2016 IL App (1st) 141664 No. 1-14-1664 Opinion Filed March 30, 2016
THIRD DIVISION
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT
) Appeal from the PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court ) of Cook County, Plaintiff-Appellee, ) Illinois. ) v. ) No. 04CR28617 ) BRANDON COLE, ) ) The Honorable Defendant-Appellant. ) Joseph G. Kazmierski, ) Judge Presiding. ) ) _____________________________________________________________________________
JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Presiding Justice Mason and Justice Lavin concurred in the judgment and opinion.
OPINION
¶1 After a jury trial, defendant Brandon Cole was found guilty of two counts of
attempted first degree murder and two counts of aggravated battery with a firearm for the
shooting of Zachary Parson and Tiffany Space. He was sentenced to two terms of 20-years'
imprisonment on the attempted murder convictions, to be served concurrently. He appealed,
arguing that that his trial counsel was ineffective and that the evidence was insufficient to 1-14-1664
convict him. People v. Cole, No. 1-08-0761 (2010) (unpublished order under Supreme Court
Rule 23). We affirmed defendant's convictions, but vacated the trial court's imposition of
concurrent sentences, remanding for imposition of consecutive sentences. People v. Cole,
No. 1-08-0761 (2010) (unpublished order under Supreme Court Rule 23). On remand, the
trial court held a new sentencing hearing after which it resentenced defendant to two
consecutive terms of 15 years' imprisonment. Defendant now appeals from the resentencing,
contending: (1) his original 20-year concurrent terms were not void and are, therefore,
neither subject to increase nor appealable by the State; and (2) the resentencing court erred in
increasing his "aggregate sentence" by 10 years on remand. For the following reasons, we
affirm.
¶2 BACKGROUND
¶3 Many of the underlying details are included in defendant's direct appeal and
postconviction appeal. People v. Cole, No. 1-08-0761 (2010) (unpublished order under
Supreme Court Rule 23) (the direct appeal); People v. Cole, 2012 IL App (1st) 102499 (the
postconviction appeal). We recite here only those facts pertinent to the current appeal.
¶4 In 2007, defendant and codefendant Christopher Flint 1 were tried simultaneously but
before separate juries. At trial, victim Parson testified that he was shot by defendant on
November 14, 2004, while walking with covictim Space. Specifically, Parson testified that
he heard six shots and saw the shots coming from a gun held by defendant, whom he had
known for approximately 10 years. Defendant, holding the gun, was about three or four feet
away at the time. Parson was struck four times, suffering bullet wounds to his stomach, leg,
and arm. Parson fell to the ground.
1 Codefendant Flint is not a party to this appeal. 2 1-14-1664
¶5 From the ground, Parson saw codefendant Flint, whom he had also known
approximately 10 years, shoot at Space. Space was shot six times: twice in the abdomen,
once in the neck, back, hip, and buttocks.
¶6 When the shooting stopped, Parson saw defendant and Flint run into an alley across the
street. Parson called the police. Both victims survived.
¶7 Defendant was found guilty of two counts of attempted first degree murder and two
counts of aggravated battery with a firearm. Following a sentencing hearing, defendant was
sentenced to two terms of 20 years' imprisonment on the attempted murder convictions, to be
served concurrently.
¶8 Defendant appealed, arguing that the State failed to prove his guilt beyond a reasonable
doubt; that trial counsel was ineffective for failing to move to quash his arrest and suppress
evidence; and that trial counsel was ineffective for failing make particular objections at trial.
People v. Cole, No. 1-08-0761 (2010) (unpublished order under Supreme Court Rule 23).
We affirmed defendant's convictions, but remanded for a new sentencing hearing. As to the
sentencing issue, in the direct appeal, we stated, "The State challenges the imposition of
concurrent prison terms," with the following footnote:
"The defendant first identified this issue in his initial brief, evidently
anticipating the State would address it in its responsive brief." People v. Cole,
No. 1-08-0761 (2010) (unpublished order under Supreme Court Rule 23).
We clarify that statement and footnote today. While it is true that defendant "first identified"
the issue in his opening brief on the direct appeal, he did so by more than a mere mention of
the issue. Rather, the issue had its own heading plus two full pages of argument. The
heading, in bold, read:
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"The holding of the Illinois Supreme Court in People v. Arna[,168 Ill. 2d
107 (1995),] is not applicable to the case at bar because the trial court properly
determined that the criteria for mandatory consecutive sentences were not present
under the facts of this case."
¶9 Defendant proceeded, then, to argue why Arna was not pertinent to his sentence and
why it was appropriate for him to serve concurrent prison terms. He ended his argument
with the following paragraph:
"Consequently, in the event that this court affirms the judgment of the
circuit court of Cook County convicting Mr. Cole for the offenses of attempt first
degree murder of both Mr. Parson and Ms. Space, this Court should also affirm
the judgment of the circuit court of Cook County sentencing Mr. Cole to serve his
prison terms concurrently."
¶ 10 In its response brief, the State noted that defendant's legal argument was outdated and
argued that Arna did apply to defendant's convictions. It urged this court to remand for
resentencing for statutorily required consecutive sentences. In his reply brief, defendant
acknowledged his legal argument was outdated and conceded the sentencing issue.
