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The defendant, charged with the attempted robbery death of a cab driver, agreed to plead guilty and receive a 28-year sentence on the charge of first degree murder and a 4-year sentence on the charge of possession of contraband while in a penal institution, to be served consecutively. Before accepting defendant’s plea, the trial court admonished him that the sentencing range was 20 to 60 years’ imprisonment. The state presented a factual basis for both pleas that included use of a gun. After sentencing the court denied a motion to vacate the plea. The appellate court reversed, reasoning that defendant was subject to a mandatory 15-year enhancement for being armed with a gun, so that the mandatory minimum sentence was 35 years. The Illinois Supreme Court affirmed and remanded for trial, stating that the trial court could not impose a sentence that did not include the enhancement.Receive FREE Daily Opinion Summaries by Email
Docket No. 109616.
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
PIERRE WHITE, Appellee.
Opinion filed June 16, 2011.
JUSTICE BURKE delivered the judgment of the court, with
Chief Justice Kilbride and Justices Freeman, Thomas, Garman,
and Karmeier concurred in the judgment and opinion.
Justice Theis specially concurred, with opinion.
In this case, we address the following question: When the factual
basis entered for a guilty plea makes it clear that a defendant is
subject to a mandatory sentencing enhancement, may the trial court
enter judgment imposing a sentence that does not include the
enhancement on the basis that the enhancement was excluded by the
parties from the plea agreement? The appellate court answered this
question in the negative and held that, because a mandatory
sentencing enhancement was not included in defendant’s sentence in
this case, the sentence and plea were void. No. 1–07–2102
(unpublished order under Supreme Court Rule 23). For the reasons
that follow, we affirm the judgment of the appellate court.
Defendant Pierre White was charged with three counts of first
degree murder, one count of armed robbery and one count of
attempted armed robbery in connection with the November 6, 2004,
armed robbery and murder of Karim Ally, a taxi cab driver. In
November 2006, following the trial court’s denial of defendant’s first
motion to quash arrest and suppress evidence, defense counsel told
the court, “the State and I are attempting to resolve the case short of
trial.” On January 23, 2007, defense counsel stated, “Judge, I had
asked the State if they would make an offer. They wanted to reach out
to the family of the victim. They have not done that.”
In February 2007, the State offered defendant a 30-year sentence
in exchange for a plea of guilty to first degree murder, which
defendant rejected. Additional attempts to resolve the matter failed
and the case was set for trial on April 30, 2007. The court continued
the case to June 12, 2007. And on that date, defense counsel advised
the court that the State had made an offer, which defendant accepted.
Under the terms of this offer, defendant would plead guilty and
receive a 28-year sentence on the charge of first degree murder and
a 4-year sentence on the charge of possession of contraband while in
a penal institution, to be served consecutively.1
Prior to accepting defendant’s plea, the trial court admonished
defendant in accordance with Supreme Court Rule 402. In doing so,
the court advised defendant, in pertinent part, that he was charged
with first degree murder and that the sentencing range for this offense
was 20 to 60 years’ imprisonment. After defendant acknowledged the
rights he was waiving and stated his desire to proceed, the State
presented a factual basis for both pleas.
The State offered the following as the factual basis for first degree
“[I]t would be hereby stipulated to by and between the parties
that the victim in this case, Karim Ally, *** was a taxi driver
and on November 6, 2004 was alive and well and was 48
years of age.
Defendant was charged with possession of contraband while in custody
awaiting trial on the murder and robbery charges.
At approximately 11:10 that evening he did pick up the
defendant, *** whom would be identified in court by other
witnesses as being in Karim Ally’s cab along with a cohort by
the name of Huzell Washington ***.
Both the defendant and Huzell Washington planned to rob
the victim, Karim Ally. And prior to getting into Karim Ally’s
cab, they were in a different person’s cab, a person by the
name of William Wesley. William Wesley would also
identify the defendant in open court as having been in his cab
prior to getting into Karim Ally’s cab along with Huzell
Once in Karim Ally’s cab, the–they had planned to rob the
victim. And the defendant admitted in a videotaped
confession that he was acting as a lookout and looking outside
of the cab for police to drive up.
