People v. Patton
Annotate this Case
No. 3--97--0174
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1998
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 10th Judicial Circuit,
) Tazewell County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 94--CF--92
)
MARK D. PATTON, ) Honorable
) Scott A. Shore,
Defendant-Appellant. ) Judge Presiding
________________________________________________________________
JUSTICE LYTTON delivered the opinion of the court:
________________________________________________________________
Pursuant to a partially negotiated agreement, defendant Mark
D. Patton pleaded guilty to one count of burglary (720 ILCS 5/19-
-1 (West 1994)), and another burglary charge was dismissed. He
was sentenced to an extended term of 14 years' imprisonment by
Circuit Judge Robert Cashen. Defendant filed a motion to
reconsider sentence, which was denied. He appealed, and this
court remanded the cause for compliance with the attorney's
certificate requirement of Supreme Court Rule 604(d) (145 Ill. 2d
R. 604(d)). Defendant's amended motion to reconsider was
subsequently denied by Circuit Judge Scott Shore.
In this appeal, defendant argues that (1) the court erred in
denying his request to schedule the hearing on his amended motion
to reconsider before Judge Cashen; and (2) his 14-year sentence
should be ordered to run concurrently with the unserved portion
of prison sentences previously imposed by the State of Missouri.
We affirm.
FACTS
The record shows that defendant was serving a 35-year
sentence for assault with intent to kill with malice aforethought
when he escaped from a Jackson County, Missouri, correctional
facility on August 14, 1993. While still a resident of the
Missouri correctional facility, defendant was also convicted of
delivery/possession of drugs, for which he received a five-year
sentence to be served consecutively to the sentence for assault.
Defendant remained free until his arrest for the Tazewell County,
Illinois, burglaries in this case.
Prior to sentencing, defendant moved for a continuance so
that he could return to Missouri to face escape charges.
However, Judge Cashen denied the request and further refused to
order that defendant's Illinois sentence be served concurrently
with the remainder of the terms previously imposed in Missouri.
Judge Cashen then imposed the maximum extended-term prison
sentence and subsequently denied defendant's motion to
reconsider.
After defendant's first appeal was remanded, defendant
amended his motion to reconsider sentence, and the cause was set
for a hearing before Judge Scott Shore. Defendant requested that
the motion be heard by Judge Cashen. However, Judge Cashen had
been transferred out of Tazewell County, and the chief judge of
the circuit had assigned Cashen's cases to Judge Shore.
Accordingly, Judge Shore denied defendant's request to reschedule
the cause for a hearing before Judge Cashen.
In his amended motion to reconsider sentence, defendant
renewed his request that the Illinois sentence be ordered to run
concurrently with the remainder of his Missouri sentences.
Defendant introduced evidence establishing that under Missouri
law, his escape interrupted the sentence he was serving until
such time as he returned to a correctional facility in Missouri.
Defendant had six years and eight months left to serve on
sentences imposed in that state. Judge Shore denied defendant's
motion.
I.
REQUEST FOR HEARING BEFORE JUDGE CASHEN
On appeal, defendant argues that the court violated Supreme
Court Rule 604(d) (145 Ill. 2d R. 604(d)) by refusing to schedule
his amended motion for reconsidation to be heard by Judge Cashen.
Defendant contends that the Rule requires the original sentencing
judge to review his own sentencing decision on a motion to
reconsider unless he is unavailable, that is, dead or retired.
Judge Cashen was neither; therefore, defendant reasons, Judge
Cashen was not unavailable and should have heard defendant's
motion.
The Rule provides that a motion to reconsider sentence
"shall be presented promptly to the trial
judge by whom the defendant was sentenced,
and if that judge is then not sitting in the
court in which the judgment was entered, then
to the chief judge of the circuit, or to such
other judge as the chief judge shall
designate." 145 Ill. 2d R. 604(d).
