Appeal from Circuit Court of Livingston County No. 96CF154 Honorable Charles E. Glennon, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Defendant, William Keene, appeals his sentence of 10 years' imprisonment for aggravated battery (a Class 3 felony), a violation of section 12-4(b)(6) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-4(b)(6),(e) (West 1996)), and 30 years' imprisonment for unlawful possession of a weapon by a person in the custody of a Department of Corrections (DOC) facility (a Class 1 felony), a violation of section 24-1.1(b) of the Criminal Code (720 ILCS 5/24-1.1(b),(e) (West 1996)), with the terms to run consecutively. We affirm in part and reverse in part and remand with directions.
After a jury trial in Livingston County circuit court, defendant was convicted of unlawful possession of a weapon by a person in the custody of a DOC facility and aggravated battery based on a battery to correctional officer Donald Schultheis. On April 29, 1996, defendant was an inmate in the condemned unit at Pontiac Correctional Center. During the regularly scheduled "count" of the inmates at the beginning of the midnight shift, Officer Schultheis and another correctional officer went to each cell of the condemned unit to see if each inmate was present. At that time inmates were allowed to hang blankets at the front of the bars of their cells and when the officers got to defendant's cell a blanket was hanging as a curtain over the front of the cell.
Officer Schultheis called defendant's name twice. He received no answer and pulled the blanket back. As he did so, defendant, who was standing directly behind the blanket, jabbed Schultheis with a piece of wood with a metal wire sticking out the end. The blow struck Schultheis with such force he spun around. Defendant moved to stab again, but Schultheis and the other officer quickly withdrew.
Schultheis received a puncture wound at his lip and pain shot up his face. As a result of the injury, his facial muscles in that area still twitched and drooped and he continued to feel pain at the time of the trial March 18 and 19, 1997.
The presentence report detailed defendant's numerous prior convictions. All but the last conviction were from the State of Wisconsin. In 1972 he was convicted of two counts of theft; in 1973 of burglary; in 1974, three counts of burglary and one of theft; in 1975, three counts of burglary and one of escape; in 1976 of escape; in 1978 of disorderly conduct; in 1980 of burglary; in 1982 of robbery, burglary and party to robbery; in 1983, two counts of robbery, burglary and injury conduct regardless of life; in 1984 of escape; in 1992 of attempt (robbery), burglary, party to robbery, robbery, injury conduct regardless of life, and escape. Finally, he was convicted of three counts of murder and of armed robbery and was sentenced to death on October 15, 1993, in Stephenson County, Illinois.
Defendant's DOC disciplinary record showed 25 violations, 18 of which were major offenses. A number of the violations were assaults, while others included abuse of privileges, aiding and abetting, health and safety, disobeying direct orders, dangerous contraband, and possession of unauthorized property.
After reviewing the presentence report the trial court stated:
"So the defendant is on the condemned unit because of the murder convictions even setting aside all the other convictions. Well, he has convictions in Wisconsin, which under Illinois law would make him eligible having--a number of them having occurred since 1978, he has three or more separate individually charged Class 2 or higher felony convictions, which for the unlawful possession of weapon Class 1 felony makes him subject to mandatory Class X sentencing. He is also eligible for extended[-]term sentencing on the aggravated battery. I would indicate for the record that these are two separate offenses. Not in the same course of conduct. That possession of the weapon was a completed offense by him in the condemned unit before he then made the decision to use that weapon and commit an aggravated battery upon a correctional officer. So these are-- not these are subject to two separate sentences. He is subject to consecutive sentencing in this case because they are not in the same course of conduct.
I am going to sentence him on Count I, aggravated battery, bodily harm[,] to an extended sentence of ten years in the Illinois Department of Corrections for aggravated battery, Class 3 felony.
I am going to sentence him to a consecutive sentence of thirty years, which is a maximum nonextended term in the Illinois Department of Corrections[,] for the offense of unlawful possession of weapon by person in custody of Department of Corrections facility, which is, as I say, mandatory Class X."
Defendant now appeals his sentence.
The State first argues defendant has waived all contentions of error regarding his sentences by failing to file a post-sentencing motion challenging the appropriateness of his sentence. Section 5-8-1(c) ...