People v. Catron

Annotate this Case
NO. 4-95-0753




Plaintiff-Appellee, ) Circuit Court of
v. ) Vermilion County
Defendant-Appellant. )
) Honorable
) Tracy W. Resch,
) Judge Presiding.

JUSTICE COOK delivered the opinion of the
Defendant entered negotiated pleas of guilty to six
counts of residential burglary (720 ILCS 5/19-3(a) (West 1994)),
committed between October 4, and December 29, 1994. In return
for the plea, the State and defendant agreed he would receive a
penitentiary sentence of between 4 and 15 years and no additional
charges, based on information currently known to the State's
Attorney's office, would be filed. Defendant was subsequently
sentenced to six concurrent terms of 15 years' imprisonment.
Defendant then filed a motion to reconsider sentence, arguing
that the sentence was excessive and that the court erred in deny-
ing credit for time served. Upon reconsideration, the trial
court awarded defendant all the credit to which he was entitled
but otherwise denied his motion to reduce sentence.
On appeal, defendant contends that his 15-year sentenc-
es must be vacated because they are based, in part, upon the improper consideration of a factor inherent in the crime of re-
sidential burglary, namely, the risk of harm to anyone who may be
in the residence. We affirm.
Initially, we note that the Supreme Court of Illinois
in its recent decision in People v. Evans, Nos. 80158, 80159
cons. (September 19, 1996), ___ Ill. 2d ___, ___ N.E.2d ___, held
that motion-to-reconsider-sentence provisions of Rule 604(d) (145
Ill. 2d R. 604(d)) do not apply to negotiated guilty pleas. For
a defendant to prevail in a challenge to a sentence entered pur-
suant to a negotiated plea agreement, the defendant must (1) move
to withdraw the guilty plea and vacate the judgment, and (2) show
that the granting of the motion is necessary to correct a mani-
fest injustice. Evans, Nos. 80158, 80159 cons., slip op. at 11
(September 19, 1996), ___ Ill. 2d at ___, ___ N.E.2d at ___.
This case differs from the two factual scenarios in
Evans in which those defendants reached agreements for a specific
sentence rather than a range of potential sentences. Neverthe-
less, contract principles relied on in Evans apply with equal
vigor to this case to the extent defendant makes a general claim
that his sentence is excessive. By agreeing to a potential range
of sentences, a defendant implicitly concedes that a sentence im-
posed within the range cannot be excessive. Defendant's agree-
ment here is that a sentence of 15 years cannot be excessive.
Accordingly, under the precedent of Evans, the trial court was
correct in denying the motion to reduce sentence because the only
issue defendant raised was that the 15-year terms of imprisonment
were excessive.
We recognize that Evans did not consider the situation
where the alleged sentencing was allowed to be something more
than a mere claim that the sentence is excessive. One such claim
is that which defendant attempts to raise here, namely, that the
trial court gave him the maximum sentence based, in part, upon
improper consideration of a factor inherent in the crime. Had
defendant raised this issue in the trial court, we do not believe
Evans would foreclose a motion to reconsider sentence without
vacating the plea.
However, defendant did not raise this issue in the
trial court. Rule 604(d) provides that any issue not raised in
the motion to reconsider sentence or to withdraw the plea of
guilty is waived on appeal. 145 Ill. 2d R. 604(d). Defendant
has therefore waived any contention that the trial court improp-
erly considered a factor inherent to the offense at sentencing.
Even were we to consider the issue, we find no error. In sen-
tencing defendant, the trial court made the following remarks:
"With respect to those factors [(in ag-
gravation and mitigation)], as well as some
other matters, the Court would observe as
follows: first of all, while it's true that
the Defendant's conduct did not directly
cause or threaten serious physical harm, the
offense of residential burglary poses inher-
ent risks of harm, because the crime involves
an intrusion into a person's home, their
valued place of sanctuary. This circumstance
means there may be a physical confrontation
between the offender and someone in the resi-
dence. The confrontation may be unexpected.
As a result, unanticipated violence is always
a risk.
In two of the cases in the factual
statement given at the time of the plea, the
Court was told the Defendant entered the
residences and stole weapons. The Defendant
took a twenty gauge Browning shotgun from the
residence of Libby Taylor, according to the
factual basis given at the time of the plea,
and he took a shotgun from Betty Cox. Now,
it's true [counsel] did represent at the plea
that the Defendant did not admit to taking a
shotgun from Libby Taylor's residence but
only admitted to a pickup truck. Neverthe-
less, the point is, when the crime of resi-
dential burglary is committed, there is al-
ways a risk that the unexpected will occur
and someone will be physically harmed, often
because of the presence of firearms."
Defendant's contention this was an improper comment on
the risk of harm inherent to the crime of residential burglary is
without merit. While we agree that conduct which is an essential
element of an offense cannot be used to enhance the punishment
for that offense (see People v. Conover, 84 Ill. 2d 400, 404-05,
419 N.E.2d 906, 909 (1981)), we do not find the trial court's
reference here to be improper. In imposing sentence, the trial
court may consider the nature and circumstances of the offense.
See People v. Tolliver, 98 Ill. App. 3d 116, 117-18, 424 N.E.2d 44, 45 (1981). Here, the court was merely describing the nature
of the offenses defendant committed, the seriousness with which
the legislature, the courts, and society view them, and the in-
creased risk of violence beyond that already inherent in the
offense when firearms are involved. Even if we considered the
reference to be improper, it is harmless in light of defendant's
substantial adult and juvenile criminal records in addition to
the other aggravating factors present. See People v. Gramo, 251
Ill. App. 3d 958, 971, 623 N.E.2d 926, 935 (1993).
Accordingly, for the reasons stated we affirm the judg-
ment of the circuit court of Vermilion County.
McCULLOUGH and GREEN, JJ., concur.