People v. Whitney

THIRD DIVISION
June 30, 1998

No. 1-96-2383

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

BRANDON WHITNEY,

Defendant-Appellant.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County

Honorable
Daniel J. Kelley,
Judge Presiding.


PRESIDING JUSTICE LEAVITT delivered the opinion of the
court:
Defendant Brandon Whitney was convicted by a jury of first
degree murder (720 ILCS 5/9-1(a)(1) (West 1994)) and aggravated
discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 1994)) in
connection with the shooting death of Aaron Holmes. The trial
court sentenced defendant to 50 years' imprisonment on the murder
charge and 15 years' imprisonment on the aggravated discharge of
a firearm count, to run consecutively. On appeal, defendant
contends: (1) the trial court erred in ordering his sentences to
run consecutively, rather than concurrently; (2) the trial court
improperly considered an erroneous prior conviction in
aggravation in sentencing defendant; and (3) the lengths of his
sentences reflect an abuse of discretion by the trial court.
Defendant first argues his sentences should run
concurrently, not consecutively. The State argues defendant
waived this issue by failing to file a written motion challenging
the correctness of his sentence within 30 days of its imposition.
See 730 ILCS 5/5-8-1(c) (West 1994). The State correctly asserts
section 5-8-1 of the Unified Code of Corrections (Unified Code)
was amended in August 1993 to make the filing of a post-
sentencing motion a mandatory requirement to challenging
sentencing issues on appeal. See 730 ILCS 5/5-8-1(c) (West 1994)
("A defendant's challenge to the correctness of a sentence or to
any aspect of the sentencing hearing shall be made by a written
motion filed within 30 days following the imposition of
sentence"); People v. Reed, 177 Ill. 2d 389, 393-94, 686 N.E.2d 584 (1997).
However, the mandatory post-sentencing motion requirement of
section 5-8-1 of the Unified Code remains subject to Supreme
Court Rule 615; i.e., sentencing errors which affect substantial
rights may be analyzed under the doctrine of plain error,
regardless of a defendant's failure to file a post-sentencing
motion. See 134 Ill. 2d R. 615(a) ("Plain errors or defects
affecting substantial rights may be noticed although they were
not brought to the attention of the trial court"); Reed, 177 Ill. 2d at 395; People v. Ritchey, 286 Ill. App. 3d 848, 852, 677 N.E.2d 973 (1997). The right to be lawfully sentenced is a
substantial right. Ritchey, 286 Ill. App. 3d at 852. Thus,
impermissible or illegal sentences may be attacked on appeal as
plainly erroneous even though no post-sentencing motion was
filed. Ritchey, 286 Ill. App. 3d at 852. We may, accordingly,
look to see if the trial court committed plain error in ordering
defendant's sentences to run consecutively in this case.
Section 5-8-4 of the Unified Code provides, in relevant
part:
"The court shall not impose consecutive sentences for
offenses which were committed as part of a single
course of conduct during which there was no substantial
change in the nature of the criminal objective, unless,
one of the offenses for which defendant was convicted
was a Class X or Class 1 felony and the defendant
inflicted severe bodily injury, or where the defendant
was convicted of a violation of Section 12-13, 12-14,
or 12-14.1 of the Criminal Code of 1961, in which event
the court shall enter sentences to run consecutively."
730 ILCS 5/5-8-4(a) (West 1994) (emphasis added).
Defendant in this case reached into an automobile and fired
multiple shots from a handgun at the two occupants, killing the
victim, Aaron Holmes, but missing his companion, Theodore
Macklin. Defendant was charged with two counts of murder in the
shooting death of Holmes, and he was charged with attempted
murder and aggravated discharge of a firearm for shooting at
Macklin. Defendant was ultimately convicted of murdering Holmes
and discharging a weapon at Macklin. Thus, there is no dispute
defendant committed two offenses (first degree murder and
aggravated discharge of a firearm) while engaged in a single
course of conduct. Under section 5-8-4(a), concurrent sentences
were mandatory unless one of the two offenses committed by
defendant was a Class X or Class 1 felony involving "severe
bodily injury" to the victim.
We believe defendant has unwisely conceded that one of the
offenses he committed (the murder of Holmes) was a Class X or
Class 1 felony in which "severe bodily injury" was inflicted. On
appeal, defendant does not contest the trial court's assumption
that Holmes' murder was a "triggering offense" under section 5-8-
4. Rather, he argues his sentence for aggravated discharge of
firearm should run concurrently to his sentence for murder,
inasmuch as the second occupant of the car, Macklin, was not
injured when defendant fired his gun into the car (the basis of
the aggravated discharge of a firearm count). If Holmes' murder