¶ 11 Defendant, rather than the State, raised the sentencing issue in his opening appellate
brief on direct appeal. In that appeal, we found that the trial court erred in imposing
concurrent sentences. We vacated the sentences and remanded "for a new sentencing hearing
for the imposition of consecutive sentences." People v. Cole, No. 1-08-0761 (2010)
(unpublished order under Supreme Court Rule 23).
¶ 12 Prior to being resentenced, defendant filed a pro se petition for postconviction relief
under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)).
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People v. Cole, 2012 IL App (1st) 102499. The trial court dismissed the petition as being
frivolous and patently without merit, and this court affirmed. People v. Cole, 2012 IL App
(1st) 102499, ¶¶ 27-28.
¶ 13 Time passed before defendant was resentenced. In 2013, defendant filed a petition for
habeas corpus to demand resentencing. The court appointed the public defender to represent
defendant and the case proceeded to a resentencing hearing.
¶ 14 Upon resentencing, the trial court ordered a new presentence investigation report and
conducted a new sentencing hearing. At the hearing, the State recited the facts of the case,
including that the victims were shot a total of 10 times and both had to undergo surgery for
their injuries. The State reiterated that this constituted severe bodily injury and that the new
sentences imposed must be served consecutively. The State asked for a sentence of 20 years
for each conviction, to be served consecutively, for a total of 40 years' incarceration.
¶ 15 The defense argued defendant's original sentence was, in reality, a total sentence of 17
years' incarceration, where the sentence was two concurrent terms of 20 years' incarceration
to be served at 85%. The defense argued that, because the court would have known
defendant would only serve 17 years, the court, in handing down the original sentence, was
actually making manifest its intent to sentence defendant to 17 years' incarceration.
Therefore, the defense asked the court to start with two 10-year terms, served consecutively
at 85%, as the upper limit of its sentence calculations, rather than consider the full sentencing
range for the crimes.
¶ 16 In mitigation, the defense argued that defendant had taken steps while incarcerated to
improve himself, including learning to read and write, being waitlisted for the GED program,
training to be a janitor and then working as a housing unit janitor, setting the goal of being a
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barber upon release from incarceration, and attending religion classes. The defense also
argued that the public interest would be served by allowing defendant to get out of jail
earlier, as it would be an incentive for others to do well while incarcerated. The defense
argued that defendant "as he stands here today [is] a different person than he was when he
was sentenced back in 2007," and that defendant "wants to better himself so when he is
released he is able to get a job and be a productive member of society." The defense asked
the court to sentence defendant to the minimum allowable sentence of two terms of six years
each, to be served consecutively at 85%.
¶ 17 The court stated:
"THE COURT: I am looking at all the information. The case was remanded back
to me for a new sentencing hearing based upon the fact that you should have been
sentenced to consecutive sentences rather than concurrent, which you initially
[were].
Looking at all the information contained in the presentence investigation
report I find that your prior history of criminal behavior is as stated in the
presentence investigation report. Also that there was serious harm inflicted in this
case to each of the victims concerned herein. Also I am considering the
information provided by your attorney from your stay in the Illinois Department
of Corrections in the interim process as well.
Based on all those factors I just enumerated, on Counts 1 and 2 I am going
to sentence you to a term of 15 years in the Illinois Department of Corrections.
The sentence is to be served consecutively or one right after the other. Your
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sentence does include three years mandatory supervised release. It's an 85 percent
sentence as well."
The defendant asked the court if the sentence was a total of 15 years' incarceration, or two
sentences of 15 years each, and the court clarified that it was "15 and 15."
¶ 18 Defense counsel made an oral motion to reconsider the sentence, which the court
denied, noting, "I am considering the sentence in the manner in which the Appellate Court
told me to ***."
¶ 19 Defendant appeals.
¶ 20 ANALYSIS
¶ 21 I. Defendant's Original Sentences
¶ 22 On appeal, we first consider defendant's contention that his original sentences were "not
void under a proper understanding of the term, and thus not subject to increase by this Court
or appealable by the State." Specifically, defendant admits his original concurrent sentences
were improper and that he should have been sentenced to consecutive sentences. However,
relying on new supreme court precedent, People v. Castleberry, 2015 IL 116916, which
abrogated People v. Arna and its holding that a void sentence can be challenged at any time,
defendant urges this court to recognize that the original sentence should never have been
addressed. He asks this court to reinstate his admittedly improper concurrent sentences or to
order a remand for resentencing with an "aggregate sentence cap of 20 years."
¶ 23 As an initial matter, the State notes and defendant concedes that defendant has
forfeited review of this claim by failing to include it in his written motion to reconsider
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sentence. 2 See People v. Bair, 379 Ill. App. 3d 51, 57 (2008). Defendant, however, urges us
to review the issue pursuant to the plain error doctrine and, in lieu of that, as an ineffective
assistance of counsel claim. In order to preserve an issue for appeal, a party must first make
an objection to the alleged error at trial and then raise it in a posttrial motion. People v.
