No. 2--05--0400 filed: 11/7/06
_____________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_____________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 03--CF--2811
)
GILBERT E. TAYLOR, ) Honorable
) Joseph G. McGraw,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________
JUSTICE BYRNE delivered the opinion of the court:
Defendant, Gilbert E. Taylor, pleaded guilty to aggravated battery (720 ILCS
5/12--4(a), (e) (West 2002)), a Class 3 felony, and criminal trespass to a residence (720
ILCS 5/19--4(a)(2), (b)(2) (West 2002)), a Class 4 felony, and was sentenced to 30
months' probation. Later, the trial court revoked his probation and imposed concurrent
extended-term sentences of 10 years' imprisonment with credit for 436 days served.
After the trial court declined to reconsider the sentences, defendant appealed.
On appeal, defendant contends that (1) the extended-term sentences must be
vacated because the record does not show that, when he pleaded guilty, he knew that
extended-term sentencing was possible for either offense; (2) he was ineligible for an
extended-term sentence for criminal trespass to a residence; (3) even if he was eligible
for an extended-term sentence for criminal trespass to a residence, the sentence
No. 2--05--0400
imposed exceeds the statutory maximum; and (4) he is entitled to an extra day of credit
for time served against his sentences. The State confesses error on all but the first
contention. We vacate the extended-term sentences, impose the maximum
nonextended-term sentences, grant defendant an extra day of sentencing credit, and
otherwise affirm the judgment.
On January 12, 2004, at a hearing at which Judge Kathryn E. Zenoff presided,
the parties presented an agreement under which defendant would plead guilty to
aggravated battery and criminal trespass to a residence, the State would dismiss a
charge of home invasion (720 ILCS 5/12--11(a)(2) (West 2002)), and the parties would
recommend a sentence of 30 months' probation. In the course of admonishing
defendant, Judge Zenoff recited the charge of aggravated battery, then stated:
"That is a Class 3 felony. That is punishable by probation and a term in
the Winnebago County Jail of up to 6 months and a fine up [sic] $25,000.
It is also punishable by a term in prison of 2 to 5 years in the Department
of Corrections. If extended term applies, it's 2 to 10 years. The period of parole,
mandatory supervised release, is one year. Do you understand the range of
penalty [sic]?"
After defendant responded, "Yes," Judge Zenoff recited the charge of criminal
trespass to a residence and stated:
"That is a Class 4 felony. That is also a probational offense. The
probation can be accompanied by up to six months in the Winnebago County
Jail and fined [sic] up to $25,000. The period of parole, mandatory supervised
release, is one year.
-2-
No. 2--05--0400
If extended term applies, the term is instead of 1 to 3 years in prison, it's 1
to 6 years in prison. Do you understand that?"
After defendant responded affirmatively, the court heard the factual basis for the
plea. Judge Zenoff then asked whether defendant had any prior convictions. The
assistant State's Attorney stated that, in January 2003, defendant was fined for a
misdemeanor conviction of resisting a peace officer and that, "according to a pretrial
services report dated September 29, 2003, the defendant was in prison in 1999 for
Possession of a Controlled Substance, a Class 4 felony, with a parole violation in 2002
it looks like." Defendant's counsel agreed with this summary. Judge Zenoff
admonished defendant further as required (see 177 Ill. 2d R. 402) and sentenced him
to 30 months' probation per the plea agreement.
On June 1, 2004, the State petitioned to revoke defendant's probation. On
December 23, 2004, the trial court, Judge Joseph G. McGraw presiding, held an
evidentiary hearing and found that defendant had violated his probation. The cause
proceeded to a sentencing hearing before Judge McGraw on March 22, 2005.
Defendant's attorney, Kunal Kulkarni, who had not represented defendant at the guilty-
plea hearing, referred the court to the presentencing investigation report (PSIR),
particularly its summary of defendant's prior convictions. The PSIR states that, on
January 27, 1997, defendant was fined for "Use of Metal Point Bullets."
According to Kulkarni, the PSIR seemed to imply that this offense was a Class 2
felony, but defendant claimed that it was a misdemeanor. Kulkarni said that he was
uncertain whether defendant was "ultimately extended term eligible in this case." He
added that he had spoken with officials of the Department of Corrections (DOC) and
-3-
No. 2--05--0400
ascertained that defendant had prior convictions of "both a Class 2 and a Class 4."