In an analogous situation, our supreme court ruled that a judge
who was assigned to another county after sentencing a defendant
to probation was "no longer sitting as a judge in that court" for
subsequent probation revocation proceedings. People v. Easley,
119 Ill. 2d 535, 519 N.E.2d 914 (1988) (construing section 5--4--
1(b) of the Unified Code of Corrections (the Code) (730 ILCS 5/5-
-4--1(b) (West 1996)). In Easley, as here, the defendant argued
that a judge who was merely assigned to another court was still
"sitting" in the circuit and therefore required to preside over
subsequent proceedings in the same cause. The court disagreed,
holding that the statutory language referred to the particular
division of the particular county court in which the defendant's
trial was held. Easley, 119 Ill. 2d at 539, 519 N.E.2d at 915.
Defendant correctly notes that Rule 604(d), like section 5--
4--1 of the Code, indicates a strong preference for having the
same judge who presided at the guilt phase of a cause rule over
subsequent sentencing proceedings. However, the principle that
trial courts are required to strictly comply with the mandates of
the Rule (see People v. Wilk, 124 Ill. 2d 93, 529 N.E.2d 218
(1988); People v. Reed, 213 Ill. App. 3d 855, 572 N.E.2d 437
(1991)) lends no support to defendant's position. The plain
language of the Rule allows for a different judge to hear post-
plea motions when the original sentencing judge has been
transferred to another court within the circuit. To construe the
Rule as defendant suggests not only strains the language of the
Rule, but would impede efficient court administration or result
in absurd consequences by requiring judges to travel across the
circuit for a single post-plea hearing. See Easley, 119 Ill. 2d 535, 519 N.E.2d 914.
A judge who has been transferred to a different court before
a defendant's motion to reconsider sentence is heard is "then not
sitting in the court in which the judgment was entered."
Accordingly, the trial court did not err in denying defendant's
request to reschedule his amended motion for a hearing before
Judge Cashen.
II.
REQUEST FOR CONCURRENT SENTENCING
Next, defendant argues that his 14-year sentence in this
case should be ordered to run concurrently with the remainder of
his Missouri sentence. Defendant contends that since Judge
Cashen did not specify that his Illinois and Missouri sentences
should run consecutively, they are required to run concurrently.
Defendant's argument presumes that he is subject to a prison
sentence in Missouri and hinges on the provision that
"[s]entences shall run concurrently unless otherwise specified by
the court." 730 ILCS 5/5--8--4(a) (West 1996).
A closer look at section 5--8--4(a) in conjunction with
Missouri law reveals the fallacy of defendant's argument.
Section 5--8--4(a) provides in relevant part that
"when a term of imprisonment is imposed on a
defendant who is already subject to sentence
*** in another state *** the sentences shall
run concurrently or consecutively as
determined by the court." (Emphasis added.)
730 ILCS 5/5--8--4(a) (West 1996).
Section 5--8--4(a) would apply if a sentence which was previously
imposed in Missouri could potentially be served concurrently with
an Illinois prison sentence. However, under Missouri law, a
defendant's escape from prison "interrupts" his sentence until he
returns to a correctional facility in Missouri. Mo. Rev. Stat.
558.031.4 (1986). Until the escapee returns to a Missouri
correctional facility, he is not "subject to sentence" in
Missouri and there is no Missouri sentence to run concurrently
with an Illinois sentence. It is ultimately up to Missouri to
determine whether a Missouri escapee's subsequent imprisonment in
Illinois may be used to offset any unserved portion of a prison
term previously imposed in Missouri. See State v. Cooksey, 830 S.W.2d 421 (Mo. 1992).
In this case, defendant's escape from the Missouri
correctional facility interrupted his sentence effective August
14, 1993, such that he was not "subject to sentence" in Missouri
when he was sentenced in Illinois. Therefore, section 5--8--4(a)
of the Code was not applicable, and the trial court properly
declined to order that defendant's 14-year sentence run either
concurrently or consecutively with the unserved Missouri terms.
CONCLUSION
The judgment of the circuit court of Tazewell County is
affirmed.
Affirmed.
