2016 IL App (1st) 133410 THIRD DIVISION February 3, 2016
No. 1-13-3410
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County, Illinois. ) v. ) No. 13 CR 4127 ) ANTOINE McGUIRE, ) Honorable ) Vincent M. Gaughan, Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Lavin concurred in the judgment and opinion.
OPINION
¶1 After an evidentiary hearing, the trial court determined that defendant Antoine McGuire
had violated the terms of his probation on a drug possession conviction and later sentenced him
to the Cook County impact incarceration program, also known as sheriff’s boot camp. One week
later, the trial court held a “resentencing” hearing and sentenced McGuire to 34 months in prison
with one year of mandatory supervised release. Because the reason for the resentencing is not
apparent from the record, we vacate McGuire’s sentence and remand for further proceedings.
¶2 BACKGROUND
¶3 On March 13, 2013, McGuire pled guilty to possession of a controlled substance (less
than 15 grams of heroin) and was sentenced to 14 months of intensive drug probation. On April
25, 2013, the State filed a petition alleging that McGuire had violated the terms of his probation
by not reporting to his probation officer on two occasions and by failing to enroll in an intensive
drug treatment program. The trial court determined after a hearing that McGuire failed to No. 1-13-3410
(i) report to his probation officer on one of the two occasions cited in the State’s petition and (ii)
enroll in a drug treatment program.
¶4 On September 30, 2013, the court held a sentencing hearing on the violation of probation.
The State asked that McGuire be sentenced to prison, citing the fact that in 2009, he was
convicted of aggravated assault and aggravated unlawful use of a weapon and noting he was
sentenced to sheriff’s boot camp but violated the conditions of that program and was resentenced
to three years’ imprisonment. This information was also in McGuire’s presentence investigation
report. In allocution, McGuire asked the judge to give him another chance so that he could “do
something better with [himself] than going downstate.” The judge said that he was “very
impressed” with McGuire’s statement and sentenced him to sheriff’s boot camp. The State did
not at that time inform the trial judge that McGuire was ineligible for that sentence. The court
concluded the hearing by admonishing McGuire regarding his postsentencing rights.
¶5 One week later, on October 7, 2013, the same judge held a “resentencing” hearing. In
their briefs on appeal, both McGuire and the State offered dubious explanations for the second
sentencing hearing. McGuire initially speculated that the experienced trial judge might have
“forgotten” that he sentenced McGuire a week earlier and, due to the presence of a prosecutor
other than the one who appeared for sentencing on the violation of probation, the State was
unaware of the recently imposed sentence as well. Of course, this does not explain why
McGuire’s counsel would not have informed the court of this obvious mistake and vigorously
objected to the resentencing, which he did not.
¶6 For its part, the State, without any citation to the record, represented that the resentencing
was prompted by McGuire’s violation of the rules of the boot camp program in the intervening
week. Admitting that the exact nature of McGuire’s transgression was “unclear,” the State
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nevertheless argued that “there is no doubt that there was a violation.” Thus, according to the
State, when McGuire failed to comply with the conditions of the boot camp program and this
was brought to the trial court’s attention, the court decided, apparently on its own motion, to
revoke the original sentence and impose a prison sentence instead. But the State did not explain
how the court was made aware of the violation or why, if a sentence had already been imposed, a
violation of its terms would not have been the subject of another violation of probation petition.
See 730 ILCS 5/5-6-4 (West 2012).
¶7 After this matter was set for oral argument, the State, under the guise of a motion for
leave to cite additional authority, admitted that its prior representation regarding McGuire’s
violation of the boot camp rules was in error. The State now represented that, in fact, McGuire
was statutorily ineligible to be sentenced to the boot camp program because he had previously
been sentenced to that program on felony convictions of aggravated assault and aggravated
unlawful use of a weapon, violated the program’s conditions, and was later sentenced to three
years in the Illinois Department of Corrections. Under the Unified Code of Corrections, one of
the conditions of eligibility for boot camp is that “[t]he person has not previously participated in
the impact incarceration program.” 730 ILCS 5/5-8-1.2(c)(2) (West 2012). Thus, the State
argued that the original sentence ordering McGuire to participate in the boot camp program was
unauthorized and, under the void sentence doctrine, could be corrected by the trial court.