Enoch, 122 Ill. 2d 176, 186 (1988). When he fails to meet these requirements, the issue is
forfeited. People v. Reddick, 123 Ill. 2d 184, 198 (1988). The plain error doctrine "permits a
reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and
the evidence is so closely balanced that the error alone threatened to tip the scales of justice
against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error
occurred and that error is so serious that it affected the fairness of the defendant's trial and
challenged the integrity of the judicial process, regardless of the closeness of the evidence."
People v. Sargent, 239 Ill. 2d 166, 189 (2010); see also People v. Piatkowski, 225 Ill. 2d 551,
565 (2007) (citing People v. Herron, 215 Ill. 2d 167, 186-87 (2005)); see also Ill. S. Ct. R.
615(a) (eff. Jan. 1, 1967) ("[a]ny error, defect, irregularity, or variance which does not affect
substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may
be noticed although they were not brought to the attention of the trial court."). Under either
prong of the plain error doctrine, the burden of persuasion remains on the defendant. People
v. Bowman, 2012 IL App (1st) 102010, ¶ 30 (citing People v. Lewis, 234 Ill. 2d 32, 43
(2009)). Based on the circumstances presented in the instant cause, defendant cannot meet
his burden here.
2 This motion, filed after defendant's initial sentencing, alleged only that the sentence was
excessive "in view of the defendant's background and the nature of his participation in the
offense" and that the sentence "improperly penalized defendant for exercising his right to trial."
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¶ 24 Defendant contends that plain error is established under the second prong, arguing that
the "State's appeal of [defendant's] sentence, the appellate court's determination that
[defendant's] sentence was void, and the unauthorized sentence affects his substantial rights."
In other words, defendant challenges our 2010 decision and the resentencing that followed. 3
We elect to consider this alleged error pursuant to the plain error doctrine. "The first step of
plain-error review is to determine whether any error occurred." Lewis, 234 Ill. 2d at 43; see
also People v. Wilson, 404 Ill. App. 3d 244, 247 (2010) ("There can be no plain error if there
was no error at all ***."). This requires "a substantive look at [the issue raised]." (Internal
quotation marks omitted.) People v. Johnson, 208 Ill. 2d 53, 64 (2003).
¶ 25 We therefore first review defendant's claim to determine if there was any error before
considering it under plain error, and we find no error where: (1) the doctrine of the law of
the case applies such that defendant is no longer able to challenge his remand for
resentencing, but is only able to challenge the new sentence itself; (2) the recent Illinois
Supreme Court case relied upon by defendant, People v. Castleberry, does not apply to
defendant's case; and (3) neither Illinois Supreme Court Rule 604 (eff. July 1, 2006) nor Rule
615 (eff. Jan. 1, 1967) precluded this court's review of defendant's original unauthorized
sentences on direct appeal.
¶ 26 1. Law of the Case
3 We acknowledge that the timing of events in this case is unusual. We remanded for
resentencing on March 8, 2010. The record on appeal is unclear as to what caused the ensuing
delay, but defendant, apparently through no fault of his own, was not resentenced until May 15,
2014. Defendant filed his notice of appeal in this cause immediately thereafter, on May 16,
2014.
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¶ 27 The State argues this court's 2010 remand for the imposition of consecutive sentences,
with which the trial court complied, is the law of the case and should not be addressed at this
time. "[T]he law of the case doctrine bars relitigation of an issue already decided in the same
case." People v. Tenner, 206 Ill. 2d 381, 395 (2002); People v. Patterson, 154 Ill. 2d 414,
468 (1992) ("generally, a rule established as controlling in a particular case will continue to
be the law of the case, as long as the facts remain the same"). There must be a final
judgment to sustain application of the law of the case doctrine. Patterson, 154 Ill. 2d at 469.
Under the doctrine, an "issue of law decided on a previous appeal is binding on the circuit
court on remand as well as the appellate court on a subsequent appeal." People v. McDonald,
366 Ill. App. 3d 243, 247 (2006). The purpose of the doctrine is to "protect settled
expectations of the parties, ensure uniformity of decisions, maintain consistency during the
course of a single case, effectuate proper administration of justice, and bring litigation to an
end." McDonald, 366 Ill. App. 3d at 247; Bond Drug Co. of Illinois v. Amoco Oil Co., 323
Ill. App. 3d 190, 197 (2001) (" 'The rule of the law of the case is a rule of practice, based on
sound policy that, where an issue is once litigated and decided, that should be the end of the
matter and the unreserved decision of a question of law or fact made during the course of
litigation settles that question for all subsequent stages of the suit.' ") (quoting Continental
Ins. Co. v. Skidmore, Owings & Merrill, 271 Ill. App. 3d 692, 696-97 (1995)).
¶ 28 Courts have recognized that a party seeking review of a decision of the appellate court
has only two avenues for relief: either file a petition for rehearing or seek leave to appeal to
the supreme court. Harris Trust & Savings Bank v. Otis Elevator Co., 297 Ill. App. 3d 383,
388 (1998). Although the issue defendant now asks us to address—the propriety of remand
for the imposition of consecutive sentences—clearly had the potential to result in what
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defendant claims is a longer sentence, defendant neither filed a petition for rehearing from
the 2010 decision, nor sought leave to appeal to the supreme court. Therefore, our 2010
decision, People v. Cole, No. 1-08-0761 (2010) (unpublished order under Supreme Court
Rule 23), in which we found the trial court erred in imposing concurrent sentences and
remanded for resentencing is the law of the case.
