People v. Cavins

                               NO. 5-95-0711

                                  IN THE 

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, )  Appeal from the 
                                     )  Circuit Court of
     Plaintiff-Appellee,             )  Marion County.  
                                     )
v.                                   )  No. 94-CF-237
                                     )     
MICHAEL CAVINS,                      )  Honorable
                                     )  Sherri L.E. Tungate, 
     Defendant-Appellant.            )  Judge, presiding.  
_________________________________________________________________

     JUSTICE HOPKINS delivered the opinion of the court: 
     Defendant, Michael Cavins, entered a plea of guilty to the
charge of burglary.  After a sentencing hearing in which defendant
was sentenced to an extended term of 10 years' imprisonment,
defendant filed a motion to reconsider his sentence, which the
Marion County circuit court denied.  On appeal, defendant argues:
(1) that his extended-term sentence is void; (2) that section 5-5-
3.2(b)(1) of the Unified Code of Corrections (the Code) (730 ILCS
5/5-5-3.2(b)(1) (West 1992)) is unconstitutionally vague; (3) that
he was improperly subjected to extended-term sentencing based upon
an Iowa conviction; and (4) that the court erred in defendant's
sentencing hearing by allowing evidence concerning defendant's
admissions of uncharged misconduct.  We affirm.
                                 I. FACTS
     On October 5, 1994, defendant was arraigned on the charge of
burglary, a class 2 felony.  The trial court admonished defendant
that if found guilty, he could receive a sentence of imprisonment 
from three to seven years, a fine of up to $10,000, or any
combination of fine and sentence of imprisonment up to the maximum.
     On October 21, 1994, defendant was charged by indictment with
the same offense of burglary.  At the arraignment on the bill of
indictment on October 26, 1994, defendant was again admonished that
if found guilty, he could be sentenced to a term of imprisonment
from three to seven years.
     On December 21, 1994, defendant entered an open plea of guilty
to the charge of burglary.  At the time defendant entered his plea
of guilty, his attorney stated:  
     "[I]n doing so, he is relying upon the recommendation by the
     State that there would be no other charges filed relating to
     other burglaries, as well as a charge of escape.  He escaped
     during the course of his arrest, and he would proceed to
     sentence on this particular charge, and it has been my
     representation to Mr. Cavins that the State has previously
     indicated that they have evidence that he has been convicted
     on prior occasions of two prior Class [2] Felonies in the
     State of Illinois, and that the range of sentence would be
     between 6 and 30 years."
     Defendant stated that he understood that his negotiated plea
did not include any agreed disposition or sentence and that he
could be sentenced as a class X offender from 6 to 30 years'
imprisonment with no possibility of probation or conditional
discharge.  After hearing a factual basis, the court accepted
defendant's plea of guilty.
     At defendant's sentencing hearing, on February 15, 1995, the
State introduced a certified copy of a judgment of conviction
showing that on April 20, 1990, defendant was convicted of third-
degree kidnapping in the State of Iowa and sentenced to a term of
imprisonment of not more than 10 years.  The offense of third-
degree kidnapping is a class C felony under Iowa law.  The State
introduced the conviction in support of its argument that defendant
was eligible for an extended term of imprisonment.  Defendant did
not object.
     As a part of his sentence, defendant agreed to pay $7,344.14
restitution, for the burglary to which he pled guilty as well as
other burglaries that were not charged.  
     The State called Steve Prather, a Centralia police officer, to
testify that when he arrested defendant, defendant admitted that he
participated in a total of four burglaries, including the one
charged in this case.  Defendant did not object to this testimony.
     Defendant testified in his own behalf that he was incarcerated
in Iowa and that shortly before he was arrested for this burglary,
he walked away from a work release center.  Defendant testified
that out of the 12 years before the sentencing hearing, he spent
eight in prison.
