People v. Marshall

2024 IL App (4th) 230463-U

• Court: Appellate Court of Illinois
• Decided: February 7, 2024
• Docket: 4-23-0463
• Status: Unpublished

Opinion

NOTICE 2024 IL App (4th) 230463-U FILED This Order was filed under February 7, 2024 Supreme Court Rule 23 and is NO. 4-23-0463 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Peoria County TERRENCE R. MARSHALL, ) No. 19CF771 Defendant-Appellant. ) ) Honorable ) Paul E. Bauer, ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court. Justices Lannerd and DeArmond concurred in the judgment.

ORDER ¶1 Held: (1) By telling defendant, in its admonishments on his proposed waiver of counsel, that he may be eligible for extended term sentencing (instead of telling him that he definitively was eligible), the circuit court did not clearly violate Illinois Supreme Court Rule 401(a)(2) (eff. July 1, 1984)); consequently, the plain error rule does not avert the procedural forfeiture of this alleged error in the admonishments.

(2) Because the statutory term of mandatory supervised release (MSR) was shortened while defendant’s case was pending and because section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2022)) entitled defendant to the shorter term, the sentencing order should be amended, pursuant to the plain error rule, to reflect the shorter, correct term of MSR.

¶2 In this appeal, defendant, Terrence R. Marshall, makes two contentions. First, he

contends that a faulty admonishment by the circuit court of Peoria County invalidated his waiver

of counsel. We conclude that this contention is procedurally forfeited. We further conclude that,

absent a clear or obvious error in the admonishments (in contrast to an error that is merely

arguable), the plain error rule does not avert the forfeiture. Second, defendant contends that his sentence contains a mistake: the term of mandatory supervised release (MSR) should be 6 months

instead of 6 to 12 months. In this respect, we perceive plain error, as does the State. Therefore, we

modify the judgment to provide for six months of MSR instead of one year, affirm the judgment

as modified, and remand this case with directions to issue an amended sentencing order reflecting

the modified term of MSR.

¶3 I. BACKGROUND

¶4 A grand jury indicted defendant for forgery (720 ILCS 5/17-3(a)(2) (West 2018)).

¶5 On November 28, 2022, defendant told the circuit court he wanted to represent

himself. During the court’s resulting admonishments to defendant, the court asked the prosecutor

what were “the possible punishments.” The prosecutor answered that although the normal term of

imprisonment for forgery was not less than two years and not more than five years,

“I believe he may be extendible because of the time that he has spent in

custody [on a prior conviction], which would extend the term to ten years.

THE COURT: The two to five could be extended to ten years?

[PROSECUTOR]: That’s correct.”

Here the prosecutor was alluding to section 5-5-3.2(b)(1) of the Unified Code of Corrections (730

ILCS 5/5-5-3.2(b)(1) (West 2022)), a section providing that an extended term sentence might be

imposed,

“[w]hen a defendant is convicted of any felony, after having been previously

convicted in Illinois or any other jurisdiction of the same or similar class felony or

greater class felony, when such conviction has occurred within 10 years after the

previous conviction, excluding time spent in custody, and such charges are

-2- separately brought and tried and arise out of different series of acts.” (Emphasis

added.)

¶6 Defendant interjected that he did not “understand[ ] how [he] could be extended.”

The circuit court explained:

“If your history—your criminal history confirms that you may be eligible for

extended sentencing, then it could be up to ten years. You would have to be found

eligible for extended sentencing. So that’s a possibility. I don’t know your criminal

history as we sit here today. So you need to know that that’s possible ***.”

¶7 After finishing the admonishments and confirming with defendant that he

understood the risks of self-representation, the circuit court accepted his waiver of counsel.

¶8 Defendant also waived a jury. On January 18, 2023, at the conclusion of a bench

trial, the circuit court found him guilty of the charged offense of forgery.

¶9 On March 2, 2023, at the sentencing hearing, the prosecutor informed the circuit

court that, in Peoria County case No. 08-CF-975, defendant was convicted of burglary, served a

term of imprisonment in Danville Correctional Center, and his discharge date was August 13,

2013. The court urged the prosecutor:

“THE COURT: Explain your reasoning for why you think that makes that

extended eligible[.]

[PROSECUTOR]: It is from ten years after the sentence is completed not

charged or pled guilty to. Since the sentence terminated upon release from the

Department of Corrections on August 13th of 2013 that puts us in the ten-year

window.”

-3- ¶ 10 Because of the discharge date of August 13, 2013, which the prosecutor had

obtained from the Law Enforcement Agencies Data System, the circuit court sentenced defendant

to an extended prison term of six years. In its oral pronouncement of the sentence, the court said

that the period of MSR “[c]ould be 6 to 12 months,” “depending on the assessment of the Illinois

Department of Corrections.” According to the written sentencing order, however, which was

entered on March 3, 2023, the period of MSR was simply one year.