When Karim Ally brought them to their destination at
6350 South King Drive, both the defendant and Huzell
Washington exited the cab and the victim was shot in the
temple one time with a handgun.
The defendant, in a videotaped confession, does not state
that he is the shooter, however, does admit to taking the gun
from Mr. Huzell Washington after the incident and putting it
in his back pocket.
They both go to Patricia Jones’ home, and Patricia Jones
is Huzell Washington’s girlfriend, who would identify the
defendant in open court as arriving at her apartment with her
boyfriend, Huzell Washington. She would identify the
defendant was wearing a White Sox jacket when he entered
into her home.
Both the defendant and Huzell Washington both then left
from the apartment and upon leaving the apartment, Mr. John
Edwards, who was working security in that area, stopped the
defendant because the defendant was trying to exit from a
Mr. John Edwards did a protective pat-down and did
recover a weapon from the defendant. That weapon, it would
be testified to by an Illinois State Police Forensic Scientist by
the name of Jennifer Alber. She would be qualified to testify
in the area of ballistics, and she would testify that the weapon
that was recovered from the defendant did match the one fired
bullet that was recovered from the victim’s body.
Further, there was GSR testing conducted on the White
Sox jacket that was recovered from Huzell Washington’s
girlfriend’s home, and that jacket was tested for GSR by
Robert Berke, and he would be qualified to testify as an
expert in the field of, I guess ballistics also, Judge. And he
would testify that the right cuff of that Sox jacket did contact
the PGSR related item or was in the environment of a
Further, Judge, Dr. Adrienne Segovia *** would testify
that she was the medical examiner who conducted the autopsy
on the body of the victim, Karim Ally. *** And after
conducting an autopsy, it would be her opinion, within a
reasonable degree of medical and scientific certainty, that the
victim did die as a result of a gunshot wound of the head.”
The State then offered a factual basis for the possession charge.
The trial court accepted the pleas and the State nol-prossed the
remaining counts against defendant. Thereafter, the trial court
sentenced defendant to 28 years’ imprisonment for murder and 4
years’ imprisonment for possession of contraband, in accordance with
the plea agreement.
On June 18, defendant, through his attorney, orally moved to
withdraw the guilty plea on the basis that it was involuntary. Counsel
argued that defendant did not fully understand the implications of his
decision and he had been rushed into making a decision. The State
objected, arguing that defendant should file a written motion and the
State be given an opportunity to respond. The trial court allowed the
State’s request and deferred ruling until a written motion was filed.
On June 21, defendant filed a written motion to vacate his guilty
plea. In addition to arguing that he did not understand the implication
of pleading guilty, defendant also argued that he was not properly
admonished about the sentencing range. Specifically, defendant
alleged that he was subject to the 15-year mandatory firearm
enhancement provision (730 ILCS 5/5–8–1(a)(1)(d)(I) (West 2004))
for being armed with a firearm, making the actual sentence range 35
to 75 years, not 20 to 60 years. Thus, defendant argued that the 28year sentence he received was not authorized by statute and,
therefore, was void. Accordingly, the plea agreement had to be
At the hearing on this motion, the State maintained that the
factual basis for the plea did not include a statement that the
defendant himself was armed with a firearm and that the trial court
had not made a specific finding to that effect. Thus, according to the
State, the statutory enhancement was not triggered and the 20-to-60year sentencing admonishment was correct.
The trial court denied defendant’s motion. It found that the 15year sentencing enhancement provision did not apply to defendant
because he was found guilty on a theory of accountability. However,
the court reasoned that, even if the enhancement did apply to
defendant, defendant was not prejudiced by his plea.
Defendant appealed, again arguing that his sentence was void.
The appellate court reversed and remanded. No. 1–07–2102
(unpublished order under Supreme Court Rule 23). Citing to People
v. Rodriguez, 229 Ill. 2d 285 (2008), the appellate court found that the
15-year enhancement provision applies to a defendant whose guilt is
based on accountability, as was the case here, but that defendant was
neither admonished of the 15-year enhancement nor sentenced to it.
Pursuant to People v. Torres, 228 Ill. 2d 382 (2008), the appellate
court concluded that defendant’s sentence must be vacated because
it fell below the permissible minimum 35 years mandated by statute.