     Before sentencing defendant, the trial court compared the Iowa
kidnapping statutes to Illinois kidnapping statutes.  The court
found that the Iowa charge, which carries an indeterminate sentence
of not more than 10 years' imprisonment, is similar to a class 2
felony in Illinois, which carries a possible three- to seven-year
term of imprisonment, or even a class 1 felony, which carries a
possible 4- to 15-year term of imprisonment.  Based upon its review
of the Illinois and Iowa statutes, the court found that defendant
was a candidate for an extended-term sentence based upon the Iowa
conviction.  The court ruled that defendant's prior Illinois
convictions for residential burglary could not be used to enhance
defendant's sentence because the State did not introduce sufficient
evidence from which the court could determine when defendant was in
or out of custody.  The court sentenced defendant to an extended
term of 10 years' imprisonment pursuant to section 5-5-3.2(b)(1) of
the Code (730 ILCS 5/5-5-3.2(b)(1) (West 1992)), based upon
defendant's prior Iowa conviction.
     Following its pronouncement of sentence, the court admonished
defendant as follows:
          "THE COURT:  Mr. Cavins, you *** have received a sentence
     pursuant to your open plea of guilty to the charge of
     burglary.  You have certain appeal rights in this case. 
     However, before you can [appeal], you must first, within the
     next 30 days from today's date, file a Motion to Withdraw your
     Plea of Guilty ***.  You must set forth in your Motion to
     Withdraw Plea of Guilty, have your sentence vacated, any
     error, claimed error that you believe has been committed by
     this Court.  Any error or claimed error that you do not set
     forth in that motion, the Appellate Court may find, if you
     take a later appeal, that you have waived or given up those
     issues ***."
     On June 29, 1995, defendant's attorney filed a certificate of
compliance under Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d))
and an amended motion to reconsider sentence.  The grounds alleged
in the amended motion to reconsider are that the court erred in
imposing an extended term based upon on the Iowa conviction and
that defendant was not eligible for an extended term because he was
not admonished of such eligibility at the time he entered his
guilty plea.  
     At the hearing on the motion to reconsider, defendant's
attorney argued:  "[W]e are not specifically alleging this is an
involuntary plea.  We are not asking that the plea be vacated." 
     The trial court denied the motion for reconsideration, stating
that defendant had been advised that he could receive from 6 to 30
years' imprisonment when he entered his guilty plea and that was
sufficient to comply with Supreme Court Rule 402.  134 Ill. 2d R.
402.  Defendant filed a timely appeal from the denial of his motion
to reconsider sentence.
                               II. ANALYSIS
                         A. EXTENDED-TERM SENTENCE
     Defendant argues that he was not eligible to receive an
extended-term sentence of imprisonment, as he was not advised of
this possibility at the time he entered his plea of guilty or at
any time prior to sentencing.  The crux of defendant's argument is
that even though he was told that he could be sentenced to a range
of 6 to 30 years' imprisonment, even though he entered into an
agreement with the State by which the State agreed not to press
charges for other crimes, and even though he was actually sentenced
to 10 years' imprisonment, which is 20 years less than the maximum
he was advised he could receive, the extended-term portion of his
sentence is void because he was not advised that he could receive
an extended term of 7 to 14 years' imprisonment.
     Defendant bases his argument upon an earlier decision of this
court, People v. Mapps, 198 Ill. App. 3d 521 (1990).  In Mapps, we
affirmed a conviction entered against a defendant upon an open plea
of guilty, but we modified the defendant's sentence, finding that
the extended-term portion of the sentence was void, as it was in
violation of the extended-term statute.  Mapps, 198 Ill. App. 3d at
524; Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-2(b) (now 730 ILCS
5/5-8-2(b) (West 1992)).  Section 5-8-2 provides that a judge shall
not sentence an offender to a term of imprisonment in excess of the
maximum sentence authorized by the felony-imprisonment sentencing
statute unless the factors in aggravation of section 5-5-3.2 (730
ILCS 5/5-5-3.2 (West 1992)) are found to be present.
     The trial court relied upon section 5-5-3.2(b)(1) in
sentencing defendant to an extended term of imprisonment.  That
section provides:
          "(b) The following factors may be considered by the court
     as reasons to impose an extended term sentence under Section
     5-8-2 upon any offender: 
               (1) When a defendant is convicted of any felony,
          after having been previously convicted in Illinois or any
          other jurisdiction of the same or similar class felony or
          greater class felony, when such conviction has occurred
          within 10 years after the previous conviction, excluding
          time spent in custody, and such charges are separately
          brought and tried and arise out of a different series of
          acts."  730 ILCS 5/5-5-3.2(b)(1) (West 1992).
