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05/23/96 PEOPLE STATE ILLINOIS v. HILARION GRANADOS

May 23, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
HILARION GRANADOS, APPELLEE.



Chief Justice Bilandic delivered the opinion of the court:

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

The issue in these consolidated appeals is whether the circuit court was authorized to impose extended-term sentences on the defendant, Hilarion Granados, for each of his four felony convictions. In each of two cases, the defendant pled guilty to one count of driving under the influence of alcohol and one count of driving while license revoked. The circuit court of Whiteside County found the defendant subject to an extended-term sentence of six years' imprisonment for each conviction. The defendant appealed in both cases. The appellate court held that the defendant was not subject to extended-term sentences and reduced the defendant's sentences accordingly. Nos. 3-93-0198, 3-93-0884 (unpublished orders under Supreme Court Rule 23). We accepted the State's petition for leave to appeal in each case (155 Ill. 2d R. 315), and consolidated them. We now reverse the judgment of the appellate court and affirm the sentences imposed upon the defendant by the circuit court in both cases.

FACTS

In case no. 79057, the defendant was charged by information on June 15, 1992, with one count of driving under the influence of alcohol (DUI) and one count of driving while license revoked (DWLR). Each offense was alleged to have occurred on June 12, 1992. The DUI offense was charged as a Class 4 felony based on the defendant's prior DUI convictions. The DWLR offense was also charged as a Class 4 felony based on the defendant's prior DWLR convictions. On September 1, 1992, the defendant pled guilty to each count in open court and was admonished that he could receive extended-term sentences of three to six years' imprisonment. On October 16, 1992, the defendant was sentenced on each count to an extended term of six years' imprisonment.

The defendant filed a pro se notice of appeal to the appellate court on January 20, 1993. The appellate court dismissed that appeal. Thereafter, the defendant filed a petition for post-conviction relief in which he charged that his trial counsel was ineffective for failing to "file an appeal" for him. The trial court denied the petition. The defendant appealed to the appellate court, third district, arguing that his counsel was ineffective because he was not subject to extended-term sentences. The appellate court agreed and reduced the defendant's sentencesto the maximum nonextended term of three years' imprisonment. No. 3-93-0884 (unpublished order under Supreme Court Rule 23).

In case no. 79056, the defendant was charged by information on September 25, 1992, with one count of DUI and one count of DWLR, each offense alleged to have occurred on September 17, 1992. Each offense was charged as a Class 4 felony based upon the defendant's prior convictions. On November 25, 1992, the defendant pled guilty to each count in open court, and was admonished that he could receive extended-term sentences of three to six years' imprisonment. On January 15, 1993, the defendant was sentenced on each count to an extended term of six years' imprisonment. These sentences were ordered to run consecutively to those imposed in case no. 79057.

The defendant filed motions to withdraw his guilty pleas and for a reduction of his sentences. The trial court denied these motions. The defendant appealed to the appellate court, third district, on the ground that he was not subject to extended-term sentences. The appellate court agreed and reduced the defendant's sentences to the maximum nonextended term of three years' imprisonment. No. 3-93-0198 (unpublished order under Supreme Court Rule 23).

The third district of the appellate court applied the same reasoning in reducing the defendant's sentences in each appeal. The appellate court determined that the defendant's sentencing was governed by the third district's decision in People v. Spearman, 108 Ill. App. 3d 237, 64 Ill. Dec. 1, 438 N.E.2d 1320 (1982), because the defendant's crimes were committed within the third district of the appellate court in June and September of 1992, and Spearman was the controlling precedent in that district at that time. Spearman held that the extended-term sentencing statute was not applicable to felonies that had been enhancedfrom misdemeanors by the defendant's prior convictions. The appellate court noted that it had expressly overruled Spearman in People v. Martin, 240 Ill. App. 3d 260, 180 Ill. Dec. 188, 606 N.E.2d 1265 (1992), a decision announced in December of 1992. The opinion in Martin, however, stated that it was limited to prospective application only because it had overruled the third district's prior precedent, Spearman. Therefore, the appellate court found that Martin did not apply to the defendant's sentencing because the defendant's crimes occurred before Martin was announced. The appellate court further found that to apply Martin retroactively to the defendant would violate due process as the equivalent of an ex post facto law. The appellate court noted that this court's recent decision in People v. Hicks, 164 Ill. 2d 218, 207 Ill. Dec. 295, 647 N.E.2d 257 (1995), had decided that the extended-term statute applied to felonies enhanced from misdemeanors. Hicks was therefore in accordance with Martin and contrary to Spearman. The appellate court determined, however, that Hicks could not be retroactively applied to the defendant.

ANALYSIS

As noted, in each of these cases, the defendant pled guilty to the offenses of driving under the influence of alcohol (625 ILCS 5/11-501(a), (d)(1) (West 1992)) and driving while license revoked (625 ILCS 5/6-303 (West 1992)). Each of these offenses is classified as a Class A misdemeanor. 625 ILCS 5/11-501(c), 6-303(a) (West 1992). The Illinois Vehicle Code provides, however, that DUI is enhanced to a Class 4 felony when the defendant has previously been convicted of that same offense two or more times. 625 ILCS 5/11-501(d)(1) (West 1992). Likewise, DWLR is treated as a Class 4 felony when the defendant has previously been convicted of that offense and the original revocation or suspension was the result of a violation of the DUI statute. 625 ILCS 5/6-303(d) (West 1992). At the time the defendant committed hisoffenses, he had at least three prior DUI convictions and eight prior DWLR convictions. There is no dispute that each of the defendant's offenses in the instant cases was properly charged as a Class 4 felony based upon his prior convictions.

The defendant was found subject to an extended-term sentence for each of the instant convictions pursuant to section 5-5-3.2(b)(1) of our Unified Code of Corrections. 730 ILCS 5/5-5-3.2(b)(1) (West 1992). Pursuant to that section, an extended-term sentence may be imposed when a defendant:

"is convicted of any felony, after having been previously convicted *** of the same or similar class felony or greater class felony, when such conviction has occurred within 10 years after the previous conviction, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts." 730 ILCS 5/5-5-3.2(b)(1) (West 1992).

The extended-term sentence permissible for a Class 4 felony is a term of imprisonment not less than three years and not more than six ...


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