People v. Gray

NO. 4-05-0470 Filed: 3/14/06

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
TOVORIE K. GRAY, ) No. 02CF1051
Defendant-Appellant. )
) Honorable
) Jeffrey B. Ford,
) Judge Presiding.
_________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

On March 15, 2005, defendant, Tovorie K. Gray, admitted

and stipulated to a petition to revoke his probation in front of

Judge Jeffrey Ford. Judge Ford set a date to resentence defen-

dant. Before the date set by Judge Ford, Judge Thomas Difanis,

when sentencing defendant on two other matters, resentenced

defendant based on his admission and stipulation to the petition

to revoke his probation. Judge Difanis sentenced defendant to

three years in prison pursuant to an agreement between defendant

and the State. Judge Ford later vacated Judge Difanis's sen-

tence, finding Judge Difanis did not have jurisdiction. Judge

Ford resentenced defendant to 7 1/2 years in prison. Defendant

appeals, arguing he is entitled either to the original three-year

sentence or at least a lesser sentence. We reverse and remand

with directions.

I. BACKGROUND

On July 11, 2002, defendant was indicted in Champaign

County case No. 02-CF-1051 (cause 1051) for aggravated battery
(720 ILCS 5/12-4(b)(8) (West 2002)). On August 20, 2003, defen-

dant pleaded guilty in front of Judge Ford and was sentenced to

30 months' probation. On June 30, 2004, the State filed a

petition to revoke probation alleging that defendant failed to

fulfill conditions of his probation.

On March 15, 2005, Judge Ford presided over the hearing

on the petition to revoke defendant's probation. After Judge

Ford properly admonished defendant, defendant admitted and

stipulated to the State's petition. Judge Ford set the matter
for resentencing on April 25, 2005.

On April 4, 2005, Judge Difanis called cause 1051 for

negotiated disposition along with two other cases involving

defendant, case Nos. 01-CF-1301 (cause 1301) and 04-CF-974 (cause

974). Defendant entered a negotiated plea of guilty to aggra-

vated battery in cause 974 and admitted to the State's petition

to revoke his probation for a burglary charge in cause 1301 in

exchange for three sentences in cause 1051, cause 1301, and cause

974 of three years in prison, with all three sentences to run

concurrently.

On April 25, 2005, Judge Ford called defendant's cause

1051; neither defendant nor his attorney was present. Judge Ford

determined that Judge Difanis had no jurisdiction to sentence

defendant in cause 1051, so Judge Ford vacated the three-year

sentence in cause 1051. Judge Ford continued the case for a

sentencing hearing.

On May 4, 2005, defendant filed a motion to reinstate

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the negotiated sentence or other relief. Defendant argued (1)

the sentence was not void and could not be vacated by the trial

court sua sponte; (2) the State did not move to vacate the

sentence; (3) defendant's attorney did not receive notice that

the sentence would be vacated; (4) vacating the sentence violates

defendant's right against double jeopardy; (5) Judge Difanis had

jurisdiction; and (6) the provision in section 5-4-1 of the

Unified Code of Corrections (Code) (730 ILCS 5/5-4-1 (West 2004))

that states that the same judge should try a case and impose a

sentence is unconstitutional as it violates the separation-of-

powers clause of the Illinois Constitution (Ill. Const. 1970,

art. II, '1). That same day, Judge Ford denied counsel's motion,

finding that he took the original admission and stipulation and

the parties incorrectly went before Judge Difanis for sentencing.

On June 1, 2005, Judge Ford called defendant's cause

1051 for resentencing. The State asked for a sentence of not

less than three years in prison. After noting defendant's

extensive and violent criminal history, Judge Ford sentenced

defendant to an extended-term sentence of 7 1/2 years in prison

with credit for 91 days to be served concurrently with cause 974

and cause 1301. Defendant immediately filed a motion to recon-

sider sentence, alleging that the sentence was excessive. The

court denied the motion, stating that "the agreed sentence in

front of Judge Difanis was something that should never have been

done." This appeal followed.

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 II. ANALYSIS

Defendant argues this court should compel specific

performance of the original sentence entered by a court of lawful

jurisdiction, and the court should afford defendant the benefit

of his bargain with the State wherein he was induced to plead

guilty and admitted to a petition to revoke in exchange for a

three-year sentence in this case that would run concurrently with

two other three-year sentences. Alternatively, defendant argues

this court should reduce defendant's sentence based on his
acceptance of responsibility, factors in mitigation, the State's

recommendation, and undue prejudice resulting from his earlier

resentencing.