Section 5-8-2 of the Code provides as follows:
     "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 Section 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 (West 1992).
     In Mapps, before the court accepted the defendant's guilty
plea, it admonished the defendant that he was charged with a class
4 felony and that he could be sentenced to one to three years'
imprisonment, but the court did not inform defendant that he could
receive an extended term.  Mapps, 198 Ill. App. 3d at 523. 
Defendant was later sentenced to a five-year extended-term prison
sentence based upon a prior burglary conviction.  After sentencing,
the defendant in Mapps filed a motion to withdraw his guilty plea,
claiming that his sentence of five years' imprisonment should be
vacated "because he was not informed that he was eligible for an
extended-term sentence before his guilty plea was accepted." 
Mapps, 198 Ill. App. 3d at 523.  On appeal, this court found the
critical question to be whether the defendant had an opportunity to
withdraw his guilty plea prior to sentencing.  We determined that
if the defendant had an opportunity to withdraw his plea, the
sentence would be proper under section 5-8-2(b), but if the
defendant did not have such an opportunity, the extended portion of
his sentence would be "void."  Mapps, 198 Ill. App. 3d at 523.
     Defendant in the instant case argues that the extended-term
portion of his sentence is void, just as in Mapps, because he was
not advised that he could be sentenced to an extended term of
imprisonment prior to sentencing.  We find that Mapps is
distinguishable.  
     First, the defendant in Mapps was not told until his
sentencing hearing that he could receive more than three years'
imprisonment, and he was then sentenced to five years'
imprisonment.  In the case at bar, defendant's attorney stated at
the guilty plea hearing that defendant would be sentenced to a
range of 6 to 30 years' imprisonment, and defendant stated that he
understood.  Defendant was sentenced within that range, to 10
years' imprisonment, albeit under a different sentencing statute
than contemplated at the guilty plea hearing.  Evidently, at the
time defendant entered his guilty plea, the parties believed that
defendant would be sentenced as a class X felon subject to a
sentencing range of 6 to 30 years' imprisonment pursuant to section
5-5-3(c)(8) (730 ILCS 5/5-5-3(c)(8) (West 1992)) due to his prior
Illinois convictions.  At the sentencing hearing, the State
presented evidence that defendant had a prior Iowa conviction,
which defendant did not deny, and the court determined that because
of the Iowa conviction defendant could be sentenced to an extended
term of 7 to 14 years' imprisonment pursuant to section 5-5-
3.2(b)(1). 
     We find it significant that defendant was advised, at the time
he entered his guilty plea, that he was subject to the range of
penalty within which he was ultimately sentenced.  See People v.
Riegle, 246 Ill. App. 3d 270 (1993) (a defendant is not prejudiced
and his guilty plea is not invalidated when he is sentenced within
the range of penalty stated to him at the time of his guilty plea,
even if that range is found to be incorrect at the time he is
sentenced); People v. Felton, 191 Ill. App. 3d 599 (1989) (same). 
     In Riegle, the defendant was told at the time he entered his
guilty plea that he was subject to a range of 9 to 40 years'
imprisonment, when it was actually 6 to 30 years' imprisonment. 
Since the defendant was sentenced within that range, to 14 years'
imprisonment, the court found no prejudice and upheld the sentence
and conviction.  Riegle, 246 Ill. App. 3d at 275.  In Felton, this
court found that because the defendant's sentence was far less than
what he was told he could receive, the failure to admonish him as
to the maximum sentence he could receive did not prejudice him, and
we affirmed the conviction and sentence.  Felton, 191 Ill. App. 3d
at 602.  
     Defendant argues, however, that his case is controlled by
section 5-8-2, and since that section was not strictly followed,
the extended-term portion of his sentence is void under Mapps. 
