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05/09/97 PEOPLE STATE ILLINOIS v. MICHAEL CAVINS

May 9, 1997

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



Appeal from the Circuit Court of Marion County. No. 94-CF-237. Honorable Sherri L.E. Tungate, Judge, presiding.

The Honorable Justice Hopkins delivered the opinion of the court. Chapman, J., and Goldenhersh, J., concur.

The opinion of the court was delivered by: Hopkins

JUSTICE HOPKINS delivered the opinion of the court:

Defendant, Michael Cavins, entered a plea of guilty to the charge of burglary. After a sentencing hearing in which defendant was sentenced to an extended term of 10 years' imprisonment, defendant filed a motion to reconsider his sentence, which the Marion County circuit court denied. On appeal, defendant argues: (1) that his extended-term sentence is void; (2) that section 5-5-3.2(b)(1) of the Unified Code of Corrections (the Code) (730 ILCS 5/5-5-3.2(b)(1) (West 1992)) is unconstitutionally vague; (3) that he was improperly subjected to extended-term sentencing based upon an Iowa conviction; and (4) that the court erred in defendant's sentencing hearing by allowing evidence concerning defendant's admissions of uncharged misconduct. We affirm.

I. FACTS

On October 5, 1994, defendant was arraigned on the charge of burglary, a class 2 felony. The trial court admonished defendant that if found guilty, he could receive a sentence of imprisonment from three to seven years, a fine of up to $10,000, or any combination of fine and sentence of imprisonment up to the maximum.

On October 21, 1994, defendant was charged by indictment with the same offense of burglary. At the arraignment on the bill of indictment on October 26, 1994, defendant was again admonished that if found guilty, he could be sentenced to a term of imprisonment from three to seven years.

On December 21, 1994, defendant entered an open plea of guilty to the charge of burglary. At the time defendant entered his plea of guilty, his attorney stated:

"In doing so, he is relying upon the recommendation by the State that there would be no other charges filed relating to other burglaries, as well as a charge of escape. He escaped during the course of his arrest, and he would proceed to sentence on this particular charge, and it has been my representation to Mr. Cavins that the State has previously indicated that they have evidence that he has been convicted on prior occasions of two prior Class [2] Felonies in the State of Illinois, and that the range of sentence would be between 6 and 30 years."

Defendant stated that he understood that his negotiated plea did not include any agreed disposition or sentence and that he could be sentenced as a class X offender from 6 to 30 years' imprisonment with no possibility of probation or conditional discharge. After hearing a factual basis, the court accepted defendant's plea of guilty.

At defendant's sentencing hearing, on February 15, 1995, the State introduced a certified copy of a judgment of conviction showing that on April 20, 1990, defendant was convicted of third-degree kidnapping in the State of Iowa and sentenced to a term of imprisonment of not more than 10 years. The offense of third-degree kidnapping is a class C felony under Iowa law. The State introduced the conviction in support of its argument that defendant was eligible for an extended term of imprisonment. Defendant did not object.

As a part of his sentence, defendant agreed to pay $7,344.14 restitution, for the burglary to which he pled guilty as well as other burglaries that were not charged.

The State called Steve Prather, a Centralia police officer, to testify that when he arrested defendant, defendant admitted that he participated in a total of four burglaries, including the one charged in this case. Defendant did not object to this testimony.

Defendant testified in his own behalf that he was incarcerated in Iowa and that shortly before he was arrested for this burglary, he walked away from a work release center. Defendant testified that out of the 12 years before the sentencing hearing, he spent eight in prison.

Before sentencing defendant, the trial court compared the Iowa kidnapping statutes to Illinois kidnapping statutes. The court found that the Iowa charge, which carries an indeterminate sentence of not more than 10 years' imprisonment, is similar to a class 2 felony in Illinois, which carries a possible three- to seven-year term of imprisonment, or even a class 1 felony, which carries a possible 4- to 15-year term of imprisonment. Based upon its review of the Illinois and Iowa statutes, the court found that defendant was a candidate for an extended-term sentence based upon the Iowa conviction. The court ruled that defendant's prior Illinois convictions for residential burglary could not be used to enhance defendant's sentence because the State did not introduce sufficient evidence from which the court could determine when defendant was in or out of custody. The court sentenced defendant to an extended term of 10 years' imprisonment pursuant to section 5-5-3.2(b)(1) of the Code (730 ILCS 5/5-5-3.2(b)(1) (West 1992)), based upon defendant's prior Iowa conviction.

Following its pronouncement of sentence, the court admonished defendant as follows:

"THE COURT: Mr. Cavins, you *** have received a sentence pursuant to your open plea of guilty to the charge of burglary. You have certain appeal rights in this case. However, before you can [appeal], you must first, within the next 30 days from today's date, file a Motion to Withdraw your Plea of Guilty ***. You must set forth in your Motion to Withdraw Plea of Guilty, have your sentence vacated, any error, claimed error that you believe has been committed by this Court. Any error or claimed error that you do not set forth in that motion, the Appellate Court may find, if you take a later appeal, that you have waived or given up those issues ***."

On June 29, 1995, defendant's attorney filed a certificate of compliance under Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)) and an amended motion to reconsider sentence. The grounds alleged in the amended motion to reconsider are that the court erred in imposing an extended term based upon on the Iowa conviction and that defendant was not eligible for an extended ...


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