People v. Williams

No. 3--96--0055
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IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1996

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 10th Judicial Circuit,
) Tazewell County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 95--CF--200
)
ADRIAN K. WILLIAMS, ) Honorable
) Robert Cashen,
Defendant-Appellant. ) Judge Presiding

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PRESIDING JUSTICE HOLDRIDGE DELIVERED THE OPINION OF THE COURT:
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Defendant Adrian K. Williams pleaded guilty to retail theft,
a Class 3 felony (720 ILCS 5/16(A)--3(a), 10(3) (West 1994)). In
exchange for the plea, the State agreed to a sentencing cap of
seven years in the Department of Corrections (DOC) and the
dismissal of a charge of burglary. The court accepted
defendant's plea and subsequently sentenced him to a 3-year
prison term, followed by a consecutive, 30-month period of
probation. On appeal, defendant argues that the trial court
exceeded its sentencing authority. We affirm.
FACTS
Defendant was charged with entering a Radio Shack store in
Pekin, Illinois, and stealing amplifiers. At the guilty plea
proceedings, the court admonished defendant that his sentence
would be limited to a maximum of seven years' imprisonment.
Following further admonishments, the court accepted defendant's
plea and ordered a presentencing report. The report disclosed
that the 28-year-old defendant had numerous convictions for prior
offenses, including burglary, theft, forgery, robbery and retail
theft. He served prison terms for the last two offenses. He
also has an eight-year history of drug addiction.
At the sentencing hearing, defense counsel recommended that
the sentence include a period of inpatient drug treatment and
aftercare. The State recommended a seven-year term of
imprisonment. The court then sentenced defendant to 3 years in
prison, followed by 40 months of probation with treatment for
drug and alcohol addictions.
Defendant filed a motion to reconsider sentence on grounds
that the probationary period (1) exceeded the maximum for a Class
3 felony; and (2) could not be imposed consecutive to
imprisonment for the same offense. Following a hearing, the
court modified the probationary period to 30 months, but denied
defendant's request to vacate probation.
DISCUSSION AND ANALYSIS
On appeal, defendant contends that imprisonment with a
consecutive term of probation is prohibited by section 5--8--4 of
the Unified Code of Corrections (Code) (730 ILCS 5/5--8--4 (West
1994)) where such sentence is imposed for a single offense. In
so arguing, defendant relies primarily on People v. Patterson,
276 Ill. App. 3d 107, 658 N.E.2d 505 (1995). In response, the
State argues that the trial court's disposition was appropriate
pursuant to sections 5--5--3(b) and 5--6--2(b) of the Code (730
ILCS 5/5--5--3(b), 6--2(b) (West 1994)). The State relies on
People v. Wendt, 163 Ill. 2d 346, 645 N.E.2d 179 (1994).
1. The Statutes
Section 5--5--3 sets forth allowable sentencing dispositions
and expressly permits the trial court to combine sentencing
options for a single offense:
"(a) Every person convicted of an offense
shall be sentenced as provided in this
Section.
(b) The following options shall be
appropriate dispositions, alone or in
combination, for all felonies and
misdemeanors other than those identified in
subsection (c) of this Section:
(1) A period of probation;
* * *
(4) A term of imprisonment."
(Emphasis added.) 730 ILCS 5/5--5--3 (West
1994).
The sections of the Code pertaining to concurrent and
consecutive sentencing neither expressly authorize nor prohibit
imposing prison and probation consecutively. Section 5--6--2
addresses probation and provides that multiple terms of probation
imposed contemporaneously must run concurrently. 730 ILCS 5/5--
6--2(b) (West 1994). Section 5--8--4 concerns prison terms and
provides that multiple sentences of imprisonment imposed
contemporaneously may not be consecutive "unless, having regard
to the nature and circumstances of the offense and the history
and character of the defendant, [the court] is of the opinion
that such a term is required to protect the public from further
criminal conduct by the defendant." 730 ILCS 5--8--4(b) (West
1994).
2. The Caselaw
In People v. Wendt, the defendant was convicted of two Class
1 and two Class 2 felonies. She was sentenced to concurrent 5-
year sentences for 3 of the offenses and a consecutive, 30-month
period of probation for one of the Class 2 felonies. On appeal,
she argued that because sections 5--8--4 and 5--6--2(b) did not
expressly authorize consecutive prison-probation sentencing, the
trial court had exceeded its authority.
The court rejected Wendt's argument. The court found
express authority for combining the two sentencing options in
section 5--5--3 and no rational basis to preclude imposing them
consecutively. The court reasoned that if the legislature had
intended to prohibit consecutive prison-probation sentences, it
would have said so in section 5--6--2 or 5--8--4. Wendt, 163 Ill. 2d at 353-54, 645 N.E.2d at 183. Neither section prohibits
such sentencing. Moreover, the court found that the consecutive
probation sentence imposed for Wendt was consistent with criteria
for imposing consecutive prison sentences under section 5--8--4.