By failing to properly sentence defendant, the trial court exceeded its
statutory authority and the sentence was void.
The appellate court rejected the State’s argument that the trial
court was required to make an additional factual finding to impose the
15-year sentencing enhancement under Apprendi v. New Jersey, 530
U.S. 466 (2000). Relying on People v. Townsell, 209 Ill. 2d 543
(2004), the appellate court concluded that Apprendi-based sentencing
objections cannot be heard on appeal from a guilty plea.
The appellate court ruled that defendant’s void sentence
invalidated the entire plea agreement and remanded the cause so that
defendant could withdraw his plea and proceed to trial, if he so chose.
We granted the State’s petition for leave to appeal. Ill. S. Ct. R.
315 (eff. Feb. 26, 2010).
Under Supreme Court Rule 402, a trial court cannot enter a final
judgment on a plea of guilty without first determining that there is a
factual basis for the plea. Ill. S. Ct. R. 402 (eff. July 1, 1997). The
factual basis for a guilty plea generally will consist of an express
admission by the defendant that he committed the acts alleged in the
indictment or a recital to the court of the evidence that supports the
allegations in the indictment. People v. Brazee, 316 Ill. App. 3d 1230,
1236 (2000). “The plea obviates the prosecution’s burden of proof.
‘ “It supplies both evidence and verdict, ending controversy.” ’
Boykin v. Alabama, 395 U.S. 238, 242 n.4, 23 L. Ed. 2d 274, 279 n.4,
89 S. Ct. 1709, 1712 n.4 (1969), quoting Woodard v. State, 42 Ala.
App. 552, 558, 171 So. 2d 462, 469 (1965).” People v. Guttendorf,
309 Ill. App. 3d 1044, 1046 (2000). In this case, the factual basis
offered by the State in support of defendant’s plea of guilty to first
degree murder established that the victim died of a gunshot wound to
the head and that there was sufficient evidence to find defendant
guilty of the murder on a theory of accountability.
Section 5–8–1 of the Unified Code of Corrections sets forth the
sentencing range for first degree murder:
“(a) Except as otherwise provided in the statute defining
the offense, a sentence of imprisonment for a felony shall be
a determinate sentence set by the court under this Section,
according to the following limitations:
(1) for first degree murder,
(a) a term shall be not less than 20 years and not
more than 60 years[.]” 730 ILCS 5/5–8–1 (West
Section 5–8–1 also contains a provision requiring the imposition of
an enhanced sentence where a firearm is used in the offense:
“(d)(I) if the person committed the offense while armed
with a firearm, 15 years shall be added to the term of
imprisonment imposed by the court.” 730 ILCS 5/5–8–1
(a)(1)(d)(i) (West 2004).
In the case at bar, the trial court did not impose the 15-year
sentencing enhancement largely because it believed that the
enhancement did not apply where guilt is predicated on
accountability. As the State concedes, however, this is incorrect. In
Rodriguez, we held that section 5–8–1(a)(1)(d)(I) applies to a
defendant who aids and abets another in the commission of first
degree murder, which renders the defendant accountable for all
criminal acts done in furtherance of that crime, including being armed
with a firearm. Rodriguez, 229 Ill. 2d at 294. Because the sentencing
enhancement was triggered, defendant was subject to the mandatory
minimum sentence of 35 years’ imprisonment, which is more than the
28 years he received. The State argues, however, that the trial court
had the authority to impose the 28-year sentence, which defendant
agreed to. We disagree.
Once a trial court accepts a plea of guilty, it is the duty of the
court to fix punishment. People v. Davis, 93 Ill. 2d 155, 161 (1982);
People v. Wilson, 396 Ill. 191, 192 (1947). We have “repeatedly
recognized that the legislature has the power to prescribe penalties for
defined offenses, and that power necessarily includes the authority to
prescribe mandatory sentences, even if such sentences restrict the
judiciary’s discretion in imposing sentences.” People v. Huddleston,
212 Ill. 2d 107, 129 (2004). A court does not have authority to impose
a sentence that does not conform with statutory guidelines (People v.
Whitfield, 228 Ill. 2d 502, 511 (2007); People v. Wade, 116 Ill. 2d 1,
6 (1987)) and a court exceeds it authority when it orders a lesser or
greater sentence than that which the statute mandates (Wade, 116 Ill.