was indeed a "triggering offense" under section 5-8-4, defendant
could have no legitimate dispute with the imposition of
consecutive sentences in this case. See People v. Curry, 178 Ill. 2d 509, 538-39, 687 N.E.2d 877 (1997) (all sentences for
triggering offenses, plus the sentence for the first non-
triggering offense, must be served consecutively, with the
sentence for each additional non-triggering offense (if any)
running concurrently to the first); People v. Medrano, 282 Ill.
App. 3d 887, 894-97, 669 N.E.2d 114 (1996); People v. Porter, 277
Ill. App. 3d 194, 199, 660 N.E.2d 118 (1995); People v. Williams,
263 Ill. App. 3d 1098, 1108-09, 638 N.E.2d 207 (1994); People v.
Ivey, 267 Ill. App. 3d 310, 311-12, 642 N.E.2d 157 (1994).
However, first degree murder, while obviously satisfying the
"severe bodily injury" requirement of section 5-8-4, is not a
Class X or Class 1 felony under the Code. Section 5-5-1(b) of
the Code provides:
"(b) Felonies are classified, for the purpose of
sentencing, as follows:
(1) First degree murder (as a separate class of
felony);
(2) Class X felonies;
(3) Class 1 felonies;
***"
730 ILCS 5/5-5-1(b) (West 1994). The Legislature's reason for
excluding first degree murder as a "triggering offense" under
section 5-8-4 is not for us to question. The Legislature has
repeatedly chosen to distinguish between first degree murder and
the various classes of other felonies. See 720 ILCS 5/33B-1(a)
(West 1996) (distinguishing between Class X felonies and first
degree murder for purposes of habitual offender classification);
725 ILCS 5/104-25(d) (West 1996) (maximum length of treatment
following discharge hearing is longer for charge of first degree
murder than for Class X or Class 1 felony); 730 ILCS 5/5-8-1(a)
(West 1996) (authorizing different sentencing ranges for first
degree murder, Class X felonies, and Class 1 felonies); 730 ILCS
5/5-8-2 (West 1996) (extended term sentencing ranges differ for
first degree murder, Class X felonies, and Class 1 felonies); 730
ILCS 5/5-7-1 (West 1996) (authorizing periodic imprisonment where
a defendant is convicted of a felony "other than first degree
murder, a Class X or Class 1 felony"); 735 ILCS 5/13-202.1 (West
1996) (no limitation on actions brought against person convicted
of first degree murder, a Class X felony, or a Class 1 felony).
Consecutive sentences were appropriate under section 5-8-4(a)
only if aggravated discharge of a firearm is a "triggering
offense" in this case.
Aggravated discharge of a firearm, given the facts before
us, is a Class 1 felony. See 720 ILCS 5/24-1.2(a)(2) (West
1994). However, the "victim" of this crime, Macklin, was not
injured in the shooting. The "severe bodily injury" suffered by
Holmes cannot be combined with the Class X status of the
aggravated discharge of a firearm count, thus creating a
"triggering offense" under section 5-8-4(a). See People v.
Medrano, 282 Ill. App. 3d 887, 896, 669 N.E.2d 114 (1996)
(defendant's conduct in committing the Class X or Class 1 offense
must "proximately result in" grievous bodily injury to the victim
of that crime). Since no "triggering offense" exists in this
case, consecutive sentences could not have been imposed pursuant
to section 5-8-4(a).
In his second contention on appeal, defendant argues the
trial judge at sentencing took into consideration a prior
conviction which did not exist. The State again responds
defendant waived this issue by not filing a post-sentencing
motion. See 730 ILCS 5/5-8-1(c) (West 1994). However, a
defendant has a right not to be sentenced based upon improper
factors in aggravation, and a trial judge's reliance upon an
improper factor in sentencing impinges upon a defendant's
"fundamental right to liberty." People v. Martin, 119 Ill. 2d 453, 458, 519 N.E.2d 884 (1988); People v. James, 255 Ill. App.
3d 516, 531, 626 N.E.2d 1337, 1348 (1993). Hence, we may
consider defendant's argument on this point under the doctrine of
plain error, despite his failure to raise the issue of the non-
existent conviction in a written post-sentencing motion.
On June 10, 1996, the trial court conducted a sentencing
hearing during which the State offered in aggravation the fact
that defendant was on probation for a prior burglary conviction
at the time of the murder. Defense counsel argued defendant's
pre-investigation report revealed he had no prior convictions.
In pronouncing defendant's sentence, the trial judge expressly
stated he was taking into consideration defendant's prior
conviction.
On August 16, 1996, while the notice of appeal in this case
was pending, the State brought to the attention of the trial
judge the fact that defendant had, as defense counsel had earlier
contended, no prior convictions at the time of his arrest (the
charge originally reported by the State had been a pending case).
Defendant, who was apparently up for a status date on another
case, was brought before the court and the following exchange
took place:
"[Assistant State's Attorney]: Judge, can I
