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02/26/96 PEOPLE STATE ILLINOIS v. MICHAEL MCCLEARY

February 26, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MICHAEL MCCLEARY, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE VINCENT M. GAUGHN, JUDGE PRESIDING.

As Corrected April 17, 1996. As Corrected May 6, 1996.

The Honorable Justice Wolfson delivered the opinion of the court: Buckley and Braden, JJ., concur.

The opinion of the court was delivered by: Wolfson

JUSTICE WOLFSON delivered the opinion of the court:

Michael McCleary, found guilty of two voluntary manslaughter charges, contends he must be resentenced for two reasons: First, the trial court failed to advise him of his right to elect to be sentenced under the law in effect at the time the crimes were committed; second, the trial court believed consecutive sentences were required by law, when they were not.

Despite the defendant's failure to preserve these issues for appeal, we vacate the sentences imposed and remand this cause for resentencing.

PROCEEDINGS IN THE TRIAL COURT

McCleary originally was charged with two counts of murder in relation to the May 14, 1986, bludgeoning death of Ivory Barrett and Tony King. He was tried by a jury and found guilty but mentally ill on both counts. On appeal, his convictions were reversed and the case remanded for a new trial. See People v. McCleary (1990), 208 Ill. App. 3d 466, 567 N.E.2d 434, 153 Ill. Dec. 476.

On remand, McCleary was found guilty but mentally ill on two counts of voluntary manslaughter. On June 3, 1994, he was sentenced to two consecutive terms of 14 years imprisonment.

Until 1986, consecutive sentencing for these offenses was discretionary. Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-4(a). The statute provided that, under circumstances that fit this case, "the court may enter sentences to run consecutively." (Emphasis added.)

An amendment to the statute went into effect July 1, 1988. "May" was changed to "shall." Consecutive sentencing was made mandatory. 730 ILCS 5/5-8-4(a) (West 1992).

Subsection (b) of the statute remained the same: consecutive sentences may be imposed by the court when, "having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record. " (Emphasis added.) 730 ILCS 5/5-8-4(b) (West 1992).

It is undisputed that the trial judge did not tell McCleary he had the right to be sentenced under the law as it existed at the time of the offenses. Before passing sentence, the trial judge said:

"I've observed your demeanor and the way you acted since you have been assigned to this courtroom. I've seen the progress when you got your glasses, and I've read some of the motions and letters that you've given to me. And I'm impressed with your conduct right now. I'm not going to give you the maximum. This is almost on the 50th anniversary of D-Day and the landing of Normandy. You served your country. What I will do, though, and I think is mandated by law, or my opinion of what the law is, I'll ...


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