Although the State’s position presumes that McGuire’s ineligibility for boot camp was brought
to the trial court’s attention after the original sentence was imposed, the record lacks any
indication of how this came to pass.
¶8 We granted the State’s motion for leave to cite additional authority and allowed McGuire
the opportunity to respond to the State’s revised position. In response, McGuire again correctly
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points out that despite its revised position, the State still does not provide any record support to
establish the reason for his resentencing, although he does not dispute that the record does
disclose his previous participation in the boot camp program. Moreover, citing People v.
Castleberry, 2015 IL 116916, ¶ 1, an opinion filed after the State filed its motion, McGuire
points out that our supreme court has abolished the void judgment rule. Characterizing the
State’s revised position (i.e., that his original sentence was void because he was statutorily
ineligible for boot camp) as a disguised cross-appeal, McGuire further argues that the State’s
attempt to “piggyback” this issue onto his appeal is improper.
¶9 McGuire requests an order remanding the matter for sentencing “within the appropriate
statutory limits.” McGuire does not articulate what the “appropriate statutory limits” are. The
State requests that McGuire’s prison sentence be affirmed.
¶ 10 ANALYSIS
¶ 11 McGuire argues that his 34-month prison sentence is invalid because it violates section
5-4.5-50 of the Unified Code of Corrections (730 ILCS 5/5-4.5-50 (West 2012)), which provides
that the circuit court “may not increase a sentence once it is imposed.” McGuire concedes that
he has forfeited review of this argument by failing to raise it at the resentencing hearing or in a
postsentencing motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988); People v. Bannister, 232
Ill. 2d 52, 76 (2008). He nevertheless contends that we should consider it under the plain error
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2016 IL App (1st) 133410 THIRD DIVISION February 3, 2016
No. 1-13-3410
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County, Illinois. ) v. ) No. 13 CR 4127 ) ANTOINE McGUIRE, ) Honorable ) Vincent M. Gaughan, Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Lavin concurred in the judgment and opinion.
OPINION
¶1 After an evidentiary hearing, the trial court determined that defendant Antoine McGuire
had violated the terms of his probation on a drug possession conviction and later sentenced him
to the Cook County impact incarceration program, also known as sheriff’s boot camp. One week
later, the trial court held a “resentencing” hearing and sentenced McGuire to 34 months in prison
with one year of mandatory supervised release. Because the reason for the resentencing is not
apparent from the record, we vacate McGuire’s sentence and remand for further proceedings.
¶2 BACKGROUND
¶3 On March 13, 2013, McGuire pled guilty to possession of a controlled substance (less
than 15 grams of heroin) and was sentenced to 14 months of intensive drug probation. On April
25, 2013, the State filed a petition alleging that McGuire had violated the terms of his probation
by not reporting to his probation officer on two occasions and by failing to enroll in an intensive
drug treatment program. The trial court determined after a hearing that McGuire failed to No. 1-13-3410
(i) report to his probation officer on one of the two occasions cited in the State’s petition and (ii)
enroll in a drug treatment program.
¶4 On September 30, 2013, the court held a sentencing hearing on the violation of probation.
The State asked that McGuire be sentenced to prison, citing the fact that in 2009, he was
convicted of aggravated assault and aggravated unlawful use of a weapon and noting he was
sentenced to sheriff’s boot camp but violated the conditions of that program and was resentenced
to three years’ imprisonment. This information was also in McGuire’s presentence investigation
report. In allocution, McGuire asked the judge to give him another chance so that he could “do
something better with [himself] than going downstate.” The judge said that he was “very
impressed” with McGuire’s statement and sentenced him to sheriff’s boot camp. The State did
not at that time inform the trial judge that McGuire was ineligible for that sentence. The court
concluded the hearing by admonishing McGuire regarding his postsentencing rights.
¶5 One week later, on October 7, 2013, the same judge held a “resentencing” hearing. In
their briefs on appeal, both McGuire and the State offered dubious explanations for the second
sentencing hearing. McGuire initially speculated that the experienced trial judge might have
“forgotten” that he sentenced McGuire a week earlier and, due to the presence of a prosecutor
other than the one who appeared for sentencing on the violation of probation, the State was
unaware of the recently imposed sentence as well. Of course, this does not explain why
McGuire’s counsel would not have informed the court of this obvious mistake and vigorously
objected to the resentencing, which he did not.
