FIRST DIVISION November 3, 2008
No. 1-07-1763
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) ) WALTER ALLEN, ) Honorable ) Daniel P. Darcy, Defendant-Appellant. ) Judge Presiding.
JUSTICE WOLFSON delivered the opinion of the court:
This case has taken a lengthy and tortuous path through the
trial court and now to this court. It began in early 2001 when a
trial judge imposed a sentence that was not authorized by
statute.
On November 3, 2000, defendant Walter Allen was convicted of
possession of a controlled substance with intent to deliver
within 1000 feet of a building used for religious worship. Two
months later, he was sentenced to 24 months’ probation. Less
than a year into his sentence, the State filed a petition for
violation of probation, alleging defendant’s probation should be
revoked in light of his arrest in April 2001 for first-degree
attempt murder, attempt armed robbery, and aggravated battery
with a firearm. Defendant was convicted of the charges in 2005.
Following a probation revocation hearing on February 15, 2007, 1-07-1763
the circuit court revoked defendant’s probation and sentenced him
to 25 years’ imprisonment. Shortly after defendant’s probation
was revoked, we reversed defendant’s 2005 convictions and sent
the case back for a new trial in People v. Allen, 376 Ill. App.
3d 511, 875 N.E.2d 1221 (2007).
On appeal, defendant contends his probation violation
conviction should be reversed because we have reversed and
remanded the underlying conviction his probation violation was
based on. In response to defendant’s appeal, the State filed a
separate motion with this court to void defendant’s probation
sentence for his 2000 possession conviction and remand for
resentencing on the original charge, contending the sentence was
void because defendant was Class X mandatory and statutorily
ineligible for probation. We agree with the State.
FACTS
On November 3, 2000, defendant was convicted of possession
of a controlled substance with intent to deliver within 1000 feet
of a building used for religious worship. Following a sentencing
hearing on January 10, 2001, the circuit court sentenced
defendant to 24 months’ probation: “so the remand is he should be
discharged from County Jail. He is placed on probation, open
mandate to T.A.S.C., under Section 91-1/2 [sic], which is taking
into consideration the Mental Health Code.” The State responded
-2- 1-07-1763
that due to defendant’s background, he should be sentenced to a
mandatory Class X penitentiary sentence. The circuit court did
not address the State’s response. The presentence investigation
report indicates defendant had six prior felony convictions,
including three for residential burglary.
In the spring of 2001, two attempt armed robberies were
committed at Four Star Dry Cleaners. During the second attempt
robbery on April 17, 2001, Miye Goodson, an employee at the
cleaners, was shot in the back. Defendant was initially arrested
in connection with the first attempt robbery of the cleaners
after he was identified in a photo array, but was tried only for
attempt armed robbery and attempt murder in relation to the April
17 incident.
On August 10, 2001, the State filed a petition for violation
of probation and warrant, arguing defendant’s probation should be
revoked in light of his arrest. Nothing much happened until
October 5, 2005, when a jury found defendant guilty of first-
degree attempt murder, attempt armed robbery, and aggravated
battery with a firearm.
On February 15, 2007, the circuit court found defendant had
violated his probation by committing the April 17, 2001,
offenses. The State’s evidence during the violation hearing
consisted of the transcript of the 2005 trial testimony, the
-3- 1-07-1763
trial exhibits, the trial stipulations, and the certificate of
defendant’s conviction. Defendant stipulated to the admission of
all of the evidence. On April 17, 2007, defendant was sentenced
to a 25-year prison term for the probation violation. The court
denied defendant’s motion for a new hearing and reduction of
sentence. Defendant appealed.
On September 28, 2007, we reversed defendant’s first-degree
attempt murder, attempt armed robbery, and aggravated battery
convictions and remanded the cause for a new trial in People v.
Allen, 376 Ill. App. 3d 511, 875 N.E.2d 1221 (2007). We stayed
defendant’s appeal of the probation violation pending resolution
of the State’s petition for leave to appeal to the Illinois
Supreme Court. After the supreme court denied the State’s
petition, defendant filed a motion to lift stay and for summary
reversal of his conviction for probation violation. He contended
that since the 2005 convictions were the sole basis for his
probation violation, the violation must be vacated. In its
response, the State agreed the stay should be lifted, but argued
summary reversal was inappropriate in light of the remand for a
new trial.
