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03/10/95 PEOPLE STATE ILLINOIS v. ZETTIE JONES

March 10, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ZETTIE JONES, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Vermilion County. No. 91CF309. Honorable Rita B. Garman, Judge Presiding.

Honorable Robert J. Steigmann, J., Honorable James A. Knecht, P.j., Honorable Carl A. Lund, J. Knecht, P.j., and Lund, J., concur.

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In March 1992, defendant, Zettie Jones, pleaded guilty to attempt (first degree murder) (Ill. Rev. Stat. 1991, ch. 38, pars. 8-4, 9-1(a)), armed robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18-2(a)), and aggravated battery with a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 12-4.2). In September 1992, the trial court sentenced him to 25 years in prison on both the attempt (first degree murder) and armed robbery convictions and ordered the sentences to run consecutively.

In October 1992, defendant filed a motion to reconsider sentence, and in January 1993, the trial court vacated defendant's sentence and resentenced him to 30 years in prison on the attempt (first degree murder) conviction. Defendant appeals, arguing that (1) the 30-year sentence for the attempt (first degree murder) conviction was excessive, and (2) the trial court improperly increased that sentence from 25 to 30 years in prison.

We affirm.

I. BACKGROUND

In September 1991, defendant robbed a service station, during which he shot and injured the store clerk. In March 1992, he pleaded guilty to three charges arising out of that robbery. The trial court accepted the plea and admonished him that the sentencing range for each count was 6 to 30 years in prison. In September 1992, the court entered judgments of conviction on the attempt (first degree murder) and armed robbery charges, finding that the aggravated battery with a firearm count merged with the attempt (first degree murder) conviction. The court then imposed consecutive sentences of 25 years in prison for the attempt (first degree murder) and armed robbery convictions.

Defendant subsequently filed motions to withdraw his guilty plea and reconsider sentence, and in January 1993, the trial court held a hearing on both. At that hearing, the trial court denied defendant's motion to withdraw his plea, but allowed the motion to reconsider sentence because the court failed to admonish defendant as to the possibility of consecutive sentences when he pleaded guilty. The trial court then resentenced defendant to 30 years in prison on the attempt (first degree murder) conviction and vacated the armed robbery sentence.

In February 1993, defendant filed a supplemental motion to reconsider sentence, arguing that the 30-year sentence was excessiveand improperly increased from the original 25-year sentence. In May 1993, the trial court considered this motion and denied it, specifically finding as follows:

"This was certainly an egregious crime that was committed, a very serious crime. The court gave him a consecutive sentence originally because the court specifically found and believed that the rehabilitative potential for this defendant is very low and that the crime was very serious and that the consecutive sentence was appropriate based upon the need to protect the public from the conduct and behavior and the potential of [defendant] being in the community.

The court did * * * allow that portion of the motion [to reconsider sentence] but indicates it still believes that this man should serve the maximum period of sentence that is allowable under the law, which would be thirty years. I had given him fifty years to start with, wanting to keep him off the street for as long as possible; and * * * it is certainly the court's intent to protect the public as long as I possibly can. So the [supplemental] motion for reconsideration is denied." (Emphasis added.)

II. ANALYSIS

A. Defendant's Claim That the Trial Court Improperly Increased His Sentence

Defendant first argues that the trial court erred in increasing his sentence upon resentencing from 25 years to 30 years in prison for the attempt (first degree murder) conviction. We disagree.

The effect of defendant's initial sentence in September 1992 was--as the trial court intended--that he serve 50 years in prison. Upon resentencing, defendant received only 30 years in prison for the same criminal behavior. As a result, defendant's total sentence was significantly reduced. Accordingly, we hold that the trial court did not abuse its discretion in resentencing defendant. See People v. Todd (1994), 263 Ill. App. 3d 435, 438, 636 N.E.2d 114, 116, 200 Ill. Dec. 923 (trial court did not abuse its ...


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