¶6 For its part, the State, without any citation to the record, represented that the resentencing
was prompted by McGuire’s violation of the rules of the boot camp program in the intervening
week. Admitting that the exact nature of McGuire’s transgression was “unclear,” the State
-2- No. 1-13-3410
nevertheless argued that “there is no doubt that there was a violation.” Thus, according to the
State, when McGuire failed to comply with the conditions of the boot camp program and this
was brought to the trial court’s attention, the court decided, apparently on its own motion, to
revoke the original sentence and impose a prison sentence instead. But the State did not explain
how the court was made aware of the violation or why, if a sentence had already been imposed, a
violation of its terms would not have been the subject of another violation of probation petition.
See 730 ILCS 5/5-6-4 (West 2012).
¶7 After this matter was set for oral argument, the State, under the guise of a motion for
leave to cite additional authority, admitted that its prior representation regarding McGuire’s
violation of the boot camp rules was in error. The State now represented that, in fact, McGuire
was statutorily ineligible to be sentenced to the boot camp program because he had previously
been sentenced to that program on felony convictions of aggravated assault and aggravated
unlawful use of a weapon, violated the program’s conditions, and was later sentenced to three
years in the Illinois Department of Corrections. Under the Unified Code of Corrections, one of
the conditions of eligibility for boot camp is that “[t]he person has not previously participated in
the impact incarceration program.” 730 ILCS 5/5-8-1.2(c)(2) (West 2012). Thus, the State
argued that the original sentence ordering McGuire to participate in the boot camp program was
unauthorized and, under the void sentence doctrine, could be corrected by the trial court.
Although the State’s position presumes that McGuire’s ineligibility for boot camp was brought
to the trial court’s attention after the original sentence was imposed, the record lacks any
indication of how this came to pass.
¶8 We granted the State’s motion for leave to cite additional authority and allowed McGuire
the opportunity to respond to the State’s revised position. In response, McGuire again correctly
-3- No. 1-13-3410
points out that despite its revised position, the State still does not provide any record support to
establish the reason for his resentencing, although he does not dispute that the record does
disclose his previous participation in the boot camp program. Moreover, citing People v.
Castleberry, 2015 IL 116916, ¶ 1, an opinion filed after the State filed its motion, McGuire
points out that our supreme court has abolished the void judgment rule. Characterizing the
State’s revised position (i.e., that his original sentence was void because he was statutorily
ineligible for boot camp) as a disguised cross-appeal, McGuire further argues that the State’s
attempt to “piggyback” this issue onto his appeal is improper.
¶9 McGuire requests an order remanding the matter for sentencing “within the appropriate
statutory limits.” McGuire does not articulate what the “appropriate statutory limits” are. The
State requests that McGuire’s prison sentence be affirmed.
¶ 10 ANALYSIS
¶ 11 McGuire argues that his 34-month prison sentence is invalid because it violates section
5-4.5-50 of the Unified Code of Corrections (730 ILCS 5/5-4.5-50 (West 2012)), which provides
that the circuit court “may not increase a sentence once it is imposed.” McGuire concedes that
he has forfeited review of this argument by failing to raise it at the resentencing hearing or in a
postsentencing motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988); People v. Bannister, 232
Ill. 2d 52, 76 (2008). He nevertheless contends that we should consider it under the plain error
doctrine, which allows reviewing courts to consider unpreserved claims of error if the evidence
is closely balanced or the error is so serious that it denied the defendant a fair hearing. People v.
Piatkowski, 225 Ill. 2d 551, 565 (2007).
¶ 12 There is a good case to be made that this is an appropriate case to honor McGuire’s
procedural default without addressing the merits of his claim on appeal by means of a plain error
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analysis. As Illinois courts have often noted, plain error is a “narrow and limited exception” to
the general forfeiture rule. People v. Hillier, 237 Ill. 2d 539, 545 (2010); see also People v.