Thus, as Kulkarni "had attempted to explain to [defendant]," defendant was "extended
term eligible on a Class 3, so that is an issue as far as the sentencing parameters go.
That's what we wish to raise to the Court." The assistant State's Attorney, Michael
Combs, told the court that the DOC had informed him that, in case No. 99--CR--41301,
defendant had been sentenced to concurrent three-year terms "for a Class 2 and Class
4 felony." Combs conceded that "Use of Metal Point Bullets" appeared to have been a
misdemeanor. Judge McGraw agreed with Kulkarni and Combs that defendant's
criminal record needed clarification. After a witness testified in aggravation, the hearing
was continued.
The next day, after two witnesses testified in mitigation, Combs told the court
that, in cases Nos. 99--CR--41301 and 98--CR--1828001, defendant had received
concurrent three-year prison terms for a Class 2 felony and a Class 4 felony,
respectively. Kulkarni commented that, in the present case, Kulkarni did not know
whether "at the time [defendant] entered into this plea for aggravated battery ***
[defendant] did know whether or not he was extended term eligible." At a short hearing
on April 1, 2005, Kulkarni and Combs agreed that, under People v. Eisenberg, 109 Ill.
App. 3d 98 (1982), defendant could not receive an extended-term sentence if he had
not been admonished before pleading guilty that extended-term sentencing was
possible.
On April 22, 2005, the cause proceeded to sentencing. In pronouncing the
sentences, Judge McGraw stated in part:
-4-
No. 2--05--0400
"I do find that he is eligible for extended term. I do find that at the time he
pled guilty to this offense, he was placed on probation, he was advised of the
range of extended term penalties. He knew what his criminal record was at the
time he pled guilty to this offense, even if for some reason the prosecutor and
the defense attorney either didn't know or didn't accurately articulate the extent
of his prior record. But at the time that he pled guilty he had those Cook County
convictions. And for whatever reason, that was not known to the State's
Attorney. But he was eligible. The point is he was told that--told that if you are
eligible this is the sentencing range, and I believe that's what the statute
requires."
Concluding that defendant's criminal history was "extremely serious," Judge
McGraw sentenced him to concurrent 10-year prison terms, with credit for 436 days
served in custody.
Defendant moved to reconsider, asserting that, when he pleaded guilty, "all
parties believed" that he was ineligible for extended-term sentencing. Thus, he argued,
based on Eisenberg, the extended-term sentences were improper. Judge McGraw
disagreed, explaining that, when defendant pleaded guilty, he knew that he had a
conviction of a Class 2 felony, and Judge Zenoff admonished him "what the range of
penalties would be if he was extended term eligible." Defendant appealed.
On appeal, defendant argues that (1) his extended-term sentences must be
vacated because, when he pleaded guilty, he was not properly admonished that
extended-term sentencing was possible; (2) even if extended-term sentencing was
-5-
No. 2--05--0400
proper, the trial court erred in imposing an extended-term sentence on the conviction of
criminal trespass to a residence; (3) even if extended-term sentences for both
convictions were proper, the 10-year sentence for criminal trespass to a residence
exceeds the statutory maximum of 6 years and must be reduced to 6 years; and (4) he
is entitled to an extra day of credit for time that he spent in custody before he was
sentenced. We hold that (1) defendant was ineligible for extended-term sentencing on
either conviction; (2) defendant's second and third claims of error are therefore moot;
and (3) defendant is entitled to an extra day of sentencing credit.
Defendant contends first that the trial court erred in imposing extended-term
sentences after revoking his probation. Defendant relies on section 5--8--2(b) of the
Unified Code of Corrections (Code), which states, "If the conviction was by plea, it shall
appear on the record that the plea was entered with the defendant's knowledge that [an
extended-term sentence] was a possibility. If it does not so appear on the record, the
defendant shall not be subject to such a sentence unless he is first given an opportunity
to withdraw his plea without prejudice." 730 ILCS 5/5--8--2(b) (West 2004). Defendant
contends that this case is controlled by Eisenberg's construction and application of
section 5--8--2(b). We agree.
