People v. Snyder ( 2010 )

No. 3--09--0248
_________________________________________________________________
Filed September 7, 2010
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2010
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 08--CF--1011
)
DEANDRA SNYDER, ) Honorable
) Stuart P. Borden
Defendant-Appellant. ) Judge Presiding
________________________________________________________________
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 5/21-1(1)(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
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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
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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).
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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
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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.
III
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
6
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. 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
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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
8
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, PJ., concurs.
Filed September 7, 2010 CORRECTION
JUSTICE SCHMIDT, concurring in part and dissenting in part:
I concur in the majority opinion with the exception of the restitution issue. With all due
respect, the majority's analysis is seriously flawed for reasons I will discuss below.
Supreme Court Rule 402 requires that the circuit court 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. If the improper admonishments prejudice a defendant or
deny her real justice, the appropriate remedy is to vacate her
guilty plea and allow her to replead. People v. Harris, 359 Ill.
App. 3d 931, 835 N.E.2d 902 (2005).
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).
Defendant and the majority rely heavily on People v. Jenkins,
141 Ill. App. 3d 602, 490 N.E.2d 953 (1986), in support of their
positions. In Jenkins, the Fourth District held that, generally,
the proper remedy for a court's failure to properly admonish a
defendant about the possibility of restitution is to vacate the
restitution order. Jenkins, 141 Ill. App. 3d 602, 490 N.E.2d 953.
The line of cases behind the Jenkins decision treated a court's
guilty plea admonitions as implied promises between the court and
a defendant. People v. Seyferlich, 398 Ill. App. 3d 989, 924
N.E.2d 1212 (2010). However, since Jenkins was decided, the Fourth
District has not repeated the Jenkins holding based on the implied
promise theory. Seyferlich, 398 Ill. App. 3d 989, 924 N.E.2d 1212(recognizing that the Fourth District's decision in Harris called
into doubt the continued viability of Jenkins). I would not follow
Jenkins but instead turn to the more persuasive approach adopted by
the Second District in Seyferlich. But first, the majority
opinion.
The majority's train derails when it asserts, "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. [Citations.] 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
10
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); [citations]." Slip op. at 8. The majority analysis
here is flawed on several levels.
First of all, the supreme court has neither explicitly nor
implicitly adopted the Jenkins approach. One can read Whitfield
and find no reference to the Jenkins decision. Likewise, a reading
of Whitfield and Morris should make it plain to anyone that
Whitfield involved entirely different facts and, therefore, a
different issue than that before us and the Jenkins court. In
Whitfield, the defendant contended that his constitutional right to
due process and fundamental fairness was violated because he pled
guilty in exchange for a specific (25 years) sentence, but received
a different, more onerous (25 years plus 3 years' MSR) sentence
than the one to which he agreed. Relying on the line of reasoning
set forth in Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d
427, 92 S. Ct. 495 (1971), the Illinois Supreme Court held that
when one pleads guilty in exchange for a specific sentence and the
trial judge sentences the defendant to the specific term agreed to
in addition to a term of MSR, about which defendant was never
admonished, the defendant is denied the benefit of his bargain with
the State. In these circumstances, addition of the MSR term to the
agreed-upon sentence violates due process because the sentence
imposed is more onerous than the one defendant agreed to at the
time of the plea hearing. The court concluded that the appropriate
11
remedy was to modify defendant's sentence to a term of 22 years of
imprisonment to be followed by the mandatory 3-year term of MSR.
Whitfield, 217 Ill. 2d at 205. The key in Whitfield was that
defendant pled guilty in exchange for a promise of a specific term
of imprisonment. If there is any doubt in one's mind as to the
rule in Whitfield, one need only turn to People v. Morris, 236 Ill.
2d 345, 925 N.E.2d 1069 (2010). In Morris, the supreme court was
called to determine whether Whitfield created a new rule of
criminal procedure. Morris, 236 Ill. 2d at 355. It did. Morris,
236 Ill. 2d at 361. The supreme court stated in Morris, "we
declared that a defendant has a due process 'contract' right to
enforce the terms of a plea agreement, and the unilateral
modification of the agreement to include a term of MSR not
previously bargained for amounted to a breach of the plea agreement
and violated principles of fundamental fairness." Morris, 236 Ill.
2d at 357. Later in Morris, the court once again paraphrased the
rule of Whitfield, acknowledging that Whitfield "marked the first
time this court held that a faulty MSR admonishment deprived a
defendant of his right to due process by denying him the benefit of
his bargain with the State." Morris, 236 Ill. 2d at 361. The
Whitfield rule applies to circumstances where a defendant pleads
guilty in exchange for a specific sentence. Such was not the case
here. Whitfield and Morris are inapposite. Whitfield even
distinguished itself from cases where a defendant's guilty plea is
not in exchange for a specific sentence and, therefore, the faulty
admonitions did not deny defendant the benefit of some bargain he
12
made with the State. The court uses People v. McCoy, 74 Ill. 2d
398 (1979), as an example. Whitfield, 217 Ill. 2d at 191.
It is apparent from the majority's language that it has made
the leap in logic to equate a trial court's admonishment with a
promise from the State. The majority writes, "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." (Emphasis added.) Slip op. at 8. In the case before us,
one should reasonably ask: What promise? Since the majority does
not refer to what promise must be fulfilled, it must be referring
to the trial court's admonishments. When the supreme court in
Whitfield and Morris referred to the promise, it was clearly
referring to the promise between defendant and the State for a
specific sentence in exchange for a guilty plea. In the case
before us, defendant agreed to enter an open plea of guilty in
exchange for the State dropping some additional charges. The State
dropped the additional charges. Defendant does not argue that she
was denied the benefit of a bargain with the State, only that she
was not admonished about restitution. The majority makes an
argument for defendant that defendant has not made. This is simply
not a Whitfield case. That being said, let us return to the Second
District's recent opinion in Seyferlich.
As the Seyferlich court noted, the court's role is not to
bargain with the defendant to secure a guilty plea: "[t]he
13
objective of ensuring that guilty pleas are entered voluntarily and
intelligently is not advanced by a rule that affords defendants a
sentencing windfall by treating misstatements by the trial court as
promises. If defendant would not have pleaded guilty but for the
incomplete admonition, her remedy was to seek leave to withdraw her
plea." Seyferlich, 398 Ill. App. 3d 989, 992, 924 N.E.2d 1212,
1215 (2010). Seyferlich relied heavily upon the Fourth District
post-Jenkins decision in People v. Harris, 359 Ill. App. 3d 931,
835 N.E.2d 902.
Like the defendant in Harris, defendant in this case asks for
the incorrect remedy--she does not ask this court to vacate her
guilty plea and allow her to replead. See Harris, 359 Ill. App. 3d
931, 835 N.E.2d 902.
Additionally, there is no indication that defendant was denied
real justice or was prejudiced by the circuit court's failure to
inform her of the possibility of restitution. Defendant agreed to
plead guilty to intimidation and criminal damage to property in
exchange for the State's promise to drop the armed violence charge
and two attempted first degree murder charges. There was no
agreement on sentencing; in fact, it was understood that all
sentencing options were open to the court. The remedy fashioned
by the majority here is wrong on yet another level. It defeats the
legislative purpose of trying to make victims whole. The majority
seems satisfied to add a footnote telling the victim to sue the
defendant in civil court. Slip op. at 9 n.1. No doubt the victim
is grateful for this legal advice (assuming she reads appellate
14
opinions). The legislature created restitution awards as another
remedy for crime victims and we ought not be quick to defeat that
remedy.
For reasons set forth above, I dissent from the decision to
vacate the restitution order.
15