Appeal from the Circuit Court of McHenry County. No. 90--CF--509. Honorable Henry L. Cowlin, Judge, Presiding.
Released for Publication March 20, 1997.
The Honorable Justice McLAREN delivered the opinion of the court. Inglis and Doyle, JJ., concur.
The opinion of the court was delivered by: Mclaren
The Honorable Justice McLAREN delivered the opinion of the court:
The defendant, Walter Blanck, appeals from his sentence for aggravated kidnaping (720 ILCS 5/10--2 (West 1994)). We reverse and remand for the issuance of a corrected judgment order and mittimus sentencing the defendant to 13 years' imprisonment.
On February 20, 1992, after a jury trial, the defendant was convicted of aggravated kidnaping (720 ILCS 5/10--2 (West 1994)) and aggravated criminal sexual assault (720 ILCS 5/12--14 (West 1994)). Aggravated criminal sexual assault is a Class X felony for which the normal sentence range is 6 to 30 years' imprisonment, but the extended range is 30 to 60 years' imprisonment. 720 ILCS 5/12--14(d) (West 1994); 730 ILCS 5/5--8--1(a)(3) (West 1994); 730 ILCS 5/5--8--2(a)(2) (West 1994). Aggravated kidnaping is a Class 1 felony for which the normal sentence range is 4 to 15 years' imprisonment, but the extended range is 15 to 30 years' imprisonment. 720 ILCS 5/10--2 (West 1994); 730 ILCS 5/5--8--1(a)(4) (West 1994); 730 ILCS 5/5--8--2(a)(3) (West 1994). At the defendant's sentencing hearing on April 9, 1992, the trial court found the defendant eligible for an extended-term sentence for the crime of aggravated criminal sexual assault because the offense was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. Under Illinois law, the court could not impose an extended term for aggravated kidnaping because the defendant was being sentenced for a more serious felony. 730 ILCS 5/5--8--2(a) (West 1994); People v. Jordan, 103 Ill. 2d 192, 205-06, 82 Ill. Dec. 925, 469 N.E.2d 569 (1984). The court imposed a sentence of 60 years' imprisonment for the aggravated criminal sexual assault and a consecutive 13 years' imprisonment for aggravated kidnaping.
The defendant appealed to this court, and on April 15, 1994, we issued an opinion reversing the defendant's conviction of aggravated criminal sexual assault because the State had failed to prove sufficiently jurisdiction, i.e., whether the offense occurred in Illinois or Wisconsin. Further, we vacated the sentence for aggravated kidnaping and remanded the cause for resentencing. We denied the defendant's petition for rehearing but issued a modified opinion on June 15, 1994. See People v. Blanck, 263 Ill. App. 3d 224, 200 Ill. Dec. 773, 635 N.E.2d 1356 (1994). With respect to the aggravated kidnaping conviction, our opinion directed the trial court to consider whether it could, in accordance with law, impose an extended-term sentence for that conviction because it was now the most serious offense of which the defendant was convicted. Blanck, 263 Ill. App. 3d at 231.
Upon remand, the resentencing hearing occurred on January 27, 1995. Neither the State nor the defense offered evidence based upon conduct on the part of the defendant occurring after the original sentencing hearing.
The trial court judge decided that he had the authority to impose an extended-term sentence. He recognized that he could not originally have set a sentence in the extended-term range for the Class 1 offense of aggravated kidnaping, but decided that the range was available after our reversal of the Class X conviction of aggravated criminal sexual assault. The trial court judge then sentenced the defendant to 30 years' imprisonment for the aggravated kidnaping conviction. The defendant appeals.
Section 5--5--3(d) of the Unified Code of Corrections (Code) provides:
"In any case in which a sentence originally imposed is vacated, the case shall be remanded to the trial court. The trial court shall hold a hearing under Section 5--4--1 of the Unified Code of Corrections which may include evidence of the defendant's life, moral character and occupation during the time since the original sentence was passed. The trial court shall then impose ***. *** any sentence which could have been imposed at the original trial subject to Section 5--5--4 of the Unified Code of Corrections." 730 ILCS 5/5--5--3(d) (West 1994).
Section 5--5--4 provides:
"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 1994).
The 1973 Council Commentary to section 5--5--4 indicates that the provision sets out the rule adopted by the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), and followed by the Illinois Supreme Court as set forth in People v. Baze, 43 Ill. 2d 298, 302-03, 253 N.E.2d 392 (1969). 730 ILCS Ann. 5/5--5--4, Committee Comments--1973, at 546 (Smith-Hurd 1992). Those decisions recognize that a defendant is denied due process of law if he receives a heavier sentence for an offense after successfully obtaining a new trial through an appeal or collateral challenge unless the longer sentence is based on conduct occurring after the sentencing date for the original conviction. Pearce, 395 U.S. at 725, 23 L. Ed. 2d at 669, 89 S. Ct. at 2080; Baze, 43 Ill. 2d at 302-03. A defendant ...