In Eisenberg, the defendant pleaded guilty to two offenses and was sentenced to
12 months of periodic imprisonment. Three months later, the State petitioned to revoke
his periodic imprisonment. The trial court granted the petition and sentenced the
defendant to an extended term on the more serious offense. On appeal, the defendant
contended that, under section 5--8--2(b) of the Code, the extended term was improper
because, when he pleaded guilty, the trial court did not inform him that an extended-
-6-
No. 2--05--0400
term sentence was possible. The appellate court agreed, vacated the extended
sentence, and remanded the cause for sentencing in accordance with section 5--8--2(b)
of the Code. Eisenberg, 109 Ill. App. 3d at 100.
We note that section 5--8--2(b) of the Code requires that, for an extended
sentence to be imposed on a guilty plea, "it shall appear on the record that the plea was
entered with a defendant's knowledge that [an extended-term sentence] was a
possibility." 730 ILCS 5/5--8--2(b) (West 2004). Thus, section 5--8--2(b) does not
explicitly require the trial court to admonish a defendant that an extended-term
sentence is a possibility. However, the Eisenberg court sensibly presumed that, absent
such an admonishment, the defendant did not know that extended-term sentencing was
possible. Eisenberg, 109 Ill. App. 3d at 100. Section 5--8--2(b) does not place the
burden on the defendant to establish that he did not know that extended-term
sentencing was possible; instead, it requires that the record show that he did know of
such a possibility. Thus, the reviewing court in Eisenberg concluded, absent any
indication otherwise, that the defendant pleaded guilty without knowing that he was
eligible for extended-term sentencing. Eisenberg, 109 Ill. App. 3d at 100.
We also agree with the Eisenberg court that, when an extended-term sentence is
imposed after the revocation of a lesser punishment such as probation, the proper
remedy is to vacate the extended-term sentence so that a nonextended-term sentence
may be imposed. Section 5--8--2(b) of the Code does not explicitly provide for such a
remedy. It states that, if the defendant does not receive the proper admonishments, he
shall not be subject to an extended-term sentence unless he is first allowed to withdraw
his plea without prejudice. 730 ILCS 5--8--2(b) (West 2004). Thus, if a defendant is
-7-
No. 2--05--0400
originally sentenced to an extended term without having received the proper
admonishments, his remedy is to move to withdraw his guilty plea. See People v.
Cavins, 288 Ill. App. 3d 173, 180 (1997). However, if the trial court does not initially
sentence the defendant to an extended term, but does so only after the revocation of
his periodic imprisonment (as in Eisenberg) or probation (as here), the statutory remedy
is unavailable. In a probation-revocation proceeding, the defendant may not challenge
the basis of the underlying conviction. People v. Dieterman, 243 Ill. App. 3d 838, 841
(1993). Thus, we agree with Eisenberg that the proper remedy is to vacate the
extended-term sentence so that the defendant may be sentenced in accordance with
the admonishments that he received before he pleaded guilty.
We now apply Eisenberg to this case. The record does not show that, at the
guilty-plea hearing, defendant was admonished that an extended-term sentence was
possible. Judge Zenoff told defendant that his conviction of aggravated battery was
"punishable by a term in prison of 2 to 5 years in the Department of Corrections. If
extended term applies, it's 2 to 10 years." (Emphasis added.) Similarly, in admonishing
defendant about the potential sentence for criminal trespass to a residence, Judge
Zenoff stated, "If extended term applies, the term is *** 1 to 6 years in prison."
(Emphasis added.) Thus, Judge Zenoff did not inform defendant that he was eligible
for extended-term sentencing; she merely stated that, if he were eligible, certain
penalties could follow. This type of conditional, tentative admonishment leaves a
defendant to speculate whether an extended-term sentence is indeed possible in his
case. Therefore, it does not establish that section 5--8--2(b) of the Code has been
satisfied.
