Nos. 2--96--0263, 2--96--0264, 2--96--0265 cons.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, ) Nos. 93--CF--1083
) 93--CF--1213
v. ) 93--CF--1214
)
DONELL L. MILLER, )
) Honorable
Defendant-Appellant. ) Victoria A. Rossetti,
) Judge, Presiding.
_________________________________________________________________
JUSTICE RATHJE delivered the opinion of the court:
Following his indictment in three separate cases, the
defendant, Donell Miller, pleaded guilty to and was sentenced as
follows: 28 years for home invasion (case No. 93--CF--1083); 6
years for residential burglary (No. 93--CF--1213); and 9 years for
robbery (No. 93--CF--1214). The sentences imposed were to run
consecutively. Following the denial of his motion for
reconsideration of the above sentences, the defendant brought an
appeal in all three causes. The causes have been consolidated for
purposes of this appeal.
On appeal, the defendant raises the following issues: whether
the trial court properly imposed the above sentences; whether the
defendant received the effective assistance of counsel; and whether
the trial court abused its discretion in imposing a sentence of 28
years' imprisonment for the offense of home invasion. For the
reasons stated below, we affirm the judgment of the trial court.
In order to fully understand the defendant's first contention
of error, we must review the procedural history of this case. As
indicated above, the defendant was charged in three separate
indictments with a multitude of offenses.
In case No. 93--CF--1083, the defendant was charged with home
invasion, residential burglary, robbery, aggravated criminal sexual
assault, and criminal sexual abuse. Ultimately, the defendant
pleaded guilty and was sentenced to 15 years' imprisonment for
residential burglary, 7 years' imprisonment for attempted criminal
sexual assault, and 7 years' imprisonment for robbery, which
sentences were to run concurrently. In case No. 93--CF--1213, the
defendant was charged with and pleaded guilty to residential
burglary and was sentenced to 12 years' imprisonment, which was to
run consecutively to the sentences imposed in case No. 93--CF--1083
for a total of 27 years' imprisonment in the Department of
Corrections. Finally, in case No. 93--CF--1214, the defendant was
charged with home invasion, robbery, and residential burglary.
Those charges and the remaining charges under case No. 93--CF--
1083 were nol-prossed by the State.
The defendant's motion to reconsider sentence was denied by
the trial court, and the defendant appealed. In a summary order,
this court found that the defendant had not been properly
admonished pursuant to Supreme Court Rule 605(b) (145 Ill. 2d R.
605(b)) and remanded the cause for the proper admonishments and to
allow the defendant to file new post-plea motions. People v.
Miller, Nos. 2--93--1136, 2--93--1137 cons. (1995) (unpublished
order under Supreme Court Rule 23(c)).
On remand, the defendant was granted leave to withdraw his
guilty pleas to the above offenses. Additional proceedings took
place. Following the commencement of the jury trial in No. 93--CF-
-1083, an agreement was reached whereby the defendant agreed to
plead guilty to home invasion in case No. 93--CF--1083, residential
burglary in case No. 93--CF--1213, and robbery in case No. 93--CF--
1214, with a sentencing cap of 50 years. The defendant was then
admonished, and a factual basis for the pleas was placed on the
record. A date for sentencing was then set.
The defendant then filed a pro se motion to withdraw his
guilty pleas. Following a hearing at which the defendant, pro se,
presented arguments as to whether there was a conflict of interest
between the public defender who represented him and himself, the
trial court found that the defendant had received effective
representation and that the defendant knowingly and voluntarily
pleaded guilty to the charges. The trial court then sentenced the
defendant to the following terms of imprisonment in the Department
of Corrections: 28 years for home invasion, 9 years for robbery,
and 6 years for residential burglary. The trial court further
ordered that the sentences were to run consecutively. The
defendant's motion for reconsideration of sentence was denied.
This appeal followed.
The defendant contends, first, that the 43-year total of the
consecutive sentences imposed following remand was improper because
it represented an increase over the 27-year total of the
consecutive sentences imposed originally. He argues that this
increase is precluded by section 5--5--4 of the Unified Code of
Corrections, which states as follows:
"Resentences. 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
1992).