The State also filed a separate motion to vacate defendant’s
sentence on the 2000 possession conviction, contending, for the
first time in a reviewing court, the probation sentence was void.
-4- 1-07-1763
The State contended defendant was ineligible for probation
because he had several prior felony convictions and had been
convicted of possession of a controlled substance with intent to
deliver within 1000 feet of a building used for religious
worship. See 720 ILCS 570/401(d) (West 2000); 720 ILCS 570/407
(West 2000). The State contended the circuit court’s order of 24
months’ probation was not authorized by statute. The State asked
us to vacate as void his sentence on his 2000 possession of a
controlled substance conviction, vacate the order revoking
defendant’s probation, and remand the cause for a new sentencing
hearing.
On May 30, 2008, we: (1) denied defendant’s motion for
summary reversal; (2) denied without prejudice the State’s motion
to vacate as void defendant’s sentence on his 2000 conviction for
possession of a controlled substance; and (3) lifted the stay of
defendant’s appeal of his probation violation. We now consider
the merits of defendant’s appeal and the State’s request that we
void the probation.
DECISION
I. The State’s Motion to Void Defendant’s Sentence
A. Void Sentence
The State contends we must hold defendant’s original
sentence of 24 months’ TASC probation for his 2000 conviction for
-5- 1-07-1763
possession of a controlled substance is void, relying on the same
arguments raised in its motion to vacate sentence filed with this
court.
A sentence which is contrary to a statutory requirement is
void and may be attacked at any time, either directly or
collaterally. See People v. Whitfield, 228 Ill. 2d 502, 510-11,
888 N.E.2d 1166 (2007), citing People v. Arna, 168 Ill. 2d 107,
113, 658 N.E.2d 107 (1995); People v. Wade, 116 Ill. 2d 1, 5-6,
883 N.E.2d 762 (1987). See also People v. Simmons, 256 Ill. App.
3d 651, 652, 628 N.E.2d 759 (1993).
Defendant contends, however, that the State lacks
jurisdiction to bring a motion to void the probation sentence in
this appeal, citing People v. Flowers, 208 Ill. 2d 291, 307, 802
N.E.2d 1174 (2004). In Flowers, the defendant filed a 604(d)
motion to reject her guilty plea and reconsider her sentence,
contending in part that the portion of her sentence authorizing
the Department of Corrections to withhold a part of her prison
income to pay court costs was void because the Unified Code of
Corrections did not authorize the withholding. The circuit court
denied the motion as untimely and defendant appealed. The
appellate court reversed, holding that even though the
defendant’s 604(d) motion was untimely, the requirements of Rule
604(d) were not jurisdictional and could be excused when
-6- 1-07-1763
consideration of an unauthorized aspect of a sentence would
better serve the ends of justice. Flowers, 208 Ill. 2d at 299.
Reversing the appellate court, the supreme court held “[a]
void order does not cloak the appellate court with jurisdiction
to consider the merits of an appeal.” Flowers, 208 Ill. 2d at
307. Although the supreme court recognized a void order may be
attacked at any time, the court held “the issue of voidness must
be raised in the context of a proceeding that is properly pending
in the courts.” Flowers, 208 Ill. 2d at 308. “If a court lacks
jurisdiction, it cannot confer any relief, even from prior
judgments that are void.” Flowers, 208 Ill. 2d at 308. The only
matter properly before the appellate court was the circuit
court’s lack of jurisdiction over Flowers’ untimely Rule 604(d)
motion. Flowers, 208 Ill. 2d at 307. Because strict compliance
with Rule 604(d) was a condition precedent to an appeal on the
merits, the supreme court held the appellate court “had no
authority to intervene and vacate the portion of Flowers’
sentence authorizing 50% of her income to be withheld.” Flowers,
208 Ill. 2d at 308-09.
We find Flowers does not apply to the facts before us. In
this case, defendant properly and timely appealed his probation
revocation conviction. The probation order, by way of
defendant’s probation revocation conviction, is the subject of
-7- 1-07-1763
the appeal pending before us. In light of the context of this
appeal, we find we have jurisdiction to consider the question of
whether the probation order is void.