-8-
No. 2--05--0400
Moreover, the remainder of the record not only fails to rebut the presumption that
defendant did not know that extended-term sentencing was possible; it reinforces the
presumption. At the guilty-plea hearing, even the attorneys and the trial judge
expressed uncertainty about defendant's prior convictions, which provided whatever
basis existed for the extended-term sentences that were imposed later. Even at
resentencing, the parties and the trial judge apparently did not realize that defendant's
prior convictions included a Class 2 felony. (Without this conviction, defendant would
not have been eligible for an extended-term sentence on the Class 3 felony of
aggravated battery. See 730 ILCS 5/5--5--3.2(b)(1) (West 2004).) Moreover, Kulkarni
told the court that, even after defendant had pleaded guilty and been sentenced to
probation, Kulkarni had "attempted to explain" to defendant that an extended-term
sentence for aggravated battery was possible. The proceedings at the guilty-plea
hearing and afterward do not suggest that, when he pleaded guilty, defendant knew
that he could receive an extended-term sentence. Indeed, the record creates doubt
that, when defendant pleaded guilty, anyone realized that he was eligible for extended-
term sentencing.
Judge McGraw's observation that defendant always knew that he had a Class 2
felony conviction may have been accurate, but it was beside the point. That defendant
knew of his Class 2 felony conviction does not imply that he knew the legal
consequences of the conviction. To presume such legal expertise on the part of a
defendant would vitiate section 5--8--2(b) of the Code and, more generally, imply that a
trial court need not admonish a defendant who pleads guilty about the possible
penalties that he faces. Of course, the law is otherwise. See 177 Ill. 2d R. 402(a)(2).
-9-
No. 2--05--0400
The record does not demonstrate that, when he pleaded guilty, defendant knew
that extended-term sentencing was a possibility. Therefore, in accordance with
Eisenberg, we vacate defendant's extended-term sentences. Under the circumstances,
it is not necessary to remand the cause to the trial court for resentencing. The record
establishes that Judge McGraw intended to impose the maximum available sentence
for each conviction. Thus, under Supreme Court Rule 615(b)(4) (134 R. 615(b)(4)), we
reduce defendant's concurrent sentences to the maximum nonextended terms, five
years for aggravated battery and three years for criminal trespass to a residence.
Because we vacate both extended-term sentences, we need not consider
defendant's arguments that he could not receive extended-term sentences on both
convictions and that his extended-term sentence for criminal trespass to a residence
exceeds the statutory maximum.
Finally, defendant contends that he is entitled to an extra day of sentencing
credit, for a total of 437 days, instead of the 436 days that the trial court awarded. The
State confesses error, and we accept the confession. Therefore, we modify the
sentences to award defendant a total of 437 days' credit for time that he spent in
custody before sentencing.
In sum, we reduce defendant's concurrent sentences to five years' imprisonment
for aggravated battery and three years' imprisonment for criminal trespass to a
residence, and we amend the judgment and the mittimus to reflect that defendant is
awarded 437 days' credit for time served before sentencing. In all other respects, we
affirm the judgment.
The judgment of the circuit court of Winnebago County is affirmed as modified.
-10-
No. 2--05--0400
Affirmed as modified.
GILLERAN JOHNSON, J., concurs.
JUSTICE KAPALA, concurring in part and dissenting in part:
I agree with that part of the majority decision that modifies defendant's sentence
for criminal trespass to a residence to three years' imprisonment, although, as I explain
below, I disagree with its analysis. I also agree that defendant is entitled to a total of
437 days' credit for time served. However, I cannot agree with the majority that
defendant was ineligible for an extended-term sentence for his conviction of aggravated
battery. Therefore, I respectfully dissent from the part of the majority decision that
reduces defendant's sentence for aggravated battery to five years' imprisonment.
The majority concludes that defendant was ineligible for an extended-term
sentence because, in contravention of section 5--8--2(b) of the Code, the record does
not reflect that when he entered his plea he had knowledge of the possibility of
extended-term sentencing. The majority indicates that it applied Eisenberg, 109 Ill.
App. 3d 98, to determine that the trial court did not adequately inform defendant of the
possibility of an extended-term sentence. However, Eisenberg supports only the
proposition that the record must reflect that prior to his plea the defendant had
knowledge of the possibility of an extended-term sentence. Eisenberg, 109 Ill. App. 3d
at 100. Eisenberg does not address what statement by a trial court sufficiently informs
a defendant of the possibility that he could receive an extended-term sentence. Unlike
the case at bar, in Eisenberg there was no indication in the record that the court
informed the defendant of the possibility of an extended-term sentence. Eisenberg,
109 Ill. App. 3d at 100. In contrast, in this case, prior to defendant's plea, the trial court
-11-
No. 2--05--0400
judge advised defendant that if extended-term sentencing applied, his conviction of
aggravated battery could result in a sentence of 2 to 10 years' imprisonment. I find no
case that discusses the language a trial court judge must use to properly alert a
defendant to the possibility of an extended-term sentence. However, I disagree with the
majority's conclusion that the trial court's admonishment failed to satisfy section 5--8--
2(b) of the Code.
