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February 7, 1997


Appeal from the Circuit Court of Lake County. Nos. 93--CF--1083, 93--CF--1213, 93--CF--1214. Honorable Victoria A. Rossetti, Judge, Presiding.

Released for Publication March 12, 1997.

The Honorable Justice Rathje delivered the opinion of the court. Geiger, P.j., and Thomas, J., concur.

The opinion of the court was delivered by: Rathje

JUSTICE RATHJE delivered the opinion of the court:

Following his indictment in three separate cases, the defendant, Donell Miller, pleaded guilty to and was sentenced as follows: 28 years for home invasion (case No. 93--CF--1083); 6 years for residential burglary (No. 93--CF--1213); and 9 years for robbery (No. 93--CF--1214). The sentences imposed were to run consecutively. Following the denial of his motion for reconsideration of the above sentences, the defendant brought an appeal in all three causes. The causes have been consolidated for purposes of this appeal.

On appeal, the defendant raises the following issues: whether the trial court properly imposed the above sentences; whether the defendant received the effective assistance of counsel; and whether the trial court abused its discretion in imposing a sentence of 28 years' imprisonment for the offense of home invasion. For the reasons stated below, we affirm the judgment of the trial court.

In order to fully understand the defendant's first contention of error, we must review the procedural history of this case. As indicated above, the defendant was charged in three separate indictments with a multitude of offenses.

In case No. 93--CF--1083, the defendant was charged with home invasion, residential burglary, robbery, aggravated criminal sexual assault, and criminal sexual abuse. Ultimately, the defendant pleaded guilty and was sentenced to 15 years' imprisonment for residential burglary, 7 years' imprisonment for attempted criminal sexual assault, and 7 years' imprisonment for robbery, which sentences were to run concurrently. In case No. 93--CF--1213, the defendant was charged with and pleaded guilty to residential burglary and was sentenced to 12 years' imprisonment, which was to run consecutively to the sentences imposed in case No. 93--CF--1083 for a total of 27 years' imprisonment in the Department of Corrections. Finally, in case No. 93--CF--1214, the defendant was charged with home invasion, robbery, and residential burglary. Those charges and the remaining charges under case No. 93--CF--1083 were nol-prossed by the State.

The defendant's motion to reconsider sentence was denied by the trial court, and the defendant appealed. In a summary order, this court found that the defendant had not been properly admonished pursuant to Supreme Court Rule 605(b) (145 Ill. 2d R. 605(b)) and remanded the cause for the proper admonishments and to allow the defendant to file new post-plea motions. People v. Miller, Nos. 2--93--1136, 2--93--1137 cons. (1995) (unpublished order under Supreme Court Rule 23(c)).

On remand, the defendant was granted leave to withdraw his guilty pleas to the above offenses. Additional proceedings took place. Following the commencement of the jury trial in No. 93--CF--1083, an agreement was reached whereby the defendant agreed to plead guilty to home invasion in case No. 93--CF--1083, residential burglary in case No. 93--CF--1213, and robbery in case No. 93--CF--1214, with a sentencing cap of 50 years. The defendant was then admonished, and a factual basis for the pleas was placed on the record. A date for sentencing was then set.

The defendant then filed a pro se motion to withdraw his guilty pleas. Following a hearing at which the defendant, pro se, presented arguments as to whether there was a conflict of interest between the public defender who represented him and himself, the trial court found that the defendant had received effective representation and that the defendant knowingly and voluntarily pleaded guilty to the charges. The trial court then sentenced the defendant to the following terms of imprisonment in the Department of Corrections: 28 years for home invasion, 9 years for robbery, and 6 years for residential burglary. The trial court further ordered that the sentences were to run consecutively. The defendant's motion for reconsideration of sentence was denied. This appeal followed.

The defendant contends, first, that the 43-year total of the consecutive sentences imposed following remand was improper because it represented an increase over the 27-year total of the consecutive sentences imposed originally. He argues that this increase is precluded by section 5--5--4 of the Unified Code of Corrections, which states as follows:

"Resentences. Where a conviction or sentence has been set aside on direct review or on collateral attack, the court shall not impose a new sentence for the same offense or for a different offense based on the same conduct which is more severe than the prior sentence less the portion of the prior sentence previously satisfied unless the more severe sentence is based upon conduct on the part of the defendant occurring after the original sentencing." 730 ILCS 5/5--5--4 (West 1992).

The State points out that the 9-year sentence imposed in No. 93--CF--1214 was the first sentence imposed on the defendant in that cause. The State further points out that the 6-year sentence that the defendant received in No. 93--CF--1213 after remand was 6 ...

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