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10/26/95 PEOPLE STATE ILLINOIS v. JEFFREY A.

October 26, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
JEFFREY A. KILPATRICK, APPELLANT.



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Knox County, the Hon. Harry Bulkeley, Judge, presiding.

The Honorable Justice McMORROW, delivered the opinion of the court: Chief Justice Bilandic, dissenting: Justice Heiple, also dissenting:

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

Section 5-8-1(c) of the Unified Code of Corrections prohibits a trial court from increasing a sentence after it has been imposed (730 ILCS 5/5-8-1(c) (West 1992)). The question in this appeal is whether the trial court violated section 5-8-1(c) when the court vacated the defendant's consecutive sentences of nine and six years' imprisonment and instead imposed a "single sentence" of 15 years' incarceration.

I

Defendant, Jeffrey A. Kilpatrick, was charged with multiple offenses relating to a November 1992 incident at the home of his former girlfriend, Barbara Fox. In a February 1993 court proceeding relating to the incident, the defendant pled guilty to charges of home invasion and attempted murder. In exchange for his guilty plea, the remaining charges against the defendant were dismissed. The counts to which defendant pled guilty alleged that defendant had unlawfully entered his former girlfriend's residence by discharging a shotgun into the front door and that upon gaining access to the dwelling he fired the weapon into a closet with the intent to kill a third party, Scott Wilson, who was present in the home.

At the subsequent sentencing hearing wherein the State and the defendant presented evidence and argument, the circuit court of Knox County sentenced defendant to six years' imprisonment for the home invasion conviction and a nine-year term of incarceration for the attempted murder conviction. The circuit court specified that the two sentences were to be served consecutively. However, the court did not state whether it believed consecutive sentences were appropriate because the defendant had inflicted great bodily harm (730 ILCS 5/5-8-4(a) (West 1992)) or because the sentences were necessary to protect the public (730 ILCS 5/5-8-4(b) (West 1992)). The State's offer of proof at the defendant's guilty plea hearing indicated that no one was injured by defendant's actions during the incident.

The defendant timely filed a motion to reconsider his sentences, arguing that the facts of his case did not warrant or permit imposition of consecutive sentences. After briefing and argument, the circuit court granted the motion to reconsider, vacated defendant's consecutive sentences, and imposed a "single sentence of 15 years on the plea of guilty to the two counts." The circuit court disregarded the defendant's objection to the new sentence, which defendant claimed was an impermissible increase in contravention of section 5-8-1(c) of the Unified Code of Corrections (730 ILCS 5/5-8-1(c) (West 1992)).

The appellate court affirmed the trial court's judgment (No. 3-93-0347 (unpublished order under Supreme Court Rule 23)), and we allowed defendant's petition for leave to appeal (145 Ill. 2d R. 315(a)).

II

The instant appeal involves an interpretation of section 5-8-1(c) of the Code of Corrections. This section states in pertinent part, "A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 30 days after the sentence is imposed. However, the court may not increase a sentence once it is imposed." (Emphasis added.) (730 ILCS 5-8-1(c) (West 1992).) The question presented is whether section 5-8-1(c) barred the trial court from imposing a sentence of 15 years' imprisonment once the court had vacated the defendant's consecutive sentences of nine and six years' imprisonment.

The defendant contends that section 5-8-1(c), when given its plain and ordinary meaning, forbids a modification in sentencing such as that imposed by the trial court in the instant cause. Defendant argues that the limitation stated in section 5-8-1(c) "applies to each and every sentence imposed; no exception is made which allows the judge to increase a particular sentence so long as the aggregate term of years remains the same."

The State attempts to justify the circuit court's decision on the ground that the trial court imposed only a "single sentence" of 15 years' imprisonment. The defendant claims that the trial court could not impose a single sentence for two separate convictions. We need not decide whether the trial court properly imposed a "single sentence" for defendant's convictions of home invasion and attempted murder. We conclude that the State's argument in this regard, as well as the trial court's decision to impose a "single sentence *** on the two counts," are both improper attempts to circumvent the clear and express language of section 5-8-1(c) of the Unified Code of Corrections.

Under well-settled rules of statutory construction, section 5-8-1(c) is to be interpreted according to the plain meaning of its terms, in order to ascertain and give effect to the intent of the legislature, bearing in mind the reasons for the provision, the harms to be remedied, and the goals to be achieved. ( Faheem-El v. Klincar (1988), 123 Ill. 2d 291, 298, 122 Ill. Dec. 809, 527 N.E.2d 307.) Section 5-8-1(c) is consistent with the United States Supreme Court's decision in North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072. In Pearce, the Court stated that due process may prohibit a judge from imposing a more severe sentence where the defendant has been convicted following a retrial. The Court reasoned that imposing a greater sentence after retrial could essentially penalize the defendant's right to challenge his conviction and sentence. The Court observed that "due process of law *** 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 concluded that an increased sentence upon resentencing is proper where the defendant has engaged in additional conduct since the date of his original sentence that warrants an enhanced ...


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