The State points out that the 9-year sentence imposed in
No. 93--CF--1214 was the first sentence imposed on the defendant in
that cause. The State further points out that the 6-year sentence
that the defendant received in No. 93--CF--1213 after remand was 6
years less than the original sentence (12 years) for that offense.
In People v. Kilpatrick, 167 Ill. 2d 439 (1995), when
presented with a similar issue arising under section 5--8--1(c) of
the Unified Code of Corrections (730 ILCS 5/5--8--1(c) (West
1992)), our supreme court determined that it was the length of the
individual sentences imposed that was critical, rather than the
aggregate of those sentences. In that cause, Kilpatrick had been
sentenced to serve consecutive terms of six and nine years'
incarceration. His motion for reconsideration of sentence was
granted, and he was resentenced to a single term of 15 years'
imprisonment. In finding that the trial court had contravened the
explicit dictates of section 5--8--1(c), our supreme court stated
that "[t]he circumstance that the total number of years'
imprisonment remained the same, i.e., 15 years, does not negate the
fact that defendant's sentence was increased, from either six or
nine years' incarceration to 15 years in prison." 167 Ill. 2d at
447. Thus, in determining whether the defendant's sentence was
improperly increased, we consider the individual sentences, not the
aggregate of the sentences imposed.
We therefore agree with the State that the merits of the
defendant's argument rest solely on his sentence of 28 years for
home invasion. We note that, initially, although charged with home
invasion in No. 93--CF--1083, the defendant did not plead guilty to
home invasion but rather to the residential burglary charge in that
indictment. Section 5--5--4 is also applicable where the new
sentence is imposed for a different offense based upon the same
conduct. The State argues that residential burglary and home
invasion involve different conduct, i.e., residential burglary
requires entry into a dwelling to commit a felony (720 ILCS 5/19--
3(a) (West 1992)), while home invasion requires the additional
element of acts which threaten to cause or do cause injury to
another (720 ILCS 5/12--11(a)(2) (West 1992)). However, the
statute refers to "conduct" not elements of the offense. Thus, we
are of the opinion that this is exactly the situation envisioned by
the legislature when it made the statute applicable where a
defendant was convicted and sentenced for a new offense based on
the same conduct.
The State then argues that the defendant has waived this
argument by failing to raise it at his sentencing hearing or in his
post-trial motions or by agreeing to enter a plea of guilty knowing
he could receive upwards of 50 years. However, since the
imposition of a greater sentence upon remand in this cause might
violate the defendant's fundamental rights, we will consider the
issue to determine whether plain error was committed here. People
v. Moncrief, 276 Ill. App. 3d 533, 535 (1995).
In order for section 5--5--4 to apply, the defendant's
conviction or sentence must have been set aside on direct appellate
review or on collateral attack. People v. Adams, 169 Ill. App. 3d
312, 316-17 (1988); but see People v. Pierce, 80 Ill. App. 3d 514
(1980) (defendant's sentence could not be increased even though his
conviction was vacated by the trial court pursuant to a motion for
a new trial rather than by direct appellate review or collateral
attack).
After reviewing the decisions in both Adams, relied on by the
State here, and Pierce, relied on by the defendant here, we
conclude that the decision in Adams is the better reasoned of the
two. We must now determine if the review by this court which
resulted in the remand of the defendant's cause for post-plea
proceedings constituted direct appellate review or collateral
attack on his conviction or sentence. We note that neither party
has addressed this precise issue.
Our research reveals that, in People v. McCutcheon, 68 Ill. 2d
101 (1977), McCutcheon was charged with a felony and a misdemeanor
and pursuant to an agreement pleaded guilty to the misdemeanor for
which he was sentenced to one-year's imprisonment. The State nol-
prossed the felony charge. He appealed, and the appellate court
vacated the plea of guilty for noncompliance with Supreme Court
Rule 402 (50 Ill. 2d R. 402) and remanded, allowing McCutcheon to
plead anew. The State reinstated the felony count and, following
a jury trial, McCutcheon was convicted of both the felony and the
misdemeanor. Although the issue before the supreme court was
whether double jeopardy barred McCutcheon's trial on the felony
count, the court noted that "[t]he State and [McCutcheon] agreed
that under [section 5--5--4], McCutcheon could not receive a
sentence more severe than the original sentence of one-year
imprisonment." McCutcheon, 68 Ill. 2d at 104.
