People v. Snyder

935 N.E.2d 137, 403 Ill. App. 3d 637, 343 Ill. Dec. 497, 2010 Ill. App. LEXIS 947

Opinions

JUSTICE LYTTON

delivered the opinion of the court:

Defendant, Deandra Snyder, pled guilty to intimidation (720 ILCS 5/12 — 6(a)(1) (West 2008)) and criminal damage to property (720 ILCS 5/21 — 1(1)(a) (West 2008)), pursuant to a partially negotiated guilty plea. The court sentenced defendant to concurrent prison terms of 10 and 6 years, respectively, and ordered her to pay $2,891 in restitution. On appeal, defendant argues that (1) the court erred in imposing extended-term sentences on both convictions; (2) her sentence was excessive; (3) the court should not have ordered her sentences to be served consecutively to any punishment she received for a parole violation in an unrelated case; and (4) the court failed to admonish her about the possibility of restitution. We affirm in part as modified and vacate in part.

BACKGROUND

On August 20, 2008, defendant arrived at the apartment of Corey Simmons’ mother. Defendant and Simmons were dating, and defendant was pregnant with Simmons’ child. Upon her arrival, defendant noticed a parked car belonging to Jessica King, Simmons’ former paramour. Defendant retrieved a knife from her vehicle and repeatedly stabbed the convertible top of King’s car. Simmons and King came out of the apartment and confronted defendant. Defendant began yelling and swinging her knife at them. After a while, defendant got in her vehicle and left. Defendant caused $2,891.20 in damage to King’s vehicle.

Defendant had had several altercations with King in the past, including an incident when she set fire to King’s car. At the time of the August 20, 2008, incident, defendant was on mandatory supervised release (MSR) and probation. In addition, defendant was previously ordered to have no contact with King or Simmons.

In connection with the August 20, 2008, incident, defendant was charged with armed violence (720 ILCS 5/33A — 2(a) (West 2008)), two counts of attempted first degree murder (720 ILCS 5/8 — 4(a), 9 — 1 (West 2008)), unlawful possession of a weapon by a felon (720 ILCS 5/24 — 1.1(a) (West 2008)), intimidation (720 ILCS 5/12 — 6(a)(1) (West 2008)), and criminal damage to property (720 ILCS 5/21 — l(l)(a) (West 2008)). On November 18, 2008, defense counsel notified the court that the State and defendant had reached a partially negotiated plea agreement. Defendant agreed to plead guilty to intimidation and criminal damage to property in exchange for the State’s agreement to dismiss the remaining charges. There was no agreement on sentencing. Defense counsel agreed that all sentencing options would be available to the court.

Before accepting defendant’s guilty plea, the trial court informed defendant that she was facing a minimum of probation on the intimidation and criminal damage to property charges. At maximum, she was facing extended terms of between 2 and 10 years of imprisonment for intimidation and 1 and 6 years of imprisonment for criminal damage to property, followed by a 1-year period of MSR. The court did not inform defendant that she may be ordered to pay restitution.

At the sentencing hearing, the court stated that it considered aggravating and mitigating factors in imposing its sentence on defendant. The aggravating factors included defendant’s prior history of criminal activity and that defendant committed the offenses when she was on probation and MSR. The court also emphasized the need to deter others from committing the same or similar offenses. In mitigation, the court noted that defendant had a newborn child and that there was some culpability by King and Simmons, who are involved in a “love triangle” with defendant. The court further found that defendant is “a very dangerous person” with “serious mental issues and anger management issues she needs to come to grips with.”

After considering the presentence report, arguments of counsel, evidence in mitigation and aggravation, and defendant’s statement in allocution, the trial court sentenced defendant to concurrent extended-term prison sentences of 10 years for intimidation and 6 years for criminal damage to property. The court also ordered the sentences to be served consecutive to any penalty or sentence she would receive for violating her MSR in a separate case. The court also ordered defendant to pay $2,891 in restitution. Defendant filed a posttrial motion to reconsider sentence, which the court denied.

ANALYSIS

I

First, defendant argues, and the State concedes, that the trial court erred in imposing extended-term sentences on both of defendant’s convictions.

Section 5 — 8—2(a) of the Unified Code of Corrections (Unified Code) authorizes the trial court to impose an extended term of imprisonment only on the offense within the most serious class. 730 ILCS 5/5 — 8—2(a) (West 2008); People v. Jordan, 103 Ill. 2d 192, 206, 469 N.E.2d 569, 575 (1984).

Here, defendant was convicted of intimidation, a Class 3 felony (720 ILCS 5/12 — 6(b) (West 2008)), and criminal damage to property, a Class 4 felony (720 ILCS 5/21 — 1(2) (West 2008)). Intimidation was the most serious offense. Thus, the trial court could only impose an extended-term sentence on the intimidation conviction. See 730 ILCS 5/5 — 8—2(a) (West 2008). We vacate the extended-term portion of defendant’s criminal damage to property sentence, thereby reducing the sentence to three years. See 730 ILCS 5/5 — 8—1(a)(7) (West 2008).

II

Next, defendant argues that her prison sentence was excessive. A trial court has broad discretionary powers in sentencing. People v. Stacey, 193 Ill. 2d 203, 209, 737 N.E.2d 626, 629 (2000). The trial court is granted such deference because it is in the best position to determine a sentence that balances the need to protect society with the rehabilitation of the defendant. People v. Spencer, 303 Ill. App. 3d 861, 871, 709 N.E.2d 687, 694 (1999). When sentencing a defendant, the trial court must carefully weigh both the mitigating and aggravating factors to reach a fair and just result, based on the particular circumstances of the offense and the defendant. Spencer, 303 Ill. App. 3d at 871, 709 N.E.2d at 694. A sentence within the statutory range will not be deemed excessive unless it varies greatly with the spirit and purpose of the law or is manifestly disproportionate to the nature of the offense. Spencer, 303 Ill. App. 3d at 871, 709 N.E.2d at 694.

