NOTICE This Order was filed under 2023 IL App (4th) 220377-U FILED Supreme Court Rule 23 and is February 2, 2023 not precedent except in the NO. 4-22-0377 Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Boone County TYRICE L. MORGAN, ) No. 18CF206 Defendant-Appellant. ) ) Honorable ) C. Robert Tobin III, ) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court. Justices Steigmann and Doherty concurred in the judgment.
ORDER
¶1 Held: Defendant’s 10-year sentence for unlawful delivery of a controlled substance required remand for resentencing where the trial court misapprehended the applicable sentencing range.
¶2 Defendant, Tyrice L. Morgan, pleaded guilty to one count of unlawful delivery of
a controlled substance, a Class 1 felony (720 ILCS 570/401(c)(2) (West 2018)), and the trial
court sentenced him to 24 months’ probation. The court subsequently found defendant guilty of
violating his probation and sentenced him to 10 years’ incarceration. Defendant appeals, arguing
the trial court committed plain error at sentencing by relying on an erroneous belief he was
eligible for an extended-term sentence. We agree the trial court misapprehended the applicable
sentencing range. Accordingly, we reverse and remand for resentencing.
¶3 I. BACKGROUND ¶4 On December 23, 2019, defendant pleaded guilty to delivery of a controlled
substance in exchange for 24 months’ probation. At the guilty plea hearing, the trial court stated
the maximum sentence would be 4 to 30 years’ incarceration.
¶5 On August 24, 2020, the State filed a petition to vacate probation. Defendant
admitted he violated his probation, and the trial court found in favor of the State on its petition.
The record reflects defendant had no previous convictions that were Class 1 or greater felonies,
and the parties do not dispute that point.
¶6 At sentencing, before hearing arguments, in reference to the sentence, the court
stated, “I think that it’s 4 to 30 at 50 percent under truth in sentencing.” The State requested a
sentence of 10 years based on defendant’s previous criminal history, the details of the crime, and
defendant’s behavior while on probation. The State did not mention an extended-term sentence.
The trial court agreed and sentenced defendant to a 10-year term. The court found defendant’s
history of committing crimes while on bond or other forms of supervision particularly notable.
The trial court also stated:
So looking at all that and the cost of incarceration, everything else that’s in
the Presentence Investigation Report, the nature of the offense, I do think [10]
years in the Department of Corrections is a good number. It’s still in the lower
third really if you look at it. You’ve got a 24 —4 to 15. You got roughly a 26-year
range there. 10 keeps it in the lower portion.”
Defendant did not object to the trial court’s statement.
¶7 Defendant filed a motion to reconsider the sentence, alleging the trial court failed
to appropriately balance the factors in aggravation and mitigation, the sentence was
disproportionate to the original term of probation imposed, and the trial court did not hear
-2- defendant’s statement in allocution during sentencing. He did not allege the trial court
improperly found him eligible for an extended-term sentence or considered an improper
sentencing range. The trial court denied the motion, and this appeal followed.
¶8 II. ANALYSIS
¶9 Defendant argues the trial court improperly relied on the erroneous belief he was
eligible for an extended-term sentence when it selected the length of his nonextended-term
sentence. Defendant acknowledges he forfeited the issue by failing to raise it in the trial court but
argues plain error applies.
¶ 10 We agree defendant forfeited this issue by failing to raise it at trial or in his
posttrial motion, but we may address it under the plain-error doctrine because it impacts his
substantial rights. People v. Curtis, 354 Ill. App. 3d 312, 328 (2004). A reviewing court may
consider a forfeited issue under the plain-error doctrine 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) (citing People v. Piatkowski, 225 Ill. 2d
551, 565 (2007)). The first step in plain-error review is to determine whether an error occurred at
all. People v. Hudson, 228 Ill. 2d 181, 191 (2008).
¶ 11 “A trial court’s misapprehension as to extended-term sentencing eligibility
necessitates a new sentencing hearing when it appears that the trial court’s misapprehension
arguably influenced the sentencing decision.” People v. Myrieckes, 315 Ill. App. 3d 478, 483
(2000). Further, where the trial court misapprehends the applicable sentencing range, the case
-3- must be remanded for resentencing, regardless of whether the sentence falls within the actual
guidelines. Myrieckes, 315 Ill. App. 3d at 483-84. “It is assumed that a trial judge considers only
competent evidence in making his sentencing determination, and this assumption is overcome
only if the record affirmatively demonstrates the contrary.” Myrieckes, 315 Ill. App. 3d at 483. In
considering whether a mistaken belief influenced the trial court’s sentencing decision, a
reviewing court looks to whether the trial court’s comments show the trial court relied on the
mistaken belief or used the mistaken belief as a reference point in fashioning the sentence.
Myrieckes, 315 Ill. App. 3d at 484.
