APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
523 N.E.2d 223, 169 Ill. App. 3d 312, 119 Ill. Dec. 755 1988.IL.741
Appeal from the Circuit Court of Macon County; the Hon. John L. Davis, Judge, presiding.
JUSTICE KNECHT delivered the opinion of the court. GREEN, P.J., and LUND, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT
The defendant Eugene Adams, Jr., was found guilty of voluntary manslaughter (Ill. Rev. Stat. 1985, ch. 38, par. 9-2(b)) after a jury trial and sentenced to 12 years' imprisonment. He previously entered a guilty plea to the same offense and was sentenced to 10 years' imprisonment but the court allowed withdrawal of his guilty plea on a post-trial motion. The defendant appeals his sentence from the circuit court of Macon County, arguing the increased sentence violated his due process rights.
On April 29, 1987, the defendant pleaded guilty to the offense of voluntary manslaughter in connection with the death of Robert Banks on January 10, 1987. The guilty plea was the result of a plea bargain arrangement between the State and defendant in which the State withdrew four previously filed counts of murder and manslaughter and filed a single count of voluntary manslaughter in return for defendant's plea. There was no agreement as to sentence. The defendant was properly admonished, and the court accepted his plea and entered judgment.
At the sentencing hearing defendant presented a narrative of the events which led up to the death of Robert Banks in which he denied his guilt. Defendant received a sentence of 10 years' imprisonment. The court then explained defendant's right to appeal and to seek to withdraw his guilty plea. The court informed defendant withdrawal of his guilty plea would permit reinstatement of the charges which had been dropped as a result of the plea bargain arrangement.
The court later granted defendant's motion to withdraw his guilty plea. On September 29, 1987, the defendant's first trial resulted in a mistrial. At the second trial the State called several witnesses to the events that led to the death of the victim. The testimony included that of a purported eyewitness who stated he saw defendant stab the victim. Testifying on his own behalf, the defendant continued to deny any knowledge of the actual stabbing. The jury returned a verdict of guilty of voluntary manslaughter.
At the October 23, 1987, sentencing hearing no evidence was presented in aggravation or mitigation. The State argued for 14 years' imprisonment. Defense counsel argued section 5-5-4 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-4) restricted the sentence that could be imposed to 10 years. The court rejected this argument and sentenced the defendant to 12 years' imprisonment.
The defendant appeals, arguing section 5 -- 5 -- 4 of the Code protected him from an increased sentence at his second sentencing. He contends the trial court should not have sentenced him to more than 10 years' imprisonment.
The issue here revolves around the interpretation of section 5 -- 5 -- 4. As indicated in the council commentary (Ill. Ann. Stat., ch. 38, par. 1005 -- 5 -- 4, Council Commentary, at 450 (Smith-Hurd 1982)), this section sets out the rule adopted by the United States Supreme Court in North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072, and followed by our own Illinois Supreme Court in People v. Baze (1969), 43 Ill. 2d 298, 253 N.E.2d 392. In Pearce the United States Supreme Court held the due process clause of the fourteenth amendment requires that defendants should be protected from a court's possible vindictiveness after a successful attack on a prior conviction for the same offense. This protection, however, was not extended to all defendants after their conviction. The court was interested in protecting review of constitutional issues, not in providing a safety net for every convicted defendant who wished to have a second chance at trying his case.
"Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing Judge." (Pearce, 395 U.S. at 725, 23 L. Ed. 2d at 669, 89 S. Ct. at 2080.)
The court reasoned that in order to protect the right of defendants to meaningful avenues of legal attack on their convictions they had to be insulated from retribution in the form of increased sentences. As expressly stated in the opinion, however, this was ...