Defendant points out that section 5-8-2 requires that "it shall
appear on the record" that a defendant's guilty plea was entered
with the defendant's knowledge that a sentence under that section
is a possibility, and if it does not 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 1992).  Defendant relies upon Mapps and
contends that he must be specifically advised that he is subject to
an extended term under section 5-8-2 at the time he enters his
guilty plea, and if not, then the extended-term portion of his
sentence is void unless he is given an opportunity to withdraw his
plea prior to sentencing.  We disagree that Mapps supports
defendant's argument under the facts of this case.
     Mapps is also distinguishable because the defendant in that
case filed a motion to withdraw his guilty plea, which was denied
by the trial court.  In the case at bar, defendant did not file a
motion to withdraw his guilty plea and specifically stated in the
trial court and at the oral argument in this court that he does not
wish to withdraw his guilty plea.  Thus, under a strict
construction of section 5-8-2, defendant is not entitled to relief
from his sentence.  Section 5-8-2 clearly contemplates that a
defendant will not be subject to his sentence "unless he is first
given an opportunity to withdraw his plea without prejudice." 
(Emphasis added.)  730 ILCS 5/5-8-2(b) (West 1992).  
     In construing this or any other statute, the primary rule is
to give effect to the legislative intent, and "where that intent
can be ascertained from the language of the statute, it will be
given effect without resorting to other aids for construction." 
People v. Robinson, 89 Ill. 2d 469, 475-76 (1982).  Thus, under the
clear words of section 5-8-2, a defendant must be given an
opportunity to withdraw his plea if he is not admonished on the
record that he was subject to extended-term sentencing.  We hold
that the converse is equally required under the statute and our
holding in Mapps: a defendant will be subject to his sentence if he
chooses not to withdraw his plea, at least if he does not establish
the right to have his sentence reduced or modified under some other
provision of the law.  
     We additionally hold that defendant has not complied with the
statute because he filed only a motion to reconsider his sentence
without a motion to withdraw his guilty plea.  Defendant wants to
strictly construe section 5-8-2 in order to find the extended-term
portion of his sentence void, but he wants to ignore the language
clearly contemplating that a motion to withdraw a guilty plea
should be filed before the provision is to be effective.  He cannot
have it both ways.   
     Accepting defendant's interpretation of this statute would
lead to the unjust and anomalous result that defendant advocates. 
We are to interpret statutes in a manner that avoids unjust or
absurd results.  Croissant v. Joliet Park District, 141 Ill. 2d 449, 455 (1990).  We find that it would be absurd and unjust to
allow a defendant to enter into an agreement with the State whereby
the State agrees to drop or not file charges, and hold the State to
that bargain because defendant chose not to file a motion to
withdraw his guilty plea, but vacate the extended portion of his
sentence simply because he was advised, under a different statutory
provision, that he could receive more time in prison that what he
actually received.  Such a result was surely not contemplated by
the legislature when it drafted section 5-8-2, and it was certainly
not contemplated by this court when we decided Mapps.  However, to
the extent that Mapps can be read to endorse such a result, we now
specifically overrule that decision. 
     Defendant argues further that the court was required to give
him the opportunity to withdraw his plea prior to sentencing.  We
disagree with the implication that defendant was somehow prevented
from requesting to withdraw his guilty plea prior to sentencing. 
There is nothing in the record to show that defendant was in any
way precluded from withdrawing his plea at any point in time. 
Additionally, we disagree with the implication that the court must
take some affirmative act to "give" defendant the opportunity to
withdraw the plea.  Clearly, it is defendant's burden to withdraw
his plea if he so chooses, and the court is required to do nothing
other than refrain from preventing him from requesting to withdraw
his plea.  Having said that, we find that the record in this case
is clear--defendant was correctly advised during his sentencing
hearing that he had the right to move to withdraw his guilty plea,
which is sufficient to comply with section 5-8-2's requirement that
a defendant be "given an opportunity to withdraw his plea without
prejudice."  730 ILCS 5/5-8-2(b) (West 1992).  