address that other case in which the defendant has -- I
remember that when I was making a comment in the course
-- terms of sentence, I referred to the defendant as
having been on probation at one time; and, in fact,
that probation case was one of these cases which were
[sic] pending.
He [defendant] was not convicted, and [the
Assistant Public Defender] brought that to the Court's
attention. I just wanted to make sure that the Court
was aware of [the Assistant Public Defender's]
correction of the record when the Court imposed the
sentence on the case in which [defendant] has already
been convicted.
***
THE COURT: All right. [The Assistant State's
Attorney] was just making reference to the sentence
hearing in [defendant's] case in which he made
reference to -- about a case that he believed
[defendant] had received probation; and the fact that
was one of the extended cases here. You brought that
to the Court's attention at that time, I believe.
[Assistant Public Defender]: That is correct,
Judge.
[Assistant State's Attorney]: I believe it was a
burglary. I believe he said the burglary case, which
is a '92 case actual having been pending [sic], and
which he was not -- [the Assistant Public Defender]
corrected me as I made that statement to the Court. I
just want to make sure that that was on the record.
THE COURT: All right. Well, the record is clear
after that. And I don't -- the Court will not consider
it in the sentencing of this case. The Court will not
consider it in the sentencing of that case. It was
not."
Defendant argues the trial court had no jurisdiction to
consider (or reconsider) defendant's sentence at this point,
since he had already filed his notice of appeal. We agree. See
People v. Rowe, 291 Ill. App. 3d 1018, 1020, 684 N.E.2d 1368
(1997) (notice of appeal divests trial court of jurisdiction, at
least where no timely post-sentencing motion filed).
Even were we to ignore the lack of jurisdiction and consider
the August 16 proceedings, we could not conclude, as does the
State on appeal, that "the trial court did not consider the
'prior conviction' when it sentenced defendant." The trial judge
stated the exact opposite in sentencing defendant. The quoted
colloquy merely suggests that at the August 16 hearing the trial
judge was operating under the erroneous belief the phantom
conviction had been cleared up at the earlier sentencing hearing
and that he had, therefore, not considered it then. Yet that was
not the case. While defense counsel did dispute the existence of
the conviction at sentencing, the trial court apparently accepted
the State's assertion about the prior conviction. The trial
judge expressly stated he had "taken into consideration the
defendant's prior conviction" in sentencing defendant.
The State counters that, even if we determine the trial
judge considered an unsubstantiated factor in aggravation, remand
is unnecessary because the trial court placed an insignificant
amount of weight on the prior conviction. It is true a sentence
based on improper factors may be affirmed where the reviewing
court can determine from the record that the weight placed on
such an improperly considered aggravating factor was so
insignificant it resulted in no increase in the defendant's
sentence. People v. Conover, 84 Ill. 2d 400, 405, 419 N.E.2d 906
(1981); People v. Cook, 217 Ill. App. 3d 299, 315, 576 N.E.2d 1242 (1991). Nevertheless, we are not prepared to say that, on
the record before us, the weight placed upon defendant's
nonexistent conviction by the trial court was negligible.
Not only did the trial judge specifically state on the record he
was considering the conviction, but the prior conviction was also
the first factor specifically mentioned by the judge in handing
down his sentence.
In light of the foregoing, we remand with directions to the
trial court to determine whether the alleged prior conviction
affected the length of the sentences imposed on defendant. We
note that defendant's sentences for first degree murder (50
years) and aggravated discharge of a firearm (15 years) were both
within applicable statutory limits (20 to 60 years and 4 to 15
years, respectively--see 730 ILCS 5/5-8-1(a)(1)(a) and (a)(4)
(West 1994)) and that he has waived any consideration of their
excessiveness by failing to file a post-sentencing motion. See
People v. Reed, 282 Ill. App. 3d 278, 282, 668 N.E.2d 51 (1996)
(defendant waived argument trial court abused its discretion in
sentencing, where defendant failed to file post-sentencing motion
and sentences were within statutory ranges), aff'd, 177 Ill. 2d 389, 686 N.E.2d 584 (1997). While defendant's sentences are
within their limits and cannot now be attacked as excessive, the
trial judge may on remand decide whether defendant's alleged
conviction played any part in his original sentencing decision
and adjust his sentences accordingly, keeping in mind that the
two sentences will be served concurrently.
Affirmed in part, remanded for resentencing.
GORDON and CAHILL, JJ., concurring.