We will not disturb the court’s sentencing decision absent an abuse of discretion. People v. Streit, 142 Ill. 2d 13, 19, 566 N.E.2d 1351, 1353 (1991). “An abuse of discretion will be found only where the trial court’s ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court.” People v. Caffey, 205 Ill. 2d 52, 89, 792 N.E.2d 1163, 1188 (2001).

Here, the trial court properly considered the presentence report, defendant’s statement, the arguments of counsel and aggravating and mitigating factors in determining defendant’s sentence. The court noted factors in aggravation, including defendant’s significant criminal history and that she was on MSR and probation when she committed the instant offenses. The court found that defendant was a dangerous person with serious mental and anger management issues. The court also discussed mitigating factors, including defendant’s newborn child and defendant’s involvement in a “love triangle.”

Other than the extended-term sentence issue corrected above, we find that the trial court did not abuse its discretion in sentencing defendant. Considering the significant aggravating factors in this case, prison sentences of 10 years for intimidation and 3 years for criminal damage to property are not excessive.

Ill

Additionally, defendant argues that the court erred when it ordered her sentences in this case to be served consecutive to any punishment handed out for an MSR violation in an unrelated case.

“A court may order a sentence to run consecutive to any prior convictions, even where sentencing on those convictions has not yet occurred but is anticipated in an upcoming parole revocation proceeding.” People v. Byrd, 285 Ill. App. 3d 641, 652, 673 N.E.2d 1071, 1078 (1996). This is precisely what occurred in this case. Thus, we hold that the court did not err when it ordered defendant’s sentences to be served consecutively to any punishment handed out for an MSR violation in an unrelated case.

IV

Finally, defendant argues that the trial court erred when it failed to admonish her about the possibility of paying restitution.

Supreme Court Rule 402 requires the trial court to give certain admonishments to a defendant before accepting a guilty plea, including “the minimum and maximum sentence prescribed by law.” 177 Ill. 2d R. 402(a)(2). The purpose of Rule 402 admonishments is to ensure that a defendant’s guilty plea is intelligently and voluntarily made. 177 Ill. 2d R. 402, Committee Comments.

A trial court’s failure to admonish a defendant regarding the possibility of restitution is a violation of Supreme Court Rule 402(a)(2). People v. Petero, 384 Ill. App. 3d 594, 598, 892 N.E.2d 1086, 1090-91 (2008); People v. Thompson, 375 Ill. App. 3d 488, 493, 874 N.E.2d 572, 576 (2007). A trial court’s violation of Rule 402 is reversible error where a defendant receives a more onerous sentence than she was told she would receive. See Petero, 384 Ill. App. 3d at 599, 892 N.E.2d at 1091; Thompson, 375 Ill. App. 3d at 494, 874 N.E.2d at 577. The proper remedy for such an error is to vacate the restitution award. See People v. Jenkins, 141 Ill. App. 3d 602, 490 N.E.2d 953 (1986).

In Jenkins, the defendant argued that his guilty plea should be vacated because he was ordered to pay restitution but had not been admonished about restitution. The Fourth District concluded that “the restitution order exceeded the ‘maximum sentence’ of which the defendant had been admonished upon entry of his guilty plea.” Jenkins, 141 Ill. App. 3d at 609, 490 N.E.2d at 958. Thus, the court vacated the defendant’s restitution order, making the defendant’s sentence “within the limits stated to him prior to entry of the plea.” Jenkins, 141 Ill. App. 3d at 609, 490 N.E.2d at 958.

The Jenkins approach has been adopted by our supreme court. The court has held that when a defendant pleads guilty and receives a sentence in excess of the trial court’s admonishments, there are two possible remedies: (1) either the promise must be fulfilled, or (2) defendant must be given the opportunity to withdraw his guilty plea. People v. Whitfield, 217 Ill. 2d 177, 202, 840 N.E.2d 658, 673 (2005); see also People v. Morris, 236 Ill. 2d 345, 358, 925 N.E.2d 1069, 1077 (2010) (citing Whitfield). Courts of appeal will modify and reduce a defendant’s sentence that does not comport with a trial court’s admonishments. See Whitfield, 217 Ill. 2d at 205, 840 N.E.2d at 675 (reducing defendant’s sentence of imprisonment by three years because the defendant was not admonished regarding the three-year term of mandatory supervised release that would follow his prison sentence); People v. Gulley, 383 Ill. App. 3d 727, 891 N.E.2d 441 (2008) (same); People v. Company, 376 Ill. App. 3d 846, 876 N.E.2d 1055 (2007) (same); People v. Welch, 376 Ill. App. 3d 705, 877 N.E.2d 134 (2007) (same).

Here, the trial court never admonished defendant that she could be required to pay restitution but, nevertheless, ordered her to pay it. The court’s order made defendant’s sentence more onerous than the court’s admonishments indicated it would be. The appropriate remedy is to vacate the restitution award.¹ See Jenkins, 141 Ill. App. 3d at 609, 490 N.E.2d at 958.

CONCLUSION

For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed in part as modified and vacated in part.

Affirmed in part as modified and vacated in part.

HOLDRIDGE, EJ., concurs.

Footnotes

1

King may, however, file a civil action against defendant for the damage defendant caused to her vehicle. See Indesco Products, Inc. v. Novak, 316 Ill. App. 3d 53, 57, 735 N.E.2d 1082, 1086 (2000).