In Wade, the defendant pled guilty to robbery as part of a
negotiated plea agreement in which the parties stipulated that he
had no prior convictions. Under the plea agreement, the
defendant was sentenced to 90 days in the Cook County Jail, with
time considered served, and 36 months’ probation. Nine months
later, the circuit court was informed by a probation officer that
the defendant had previously been convicted of armed robbery and
rape, which made him ineligible for probation under the Unified
Code of Corrections. The trial court held the order granting
probation was void on the grounds that the defendant was not
eligible at the time of sentencing, rejecting the defendant’s
argument that the court had lost jurisdiction 30 days after
entering the sentencing order. The defendant was allowed to
withdraw his guilty plea. Following a jury trial, he was found
guilty of robbery and sentenced to nine years’ imprisonment. The
appellate court affirmed the defendant’s conviction.
On appeal, the defendant contended the circuit court did not
have jurisdiction to vacate the sentence 11 months later. The
State countered that because the circuit court lacked authority
to impose probation, the first sentencing order was void and
-8- 1-07-1763
could be set aside at any time. The supreme court noted that it
had previously held a trial court “has an obligation to order the
criminal penalties mandated by the legislature.” Wade, 116 Ill.
2d at 6, citing People ex rel. Carey v. Bentivenga, 83 Ill. 2d
537, 544, 416 N.E.2d 259 (1981). “A trial court, upon
determining guilt, has no authority to assess a fine or impose a
sentence other than that provided by statute.” Wade, 116 Ill. 2d
at 6. The supreme court affirmed the defendant’s conviction and
sentence.
In Simmons, the defendant was convicted of aggravated
discharge of a firearm and unlawful use of a firearm by a felon
on July 30, 1991. He was placed on 30 months’ probation, over
the State’s objection that he was ineligible for probation
because he had prior class 2 felony convictions. On December 20,
1991, the State filed a petition for violation of probation,
alleging the defendant committed the offenses of possession of a
stolen motor vehicle and burglary. The circuit court found
defendant guilty of the violation and revoked his probation. He
was sentenced to 15 years’ imprisonment for the probation
violation. On appeal, defendant contended the original order
placing him on probation was void because he was ineligible for
probation; that the subsequent order revoking his probation was
also void; and, consequently, that his 15-year sentence for
-9- 1-07-1763
violating probation must be vacated as void.
We noted a sentence is void for lack of inherent power where
the court orders a lesser sentence than is mandated by statute.
Simmons, 256 Ill. App. 3d at 652, citing Wade, 116 Ill. 2d at 6.
The circuit court placed the defendant on probation despite the
State’s objection that he was ineligible in light of his prior
felony convictions. Relying on Wade, we held the order placing
him on probation was void because he was ineligible. Simmons,
256 Ill. App. 3d at 653. “The court lacked the inherent power to
order a sentence lesser than mandated by statute.” Simmons, 256
Ill. App. 3d at 653. Because the underlying order of probation
was void, we held the subsequent order revoking the defendant’s
probation and the 15-year sentence imposed upon revocation of the
probation were likewise void. We vacated the order revoking
defendant’s probation and his 15-year sentence, and remanded for
resentencing on the defendant’s original convictions. Simmons,
256 Ill. App. 3d at 653.
In this case, defendant was convicted in 2000 for possession
of a controlled substance with intent to deliver within 1000 feet
of a building used for religious worship, a Class 1 felony. See
720 ILCS 570/401(d), 407(b)(2) (West 2000). On January 10, 2001,
the trial court sentenced defendant to 24 months’ TASC
-10- 1-07-1763
probation.1
Section 40-10(a) of the Alcoholism and Other Drug Abuse and
Dependency Act (Act) (20 ILCS 301/40-10 (West 2000)) provides, in
relevant part, that:
“If a court has reason to believe that an
individual who is charged with or convicted
with a crime suffers from alcoholism or other
drug addiction and the court finds that he is
eligible to make the election provided for
under Section 40-5, the court shall advise
the individual that he or she may be
sentenced to probation and shall be subject
to terms and conditions or probation under
Section 5-6-3 of the Unified Code of
Corrections.” 20 ILCS 301/40-10(a) (West
2000).