¶ 12 In Myrieckes, the trial court believed it could sentence the defendant to an
extended term based on the age of the victim. But the trial court had misinterpreted the statute—
the victim’s age did not qualify the defendant under the statute for the extended term. Myrieckes,
315 Ill. App. 3d at 484. The trial court sentenced the defendant to a term within the nonextended
range, near the high end of that range. Because the court’s misapprehension of the sentencing
range suggested the trial court erroneously believed the defendant was eligible for extended-term
sentencing or the misapprehension arguably influenced the sentencing decision, the appellate
court vacated the sentence and remanded for resentencing. Myrieckes, 315 Ill. App. 3d at 484. In
doing so, the court noted the defendant did not object at the time of sentencing or include the
issue in a motion to reconsider the sentence. However, the court found plain error applied, as it
affected a substantial right. Myrieckes, 315 Ill. App. 3d at 483.
¶ 13 Here, defendant’s conviction of unlawful delivery of controlled substance was a
Class 1 felony, punishable by a nonextended-term sentencing range of 4 to 15 years. 720 ILCS
570/401(c)(2) (West 2018); 730 ILCS 5/5-4.5-30(a) (West 2018). The extended-term sentencing
range was 15 to 30 years.
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NOTICE This Order was filed under 2023 IL App (4th) 220377-U FILED Supreme Court Rule 23 and is February 2, 2023 not precedent except in the NO. 4-22-0377 Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Boone County TYRICE L. MORGAN, ) No. 18CF206 Defendant-Appellant. ) ) Honorable ) C. Robert Tobin III, ) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court. Justices Steigmann and Doherty concurred in the judgment.
ORDER
¶1 Held: Defendant’s 10-year sentence for unlawful delivery of a controlled substance required remand for resentencing where the trial court misapprehended the applicable sentencing range.
¶2 Defendant, Tyrice L. Morgan, pleaded guilty to one count of unlawful delivery of
a controlled substance, a Class 1 felony (720 ILCS 570/401(c)(2) (West 2018)), and the trial
court sentenced him to 24 months’ probation. The court subsequently found defendant guilty of
violating his probation and sentenced him to 10 years’ incarceration. Defendant appeals, arguing
the trial court committed plain error at sentencing by relying on an erroneous belief he was
eligible for an extended-term sentence. We agree the trial court misapprehended the applicable
sentencing range. Accordingly, we reverse and remand for resentencing.
¶3 I. BACKGROUND ¶4 On December 23, 2019, defendant pleaded guilty to delivery of a controlled
substance in exchange for 24 months’ probation. At the guilty plea hearing, the trial court stated
the maximum sentence would be 4 to 30 years’ incarceration.
¶5 On August 24, 2020, the State filed a petition to vacate probation. Defendant
admitted he violated his probation, and the trial court found in favor of the State on its petition.
The record reflects defendant had no previous convictions that were Class 1 or greater felonies,
and the parties do not dispute that point.
¶6 At sentencing, before hearing arguments, in reference to the sentence, the court
stated, “I think that it’s 4 to 30 at 50 percent under truth in sentencing.” The State requested a
sentence of 10 years based on defendant’s previous criminal history, the details of the crime, and
defendant’s behavior while on probation. The State did not mention an extended-term sentence.
The trial court agreed and sentenced defendant to a 10-year term. The court found defendant’s
history of committing crimes while on bond or other forms of supervision particularly notable.
The trial court also stated:
So looking at all that and the cost of incarceration, everything else that’s in
the Presentence Investigation Report, the nature of the offense, I do think [10]
years in the Department of Corrections is a good number. It’s still in the lower
third really if you look at it. You’ve got a 24 —4 to 15. You got roughly a 26-year
range there. 10 keeps it in the lower portion.”
Defendant did not object to the trial court’s statement.
¶7 Defendant filed a motion to reconsider the sentence, alleging the trial court failed
to appropriately balance the factors in aggravation and mitigation, the sentence was
disproportionate to the original term of probation imposed, and the trial court did not hear
-2- defendant’s statement in allocution during sentencing. He did not allege the trial court
improperly found him eligible for an extended-term sentence or considered an improper
sentencing range. The trial court denied the motion, and this appeal followed.
¶8 II. ANALYSIS
¶9 Defendant argues the trial court improperly relied on the erroneous belief he was
eligible for an extended-term sentence when it selected the length of his nonextended-term
sentence. Defendant acknowledges he forfeited the issue by failing to raise it in the trial court but
argues plain error applies.
¶ 10 We agree defendant forfeited this issue by failing to raise it at trial or in his
posttrial motion, but we may address it under the plain-error doctrine because it impacts his
substantial rights. People v. Curtis, 354 Ill. App. 3d 312, 328 (2004). A reviewing court may
consider a forfeited issue under the plain-error doctrine 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) (citing People v. Piatkowski, 225 Ill. 2d
551, 565 (2007)). The first step in plain-error review is to determine whether an error occurred at
all. People v. Hudson, 228 Ill. 2d 181, 191 (2008).