Although not precisely before the court, we note that the
supreme court did not disagree with the premise that McCutcheon
could not receive a greater sentence where the appellate court
vacated his guilty plea and remanded for him to plead anew.
However, in the cause before us, this court did not vacate the
defendant's guilty plea. Rather, we remanded the cause for proper
admonishments and new post-plea motions. It was in the trial court
that the defendant's motion to withdraw his guilty plea was
granted. We note, as did the court in Adams, that the council
commentary to section 5--5--4 "[l]imits the use of increased
sentences where an original conviction or sentence has been
overturned by a higher court." (Emphasis added.) 730 ILCS Ann.
5/5--5--4, Council Commentary, at 546 (Smith-Hurd 1992).
Since in this case the defendant's guilty plea was vacated by
the trial court, his conviction was not overturned by a higher
court as required in order for section 5--5--4 to apply.
Therefore, the trial court did not violate section 5--5--4 in
imposing a 28-year sentence for home invasion.
Next, the defendant contends that it was improper for the
robbery charge in case No. 93--CF--1214 to be reinstated following
remand, since the State had nol-prossed that charge at the time of
the defendant's original plea of guilty. The defendant asserts
that the failure to challenge the reinstatement of that charge on
speedy trial grounds constitutes the ineffective assistance of
counsel. See 725 ILCS 5/103--5(e) (West 1992).
The defendant overlooks the fact that a motion by the State to
nol-pros a case will toll the statutory period for the speedy trial
requirements. People v. Dace, 171 Ill. App. 3d 271, 273 (1988).
In Dace, Dace was convicted and sentenced to life imprisonment for
murder. At the time of sentencing, the State nol-prossed an escape
charge. Dace's conviction was reversed on appeal and a new trial
ordered. Thereafter, the trial court granted the State's motion to
reinstate the escape charge. Subsequently, Dace entered a plea of
guilty to escape and received a five-year sentence. His motion to
withdraw his plea was denied, and he appealed alleging that he
received ineffective assistance of counsel where defense counsel
failed to challenge the reinstatement of the escape charge on the
basis of a speedy trial violation.
As stated above, the reviewing court held that the State's
nolle prosequi of the escape charge tolled the speedy trial
statute. Moreover, in both the present cause and in Dace, the
nolle prosequi motion was made at the sentencing hearing and, as
such, would not be a tactic to evade the speedy trial statute.
Dace, 171 Ill. App. 3d at 273-74.
Therefore, since the reinstatement of the robbery charge in
case No. 93--CF--1214 did not violate the defendant's right to a
speedy trial, the defendant's allegation that he received
ineffective assistance of counsel is without merit.
Finally, the defendant contends that the trial court abused
its discretion in sentencing him to 28 years' imprisonment for the
offense of home invasion, as neither the seriousness of the offense
nor the aggravating factors supported the imposition of such a
lengthy term of imprisonment while the mitigating factors supported
a lesser term. He further contends that the trial court ignored
the rehabilitation factor in imposing the above sentence.
Contrary to the defendant's arguments, the trial court's
remarks at the time of sentencing indicate that it did consider the
hardships the defendant endured growing up, as well as the fact
that the defendant's object in committing the offenses was to
obtain money, not to injure anyone. The trial court also noted
that the defendant had acknowledged that his actions were wrong and
had expressed remorse for them.