Defendant first argues Judge Difanis had jurisdiction

to sentence him, as jurisdiction is vested in the courts, not in

a particular judge. Further, Judge Difanis was the presiding

judge, so he had the authority to assign defendant's case to his

own docket call.

We agree that jurisdiction is vested in courts, not in

individual judges. See People v. P.H., 145 Ill. 2d 209, 222, 582
N.E.2d 700, 706 (1991) (stating that a statute that removes a

case from a judge sitting in the juvenile division to a judge

sitting in the criminal division of the same circuit is not a

divestiture of jurisdiction as the circuit court retains juris-

diction over the minor defendant); Department of Public Works &

Buildings v. Legg, 374 Ill. 306, 309, 29 N.E.2d 515, 517 (1940)

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(stating "jurisdiction is vested in the courts, not in the

judges"). Further, the determination of which judge will hear a

particular case is generally an administrative matter. Blair v.

Mackoff, 284 Ill. App. 3d 836, 842-43, 672 N.E.2d 895, 899

(1996). Supreme Court Rule 21(b) states that "[t]he chief judge

of each circuit may enter general orders in exercise of his

general administrative authority, including orders providing for

assignment of judges, general or specialized divisions, and times

and places of holding court." 134 Ill. 2d R. 21(b). "Rule

21(b), adopted pursuant to section 7(c) of article VI of our

constitution (Ill. Const. 1970, art. VI, sec. 7(c)), *** confers

power on each chief judge to enter general orders for the assign-

ment of judges, free from any express legislative limitations."

People v. Joseph, 113 Ill. 2d 36, 46, 495 N.E.2d 501, 506 (1986).
In the Sixth Circuit Court of Illinois, the circuit of which

Champaign County is part, the chief judge appoints one circuit

judge within each county as presiding judge of that county (6th

Jud. Cir. Ct. R. 1.3(a) (eff. November 1, 1992)) and that presid-

ing judge shall "administer the [j]udicial [d]epartment of the

county in which he is presiding" and "shall assign judicial

duties to the circuit and associate judges." 6th Judicial Cir.

Ct. Rs. 1.3(b), 1.4(b) (eff. November 1, 1992). A presiding

judge may personally assign judges to individual cases. See

People v. Hattery, 183 Ill. App. 3d 785, 801, 539 N.E.2d 368, 379

(1989).

As Judge Difanis was sitting in a court with jurisdic-

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tion over defendant's case, and as he had the power to assign

defendant's case to his own docket, he had jurisdiction to re-

sentence defendant in cause 1051.

The State responds, though, that section 5-6-4(h) of

the Code (730 ILCS 5/5-6-4(h) (West 2002)) provides that sentenc-

ing after probation revocation shall be governed by section 5-4-

1(b) of the Code, and section 5-4-1(b) of the Code provides a

mandatory requirement that "[t]he judge who presided at the trial

or the judge who accepted the plea of guilty shall impose the
sentence unless he is no longer sitting as a judge in that court"

(730 ILCS 5/5-4-1(b) (West 2002)). According to the State, only

Judge Ford could sentence defendant because he was the judge who

accepted the stipulation and admission to the petition to revoke

probation, and he continued to sit as a judge in the court that

was to sentence defendant.

Defendant acknowledges section 5-4-1(b) of the Code but

argues that the section's mandate is not one to which courts must

strictly adhere. If courts were forced to comply with section 5-

4-1(b) of the Code, that section would violate the separation-of-

powers clause of the Illinois Constitution.

In determining whether courts must strictly adhere to

section 5-4-1(b), the issue is whether section 5-4-1(b) of the

Code is mandatory or directory. The Supreme Court of Illinois

has noted as follows:

"[T]he mandatory-permissive dichotomy concerns

whether the language of a statute has the

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 force of a command that imposes an obliga-

tion, or is merely a grant of permission or

a suggestion, which therefore imposes no obli-

gation. The mandatory-directory dichotomy ***

concerns the consequences of a failure to ful-

fill an obligation." People v. Robinson, 217

Ill. 2d 43, 52, 838 N.E.2d 930, 935 (2005).

If section 5-4-1(b) of the Code is mandatory, only Judge Ford,

the judge who accepted the stipulation and admission, may sen-

tence defendant, and Judge Difanis's sentence should be vacated.

If section 5-4-1(b) of the Code is directory, Judge Difanis's

sentence was not properly vacated and should be reinstated.

In determining whether a statutory obligation is

mandatory or directory, this court applies the de novo standard
of review. Robinson, 217 Ill. 2d at 54, 838 N.E.2d at 936.

To decide the issue, we must determine the legisla-

ture's intent by first looking to the statute's language.

