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12/21/95 PEOPLE STATE ILLINOIS v. ZETTIE JONES

December 21, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
ZETTIE JONES, JR., APPELLANT.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Vermilion County, the Hon. Rita B. Garman, Judge, presiding.

The Honorable Justice McMORROW delivered the opinion of the court: Justice Harrison took no part in the consideration or decision of this case. Justice Heiple, dissenting: Chief Justice Bilandic joins in this dissent.

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

In this appeal we conclude, consistent with our ruling in People v. Kilpatrick, 167 Ill. 2d 439, 212 Ill. Dec. 660, 657 N.E.2d 1005, 1995 Ill. LEXIS 196, (1995), that the trial court is not authorized to increase a term of imprisonment when the court reconsiders the criminal sentence it originally imposed. In addition we determine that a reviewing court has the power and authority to reduce, on appeal, the sentence imposed by the trial court.

I

Defendant, Zettie Jones, Jr., was convicted of attempted murder, armed robbery, and aggravated battery with a firearm, upon his entry of a guilty plea with respect to a September 1991 incident in which defendant shot and robbed a convenience store clerk in Danville, Illinois. The trial court imposed consecutive sentences of 25 years' imprisonment for the attempted murder and armed robbery convictions.

Defendant subsequently filed a motion to withdraw his guilty plea and reconsider his sentences. Following a hearing, the trial court denied the request to vacate defendant's plea. However, the court granted defendant's request to reconsider his sentences. The trial court determined that it had committed error when, in admonishing the defendant during his guilty plea, the court neglected to advise the defendant that he might receive consecutive sentences. Because of this error, the trial court vacated defendant's sentences for attempted murder and armed robbery. The trial court resentenced the defendant to a single term of 30 years' imprisonment with respect to his attempted murder conviction. No new sentence was imposed for defendant's armed robbery conviction.

The defendant appealed from the trial court's sentencing decision, arguing inter alia that the trial court was not authorized to increase the term of imprisonment from 25 years to 30 years when the trial court resentenced the defendant for his attempted murder conviction. The appellate court affirmed the trial court's sentencing decision (271 Ill. App. 3d 264), and we allowed defendant's petition for leave to appeal (145 Ill. 2d R. 315(a)).

II

The defendant contends that the trial court erred when it increased the term of imprisonment with respect to his attempted murder conviction from 25 years to 30 years. We agree.

In People v. Kilpatrick, 1995 Ill. LEXIS 196, we held that section 5-8-1(c) of the Unified Code of Corrections (730 ILCS 5/5-8-1(c) (West 1992)) does not permit a trial court to increase a sentence after it has been imposed. In that case, the circuit court initially imposed two consecutive sentences of six and nine years' imprisonment for the defendant's home invasion and attempted murder convictions, but vacated these sentences upon defendant's motion for reconsideration. In resentencing the defendant, the trial court imposed a "single sentence" of 15 years' imprisonment. Upon review, we held that the new sentence imposed by the trial court violated section 5-8-1(c), which provides that 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 5/5-8-1(c) (West 1992).

We reasoned that the trial court's imposition of a "single sentence" of 15 years' imprisonment was an "improper attempt[ ] to circumvent the clear and express language of section 5-8-1(c) of the Unified Code of Corrections." (Slip op. at 3.) We noted that this section 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 which the Court stated that due process may prohibit a judge from imposing a more severe sentence when the defendant has been convicted following a retrial because a greater sentence may penalize the defendant's right to challenge his conviction and sentence. Slip op. at 3-4.

Bearing in mind the purpose of section 5-8-1(c), we agreed with the appellate court's reasoning in People v. Rivera (1991), 212 Ill. App. 3d 519, 156 Ill. Dec. 615, 571 N.E.2d 202, that consecutive sentences are not treated as a single sentence under section 5-8-1(c). Accordingly, a trial court's modification of sentences so that they are to be served concurrently rather than consecutively does not justify the trial court's increase in the terms of imprisonment for each sentence. ( Rivera, 212 Ill. App. 3d at 525.) Similarly, the imposition of a single sentence does not permit an increase in the number of years which the defendant must serve for that sentence. We concluded in Kilpatrick that interpreting section 5-8-1(c) so that it prevented the trial court from increasing the defendant's term of imprisonment lessened the risk that the defendant would be penalized for his efforts to seek relief with respect to alleged sentencing errors.

The 30-year term of imprisonment imposed by the trial court in the instant cause suffers from the same infirmities that were apparent in Kilpatrick. As in Kilpatrick, the trial court in the present case initially imposed two consecutive sentences. Upon reconsideration, however, the trial court discerned that it should not have imposed consecutive sentences and vacated them. The trial court then sentenced the defendant to a longer term of imprisonment with respect to one of his convictions and imposed no sentence with regard to defendant's remaining conviction. As in Kilpatrick, such an increased term of imprisonment violates section 5-8-1(c). Accordingly, the appellate court ...


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