¶ 29 There are two exceptions to the doctrine of the law of the case: (1) where the supreme
court makes a contrary ruling on the precise issue of law on which the appellate court had
based its prior decision; and (2) where the appellate court finds its prior decision was
erroneous, but only when the court remanded the case for a new trial of all the issues. Martin
v. Federal Life Insurance Co., 164 Ill. App. 3d 820, 824 (1987); People v. Lyles, 208 Ill.
App. 3d 370, 376 (1990). Neither of these exceptions apply to the case at bar. The first
exception, that of the supreme court making a contrary ruling on the precise issue of law, is
inapplicable because Castleberry abolished the void sentence rule in the context of a
sentence being increased, while the sentence in the case at bar, as will be discussed below,
involved consecutive versus concurrent sentences rather than a sentence increase, and, in any
event, the sentence handed down upon resentence was not an increase in defendant's
sentence. The second exception, that of the appellate court finding its prior decision
erroneous and the cause being remanded for a new trial on all issues, is clearly inapplicable
because we do not find this court's prior decision was erroneous and we did not remand for a
new trial on all of the issues. For these reasons, the 2010 appellate decision, People v. Cole,
No. 1-08-0761 (2010) (unpublished order under Supreme Court Rule 23), is the law of the
case.
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¶ 30 We also note here that defendant, citing Lyles, 208 Ill. App. 3d 370 (the judgment in
the defendant's case was not yet final until, upon remand, the final sentence was rendered),
argues that new supreme court decisions apply to cases on direct appeal and that his case
remains on direct appeal because his sentence is not yet final. What defendant fails to
recognize is that his consecutive sentences are the final judgment under review at this time,
rather than his initial concurrent sentences. In contrast to the case at bar, the Lyles
defendant's case was still on remand for resentencing and therefore not a final judgment at
the time a new United States Supreme Court decision potentially affecting the outcome was
announced. Lyles, 208 Ill. App. 3d at 375. In contrast, defendant here committed attempted
murder and aggravated battery with a firearm in 2004. He was tried and convicted for these
crimes in 2007. He then filed a direct appeal, from which this court remanded defendant's
case to the trial court for resentencing in 2010. People v. Cole, No. 1-08-0761 (2010)
(unpublished order under Supreme Court Rule 23). Defendant was then resentenced in 2014.
The direct appeal from defendant's conviction occurred in 2010. The case before this court
today is the direct appeal from defendant's new, consecutive sentences, to which defendant
was sentenced upon remand.
¶ 31 2. People v. Castleberry does not address this factual scenario
¶ 32 Even aside from the doctrine of the law of the case, however, we would still find that
Castleberry is distinguishable from the case at bar and does not require this court to reinstate
defendant's unauthorized previous sentences, where Castleberry dealt with: (1) the void
sentence rule; and (2) a cause that was remanded to the trial court with instructions to
increase the defendant's sentence. In contrast, the case at bar deals with a voidable sentence
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that was remanded to the trial court for resentencing and which, upon resentencing, was not
increased.
¶ 33 a. Defendant's Sentence is Voidable, Not Void
¶ 34 Our supreme court has "consistently held that a judgment is void if and only if the
court that entered it lacked jurisdiction." People v. Hubbard, 2012 IL App (2d) 101158, ¶ 16
(citing People v. Davis, 156 Ill. 2d 149 (1993)); accord Castleberry, 2015 IL 116916, ¶ 11.
In Davis, our supreme court criticized the persistent carelessness in the manner in which our
courts have interchangeably employed the terms "void" and "voidable." The court stated:
"The term 'void' is so frequently employed interchangeably with the term
'voidable' as to have lost its primary significance. Therefore, when the term 'void'
is used in a judicial opinion it is necessary to resort to the context in which the
term is used to determine precisely the term's meaning." Davis, 156 Ill. 2d at 155.
Our supreme then clarified that the term "void" should be reserved only for those judgments
rendered by a court that lacked jurisdiction. Davis, 156 Ill. 2d at 155. The court explained:
"Whether a judgment is void or voidable presents a question of jurisdiction.
[Citation.] Jurisdiction is a fundamental prerequisite to a valid prosecution and
conviction. Where jurisdiction is lacking, any resulting judgment rendered is void
and may be attacked either directly or indirectly at any time. [Citation.] By
contrast, a voidable judgment is one entered erroneously by a court having
jurisdiction and is not subject to collateral attack. [Citation.]" Davis, 156 Ill. 2d
at 155-56.