2d at 7). See also People v. Pullen, 192 Ill. 2d 36, 40 (2000). In such
a case, the defendant’s sentence is illegal and void. People v. Arna,
168 Ill. 2d 107, 113 (1995) (“A sentence which does not conform to
a statutory requirement is void). See also People v. Harris, 203 Ill. 2d
111, 119-21 (2003); Pullen, 192 Ill. 2d at 40; City of Chicago v.
Roman, 184 Ill. 2d 504, 510 (1998); People v. Williams, 179 Ill. 2d
331, 336 (1997).
Under the Unified Code of Corrections, the legislature has
imposed specific requirements upon circuit courts with respect to the
imposition of enhanced sentences when firearms are used in the
commission of first degree murder. The circuit court is responsible
for enforcing these requirements and imposing the appropriate
sentence. People ex rel. Waller v. McKoski, 195 Ill. 2d 393, 399-401
(2001). Here, defendant’s sentence did not conform to the statutory
requirements and, therefore, is void. And, because defendant was not
properly admonished, the entire plea agreement is void as well.
The State maintains, however, that defendant’s sentence and plea
are not void because the State and defendant agreed to a “reduced
murder charge” or a “lesser degree” of murder, i.e., murder that did
not include the sentencing enhancement. According to the State, the
intent of the parties controls and, thus, the 15-year enhancement does
Defendant disputes the State’s characterization as to what the
parties agreed to. However, we need not resolve this dispute because
the State’s contention that the intent of the parties controls is
incorrect. “Even when a defendant, prosecutor, and court agree on a
sentence, the court cannot give the sentence effect if it is not
authorized by law.” United States v. Greatwalker, 285 F.3d 727, 730
(8th Cir. 2002); People v. Jackson, 176 Cal. Rptr. 166, 170 (Cal. Ct.
App. 1981). See also Sumner v. State, 643 S.E.2d 831, 835 (Ga. Ct.
App. 2007); State v. Hines, 07–313, at 3 (La. App. 5 Cir. 11/27/07);
Mobley v. State, 939 So. 2d 213, 214 (Fla. Dist. Ct. App. 2006) (per
curiam); State v. Crawford, 877 A.2d 356, 360 (N.J. Super. Ct. App.
Div. 2005); Tucker v. State, 864 So. 2d 580, 581 (Fla. Dist. Ct. App.
2004); Chae v. People, 780 P.2d 481 487 (Colo. 1989); People v.
West, 436 N.Y.S.2d 424, 425 (N.Y. App. Div. 1981). See also People
v. Torres, 228 Ill. 2d 382, 398 (2008) (noting that a defendant “could
not have negotiated a lesser sentence given that the 45-year sentence
he received was the minimum possible under the sentencing scheme”
The State argues, nonetheless, that because it has discretion to
decide which offense to charge and, indeed, whether to charge at all,
it has the authority to negotiate the “unenhanced” sentence here. As
an analogy, the State points out that it could offer a defendant charged
with armed robbery a plea agreement on simple robbery.
We do not dispute that “the State’s Attorney is endowed with the
exclusive discretion to decide which of several charges shall be
brought, or whether to prosecute at all.” People v. Jamison, 197 Ill.
2d 135, 161 (2001). It is also true that this discretion permits the State
to enter into plea agreements wherein the State, if it so chooses, may
negotiate away the firearm element when a defendant is charged with
armed robbery. See People ex rel. Madigan v. Kinzer, 232 Ill. 2d 179,
186 (2009); People v. Eckhardt, 127 Ill. 2d 146, 151-52 (1989);
People ex rel. Carey v. Cousins, 77 Ill. 2d 531, 539 (1979). But that
is not what happened here.
In the case at bar, defendant was charged with first degree murder.
Unlike robbery and armed robbery, which are separate and distinct
offenses, first degree murder is a single offense–there is no separate
offense of “armed murder” or “enhanced murder.” As noted above,
section 5–8–1 of the Unified Code of Corrections provides in
paragraph (a)(1)(d)(I) that when a defendant is found guilty of
murder, 15 years “shall be added to the term of imprisonment
imposed by the court” based on the fact that a firearm was used in the
commission of the offense. This is a mandatory sentencing
enhancement. In enacting section 5–8–1(a)(1)(d)(I), the legislature
took away any discretion the State and trial court had to fashion a
sentence that does not include this mandatory enhancement.