Robinson, 217 Ill. 2d at 54, 838 N.E.2d at 936. When determining

whether a statute is mandatory or directory, statutory language

that prescribes a result for failure to fulfill an obligation

provides strong evidence that the statute is mandatory. Robin-
son, 217 Ill. 2d at 54, 838 N.E.2d at 936. In this case, the

legislature did not prescribe a specific result for failure to

provide the same sentencing judge as the one who presided over

the trial or guilty plea. The statute states that the judge who

presided at the trial or accepted the plea shall impose the

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sentence, but when the issue is whether a statute is mandatory or

directory as opposed to mandatory or permissive, use of the word

"shall" is not determinative. See Robinson, 217 Ill. 2d at 54,

838 N.E.2d at 936. The statutory language is otherwise ambiguous

as to whether the legislature intended that the requirement of a

specific judge be mandatory. We, therefore, look to the purpose

of the statute.

The council commentary to section 5-4-1(b) of the Code

states that section 5-4-1(b) "makes explicit former Illinois

practice of having the trial judge pass sentence. Its purpose is

to provide for sentence selection by the judge most informed of

the facts in the case." 730 ILCS Ann. 5/5-4-1, Council Commen-

tary, at 356 (Smith-Hurd 1997). The primary concern in section

5-4-1(b), then, is that the judge issuing the sentence be fully

informed.

In People v. Easley, 119 Ill. 2d 535, 519 N.E.2d 914
(1988), the Supreme Court of Illinois addressed whether section

5-4-1(b) of the Code required that a judge, sitting in the same

circuit but different county, travel to a former county to

sentence a defendant over whose trial that judge presided. The

court determined that section 5-4-1(b)'s exception that the

sentencing judge does not have to be the judge who presided at

the trial if that judge is no longer sitting as a judge "in that

court" applied. The court held that the phrase "in that court"

refers to a particular division or county, not the entire cir-

cuit. Easley, 119 Ill. 2d at 539-42, 519 N.E.2d at 915-17.

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While the court expressly stated that it did not address whether

section 5-4-1(b) was mandatory or permissive, or whether it was

constitutional (Easley, 119 Ill. 2d at 541, 519 N.E.2d at 916),

the court acknowledged that it found "no injustice in having a

sentence imposed by a judge other than the one who conducted the

trial, provided that the sentencing judge [had] access to the

full record." Easley, 119 Ill. 2d at 540, 519 N.E.2d at 916.

The court recognized, therefore, that the importance of section

5-4-1(b) is to ensure that the sentencing judge is fully in-

formed.

In this case, neither party suggests Judge Difanis was

inadequately informed when he sentenced defendant. As Judge

Difanis was sentencing defendant in two other causes while

sentencing defendant on cause 1051, he was informed of defen-

dant's extensive criminal and often violent history. Further,

defendant waived presentence investigation and report by the

court services department as well as a formal sentencing hearing.

As he was fully informed, Judge Difanis's sentence did not

jeopardize the purpose of section 5-4-1(b) of the Code.

Supreme Court of Illinois cases addressing whether

certain statutory provisions were mandatory or violations of the

separation-of-powers clause of the Illinois Constitution are

instructive in determining whether section 5-4-1(b) is mandatory.

In People v. Youngbey, 82 Ill. 2d 556, 561, 413 N.E.2d
416, 419 (1980), the supreme court held that the presentence

investigation and report were mandatory legislative requirements

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that could not be waived absent agreement between the parties as

to the sentence to be imposed. The court determined that the

mandatory presentence-report requirement did not constitute a

legislative infringement on the judicial function because "[t]he

aspect of the sentencing function involved in this section

relates solely to a presentencing procedure." Youngbey, 82 Ill.

2d at 560, 413 N.E.2d at 419.

In People v. Walker, 119 Ill. 2d 465, 519 N.E.2d 890

(1988), the supreme court held that an automatic-substitution-of-

judge provision did not violate the separation-of-powers provi-

sion. The court noted that "it is not within the legislature's

power to enact statutes solely concerning court administration or

the day-to-day business of the court[]." Walker, 119 Ill. 2d at
475, 519 N.E.2d at 893. If a statute expresses a public-policy

determination, "having as its basis something other than the

promotion of efficient judicial administration," the court will

reconcile any conflicts between the rules of the court and the

statute. Walker, 119 Ill. 2d at 475, 519 N.E.2d at 893. If a

statute "directly and irreconcilably conflicts with a rule of

this court on a matter within the court's authority, the rule

will prevail." Walker, 119 Ill. 2d at 475, 519 N.E.2d at 893.
Ultimately, the court determined that the legislation in question

did not conflict with Rule 21(b) as the automatic-substitution-

of-judge provision could be invoked only after assignment is made

and Rule 21(b) provides for initial assignment.