¶ 35 "[J]urisdiction or power to render a particular judgment does not mean that the
judgment rendered must be the one that should have been rendered, for the power to decide
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carries with it the power to decide wrong as well as to decide right." Davis, 156 Ill. 2d at
156. Moreover, once jurisdiction is acquired, "no subsequent error or irregularity will oust
the jurisdiction thus acquired"; and "a court may not lose jurisdiction because it makes a
mistake in determining either the facts, the law or both." Davis, 156 Ill. 2d at 156. Whether
a sentence is void is a question of law, subject to de novo review. People v. Donelson, 2011
IL App (1st) 092594, ¶ 7.
¶ 36 While this cause was pending on appeal, our supreme court released People v.
Castleberry, 2015 IL 116916. 4 In Castleberry, our supreme court abolished the void
sentence rule, which stated " 'A sentence which does not conform to a statutory requirement
is void,' " abrogating Arna, 168 Ill. 2d 107. Castleberry, 2015 IL 116916, ¶¶ 13, 19 (quoting
Arna, 168 Ill. 2d at 113). In its decision, the court stated, "recent decisions from this court
have undermined the rationale behind the [void sentence] rule to the point that the rule can no
longer be considered valid," and observed that the void sentence rule developed from prior
cases which held that, in addition to subject matter and personal jurisdiction, circuit courts
also possess " 'inherent authority' " or " 'inherent power,' " noting:
"[O]ur cases have at times also held 'that the power to render the particular
judgment or sentence is as important an element of jurisdiction as is personal
jurisdiction and subject matter jurisdiction.' [Citation.] Based on this idea, the
4 The opening briefs in this appeal were filed before our supreme court issued its opinion
in People v. Castleberry, 2015 IL 116916. Castleberry was released prior to the State
Appellate Defender's filing of its reply brief. We allowed the Office of the State's Attorney
to file a supplemental brief in regards to the effect of Castleberry on this cause.
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rule has developed which holds that a circuit court which violates a particular
statutory requirement when imposing a sentence acts without 'inherent authority'
or 'inherent power.' And, because the court has acted without power, it has acted
without jurisdiction, thereby rendering the sentence void. Thus, the void sentence
rule is stated: 'A sentence which does not conform to a statutory requirement is
void.' [Citation.]" Castleberry, 2015 IL 116916, ¶ 13.
However, continued the court, the Illinois Constitution granted circuit courts original
jurisdiction over all justiciable matters. Castleberry, 2015 IL 116916, ¶ 18 (citing Ill. Const.
1970, art. VI, § 9). Therefore:
"while the legislature can create new justiciable matters by enacting
legislation that creates rights and duties, the failure to comply with a statutory
requirement or prerequisite does not negate the circuit court's subject matter
jurisdiction or constitute a nonwaivable condition precedent to the circuit court's
jurisdiction." (Internal quotation marks omitted.) Castleberry, 2015 IL 116916, ¶
15.
The court reasoned that the "inherent power" idea of jurisdiction is at odds with the grant of
jurisdiction given to the circuit courts under the Illinois Constitution, then, and cannot be
reconciled with the court's decisions in Steinbrecher v. Steinbrecher, 197 Ill. 2d 514 (2001),
Belleview Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325 (2002), and LVNV
Funding, LLC v. Trice, 2015 IL 116129. Castleberry, 2015 IL 116916, ¶ 18. The court held:
"Because 'a circuit court is a court of general jurisdiction, which need not look to
the statute for its jurisdictional authority' (Steinbrecher, 197 Ill. 2d at 530 ***),
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the void sentence rule is constitutionally unsound. Accordingly, the void
sentencing rule is hereby abolished." Castleberry, 2015 IL 116916, ¶ 19.
Consequently, only the most fundamental defects, such as the lack of personal jurisdiction or
the lack of subject matter jurisdiction, warrant declaring a judgment void. Castleberry, 2015
IL 116916, ¶ 15.
¶ 37 Applying these principles to the facts of this case, we are compelled to conclude that
the initial sentencing order was voidable, not void. Defendant does not contest that the court
had jurisdiction over the defendant as well as over the subject matter. The court, therefore,
had authority to enter convictions and sentences on the charged offenses, and its order
sentencing defendant to two concurrent terms of 20 years' incarceration when it should have
ordered the sentences to be served consecutively was, merely, error. See Davis, 156 Ill. 2d at
156 ("jurisdiction or power to render a particular judgment *** carries with it the power to
decide wrong as well as to decide right"). This error did not divest the court of its
jurisdiction. See Davis, 156 Ill. 2d at 156 (once jurisdiction is acquired, "no subsequent error
or irregularity will oust the jurisdiction thus acquired"; and "a court may not lose jurisdiction
because it makes a mistake in determining either the facts, the law or both"). Therefore, the
order was voidable and not void. For this reason, it falls outside the strictures of Castleberry,
which abolished the void sentence rule.
¶ 38 b. Defendant's Sentence was Not Increased
¶ 39 The instant case is also distinguishable from Castleberry because Castleberry dealt
with a sentence that was remanded to be increased, whereas defendant's sentence was
remanded with directions to impose consecutive, as opposed to concurrent sentences. In
addition to abolishing the void sentence rule, the Castleberry court also addressed whether an
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appellate court could properly increase a defendant's sentence at the request of the State.