     As to the language in Mapps to the effect that a defendant
must be given the opportunity to withdraw his guilty plea "prior to
sentencing" (Mapps, 198 Ill. App. 3d at 523), we hold that allowing
a defendant to file a motion to withdraw his guilty plea within 30
days after sentencing is sufficient, as a defendant who pleads
guilty is not finally "subject to such a sentence" until his appeal
rights are terminated.  See 730 ILCS 5/5-8-2(b) (West 1992); see
also Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)) (the trial
court shall modify a sentence if a defendant's motion to reconsider
is granted or vacate the judgment of guilty if his motion to
withdraw his guilty plea is granted).  Therefore, if a defendant is
given a hearing on a timely filed motion to withdraw his guilty
plea, then he has been afforded sufficient opportunity to withdraw
his guilty plea.
     Nevertheless, we wish to make the rule crystal clear: a
defendant is not entitled to vacate the extended-term portion of
his sentence of imprisonment solely based upon the claim that the
court did not use the words "extended term" or recite the section
number of the extended-term statute to defendant at the time he
entered his guilty plea, so long as he is not precluded from
requesting to withdraw his guilty plea within the 30-day period
after the sentencing hearing. 
     Although defendant's sentence is not void under Mapps, our
analysis cannot end here.  Defendant filed a timely motion to
reconsider his sentence, which requires us to decide the merits of
that motion.  Where a defendant enters a guilty plea without a
negotiated sentence, the defendant is entitled to challenge only
his sentence, without withdrawing his guilty plea.  People v. Wilk,
124 Ill. 2d 93, 109-10 (1988); see also People v. Wilson, 286 Ill.
App. 3d 169 (1997) (the Second District Appellate Court held that
a defendant who enters a negotiated guilty plea, which includes a
sentence cap, may still challenge only his sentence without filing
a motion to withdraw his guilty plea, because the trial court
exercises its discretion in sentencing defendant, albeit within the
range of the agreed-to sentence cap).  
                      B. CONSTITUTIONALITY OF STATUTE
     Defendant next argues that section 5-5-3.2(b)(1) is
unconstitutionally vague because it is not clear what constitutes
a similar class felony in another jurisdiction to trigger the
extended-term sentence under section 5-5-3.2(b)(1).  Defendant
reasons that because the term "similar class felony" is not
defined, the statute is void for vagueness, "since other
jurisdictions have different classification schemes [and] different
sentencing schemes and their offenses often contain different
elements than similarly labeled offenses in Illinois."  Defendant
did not raise this issue below, and therefore, it is technically
waived on review.  People v. Stice, 160 Ill. App. 3d 132, 137
(1987).  Nevertheless, in the interest of judicial economy, since
defendant might raise this issue in a postconviction petition, we
choose to decide the merits of defendant's constitutional claim. 
See Wilk, 124 Ill. 2d  at 107; People v. Good, 68 Ill. App. 3d 333
(1979).
     In 1981, this court decided People v. Bowman, 96 Ill. App. 3d
136 (1981), wherein we held that the former version of section 5-5-
3.2(b)(1) was constitutional.  The version of the statute in effect
at that time allowed a defendant to be sentenced to an extended
term if he had been convicted in Illinois within the previous 10
years of "the same or greater class felony."  Ill. Rev. Stat. 1979,
ch. 38, par. 1005-5-3.2(b)(1).  Defendant challenges the current
version of the statute, which allows an extended term to be imposed
not only for the same or greater class felony from Illinois, but
also for a similar class felony from another jurisdiction.  
     Defendant's argument relies upon the following language from
Bowman:
          "Because of the distinct and comprehensive scheme of
     classification of felonies in Illinois ***, the extended term
     of imprisonment provision is susceptible of uniform
     application.  However, in other states, offenses are either
     classified differently or not at all, and offenses with
     similar or identical names often consist of different
     elements.  Thus, it would be impossible to ascertain whether
     a particular felony in another state was of the same or
     greater class as the felony for which defendant is being
     sentenced in Illinois."  (Emphasis added.)  Bowman, 96 Ill.
     App. 3d at 147-48.