The case at issue is not like Youngbey and Walker,

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where the statutory provision mandates what information must be

available to a judge before a sentencing determination or ensures

a party's right to an impartial judge after a particular judge

has been assigned to that party's case. Section 5-4-1(b) pur-

ports to mandate which judge must be assigned to sentence a

particular defendant. Section 5-4-1(b) directly affects the

sentencing by mandating who may sentence a defendant.

In People v. Davis, 93 Ill. 2d 155, 442 N.E.2d 855

(1982), the supreme court addressed whether requirements in

sections 5-4-1(c) and 5-8-1(b) of the Code that command trial

courts to state their reasons for imposing particular sentences

were mandatory requirements. Unlike in Youngbey, the section
under consideration in Davis involved "attempts to dictate the

actual content of the judge's pronouncement of sentence." Davis,

93 Ill. 2d at 160-61, 442 N.E.2d at 857. The court held that the

sections were directory because interpreting the sections to be

mandatory would make them constitutionally invalid based on

principles of separation of powers. Davis, 93 Ill. 2d at 162-63,

442 N.E.2d at 858. The court noted that the power to impose a

sentence is exclusively a function of the judiciary and to

construe the sections as mandatory would "permit a legislative

infringement upon the exercise of the judicial function of

imposing sentence." Davis, 93 Ill. 2d at 161, 442 N.E.2d at 857.
Finally, in People v. Joseph, 113 Ill. 2d 36, 495

N.E.2d 501 (1986), the supreme court determined that a section of

the Post-Conviction Hearing Act (Ill. Rev. Stat., 1984 Supp., ch.

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38, par. 122-8) requiring that postconviction proceedings be

conducted by a judge not involved in the original proceeding

violated the separation-of-powers clause of the Illinois Consti-

tution (Ill. Const. 1970, art. II, '1). The court found that the

section violated the separation-of-powers clause because it

encroached on the court's administrative and supervisory author-

ity. Joseph, 113 Ill. 2d at 44, 495 N.E.2d at 505. The court

further held that the section conflicted with Illinois Supreme

Court Rule 21(b), and a rule of the court adopted pursuant to

constitutional authority prevails over a statute that conflicts

with that rule. Joseph, 113 Ill. 2d at 47-48, 495 N.E.2d at 507.

The provision at issue in this case is more closely

analogous to the provisions in Davis and Joseph. Section 5-4-

1(b) outlines which judge must be assigned to impose a particular

sentence on a specific defendant. This directly conflicts with

the judiciary's administrative power to assign cases and impose a

sentence. It also conflicts with Rule 21(b), which provides for

the assignment of judges. As section 5-4-1(b) conflicts with a

supreme court rule and encroaches on the court's administrative

responsibilities, the statute must be directory in order to avoid

determining that the section is unconstitutional.

Determining section 5-4-1(b) is directory, rather than

mandatory, ensures that section 5-4-1(b) will not be deemed

unconstitutional under the separation-of-powers clause of the

Illinois Constitution. Reviewing courts have a duty to construe

acts of the legislature so as to affirm their constitutionality

and validity when those acts' constructions are doubtful. See

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Davis, 93 Ill. 2d at 161, 442 N.E.2d at 858. Section 5-4-1(b)

does not unduly encroach upon the inherent powers of the judi-

ciary if it merely instructs the courts on a common practice

rather than mandates a particular assignment.

Finally, allowing Judge Ford's increased sentence would

violate section 5-8-1(c) of the Code. Section 5-8-1(c) of the

Code states "[a] motion to reduce a sentence may be made, or the

court may reduce a sentence without motion, within 30 days after

the sentence is imposed. *** However, the court may not in-
crease a sentence once it is imposed." (Emphasis added.) 730

ILCS 5/5-8-1(c) (West 2004). Judge Difanis had jurisdiction to

impose the sentence. Judge Ford did not have authority to vacate

that lawful sentence and impose a new sentence. Judge Difanis's

sentence of three years should, therefore, be reinstated.

As we determined defendant is entitled to the three-

year sentence, we need not address defendant's remaining allega-

tions of error.

III. CONCLUSION

For the reasons stated, we reverse the trial court's judgment and remand

to the Champaign County circuit court with instructions to reinstate defendant's original

three-year sentence.

Reversed and remanded with directions.

McCULLOUGH and MYERSCOUGH, JJ., concur.

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