APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
537 N.E.2d 875, 181 Ill. App. 3d 821, 130 Ill. Dec. 546 1989.IL.416
Appeal from the Circuit Court of Cook County; the Hon. Michael B. Getty, Judge, presiding.
PRESIDING JUSTICE FREEMAN delivered the opinion of the court. McNAMARA and WHITE, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
After a bench trial in the circuit court of Cook County, defendant, Gregory Tatum, was convicted of the offense of possession of a controlled substance. After a second bench trial in the same court, defendant was convicted of the offenses of delivery of a controlled substance and possession of a controlled substance. He was sentenced to two years' imprisonment on the former possession offense and a concurrent 10 years' imprisonment on the delivery offense. Defendant appeals only the 10-year sentence for the delivery offense.
Defendant's first trial, on one count of possession of a controlled substance, 3.48 grams of heroin, with intent to deliver, a Class 2 felony (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(c)), resulted from his arrest by Chicago police officers on January 23, 1985. The trial court deferred sentencing, at defendant's request, after finding him guilty of the lesser-included offense of possession of the heroin, a Class 1 felony. Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(b).
Defendant's second trial, on one count of possession of a controlled substance, one gram of heroin, with intent to deliver and one count of delivery of a controlled substance, 24.47 grams of heroin, a Class X felony (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(a)), resulted from his arrest in April 1985, while he was on bond on the January offense. The trial court found defendant guilty of the delivery offense and the offense of possession of one gram of heroin.
At defendant's sentencing hearing, the State recommended sentences of three years on the possession offense, resulting from defendant's first trial, and seven years on the delivery offense, to be served consecutively to the former sentence. The State apparently based its recommendation of consecutive sentences on section 5-8-4(h) of the Unified Code of Corrections (Code), which provides that any sentence imposed upon conviction of a felony committed while on bond on a prior felony charge "shall be" consecutive to any sentence imposed upon conviction for the prior felony. (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-4.) After defense counsel pointed out that section 5-8-4(h) was not effective until September 1985, the State recommended that defendant be sentenced to three years on the possession offense and a concurrent 10 years on the delivery offense. The trial court sentenced defendant to two years on the possession offense and a concurrent 10 years on the delivery offense.
On appeal, defendant asserts that the 10-year sentence on the delivery offense violated the Federal constitutional bar against ex post facto laws applicable to the States (U.S. Const., art. I, § 10). Defendant asserts that the trial court patently imposed that sentence only because it could not sentence him to seven years on the delivery offense to be served consecutively to the three-year sentence on the possession offense recommended by the State. Because the 10-year sentence achieved the result the sentences originally recommended by the State would have achieved, defendant concludes that the trial court indirectly applied section 5 -- 8 -- 4(h) retroactively in imposing that sentence.
We cannot agree with defendant's characterization of the record in this case. Nothing in the transcript of the sentencing hearing supports the Conclusion that the trial court imposed the sentence appealed from because it could not accept the State's original sentencing recommendations. Defendant notes that the trial court asked the State whether it was withdrawing its recommendation of a consecutive sentence after defense counsel asserted that section 5 -- 8 -- 4(h) was inapplicable to defendant's case. Therefore, defendant asserts, the trial court patently relied on and was guided by the State's recommended sentence on the delivery offense.
Defendant's Conclusion is a non sequitur. The fact that the trial court asked the State whether it was withdrawing its original recommendation of a consecutive sentence in nowise reveals that it relied upon the State's second recommendation as to the length of the sentence on the delivery offense. The fact that the trial court never indicated at the sentencing hearing, prior to the State's withdrawal of its original recommendations, that it was inclined to or would follow those recommendations contradicts defendant's argument. Also militating against his argument is the fact that the trial court did not explicitly or implicitly accept the State's recommendation of a three-year sentence on the possession offense.
However, even assuming that the trial court did accept the State's second recommendation as to the sentence on the delivery offense, we do not find that the trial court thereby violated the prohibition against ex post facto laws. As both parties note, the cornerstone of the constitutional prohibitions against such laws is that persons have a right to a fair warning of the conduct which will give rise to criminal penalties and what those penalties will be. People v. Coleman (1986), 111 Ill. 2d 87, 93-94, 488 N.E.2d 1009.
For delivering 24.47 grams of the controlled substance of heroin, a Class X felony, defendant could have been sentenced to anywhere from 6 to 30 years, as defense counsel conceded at the sentencing hearing. This penalty, unlike section 5-8-4(h), was in effect at the time of defendant's commission of that offense. (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401; Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-1.) Defendant therefore had fair warning of the criminal penalty to which his conduct was subject. The mere facts that, within the 6- to 30-year range, the trial court decided to sentence defendant to 10 years and that the sentence accomplished the same result as the State's original sentencing recommendations do not ...