¶ 11 II. ANALYSIS

¶ 12 A. The Validity of Defendant’s Waiver of His Right to Counsel

¶ 13 Although forgery carried a possible prison term, the circuit court allowed defendant

to waive counsel, as it was his right to do after being properly warned. If a defendant who is

charged with an offense punishable by imprisonment proposes to waive representation by counsel,

Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) allows the court to accept the waiver only

after the court gives the defendant certain admonishments. “[B]y addressing the defendant

personally in open court,” the court must inform defendant of the following three items and

confirm that the defendant understands them:

“(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including,

when applicable, the penalty to which the defendant may be subjected because of

prior convictions or consecutive sentences; and

(3) that he has a right to counsel and, if he is indigent, to have counsel

appointed for him by the court.” Ill. S. Ct. R. 401(a)(1) to (3) (eff. July 1, 1984).

¶ 14 According to defendant, the circuit court failed to comply with Rule 401(a)(2) in

that he “was never definitively advised that he was eligible for an extended-term sentence.”

-4- (Emphases added.) Instead, the court advised him, equivocally, that he “may be extendible”

because of his criminal history and that extended sentencing was a “possibility.” (Emphases

¶ 15 Defendant acknowledges he never raised Rule 401(a)(2) in the proceedings below

and that, generally, waiting until an appeal to raise an issue causes the issue to be procedurally

forfeited. See People v. Reese, 2017 IL 120011, ¶ 60 (“To preserve an issue for review, a defendant

must object at trial and raise the alleged error in a written posttrial motion.”). He argues, however,

that in this case the plain error rule (see Ill. S. Ct. R. 615(a) (eff. Jan 1, 1967)) should avert a

forfeiture. He cites People v. Herring, 327 Ill. App. 3d 259, 261 (2002), in which the Fourth

District observed, “This court has consistently held that the right to counsel is so fundamental that

we will review as plain error a claim that there was no effective waiver of counsel although the

issue was not raised in the trial court.”

¶ 16 Typically, the first step in a plain error analysis is determine whether there was a

clear or obvious error (see People v. Holt, 2019 IL App (3d) 160504-B, ¶ 38)—a determination

we make de novo (see People v. Schoonover, 2021 IL 124832, ¶ 26). The initial question, then, is

whether Rule 401(a)(2) clearly required the circuit court to tell defendant that he was, for sure,

eligible for an extended term sentence. See People v. Hammons, 2018 IL App (4th) 160385, ¶ 17

(“The plain error doctrine is not a backdrop to catch merely arguable issues that could have been

raised in the trial court. The error had to be manifest or patent.”).

¶ 17 The State’s answer to that question is no because Rule 401(a)(2) uses a verb of

possibility, “may.” The circuit court must inform the defendant, and confirm the defendant

understands, “the minimum and maximum sentence prescribed by law, including, when applicable,

the penalty to which the defendant may be subjected because of prior convictions or consecutive

-5- sentences.” (Emphasis added.) Ill. S. Ct. R. 401(a)(2) (eff. July 1, 1984). Under the State’s

interpretation of Rule 401(a)(2), the court did exactly what it was supposed to do by warning

defendant, “[Y]ou may be eligible for extended sentencing.”

¶ 18 Defendant criticizes the State’s interpretation as rendering superfluous the phrase

“when applicable.” See id. Under defendant’s interpretation of Rule 401(a)(2), the circuit court

had to decide, definitively—at the time of the admonishments—the applicability of the extended

term sentencing statute (see 730 ILCS 5/5-5-3.2(b)(1) (West 2022)). Defendant argues that

informing him merely that an extended sentence term was possible, depending on the particulars

of his criminal record, failed to satisfy the rule.

¶ 19 For two reasons, we consider defendant’s interpretation of Rule 401(a)(2) to be less

than compelling.

¶ 20 Our first reason is grammatical. The part of Rule 401(a)(2) to which the phrase

“when applicable” refers is not merely the word “penalty,” but also the language that follows and

modifies that word: “the penalty to which the defendant may be subjected because of prior

convictions or consecutive sentences.” (Emphasis added.) Ill. S. Ct. R. 401(a)(2) (eff. July 1, 1984).

So, the phrase “when applicable” refers to a “penalty” that “may” be imposed. In other words,

what is applicable is a possible penalty.

¶ 21 The second reason why defendant’s suggested meaning of Rule 401(a)(2) strikes

us as less than clear or obvious is that, surely, in writing this rule, the supreme court did not intend

eligibility for extended term sentencing to be prejudged before a sentencing hearing even began.