Section 40-5(2) of the Act provides an addict or alcoholic
who is charged with or convicted of a crime may elect treatment
unless:
1 Although the trial court indicated it was sentencing defendant to TASC probation under section 91 1/2 of the Dangerous Drug and Abuse Act (Ill. Rev. Stat. 1977, ch. 91 1/2, par. 120.1 et seq.), we note section 91 1/2 had already been replaced by section 40-10 of the Alcoholism and Other Drug Abuse and Dependency Act (20 ILCS 301/40-10 (West 2000)) at the time of defendant’s sentencing hearing.
-11- 1-07-1763
“(2) the crime is a violation of Section
401(a), 401(b), 401(c) where the person
electing treatment has been previously
convicted of a non-probationable felony or
the violation is non-probational, 401(d)
where the violation is non-probational,
401.1, 402(a), 405 or 407 of the Illinois
Controlled Substances Act ***.” 20 ILCS
301/40-5(2) (West 2000).
Pursuant to section 40-5(2), defendant was statutorily
ineligible to be placed on probation under section 40-10 of the
Act because he was convicted of a crime under section 407 of the
Illinois Controlled Substance Act. See 20 ILCS 301/40-5(2) (West
2000). Because defendant was ineligible for probation and was
Class X eligible under section 5-5-3(c)(8) of the Unified Code of
Corrections (730 ILCS 5/5-5-3(c)(8) (West 2000)), the trial court
should have imposed a mandatory sentence of “not less than 6
years and not more than 30 years” imprisonment. See 730 ILCS
5/5-8-1(a)(3) (West 2000). Despite the State’s repeated
objections during the sentencing hearing that defendant was Class
X mandatory and ineligible for probation, the trial court
disregarded the sentencing scheme and imposed TASC probation. “A
trial court, upon determining guilt, has no authority to assess a
-12- 1-07-1763
fine or impose a sentence other than that provided by statute.”
Wade, 116 Ill. 2d at 6.
Defendant contends that under the unique circumstances
presented in this case, it would be unjust to apply the general
rule that a void sentence can be challenged at any time nearly
six years after the completion and expiration of his probationary
period.
The State counters that personal service of a petition to
revoke probation tolls the probation period until the hearing and
disposition of the petition for violation, pursuant to section 5-
6-4(a) of the Code (730 ILCS 5/5-6-4(a) (West 2000)). The State
filed a petition for violation of probation and warrant on August
10, 2001, about 8 months into defendant’s 2-year probation
period.
Defendant was sentenced under section 40-10 of the
Alcoholism and Other Drug Abuse and Dependency Act, not the
Unified Code of Corrections. Section 40-10 of the Act, however,
specifically provides “the court shall advise the individual that
he or she *** shall be subject to the terms and conditions of
probation under Section 5-6-3 of the Unified Code of
Corrections.” See 20 ILCS 301/40-10 (West 2000). One condition
of probation is that a person on probation “not violate any
criminal statute of any jurisdiction.” 730 ILCS 5/5-6-3(a)(1)
-13- 1-07-1763
(West 2000). Section 5-6-4(a) of the Code provides how
revocation of probation should be initiated if a condition of
probation, which is spelled out in section 5-6-3, is violated.
See 730 ILCS 5/5-6-4(a) (West 2000). We find defendant’s
probation period was tolled by the filing of the State’s
petition. Moreover, we are bound by supreme court precedent,
which clearly provides “a sentence which is contrary to a
statutory requirement is void and can be corrected at any time.”
(Emphasis added.) Whitfield, 228 Ill. 2d at 510.
