The opinion of the court was delivered by: Presiding Justice Leavitt
Appeal from the Circuit Court of Cook County
Honorable Daniel J. Kelley, judge Presiding.
Defendant Brandon Whitney was convicted by a jury of first degree murder (720 ILCS 5/9-1(a)(1) (West 1994)) and aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 1994)) in connection with the shooting death of Aaron Holmes. The trial court sentenced defendant to 50 years' imprisonment on the murder charge and 15 years' imprisonment on the aggravated discharge of a firearm count, to run consecutively. On appeal, defendant contends: (1) the trial court erred in ordering his sentences to run consecutively, rather than concurrently; (2) the trial court improperly considered an erroneous prior conviction in aggravation in sentencing defendant; and (3) the lengths of his sentences reflect an abuse of discretion by the trial court.
Defendant first argues his sentences should run concurrently, not consecutively. The State argues defendant waived this issue by failing to file a written motion challenging the correctness of his sentence within 30 days of its imposition. See 730 ILCS 5/5-8-1(c) (West 1994). The State correctly asserts section 5-8-1 of the Unified Code of Corrections (Unified Code) was amended in August 1993 to make the filing of a post-sentencing motion a mandatory requirement to challenging sentencing issues on appeal. See 730 ILCS 5/5-8-1(c) (West 1994) ("A defendant's challenge to the correctness of a sentence or to any aspect of the sentencing hearing shall be made by a written motion filed within 30 days following the imposition of sentence"); People v. Reed, 177 Ill. 2d 389, 393-94, 686 N.E.2d 584 (1997).
However, the mandatory post-sentencing motion requirement of section 5-8-1 of the Unified Code remains subject to Supreme Court Rule 615; i.e., sentencing errors which affect substantial rights may be analyzed under the doctrine of plain error, regardless of a defendant's failure to file a post-sentencing motion. See 134 Ill. 2d R. 615(a) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court"); Reed, 177 Ill. 2d at 395; People v. Ritchey, 286 Ill. App. 3d 848, 852, 677 N.E.2d 973 (1997). The right to be lawfully sentenced is a substantial right. Ritchey, 286 Ill. App. 3d at 852. Thus, impermissible or illegal sentences may be attacked on appeal as plainly erroneous even though no post-sentencing motion was filed. Ritchey, 286 Ill. App. 3d at 852. We may, accordingly, look to see if the trial court committed plain error in ordering defendant's sentences to run consecutively in this case.
Section 5-8-4 of the Unified Code provides, in relevant part:
"The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, or where the defendant was convicted of a violation of Section 12-13, 12-14, or 12-14.1 of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively." 730 ILCS 5/5-8-4(a) (West 1994) (emphasis added).
Defendant in this case reached into an automobile and fired multiple shots from a handgun at the two occupants, killing the victim, Aaron Holmes, but missing his companion, Theodore Macklin. Defendant was charged with two counts of murder in the shooting death of Holmes, and he was charged with attempted murder and aggravated discharge of a firearm for shooting at Macklin. Defendant was ultimately convicted of murdering Holmes and discharging a weapon at Macklin. Thus, there is no dispute defendant committed two offenses (first degree murder and aggravated discharge of a firearm) while engaged in a single course of conduct. Under section 5-8-4(a), concurrent sentences were mandatory unless one of the two offenses committed by defendant was a Class X or Class 1 felony involving "severe bodily injury" to the victim.
We believe defendant has unwisely conceded that one of the offenses he committed (the murder of Holmes) was a Class X or Class 1 felony in which "severe bodily injury" was inflicted. On appeal, defendant does not contest the trial court's assumption that Holmes' murder was a "triggering offense" under section 5-8-4. Rather, he argues his sentence for aggravated discharge of firearm should run concurrently to his sentence for murder, inasmuch as the second occupant of the car, Macklin, was not injured when defendant fired his gun into the car (the basis of the aggravated discharge of a firearm count). If Holmes' murder was indeed a "triggering offense" under section 5-8-4, defendant could have no legitimate dispute with the imposition of consecutive sentences in this case. See People v. Curry, 178 Ill. 2d 509, 538-39, 687 N.E.2d 877 (1997) (all sentences for triggering offenses, plus the sentence for the first non-triggering offense, must be served consecutively, with the sentence for each additional non-triggering offense (if any) running concurrently to the first); People v. Medrano, 282 Ill. App. 3d 887, 894-97, 669 N.E.2d 114 (1996); People v. Porter, 277 Ill. App. 3d 194, 199, 660 N.E.2d 118 (1995); People v. Williams, 263 Ill. App. 3d 1098, 1108-09, 638 N.E.2d 207 (1994); People v. Ivey, 267 Ill. App. 3d 310, 311-12, 642 N.E.2d 157 (1994).
However, first degree murder, while obviously satisfying the "severe bodily injury" requirement of section 5-8-4, is not a Class X or Class 1 felony under the Code. Section 5-5-1(b) of the Code provides:
"(b) Felonies are classified, for the purpose of sentencing, as follows:
(1) First degree murder (as a separate class of felony);