Section 5--8--2(b) states, in part:
"If the conviction was by plea, it shall appear on the record that the plea
was entered
with the defendant's knowledge that a sentence under this [extended-term]
[s]ection was a
possibility." (Emphasis added.) 730 ILCS 5/5--8--2(b) (West 2004).
The majority concludes that the trial court judge's statement to defendant that "[i]f
extended term applies, it's 2 to 10 years" was too tentative to demonstrate that
defendant had knowledge that an extended-term sentence was a possibility. I disagree.
Black's Law Dictionary defines a "possibility" as, "An event that may or may not
happen." Black's Law Dictionary 1185 (7th ed. 1999). Accordingly, section 5--8--2(b)
required only that the record reflect that defendant knew that an extended-term
sentence may or may not occur. When the trial court judge informed defendant of the
consequences of extended-term sentencing, she alerted defendant to the fact that a
sentence of 2 to 10 years' imprisonment may or may not happen. I do not believe that
using the term "if" before "extended term" negates the defendant's knowledge of the
possibility of extended-term sentencing. In fact, by using the term "if," the trial court
-12-
No. 2--05--0400
specifically indicated that extended-term sentencing may or may not apply and, thus,
suggested that it was a possibility for defendant.
The majority asserts that defendant did not believe extended-term sentencing
applied to him. However, this does not obviate the fact that the trial court alerted
defendant that extended-term sentencing was a possibility. Simply because defendant
did not believe extended-term sentencing applied to him does not mean he did not have
knowledge that an extended-term sentence was a possible result of a conviction of
aggravated battery. Defendant had knowledge of the possibility, but believed that it
would not occur. Thus, because the record shows that defendant had knowledge of the
possibility of an extended-term sentence, I believe that the trial court could impose
upon defendant an extended-term sentence for aggravated battery. As a result, I
oppose the majority's modification of defendant's sentence for aggravated battery from
10 years' imprisonment to 5 years' imprisonment.
Although the majority utilizes the same analysis to show that defendant was not
subject to an extended-term sentence for criminal trespass to a residence, I agree on
other grounds. Defendant argues that imposing an extended-term sentence for his
conviction of criminal trespass to a residence was erroneous because an extended-
term sentence may be imposed only for a defendant's most serious conviction. The
State concedes such an error. Our supreme court has held that the plain language of
section 5--8--2(a) of the Code (730 ILCS 5/5--8--2(a) (West 2004)) requires that when a
defendant has been convicted of multiple offenses of differing classes, an extended-
term sentence may be imposed only on the conviction within the most serious class.
People v. Thompson, 209 Ill. 2d 19, 23 (2004), citing People v. Jordan, 103 Ill. 2d 192
-13-
No. 2--05--0400
(1984). As the majority points out, defendant pleaded guilty to aggravated battery, a
Class 3 felony, and criminal trespass to a residence, a Class 4 felony. Accordingly,
because defendant was convicted of two offenses of differing classes, he could be
sentenced to an extended-term sentence only for aggravated battery. See Thompson,
209 Ill. 2d at 23. Therefore, I agree with the majority that the trial court erred when it
sentenced defendant to an extended term for criminal trespass to a residence, and I
support the majority's modification of defendant's sentence for that offense to three
years' imprisonment. In addition, because the majority properly reduced defendant's
sentence for criminal trespass to a residence to 3 years' imprisonment, defendant's
argument that a sentence of 10 years' imprisonment exceeds the statutory maximum
for that offense is now moot.
For the foregoing reasons, I respectfully dissent from the part of the majority's
decision that vacated defendant's extended-term sentence for aggravated battery and
modified defendant's sentence for aggravated battery from 10 years' imprisonment to 5
years' imprisonment. Otherwise, I concur with the majority's decision to modify
defendant's sentences and affirm the trial court in all other respects.
-14-