Castleberry, 2015 IL 116916, ¶ 20. At issue was the trial court's failure to impose the
mandatory 15-year sentencing enhancement where the defendant committed the crimes while
armed with a firearm. Castleberry, 2015 IL 116916, ¶ 3. Specifically, the Castleberry
defendant was convicted of two counts of aggravated criminal sexual assault based on
separate sexual acts with the victim. Castleberry, 2015 IL 116916, ¶ 3. The State argued at
sentencing that the defendant was subject to a mandatory 15-year firearm enhancement on
each of the two counts, but the trial court disagreed and sentenced the defendant to
consecutive terms of 9 years' imprisonment, with the 15-year firearm enhancement added to
only one of the counts. Castleberry, 2015 IL 116916, ¶¶ 3-4.
¶ 40 The defendant appealed, arguing jury selection errors and that the 15-year sentencing
enhancement was unconstitutional and should not have been added to his sentence.
Castleberry, 2015 IL 116916, ¶ 5. The appellate court rejected these arguments, found no
error in applying the sentencing enhancement, but remanded for the trial court to add the 15-
year sentencing enhancement to the sentence for each of the two counts on which the
defendant was convicted. Castleberry, 2015 IL 116916, ¶¶ 5-6. The appellate court,
therefore, effectively increased the defendant's sentence because it was initially a total term
of 33 years' incarceration. Castleberry, 2015 IL 116916, ¶ 4. Each count was subject to a
mandatory minimum term of 6 years' imprisonment. Castleberry, 2015 IL 116916, ¶ 3.
Therefore, at a minimum, the new sentence would be two terms of 6 years' imprisonment
plus the addition of two 15-year firearm enhancements, for a minimum of 42 years'
imprisonment.
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¶ 41 In contrast to Castleberry, defendant in the case at bar was not subject to an increased
sentence on resentencing. As noted, defendant was originally sentenced on his conviction of
two counts of attempted murder to two terms of 20 years' imprisonment, to be served
concurrently. On remand, the trial court sentenced defendant to two terms of 15 years'
imprisonment, to be served consecutively. Defendant contends that this sentence is actually
an increase in his sentence because the time he must serve is now 30 years rather than 20
years.
¶ 42 We disagree with defendant's contention that the trial court imposed a harsher sentence
on remand. While the time defendant will be incarcerated has increased, the term to which
he was sentenced has, in fact, decreased from 40 to 30 years. And it is the term of years he is
required to serve—rather than the manner in which those years are to be served—that is
relevant to our evaluation of whether the trial court imposed a more severe sentence on
remand. See People v. Carney, 196 Ill. 2d 518, 529-30 (2001) ("[C]onsecutive sentences
constitute separate sentences for each crime of which a defendant has been convicted." Thus,
"consecutive sentences do not constitute a single sentence and cannot be combined as though
they were one sentence for one offense. Each conviction results in a discrete sentence that
must be treated individually.").
¶ 43 In Carney, our supreme court held that a trial court's imposition of mandatory
consecutive sentences under section 5-8-4(a) of the Unified Code of Corrections (Code) (730
ILCS 5/5-8-4(a) (West 1996)) did not violate the defendant's due process rights under the
United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Carney, 196 Ill. 2d at 531. In so holding, our supreme court reaffirmed the longstanding rule
that consecutive sentences constitute separate sentences for each crime of which a defendant
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has been convicted, and cannot be combined as though they were one sentence for one
offense. Carney, 196 Ill. 2d at 529-30. The court specifically held that a defendant subject
to consecutive sentencing "is not exposed to punishment beyond that authorized by the jury's
verdict, provided that the sentence for each separate offense does not exceed the maximum
permitted by statute for that offense." Carney, 196 Ill. 2d at 532. The court explained this is
because consecutive sentencing "determines only the manner in which a defendant will serve
his sentences for multiple offenses." Carney, 196 Ill. 2d at 532. Accordingly, even when
subject to consecutive sentencing, "[e]ach conviction results in a discrete sentence that must
be treated individually." Carney, 196 Ill. 2d at 530; accord People v. Sanders, 356 Ill. App.
3d 998 (2005); People v. Moore, 359 Ill. App. 3d 1090 (2005).
¶ 44 In Sanders, a case similar to the one at bar, the defendant was initially sentenced to
three concurrent 25-year terms then, after appeal and remand, was resentenced to three
consecutive 10-year terms. He challenged his sentence. On appeal, this court affirmed,
holding that although the defendant may serve a longer aggregate sentence upon remand, a
10-year term for each individual conviction is less than the previous 25-year term for each
conviction. Sanders, 356 Ill. App. 3d at 1002. Specifically, the defendant argued on appeal
that the new sentence required him to serve five years longer than the sentence imposed upon
his first resentencing. Sanders, 356 Ill. App. 3d at 1003. We concluded as follows:
"Here, defendant's individual sentence for each specific conviction was not
increased. Upon his first resentencing, defendant was sentenced to 25 years for
each individual conviction. Upon his second resentencing, he was given 10 years
for each individual conviction. Clearly, 10 is not greater than 25. The fact that
defendant may now be in prison for 30 years (rather than 25 ***) is of no
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consequence *** since the three sentences cannot be added together to form one
sentence.