We also find the State’s request to vacate defendant’s
probation violation conviction as void and remand the cause for
resentencing on the 2000 possession charge does not constitute
double jeopardy, as defendant contends. Although the double
jeopardy clauses of the United States and Illinois Constitutions
protect a defendant from multiple punishments for the same
offense (U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10;
People v. Janovic, 365 Ill. App. 3d 547, 549, 850 N.E.2d 238
(2006)), our supreme court has clearly said probation is not a
“punishment” in the same sense as imprisonment is a punishment
(Whitfield, 228 Ill. 2d at 519-20). “[A] defendant sentenced to
probation, and then sentenced for the same offense, is not
subjected to an unconstitutional second punishment for double
jeopardy purposes.” Whitfield, 228 Ill. 2d at 520.
-14- 1-07-1763
In light of Wade and Simmons, we find the order placing
defendant on probation is void because the trial court “lacked
the inherent power to order a sentence lesser than that mandated
by statute.” Simmons, 256 Ill. App. 3d at 653; Wade, 116 Ill. 2d
at 4-7. Because defendant’s probation sentence is void, we must
vacate his probation revocation conviction and sentence and
remand the cause for resentencing on the defendant’s original
drug conviction in accord with the proper statutory mandates.
B. Prosecutorial Vindictiveness
Defendant also contends the State’s attempt to void his
probation sentence--almost eight years after the sentence was
entered--is an attempt to punish defendant for having won the
appeal on his 2005 first-degree attempt murder, attempt armed
robbery, and aggravated battery convictions. Defendant contends
the State’s efforts to void the sentence after he successfully
appealed his 2005 convictions amount to prosecutorial
vindictiveness.
Due process prohibits the State from punishing a defendant
for exercising his right to appeal. Blackledge v. Perry, 417
U.S. 21, 28-29, 94 S. Ct. 2098, 2103, 40 L. Ed. 2d 628, 634-35
(1974). “A person convicted of an offense is entitled to pursue
his statutory right to a trial de novo, without apprehension that
the State will retaliate by substituting a more serious charge
-15- 1-07-1763
for the original one, thus subjecting him to a significantly
increased potential period of incarceration.” Blackledge, 417
U.S. at 28, 94 S. Ct. at 2103, 40 L. Ed. 2d at 634-35.
A presumption of prosecutorial vindictiveness is warranted
where a prosecutor brings additional or more serious charges
against a defendant after he has been convicted of an offense and
has overturned his conviction. People v. Hall, 311 Ill. App. 3d
905, 911-12, 726 N.E.2d 213 (2000), citing Blackledge, 417 U.S.
at 27-29, 94 S. Ct. at 2102-03, 40 L. Ed. 2d at 634-35. “When
the presumption is not applicable ‘a defendant in an appropriate
case might prove objectively that the prosecutor’s charging
decision was motivated by a desire to punish him for doing
something the law plainly allowed him to do.’ ” (Emphasis in
original.) Hall, 311 Ill. App. 3d at 912, quoting United States
v. Goodwin, 457 U.S. 368, 102 S. Ct. 2485, 73 L. Ed. 2d 74
(1982). Once a presumption of vindictiveness is established, the
prosecution must come forward with objective evidence of a
legitimate motivation for filing the charge. Hall, 311 Ill. App.
3d at 912. In this case, the State does not seek to bring an
additional or more serious charge against the defendant.
Initially, we note the State’s cavalier attitude toward the
validity of defendant’s probation sentence in this case. The
State never filed a formal motion to void the probation sentence
-16- 1-07-1763
during the probation revocation proceedings in the circuit court.
Nor did the State seek a supervisory order from our supreme court
to correct the illegal sentence entered in the possession case,
as it was entitled to do. See Cinkus v. Village of Stickney
Municipal Officers Electoral Board, 228 Ill. 2d 200, 220-21, 886
N.E.2d 1011 (2008) (“As a general rule, this court will issue a
supervisory order only when the normal appellate process will not
afford adequate relief and the dispute involves a matter
important to the administration of justice, or intervention is
necessary to keep an inferior tribunal from acting beyond the
scope of its authority.”)
Contrary to defendant’s contention, however, the State did
not sit idly by until after defendant’s 2005 convictions were
overturned by this court. The record reflects the State
vigorously argued defendant’s sentence of probation was void
before it presented evidence during the probation revocation
hearing, which occurred several months before our reversal of
defendant’s conviction in Allen. The State also strenuously
objected to the probation sentence during the original sentencing
hearing in the underlying possession case, arguing defendant
should be sentenced to a mandatory Class X penitentiary sentence
in light of his criminal background.