¶ 11 “A trial court’s misapprehension as to extended-term sentencing eligibility
necessitates a new sentencing hearing when it appears that the trial court’s misapprehension
arguably influenced the sentencing decision.” People v. Myrieckes, 315 Ill. App. 3d 478, 483
(2000). Further, where the trial court misapprehends the applicable sentencing range, the case
-3- must be remanded for resentencing, regardless of whether the sentence falls within the actual
guidelines. Myrieckes, 315 Ill. App. 3d at 483-84. “It is assumed that a trial judge considers only
competent evidence in making his sentencing determination, and this assumption is overcome
only if the record affirmatively demonstrates the contrary.” Myrieckes, 315 Ill. App. 3d at 483. In
considering whether a mistaken belief influenced the trial court’s sentencing decision, a
reviewing court looks to whether the trial court’s comments show the trial court relied on the
mistaken belief or used the mistaken belief as a reference point in fashioning the sentence.
Myrieckes, 315 Ill. App. 3d at 484.
¶ 12 In Myrieckes, the trial court believed it could sentence the defendant to an
extended term based on the age of the victim. But the trial court had misinterpreted the statute—
the victim’s age did not qualify the defendant under the statute for the extended term. Myrieckes,
315 Ill. App. 3d at 484. The trial court sentenced the defendant to a term within the nonextended
range, near the high end of that range. Because the court’s misapprehension of the sentencing
range suggested the trial court erroneously believed the defendant was eligible for extended-term
sentencing or the misapprehension arguably influenced the sentencing decision, the appellate
court vacated the sentence and remanded for resentencing. Myrieckes, 315 Ill. App. 3d at 484. In
doing so, the court noted the defendant did not object at the time of sentencing or include the
issue in a motion to reconsider the sentence. However, the court found plain error applied, as it
affected a substantial right. Myrieckes, 315 Ill. App. 3d at 483.
¶ 13 Here, defendant’s conviction of unlawful delivery of controlled substance was a
Class 1 felony, punishable by a nonextended-term sentencing range of 4 to 15 years. 720 ILCS
570/401(c)(2) (West 2018); 730 ILCS 5/5-4.5-30(a) (West 2018). The extended-term sentencing
range was 15 to 30 years. 730 ILCS 5/5-4.5-30(a) (West 2018). The parties do not dispute
-4- defendant was ineligible for an extended-term sentence as defendant was not previously
convicted of a Class 1 or greater felony and other statutory bases for extended-term sentencing
did not apply. See 730 ILCS 5/5-5-3.2(b)(1), (c), (e) (West 2018). The trial court misstated the
sentencing range at the guilty plea hearing, and it referred to an extended term again before
hearing arguments at the sentencing hearing following the probation revocation. Then, when
sentencing defendant, although the court initially referenced a 4-to-15-year term, it next referred
to a “26-year-range,” which would only apply to an extended-term sentence. The court also
stated the 10-year term put the sentence in the “lower portion,” which would only be correct if
the court applied an extended-term sentence. Thus, the record is clear that, as in Myrieckes, the
trial court both used the mistaken belief as a reference point in fashioning the sentence and
arguably relied on the mistaken belief as to the sentencing range.
¶ 14 The State argues plain error should not apply because the record does not
definitively show the trial court relied on its misapprehension of the law in imposing the
sentence. However, as previously noted, the law does not require such definitive proof. Instead,
we look to whether the trial judge’s comments show the trial court relied on the mistaken belief
or used the mistaken belief as a reference point in fashioning the sentence. Myrieckes, 315 Ill.
App. 3d at 484. Here, the court clearly stated the mistaken belief as a reference point. That is
sufficient. In any event, the record also supports the conclusion the trial court did indeed rely on
the mistaken belief defendant was eligible for extended-term sentencing.
¶ 15 We further agree with defendant the error constituted second-prong plain error
because the error affects the defendant’s fundamental right to liberty. People v. Richards, 2021
IL App (1st) 192154, ¶ 31; see also People v. Hicks, 181 Ill. 2d 541, 545 (1998) (“The
imposition of an unauthorized sentence affects substantial rights.”); People v. Lashley, 2016 IL
-5- App (1st) 133401, ¶ 69 (finding plain error occurred when the trial court misapprehended the law
in ordering that defendant serve his sentence in the case consecutively with his sentences in his
prior cases). Thus, a trial court’s misapprehension of the appropriate sentencing range falls under
the second prong of the plain error doctrine. See People v. Hausman, 287 Ill. App. 3d 1069, 1072
(1997).
¶ 16 Because the trial court misapprehended that defendant was eligible for
extended-term sentencing, we vacate the sentence imposed and remand for resentencing.
¶ 17 III. CONCLUSION
¶ 18 For the reasons stated, we vacate defendant’s sentence and remand for
resentencing.
¶ 19 Vacated; cause remanded.
-6-