However, in aggravation, the trial court considered the
defendant's prior record as a juvenile. The presentencing report
reflects that between the ages of 13 and 17 the defendant was
adjudicated a delinquent for the offenses of battery, obstructing
a police officer, operating a vehicle without the owner's consent,
burglary, and armed robbery. The defendant was placed on probation
several times. Ultimately, he was sent to the Wisconsin Department
of Corrections and resided in juvenile facilities. While in these
facilities, he was disciplined for a variety of offenses. In 1990,
his sentence was extended due to his failure to participate in
treatment opportunities and his continued discipline problems. In
January 1991, he was readjudicated after he was found responsible
for an armed robbery and resentenced to the Wisconsin Department of
Corrections until July 1992. He continued to be a discipline
problem. In November 1991 he was furloughed to another facility to
determine his eligibility for release. He left the facility
without permission. While a warrant was issued for his arrest, the
defendant was never apprehended.
The offenses involved in the present cause occurred over a
period from February to May 1993. The facts of the home invasion
charge for which the defendant received the 28-year sentence
include that the defendant entered the victim's home, grabbed her
by the neck, choked, and threw her on her bed. He told her he was
going to hurt or rape her. The defendant then grabbed the victim's
breasts and inserted his finger in her vagina. The defendant
demanded the victim's purse and the rings she was wearing.
According to the victim, the defendant choked her so hard that she
felt faint. While the defendant attempted to take a VCR, the
victim attempted to escape. The defendant threw her down, bruising
her left hip, and he threatened to hit her with the VCR.
A trial court's sentencing decisions are entitled to great
deference and weight. People v. Streit, 142 Ill. 2d 13, 18-19
(1991). A trial judge is in a much better position than an
appellate court to fashion an appropriate sentence because such a
judge can make a reasoned judgment based upon firsthand
consideration of such factors as the defendant's credibility,
demeanor, general moral character, mentality, social environment,
habits, and age. Streit, 142 Ill. 2d at 19. Nevertheless, where
a trial court has abused its discretion in imposing a sentence, the
sentence may be altered upon review. Streit, 142 Ill. 2d at 19;
134 Ill. 2d R. 615(b)(4). Yet, a reviewing court must not
substitute its judgment for that of a sentencing court because it
would have weighed the factors differently. 142 Ill. 2d at 19.
Although the defendant had not previously been convicted as an
adult, his lengthy record as a juvenile, outlined above, supports
the trial court's implicit conclusion that the defendant's
relatively young age did not overcome his lack of rehabilitative
potential. In the past, the defendant consistently threw away
chances to turn his life around. The record supports the trial
court's determination that the defendant would continue to commit
these kinds of offenses.
The defendant argues that the trial court improperly
emphasized the harm to the victim as a separate aggravating factor
even though by making the offense of home invasion a Class X
felony, the legislature acknowledged that the same aggravating
factor was inherent in the offense. However, in People v. Frisby,
160 Ill. App. 3d 19 (1987), the reviewing court upheld a 30-year
sentence (the maximum) for home invasion on the basis of Frisby's
violent behavior, the dangerous situation he created in committing
the offense, and the serious nature of the home invasion offense.
In this cause, the trial court reviewed some of the facts of the
home invasion offense but did not dwell on those facts as the main
reason for imposing the lengthy sentence on the defendant.
The defendant further argues that the trial court's statement
that the defendant's crimes were escalating was incorrect. The
trial court commented during sentencing that between March and May
of 1993 the defendant's crimes increased in their seriousness. The
evidence established that initially the defendant's crimes were
committed when no one was at home, while two out of his last three
offenses occurred while the victims were at home and involved
harmful contact with the victims. Therefore, the trial court's
remarks were not incorrect.
The defendant also argues that his history of drug use; that
he has some employment history; that he has two children by his
girlfriend; and that he pleaded guilty should all mitigate in his
favor. However, even assuming the trial court overlooked these
factors, the circumstances of the offense and the defendant's
previous record were sufficient to overcome all of the factors in
mitigation on which the defendant relies. We therefore conclude
that the trial court did not abuse its discretion in imposing a 28-
year sentence for the offense of home invasion on the defendant in
this cause.
The judgment of the circuit court of Lake County is affirmed.
Affirmed.
GEIGER, P.J., and THOMAS, J., concur.