Citing People v. Summers, 291 Ill. App. 3d 656 (1997), the State
also contends that, in negotiating the guilty plea, it could concede a
version of the facts which would fail to acknowledge that a firearm
was used in the commission of the offense and make sentencing
concessions based on that set of facts. The Summers principle relied
upon by the State is not relevant here. The version of the facts agreed
to by the State and presented by it in the factual basis to the court
established that a firearm was used in the commission of the offense.
Thus, in this case, the mandatory sentence enhancement was
There is one more matter that needs to be addressed. In the
appellate court, the State argued that, pursuant to Apprendi v. New
Jersey, 530 U.S. 466 (2000), the trial court had to make an actual
finding that defendant was armed with a firearm in order to trigger the
15-year enhancement. Thus, according to the State, the 28-year
sentence was not void. The appellate court rejected this argument,
concluding that Apprendi claims cannot be raised on appeal from a
guilty plea. See No. 1–07–2102 (unpublished order under Supreme
Court Rule 23). Before this court, the State abandons the argument it
made in the appellate court. It again cites Apprendi, but argues only
that the lack of a finding by the trial court is evidence that the parties
agreed defendant was pleading guilty to murder without the firearm
sentencing enhancement. However, even if the State’s argument is
correct, as we discussed above, the parties could not agree to, and the
trial court could not impose, a sentence that is not authorized by law.
In sum, we find the 28-year sentence imposed by the trial court
was not valid. Defendant pled guilty to committing the offense of first
degree murder and the factual basis provided to the court in support
of defendant’s plea made it clear that a firearm was used in the
commission of the offense. Under these circumstances, the legislature
has mandated that an additional period of 15 years must be added to
the sentence. Thus, the trial court could not impose a sentence that
did not include the 15-year mandatory enhancement. If we were to
hold that the State could negotiate a sentence without the mandatory
enhancement, it would render section 5–8–1(a)(1)(d)(I) and the
legislature’s clear intent in enacting this provision meaningless.
Because the trial court’s imposition of the 28-year sentence
pursuant to the plea agreement was void for noncompliance with
section 5–8–1(a)(1)(d)(i), we affirm the appellate court’s judgment
reversing the order denying defendant’s motion to vacate his guilty
plea. The cause is remanded to the circuit court with directions to
allow defendant to withdraw his guilty plea and proceed to trial, if he
JUSTICE THEIS, specially concurring:
The majority opinion, which I join, acknowledges that the State
has exclusive discretion to decide whether to prosecute. Slip op. at 8
(citing People v. Jamison, 197 Ill. 2d 135, 161 (2001)). That
discretion naturally includes latitude in choosing which offenses to
charge and, ultimately, how to dispose of them–by proceeding to trial,
or negotiating a guilty plea.
Plea bargaining is an important and, perhaps, the central
component of our criminal justice system. People v. Evans, 174 Ill.