     We find defendant's reliance upon Bowman misplaced.  In that
case, we concluded that the extended-term provision in existence at
that time was constitutional in its application to persons with
prior Illinois convictions and did not violate their rights to
equal protection.  Bowman, 96 Ill. App. 3d at 148.  Defendant's
argument that the current version of that statute is
unconstitutionally vague deals with language not contained in the
former version considered in Bowman, and defendant asks this court
to decide whether the statute as applied to him violates the
Federal and Illinois due process clauses (U.S. Const. amend. XIV;
Ill. Const. 1970, art. I, 2), which is a separate and distinct
analysis from the equal protection issue decided in Bowman. 
     Where, as here, a defendant challenges a statute on vagueness
grounds but does not claim that his first amendment (U.S. const.,
amend. I) freedoms were violated, the unique facts of that
particular case control the outcome.  People v. Jihan, 127 Ill. 2d 379, 385 (1989).  Defendant must show that the statute was vague as
applied to him in that he did not have clear notice that his
conduct would subject him to the application of the extended-term
sentencing statute.  Jihan, 127 Ill. 2d  at 385.  In doing so,
defendant's burden is to show that the statute is vague as applied
to him under an objective standard whereby a person of ordinary
intelligence is denied a reasonable opportunity to know what prior
convictions will trigger the application of the extended-term
sentencing statute.  Jihan, 127 Ill. 2d  at 385. 
     Defendant completely fails to show how this statute is
unconstitutionally vague as applied to him, absent his mistaken
reliance upon Bowman. The trial court found that the 10-year
indeterminate prison sentence for the Iowa kidnapping charge was at
least as severe a punishment as that available for a class 2 felony
in Illinois, three to seven years' imprisonment.  We find the trial
court's interpretation of the "similar class felony" provision of
section 5-5-3.2(b)(1) reasonable as applied to defendant's
situation.
               C. IOWA CONVICTION AS A SIMILAR CLASS FELONY
     Defendant next argues that the trial court erred in imposing
an extended-term sentence based upon his prior Iowa conviction,
because that conviction does not constitute a "similar class felony
or greater class felony" in order to trigger the application of
section 5-5-3.2(b)(1).  Defendant relies exclusively upon our
earlier decision in Bowman and our statement that it would be
impossible to determine if a conviction from another state
constituted the "same or greater class felony."  Bowman, 96 Ill.
App. 3d at 148.  Again, defendant's reliance is misplaced because
the trial court in this case did not have to decide whether the
Iowa conviction amounted to the same or greater class felony as his
Illinois burglary conviction.  The court in this case was asked to
decide if the Iowa conviction was a "similar class felony."  The
court made that determination after comparing the relevant statutes
from Illinois and Iowa and after considering both parties'
arguments.
     The trial court is vested with broad authority to craft and
impose an appropriate sentence.  People v. Britt, 265 Ill. App. 3d
129, 151 (1994).  The court's discretion in this regard extends to
all sentencing decisions, including whether to sentence a defendant
to an extended term under section 5-5-3.2.  People v. Coleman, 166 Ill. 2d 247 (1995).  A court of review is not to reverse the
sentencing judge's decision unless she abused her discretion. 
Britt, 265 Ill. App. 3d at 151.  
     At the sentencing hearing, defendant's Iowa conviction was
made part of defendant's presentence investigation without any
objection from defendant.  After comparing the relevant statutory
provisions, the court determined that the Iowa conviction was at
least similar to defendant's current class 2 felony conviction for
burglary, and we cannot say that in doing so the court abused its
discretion.  
        D. EVIDENCE CONSIDERED IN AGGRAVATION AT SENTENCING HEARING
     Defendant finally argues that the trial court improperly
considered Officer Prather's sentencing hearing testimony that
defendant admitted his involvement in other burglaries.  Defendant
did not object to this evidence at his sentencing hearing and did
not allege this issue in any postsentencing motion.  Therefore,
defendant has waived this issue on appeal.  People v. Hope, 168 Ill. 2d 1 (1995); People v. Williams, 149 Ill. 2d 467 (1992).     
                              III. CONCLUSION
     For all the reasons stated, we affirm the trial court's denial
of defendant's motion to reconsider sentence, and we affirm the
judgment of the circuit court.  

     Affirmed.

     CHAPMAN, J., and GOLDENHERSH, J., concur.