KOEHLER and SLATER, JJ., concur.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1998
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 10th Judicial Circuit,
) Tazewell County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 94--CF--92
)
MARK D. PATTON, ) Honorable
) Scott A. Shore,
Defendant-Appellant. ) Judge Presiding
________________________________________________________________
JUSTICE LYTTON delivered the opinion of the court:
________________________________________________________________
Pursuant to a partially negotiated agreement, defendant Mark
D. Patton pleaded guilty to one count of burglary (720 ILCS 5/19-
-1 (West 1994)), and another burglary charge was dismissed. He
was sentenced to an extended term of 14 years' imprisonment by
Circuit Judge Robert Cashen. Defendant filed a motion to
reconsider sentence, which was denied. He appealed, and this
court remanded the cause for compliance with the attorney's
certificate requirement of Supreme Court Rule 604(d) (145 Ill. 2d
R. 604(d)). Defendant's amended motion to reconsider was
subsequently denied by Circuit Judge Scott Shore.
In this appeal, defendant argues that (1) the court erred in
denying his request to schedule the hearing on his amended motion
to reconsider before Judge Cashen; and (2) his 14-year sentence
should be ordered to run concurrently with the unserved portion
of prison sentences previously imposed by the State of Missouri.
We affirm.
FACTS
The record shows that defendant was serving a 35-year
sentence for assault with intent to kill with malice aforethought
when he escaped from a Jackson County, Missouri, correctional
facility on August 14, 1993. While still a resident of the
Missouri correctional facility, defendant was also convicted of
delivery/possession of drugs, for which he received a five-year
sentence to be served consecutively to the sentence for assault.
Defendant remained free until his arrest for the Tazewell County,
Illinois, burglaries in this case.
Prior to sentencing, defendant moved for a continuance so
that he could return to Missouri to face escape charges.
However, Judge Cashen denied the request and further refused to
order that defendant's Illinois sentence be served concurrently
with the remainder of the terms previously imposed in Missouri.
Judge Cashen then imposed the maximum extended-term prison
sentence and subsequently denied defendant's motion to
reconsider.
After defendant's first appeal was remanded, defendant
amended his motion to reconsider sentence, and the cause was set
for a hearing before Judge Scott Shore. Defendant requested that
the motion be heard by Judge Cashen. However, Judge Cashen had
been transferred out of Tazewell County, and the chief judge of
the circuit had assigned Cashen's cases to Judge Shore.
Accordingly, Judge Shore denied defendant's request to reschedule
the cause for a hearing before Judge Cashen.
In his amended motion to reconsider sentence, defendant
renewed his request that the Illinois sentence be ordered to run
concurrently with the remainder of his Missouri sentences.
Defendant introduced evidence establishing that under Missouri
law, his escape interrupted the sentence he was serving until
such time as he returned to a correctional facility in Missouri.
Defendant had six years and eight months left to serve on
sentences imposed in that state. Judge Shore denied defendant's
motion.
I.
REQUEST FOR HEARING BEFORE JUDGE CASHEN
On appeal, defendant argues that the court violated Supreme
Court Rule 604(d) (145 Ill. 2d R. 604(d)) by refusing to schedule
his amended motion for reconsidation to be heard by Judge Cashen.
Defendant contends that the Rule requires the original sentencing
judge to review his own sentencing decision on a motion to
reconsider unless he is unavailable, that is, dead or retired.
Judge Cashen was neither; therefore, defendant reasons, Judge
Cashen was not unavailable and should have heard defendant's
motion.
The Rule provides that a motion to reconsider sentence
"shall be presented promptly to the trial
judge by whom the defendant was sentenced,
and if that judge is then not sitting in the
court in which the judgment was entered, then
to the chief judge of the circuit, or to such
other judge as the chief judge shall
designate." 145 Ill. 2d R. 604(d).