Wendt, 163 Ill. 2d at 355, 645 N.E.2d at 183. The court further
noted that the consecutive sentences did not increase the penalty
for any of the charges. Wendt, 163 Ill. 2d at 355, 645 N.E.2d at
183 (overruling People v. Mack, 133 Ill. App. 3d 788, 479 N.E.2d 445 (2nd Dist. 1985)).
Finally, the court found that the trial court's sentencing
decision was supported both in the constitutional mandate to
fashion sentences with a goal toward rehabilitation (Ill. Const.
1970, art. I,  11) and in section 5--6--1(a) of the Code (730
ILCS 5/5--6--1(a) (West 1994)), which emphasizes the goal of
rehabilitation. Wendt, 163 Ill. 2d at 352, 645 N.E.2d at 182.
Accordingly, the court affirmed the sentences as imposed.
Subsequently, in Patterson, the trial court imposed a
consecutive prison-probation sentence for a single offense.
Rejecting the State's argument that both sentencing options could
be imposed consecutively pursuant to Wendt, the appellate court
confined Wendt to cases involving multiple convictions. Turning
to the Code, the court observed that there was:
"nothing in the *** Code *** to prohibit a
sentence for a single offense that includes
both imprisonment and probation pursuant to
section 5--5--3(b)."
However, the court found that section 5--8--4 implicitly
prohibits imposing both sentencing options consecutively for a
single offense. Without further explanation, the court concluded
that:
"[w]hen a defendant is sentenced for a single
offense, the imposition of consecutive
sentence options constitutes an unauthorized
increase in the penalty for such offense."
Patterson, 276 Ill. App. 3d at 110, 658 N.E.2d at 508.
3. Our Analysis
We cannot subscribe to the rationale or the holding of
Patterson. In our opinion, sections 5--5--3(b) and 5--6--2(b)
authorize imposing probation consecutive to imprisonment for a
single offense for precisely the same reasons that those sections
authorize such sentencing for multiple offenses. See Wendt, 163 Ill. 2d at 354, 645 N.E.2d at 183. Patterson noted that section
5--5--3 allows combining prison and probation for a single
offense but did not find that the two options could run
consecutively. In reaching its conclusion, the court ignored
Wendt's clear statement that there is no provision in the Code
that prohibits imposing probation consecutive to a simultaneously
imposed term of imprisonment. Wendt, 163 Ill. 2d at 354, 645 N.E.2d at 183. As noted in Wendt, section 5--8--4 is entitled,
"Concurrent and consecutive terms of imprisonment." It is no
more controlling when a prison-probation sentence is imposed for
a single offense than it is when prison-probation sentences are
imposed for multiple offenses. See Wendt, 163 Ill. 2d at 354-55,
645 N.E.2d at 183.
Moreover, we do not agree with Patterson's holding that
imprisonment and a consecutive probationary period necessarily
increases the penalty for a single offense. Certainly, the
penalty is not increased if, as in this case, both aspects of the
sentence can be served within the maximum authorized term of
imprisonment. Cf. Fitzsimmons v. Norgle, 104 Ill. 2d 369, 472 N.E.2d 802 (1984); see also Wendt, 163 Ill. 2d at 355, 645 N.E.2d
at 183-84.
In an appropriate case, a prison-probation sentence may be
the most effective way of addressing the dual sentencing goals of
rehabilitating the defendant while still protecting society from
his criminal conduct. See People v. Wendt, 245 Ill. App. 3d at
444-45, 613 N.E.2d at 835-36. Particularly where, as here, the
defendant faces a potentially lengthy prison sentence and
probation alone would be inconsistent with the ends of justice,
we see no reason why the court may not impose the sentencing
options consecutively for an aggregate period within the maximum
allowable prison term for the offense. Accordingly, we reject
Patterson and conclude that the trial court did not exceed its
authority in sentencing defendant to imprisonment with a
consecutive period of probation. See Wendt, 163 Ill. 2d at 355,
645 N.E.2d at 183.
Defendant also argues that he is entitled to relief from
probation because he was not admonished of the possibility of
consecutive sentencing options pursuant to Supreme Court Rule
402(a)(2) (134 Ill. 2d R. 402(a)(2)). This point is not well
taken.
First, defendant waived any defect in the Rule 402
admonishments by failing to move to withdraw his guilty plea.
People v. Clark, 276 Ill. App. 3d 1002, 659 N.E.2d 421 (1995).
Moreover, it is well established that Rule 402 requires
substantial, not literal, compliance with the required
admonitions. People v. McCoy, 74 Ill. 2d 398, 385 N.E.2d 696
(1979). Where the trial court's failure to explain the
possibility of consecutive sentences does not prejudice the
defendant, he is not entitled to sentencing relief. People v.
Baker, 133 Ill. App. 3d 620, 479 N.E.2d 372 (1985); see also
People v. Gazelle, 165 Ill. 2d 93, 649 N.E.2d 381 (1995).
In this case, the period of defendant's aggregate sentence
falls well within the prison term cap defendant agreed to when he
pleaded guilty. Defendant has not shown how he was prejudiced by
the court's failure to admonish him of the possibility of a
disposition composed of two consecutive sentencing options.
Accordingly, defendant is not entitled to relief from his
sentence.
CONCLUSION
For the reasons stated, we affirm the judgment of the
circuit court of Tazewell County.
Affirmed.
McCUSKEY and SLATER, JJ., concurred.