offenses being altered to one sentence
and the instant case stems from a new sentencing after remand
rather than after a motion to reconsider sentence, we determine
that the tenets of our supreme court cases may be properly
applied in the case at bar. In accordance with the principles
laid out in Pearce (395 U.S. at 725, 23 L. Ed. 2d at 669-70, 89
S. Ct. at 2080-81) and Baze (43 Ill. 2d at 302-03) and the clear
language of section 5--5--4, we determine that a defendant should
not have to risk an increase in one term to seek appellate review
of either that term or a second term, imposed for a second crime.
For the foregoing reasons, the judgment and sentence of the
circuit court of McHenry County is reduced to a sentence to the
Department of Corrections of 13 years' imprisonment, less time
served, and this cause is remanded for the issuance of a
corrected judgment order and mittimus not inconsistent with this
opinion.
Reversed and remanded with directions.
INGLIS and DOYLE, JJ., concur.