Herron, 215 Ill. 2d 167, 177 (2005) (quoting People v. Hampton, 149 Ill. 2d 71, 100 (1992)
(same)). Generally, in the sentencing context, errors not brought to a trial court’s attention via a
contemporaneous objection at the sentencing hearing and a motion to reconsider sentence are
deemed forfeited. Hillier, 237 Ill. 2d at 544. The sentence McGuire received—34 months—is
within the statutory range for the felony offense of which he was originally convicted. See 720
ILCS 570/402(c) (West 2012); 730 ILCS 5/5-4.5-45(a) (West 2012). Thus, it is presumptively
valid. People v. Saunders, 135 Ill. App. 3d 594, 607 (1985).
¶ 13 Our supreme court recently resolved a criminal appeal involving allegations raised for the
first time on appeal regarding an allegedly coerced confession solely on the basis that those
arguments had been forfeited as a result of defendant’s failure to preserve them in the trial court.
People v. Hughes, 2015 IL 117242, ¶ 46. Although defendant urged application of plain error as
a means to review the merits of his forfeited claims, four members of the court stopped at
forfeiture. Id.; see id. ¶ 71 (Burke, J., specially concurring, joined by Thomas and Kilbride, JJ.,
asserting that the court should have engaged in a plain error analysis). The court observed: “By
declining or failing to raise these claims below, defendant deprived the State of the opportunity
to challenge them with evidence of its own, he deprived the trial court of the opportunity to
decide the issues on those bases, and he deprived the appellate court of an adequate record to
make these determinations.” Id. ¶ 46 (majority opinion). Given the prevalence of “forfeiture
aside” analyses in reported appellate decisions, we do not view the court’s failure to address
plain error in Hughes as an oversight.
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¶ 14 Here, the error McGuire asks us to address is so obvious that we find it difficult to justify
reaching its merits by means of a plain error analysis. If, as McGuire posits, his “resentencing”
was the product of an oversight both by the trial court and the State, coupled with his lawyer’s
silence when a prison sentence was imposed, we can perceive no reason why this would not have
been brought to the trial court’s attention by way of a motion to reconsider sentence. And this
failure, given the other gaps in the record, has deprived us of an adequate record on which to
evaluate McGuire’s claims. Under these circumstances, proceeding to address the merits of the
claim raised for the first time on appeal under plain error transforms that doctrine into a
“catchall” means of obtaining appellate review rather than the “narrow and limited exception” to
forfeiture it has long been held to be. See People v. Herron, 215 Ill. 2d 167, 177 (2005) (plain
error doctrine not “a general saving clause” permitting review of all unpreserved error (internal
quotation marks omitted)).
¶ 15 Further, we reject McGuire’s suggestion that the trial court was without authority to
correct the erroneous sentence if, in fact, that was the purpose of the resentencing hearing. A
circuit court has the intrinsic power to reconsider and correct its own rulings. See People v.
Mink, 141 Ill. 2d 163, 171 (1990) (“A court in a criminal case has inherent power to reconsider
and correct its own rulings, even in the absence of a statute or rule granting it such authority.”).
The elimination of the void sentence doctrine has no bearing on the circuit court’s intrinsic
authority. At the time he was resentenced, McGuire had not yet filed a notice of appeal and thus
the circuit court retained jurisdiction. People v. Foster, 309 Ill. App. 3d 1, 7-8 (1999).
¶ 16 Nevertheless, while we believe the record supports resolution of this appeal based on
forfeiture alone, as we have noted above, the record is lacking any explanation for the
resentencing hearing that was conducted one week after McGuire was sentenced to boot camp.
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This is a failure attributable both to the State and to McGuire. Thus, while it may well be that all
parties recognized shortly after the original sentence was imposed that McGuire was ineligible
for boot camp, there is nothing we can point to in the record to support this conclusion.
Consequently, we believe the better course is to vacate McGuire’s sentence and remand this
matter for a new sentencing hearing so that reasons for the sentence imposed are included in the
record.
¶ 17 CONCLUSION
¶ 18 For the foregoing reasons, McGuire’s sentence is vacated and this matter is remanded to
the trial court for further proceedings consistent with this opinion.
¶ 19 Sentence vacated; remanded for further proceedings.
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