In an analogous situation, our supreme court ruled that a judge
who was assigned to another county after sentencing a defendant
to probation was "no longer sitting as a judge in that court" for
subsequent probation revocation proceedings. People v. Easley,
119 Ill. 2d 535, 519 N.E.2d 914 (1988) (construing section 5--4--
1(b) of the Unified Code of Corrections (the Code) (730 ILCS 5/5-
-4--1(b) (West 1996)). In Easley, as here, the defendant argued
that a judge who was merely assigned to another court was still
"sitting" in the circuit and therefore required to preside over
subsequent proceedings in the same cause. The court disagreed,
holding that the statutory language referred to the particular
division of the particular county court in which the defendant's
trial was held. Easley, 119 Ill. 2d at 539, 519 N.E.2d at 915.
Defendant correctly notes that Rule 604(d), like section 5--
4--1 of the Code, indicates a strong preference for having the
same judge who presided at the guilt phase of a cause rule over
subsequent sentencing proceedings. However, the principle that
trial courts are required to strictly comply with the mandates of
the Rule (see People v. Wilk, 124 Ill. 2d 93, 529 N.E.2d 218
(1988); People v. Reed, 213 Ill. App. 3d 855, 572 N.E.2d 437
(1991)) lends no support to defendant's position. The plain
language of the Rule allows for a different judge to hear post-
plea motions when the original sentencing judge has been
transferred to another court within the circuit. To construe the
Rule as defendant suggests not only strains the language of the
Rule, but would impede efficient court administration or result
in absurd consequences by requiring judges to travel across the
circuit for a single post-plea hearing. See Easley, 119 Ill. 2d 535, 519 N.E.2d 914.
A judge who has been transferred to a different court before
a defendant's motion to reconsider sentence is heard is "then not
sitting in the court in which the judgment was entered."
Accordingly, the trial court did not err in denying defendant's
request to reschedule his amended motion for a hearing before
Judge Cashen.
II.
REQUEST FOR CONCURRENT SENTENCING
Next, defendant argues that his 14-year sentence in this
case should be ordered to run concurrently with the remainder of
his Missouri sentence. Defendant contends that since Judge
Cashen did not specify that his Illinois and Missouri sentences
should run consecutively, they are required to run concurrently.
Defendant's argument presumes that he is subject to a prison
sentence in Missouri and hinges on the provision that
"[s]entences shall run concurrently unless otherwise specified by
the court." 730 ILCS 5/5--8--4(a) (West 1996).
A closer look at section 5--8--4(a) in conjunction with
Missouri law reveals the fallacy of defendant's argument.
Section 5--8--4(a) provides in relevant part that
"when a term of imprisonment is imposed on a
defendant who is already subject to sentence
*** in another state *** the sentences shall
run concurrently or consecutively as
determined by the court." (Emphasis added.)
730 ILCS 5/5--8--4(a) (West 1996).
Section 5--8--4(a) would apply if a sentence which was previously
imposed in Missouri could potentially be served concurrently with
an Illinois prison sentence. However, under Missouri law, a
defendant's escape from prison "interrupts" his sentence until he
returns to a correctional facility in Missouri. Mo. Rev. Stat.
558.031.4 (1986). Until the escapee returns to a Missouri
correctional facility, he is not "subject to sentence" in
Missouri and there is no Missouri sentence to run concurrently
with an Illinois sentence. It is ultimately up to Missouri to
determine whether a Missouri escapee's subsequent imprisonment in
Illinois may be used to offset any unserved portion of a prison
term previously imposed in Missouri. See State v. Cooksey, 830 S.W.2d 421 (Mo. 1992).
In this case, defendant's escape from the Missouri
correctional facility interrupted his sentence effective August
14, 1993, such that he was not "subject to sentence" in Missouri
when he was sentenced in Illinois. Therefore, section 5--8--4(a)
of the Code was not applicable, and the trial court properly
declined to order that defendant's 14-year sentence run either
concurrently or consecutively with the unserved Missouri terms.
CONCLUSION
The judgment of the circuit court of Tazewell County is
affirmed.
Affirmed.
KOEHLER and SLATER, JJ., concur.
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