2d 320, 325 (1996) (citing Bordenkircher v. Hayes, 434 U.S. 357, 361
(1978)). In 2009, more than 85% of all criminal convictions in Illinois
resulted from guilty pleas (2009 Annual Report of the Illinois Courts,
Statistical Summary 59), and the percentage is even higher in federal
court (Ana Maria Gutierrez, Comment, The Sixth Amendment: The
Operation of Plea Bargaining in Contemporary Criminal Procedure,
87 Denver U. L. Rev. 695, 709 (2010)). “If every criminal charge
were subjected to a full-scale trial, the States and the Federal
Government would need to multiply by many times the number of
judges and court facilities.” Santobello v. New York, 404 U.S. 257,
However, plea bargaining has value beyond reducing trial court
case loads. In concluding that guilty pleas did not violate the fifth
amendment, the United States Supreme Court discussed other
“[G]uilty pleas are not constitutionally forbidden, because the
criminal law characteristically extends to judge or jury a range
of choice in setting the sentence in individual cases, and
because both the State and the defendant often find it
advantageous to preclude the possibility of the maximum
penalty authorized by law. For a defendant who sees slight
possibility of acquittal, the advantages of pleading guilty and
limiting the probable penalty are obvious–his exposure is
reduced, the correctional processes can begin immediately,
and the practical burdens of a trial are eliminated. For the
State there are also advantages–the more promptly imposed
punishment after an admission of guilt may more effectively
attain the objectives of punishment; and with the avoidance of
trial, scarce judicial and prosecutorial resources are conserved
for those cases in which there is a substantial issue of the
defendant’s guilt or in which there is substantial doubt that
the State can sustain its burden of proof. It is this mutuality of
advantage that perhaps explains the fact that [a high
percentage] of the criminal convictions in this country rest on
pleas of guilty, a great many of them no doubt motivated at
least in part by the hope or assurance of a lesser penalty than
might be imposed if there were a guilty verdict after a trial to
judge or jury.” Brady v. United States, 397 U.S. 742, 751-52
Clearly, sentencing is the driving force behind the plea bargaining
process. But that process has become more challenging as the
legislature has increased penalties for certain offenses through
mandatory sentence enhancements. Section 5–8–1(a)(1)(d)(I) of the
Unified Code of Corrections adds 15 years to the sentence of a
defendant who committed first degree murder “while armed with a
firearm.” 730 ILCS 5/5–8–1(a)(1)(d)(I) (West 2008). Thus, when the
defendant has a gun, the sentencing range for first degree murder
shifts from 26 to 60 years to 35 to 75 years. The majority opinion
states that the legislature took away the State’s discretion to fashion
a plea agreement, and the trial court to impose a term of
imprisonment, below this higher range. Slip op. at 9. This court has
repeatedly observed that plea bargaining should be encouraged (see
People v. Boyt, 109 Ill. 2d 403, 416 (1985)), so the question becomes
whether the State can ever negotiate a guilty plea in this context
where the sentencing recommendation is below 35 years’
imprisonment. I believe the answer, implicit in the majority opinion,
Supreme Court Rule 402(c) provides, “The court shall not enter
final judgment on a plea of guilty without first determining that there
is a factual basis for the plea.” Ill. S. Ct. R. 402(c) (eff. July 1, 1997).
Here, as the majority opinion notes, “The version of the facts agreed
to by the State and presented by it in the factual basis to the court
established that a firearm was used in the commission of the offense.”
Slip op. at 9. According to the majority opinion, the factual basis
triggered section 5–8–1(a)(1)(d)(I).
The majority opinion briefly discusses People v. Summers, 291
Ill. App. 3d 656, 657 (1997), where the appellate court held that the
State could “legitimately concede” a version of the defendant’s
conduct that would result in concurrent sentences, rather than
mandatory consecutive sentences. According to the majority opinion,
the so-called Summers principle remains inapplicable here because
the State presented a factual basis for the defendant’s plea that
established a firearm was used in the commission of this offense, thus
triggering the 15-year mandatory sentence enhancement. Slip op. at
People v. Keller, 353 Ill. App. 3d 830 (2004), is more
illuminating. In Keller, the defendant was charged with armed
robbery. The sentencing range for that offense is 6 to 30 years (see
730 ILCS 5/5–8–1(a)(3) (West 2008)), but because the indictment
alleged that the defendant had committed the offense while armed
with a firearm, a 15-year mandatory sentence enhancement applied
(see 720 ILCS 5/18–2(b) (West 2000)). Thus, the sentencing range
became 21 to 35 years. Pursuant to a plea agreement, the State
amended the indictment to allege that the defendant committed armed
robbery with a dangerous weapon, and the defendant pleaded guilty.
Keller, 353 Ill. App. 3d at 831. The court sentenced the defendant to
12 years’ imprisonment, a term within the range for armed robbery.
If the State wished to negotiate around the mandatory sentence
enhancement here, it should have followed a similar course,
amending the indictment and presenting a factual basis that referred
to a dangerous weapon, rather than a firearm. Because it did not do
so, the enhancement applied. The sentence that the defendant
received was below the statutory range, and therefore void pursuant
to People v. Arna, 168 Ill. 2d 107 (1995).