Accordingly, we find that the trial court did not increase defendant's
sentences upon his second resentencing." Sanders, 356 Ill. App. 3d at 1005.
¶ 45 Applying the longstanding rule that consecutive sentencing determines only the
manner in which the defendant will serve the sentence here, we must consider defendant's
sentences as individual sentences, that is, we are obliged to consider defendant's original
sentence as composed of two separate sentences of 20 years each, and defendant's sentence
upon resentencing as composed of two separate sentences of 15 years each. Under this
analysis, defendant's sentence was actually decreased rather than increased, as the total
original sentence was 40 years, and the total sentence upon resentencing is 30 years.
¶ 46 3. Illinois Supreme Court Rules 604 and 615
¶ 47 Defendant also argues that Illinois Supreme Court Rule 604(a) (eff. July 1, 2006)) and
Rule 615(b)(4) (eff. Jan. 1, 1967) prohibited this court's review of his original concurrent
sentences on direct appeal. As noted previously, however, this court's order on defendant's
original direct appeal is the law of the case. Therefore, we need not address defendant's
arguments under Rules 604(a) and 615(b)(4), as those arguments are only directed to the
propriety of the original remand order.
¶ 48 4. Ineffective Assistance of Trial Counsel
¶ 49 Defendant also contends that, in lieu of plain error review, we should review this claim
as an ineffective assistance of counsel claim because, he claims, his trial counsel provided
ineffective assistance by failing to include the issue in his written motion to reconsider the
sentence. To establish a claim of ineffective assistance of counsel, a defendant must show
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that: (1) his attorney's representation fell below an objective standard of reasonableness; and
(2) he was prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668,
687-88 (1984); People v. Palmer, 162 Ill. 2d 465, 475 (1994). Defendant's ineffective
assistance claim based on this issue fails because, having failed to file a petition for rehearing
or seek further review in the supreme court, defense counsel on remand was not in the
position to raise any error in the original remand order.
¶ 50 II. Is Defendant's Sentence Excessive?
¶ 51 Defendant next contends the court abused its discretion in sentencing him to two
consecutive 15-year terms of incarceration. Specifically, defendant argues that the court
violated his due process rights by increasing his "aggregate sentence" without stating the
reasons behind the increase. Defendant also argues that the sentence he received was
excessive and urges us to remand this cause for resentencing with a "20-year sentencing cap."
¶ 52 Defendant, relying on North Carolina v. Pearce, 395 U.S. 711 (1969), which was
adopted by our supreme court in People v. Baze, 43 Ill. 2d 298 (1969), and codified in
section 5-5-4(a) of the Code (730 ILCS 5/5-5-4(a) (West 2012)), contends that when his
original sentence was vacated on direct review, the trial court was prohibited from imposing
a more severe sentence on remand and that in doing so, the trial court displayed
vindictiveness, which inference can only be overcome by a showing that the greater sentence
was imposed based on conduct on the part of defendant after the time of the original
sentencing proceeding. Pearce created the following requirement:
"[W]henever a judge imposes a more severe sentence upon a defendant after a
new trial, the reasons for his doing so must affirmatively appear. Those reasons
must be based upon objective information concerning identifiable conduct on the
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part of the defendant occurring after the time of the original sentencing
proceeding. And the factual data upon which the increased sentence is based
must be made part of the record, so that the constitutional legitimacy of the
increased sentence may be fully reviewed on appeal." Pearce, 395 U.S. at 726.
This rule was later limited by Alabama v. Smith, 490 U.S. 794, 799 (1989), such that
whenever a court that imposes a more severe sentence upon a defendant after a new trial in
which the circumstances are such that there is a reasonable likelihood that an increase in
sentence is the product of actual judicial vindictiveness to affirmatively state the reasons for
the increase. Alabama, 490 U.S. at 799. Defendant's argument here fails because it relies on
his sentence having been increased upon remand for resentencing. As discussed above, his
sentence was not increased but was, in fact, decreased. See People v. Phelps, 211 Ill. 2d 14;
Carney, 196 Ill. 2d at 532; Moore, 177 Ill. 2d at 436; Sanders, 356 Ill. App. 3d at 1005.
¶ 53 In the alternative, defendant argues that if we find Pearce inapplicable, then his
sentences should nonetheless be vacated as excessive. In this regard, defendant urges us to
remand the matter to the trial court for resentencing to impose "appropriate consecutive
sentences" with an aggregate sentence cap of 20 years' incarceration. He arrives at this
number by considering what he thinks was his original sentence, that is, 20 years'
incarceration. Defendant refers to this as "the original amount of time imposed by the trial
court." We understand defendant's frustration that he believed himself to be sentenced to 20
years' incarceration because two sentences of 20 years' incarceration is served, effectively, as
20 years in prison, but upon resentencing, he is now sentenced to 30 years' incarceration.