In response to defendant’s argument during the revocation
-17- 1-07-1763
hearing that he could not have been sentenced to a Class 1 felony
because he received probation, the State said:
“This defendant never should have been
sentenced to probation by Judge Himel or TASC
or mental health probation. He should have
been sentenced six to thirty years in the
Illinois Department of Corrections. *** As
far as Judge Himel is concerned, he entered a
void sentencing order and it has no meaning
to this Court and it should have no meaning
in his violation of probation hearing. He
got that probation. He was on probation.
And we are not restricted by that sentence.
In fact, the Court is obligated in this case
to correct what Judge Himel did and give him
what he deserves, which is a sentence
commensurate with the mandatory X felon, six
to thirty years in the Illinois Department of
Corrections.”
In response to the State’s contentions, the trial court
said, “The sentence that Judge Himel gave him, whether it was an
illegal sentence or an improper sentence, I don’t think has
anything to do with what we do here.”
-18- 1-07-1763
Defendant contends that although the State was aware
defendant’s probation sentence was void since his initial
sentencing hearing in 2001, the State made no attempt to void the
sentence until defendant’s probation violation hearing on
February 15, 2007. We fail to see that the State had an earlier
opportunity to raise the issue before this court. The record
does not indicate defendant appealed his 2000 possession
conviction, and the State does not have the right to directly
appeal sentencing orders under Supreme Court Rule 604(a). 188
Ill. 2d R. 604(a) (“In criminal cases the State may appeal only
from an order or judgment the substantive effect of which results
in dismissing a charge for any of the grounds enumerated in
section 114-1 of the Code of Criminal Procedure of 1963.”) No
reported case of prosecutorial vindictiveness exists that covers
the facts present here--the probation sentence is void and the
State raised the voidness issue during the original sentencing
and probation revocation proceedings.
In light of the record before us, we find the State’s
attempt in this appeal to void defendant’s probation sentence and
remand the cause for resentencing does not amount to
prosecutorial vindictiveness. Because we have determined
defendant’s probation sentence was void, we need not address his
remaining contentions.
-19- 1-07-1763
CONCLUSION
We void defendant’s probation sentence, vacate his probation
revocation conviction and sentence, and remand the cause for
resentencing only on defendant’s 2000 possession of a controlled
substance conviction in accordance with the proper statutory
mandates.
Probation vacated; cause remanded for resentencing.
R. GORDON, P.J., and HALL, J., concur.
-20- 1-07-1763 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT (Front Sheet to be Attached to Each Case)
Please use THE PEOPLE OF THE STATE OF ILLINOIS, following form: Plaintiff-Appellee,
Complete v. TITLE of Case WALTER ALLEN,
Defendant-Appellant.
Docket Nos. No. 1-07-1763
COURT Appellate Court of Illinois First District, 1st Division Opinion Filed November 3, 2008
(Give month, day and year)
JUSTICES JUSTICE WOLFSON delivered the opinion of the court:
R. GORDON, P.J., and HALL, J., concurs.
APPEAL from the Lower Court and Trial Judge(s) in form indicated in margin: Circuit Court of Cook County; the Appeal from the Circuit Court of Cook County. Hon.___________, Judge Presiding. The Hon. Daniel P. Darcy, Judge Presiding.
For APPELLANTS, Indicate if attorney represents APPELLANTS or APPELLEES and John Doe, of include attorneys of counsel. Indicate the word NONE if Chicago. not represented.
For APPELLEES, For Appellant, Sean C. Herring, Justin A. Houppert, and Smith and Smith, John J. Hamill, JENNER & BLOCK LLP, of Chicago. of Chicago
For Appellee, Richard A. Devine, State's Attorney Joseph Brown, of Cook County, of Chicago. (James E. Fitzgerald, of counsel). Alan J. Spellberg, and Janet C. Mahoney, of Counsel.) Also add attor- neys for third- party appellants and/or appellees.
(USE REVERSE SIDE IF NEEDED)
-21-