In all fairness, a defendant ought to be able to come to the sentencing hearing and litigate the

question of his or her eligibility for extended term sentencing without having to overcome a prior

determination on that question. If the circuit court admonishes a defendant that, judging by a

-6- preliminary review of the defendant’s prior record, the defendant “may” be eligible for extended

term sentencing, the defendant can take that risk into account when deciding whether to dispense

with an attorney and the court avoids slamming the door on what could turn out to be a contestable

sentencing issue.

¶ 22 For those two reasons, we find no clear or obvious violation of Rule 401(a)(2), and

the procedural forfeiture of this supposed error in the admonishments is not averted. See People v.

Naylor, 229 Ill. 2d 584, 593 (2008) (“When a defendant fails to establish plain error, the result is

that the procedural default must be honored.” (Internal quotation marks omitted.)).

¶ 23 B. MSR

¶ 24 The judgment in a criminal case is the judge’s oral pronouncement of the sentence,

which prevails over any contrary provision of the written sentencing order. People v. Ramirez,

2023 IL App (1st) 221227, ¶¶ 34, 36. The oral sentence in this case included 6 to 12 months of

MSR, but the written sentence set the period of MSR at simply 1 year. By defendant’s reasoning,

the judge’s oral pronouncement on MSR overcomes the written provision. Therefore, he regards

himself as having been sentenced to six years’ imprisonment, followed by 6 to 12 months of MSR.

¶ 25 On May 22, 2019, when defendant committed the forgery, which was a Class 3

felony (see 720 ILCS 5/17-3(d)(1) (West 2018)), the statutory length of MSR was one year (see

730 ILCS 5/5-8-1(d)(3) (West 2018)). While his case was pending, however—before

sentencing—a statutory amendment went into effect (see Pub. Act 102-1104, § 90 (eff. Dec. 6,

2022)), shortening the period of MSR to six months (see 730 ILCS 5/5-8-1(d)(3) (West 2022)).

Defendant invokes section 4 of the Statute on Statutes, which provides, “If any *** punishment be

mitigated by any provisions of a new law, such provision may, by consent of the party affected,

be applied to any judgment pronounced after the new law takes effect.” 5 ILCS 70/4 (West 2022).

-7- As defendant makes clear in his brief, he consents to 6 months of MSR in lieu of 6 to 12 months

of MSR.

¶ 26 Defendant admits that, in the circuit court, he never objected to the declared length

of MSR. “It is well settled that, to preserve a claim of sentencing error, both a contemporaneous

objection and a written postsentencing motion raising the issue are required.” People v. Hillier,

237 Ill. 2d 539, 544 (2010). Nevertheless, if the evidence in the sentencing hearing was closely

balanced or if the sentencing error was serious enough, the plain error rule can avert the forfeiture

of a sentencing issue. See id. at 545. Defendant cites People v. Fort, 2017 IL 118966, ¶ 19, in

which the supreme court held, “The imposition of an unauthorized sentence affects substantial

rights and, thus, may be considered by a reviewing court even if not properly preserved in the trial

court.” (Internal quotation marks omitted.) He further argues that a finding of forfeiture would be

inconsistent with People v. Strebin, 209 Ill. App. 3d 1078, 1081 (1991). Under Strebin, the circuit

court had “an affirmative duty *** to advise” defendant “of his right to elect under which

sentencing procedures” he “should be sentenced, namely, those in effect at the time the offense

was committed or those in effect at the time of the sentencing hearing,” and that “[b]ecause no

such advice was given,” he “cannot be found to have waived [(or forfeited)] this argument on

appeal.” Id.

¶ 27 The State concedes that “this matter should be remanded back to the trial court with

instructions to issue a new sentencing judgment with the correct MSR term of six months.”

¶ 28 We accept the State’s concession. Under section 5-8-1(d) of the Unified Code of

Corrections (730 ILCS 5/5-8-1(d) (West 2022)), “the *** mandatory supervised release term shall

be written as part of the sentencing order.” “Legislative history indicates that [this] requirement

was designed to provide greater clarity for the Department of Corrections.” Round v. Lamb, 2017

-8- IL 122271, ¶ 15. To prevent confusion, the written sentencing order should be corrected to

designate the period of MSR as six months instead of one year.

¶ 29 III. CONCLUSION

¶ 30 For the foregoing reasons, we modify the circuit court’s judgment to provide for

six months of MSR instead of one year of MSR, affirm the judgment as modified, and remand this

case with directions to issue an amended sentencing order reflecting the modified MSR term.

¶ 31 Affirmed as modified and remanded with directions.

-9-