His argument in this regard is unavailing, however, as his original sentence, though
unauthorized, was not a sentence of 20 years' incarceration. Instead, it was a total sentence
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of 40 years' incarceration comprised of two sentences of 20 years' incarceration that were
erroneously ordered to be served concurrently. See, e.g., People v. Phelps, 211 Ill. 2d 1, 14
(2004) (" '[e]ach conviction results in a discrete sentence that must be treated individually' "
(emphasis omitted)) (quoting Carney, 196 Ill. 2d at 530); Carney, 196 Ill. 2d at 532; Moore,
177 Ill. 2d at 436; Sanders, 356 Ill. App. 3d at 1005. Defendant's argument, therefore, is
unpersuasive.
¶ 54 Defendant next argues his sentence was excessive, and that his good behavior while
incarcerated should have merited a lesser sentence upon resentencing. We disagree.
¶ 55 A trial court has broad discretionary powers in imposing a sentence, and its sentencing
decisions are entitled to great deference. People v. Perruquet, 68 Ill. 2d 149, 154 (1977).
That is because the trial judge, having observed the defendant and the proceedings, is in a
much better position to consider factors such as the defendant's credibility, demeanor, moral
character, mentality, environment, habits, and age than the reviewing court, which must rely
on the cold record on appeal. People v. Alexander, 239 Ill. 2d 205, 212-13 (2010); People v.
Fern, 189 Ill. 2d 48, 53 (1999). Where the sentence chosen by the trial court is within the
statutory range permissible for the pertinent criminal offense for which the defendant has
been tried and charged, a reviewing court may only disturb the sentence if the trial court
abused its discretion in the sentence it imposed. People v. Jones, 168 Ill. 2d 367, 374 (1995).
An abuse of discretion will only be found where "the sentence is 'greatly at variance with the
spirit and purpose of the law, or manifestly disproportionate to the nature of the offense.' "
Alexander, 239 Ill. 2d at 212 (quoting People v. Stacey, 193 Ill. 2d 203, 210 (2000)). Where
mitigating evidence is presented to the trial court, it is presumed, absent some indication
other than the sentence itself to the contrary, that the court considered it. People v. Benford,
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349 Ill. App. 3d 721, 735 (2004); People v. Burton, 184 Ill. 2d 1, 34 (1998). When
determining the propriety of a particular sentence, we cannot substitute our judgment for that
of the trial court simply because we would weigh the sentencing factors differently. Fern,
189 Ill. 2d at 53.
¶ 56 Here, upon remand for resentencing, the trial court ordered a new presentence
investigation report and conducted a new sentencing hearing. At the hearing, the trial court
heard evidence in mitigation and aggravation, including mitigation evidence regarding the
many ways in which defendant had improved himself while incarcerated and, in aggravation,
the harm defendant had inflicted upon the victims when committing this crime. The State
asked for a sentence of 20 years' incarceration for each conviction, to be served
consecutively, for a total of 40 years' incarceration. The defense argued that, because
defendant's original sentence was two concurrent terms of 20 years' incarceration to be
served at 85%, the court's real intent was to have defendant serve only 17 years in prison and,
therefore, the court on resentencing should start with two 10-year terms, served consecutively
at 85% as the upper limit of its sentence calculations. Ultimately, the defense asked the court
to sentence defendant to the minimum allowable sentence of two consecutive terms of six
years' incarceration each. The court stated:
"THE COURT: I am looking at all the information. The case was
remanded back to me for a new sentencing hearing based upon the fact that you
should have been sentenced to consecutive sentences rather than concurrent,
which you initially did.
Looking at all the information contained in the presentence investigation
report I find that your prior history of criminal behavior is as stated in the
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presentence investigation report. Also that there was serious harm inflicted in this
case to each of the victims concerned herein. Also I am considering the
information provided by your attorney from your stay in the Illinois Department
Based on all those factors I just enumerated, on Counts 1 and 2 I am going
to sentence you to a term of 15 years in the Illinois Department of Corrections.
The sentence is to be served consecutively or one right after the other. Your
sentence does include three years mandatory supervised release. It's an 85 percent
The court clarified that the sentence was two consecutive terms of 15 years' incarceration.
¶ 57 Attempted first degree murder is sentenced as a Class X felony. See 720 ILCS 5/8-
4(c)(1) (West 2005). The sentencing range for a Class X felony is 6 to 30 years in prison.
See 730 ILCS 5/5-8-1(a)(3) (West 2005). On each of the two counts of attempted murder for
which defendant was convicted, defendant received 15 years, which is at the mid-point of the
sentencing range. The court was required to order the sentences to be served consecutively.
730 ILCS 5/5-8-4(a)(i) (West 2005) ("The court shall impose consecutive sentences if: (i)
one of the offenses for which defendant was convicted was first degree murder or a Class X
or Class 1 felony and the defendant inflicted severe bodily injury***"). Defendant was
sentenced to two consecutive terms of 15 years' imprisonment.
¶ 58 Based on this record, which establishes that the trial court reviewed defendant's
presentence investigation report, considered appropriate mitigating and aggravating factors,
and sentenced defendant to a term within the permissible sentencing range, we find that the
trial court did not abuse its discretion. We affirm defendant's sentence.
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¶ 59 CONCLUSION
¶ 60 For all of the foregoing reasons, the decision of the circuit court of Cook County is
affirmed.
¶ 61 Affirmed.