Appeal from the Circuit Court of Winnebago County. No. 96--CF--439
The opinion of the court was delivered by: Justice Hutchinson
Honorable K. Craig Peterson, Judge, Presiding.
Following a partially negotiated plea agreement, defendant, Michael T. Dover, pleaded guilty to second-degree murder (720 ILCS 5/9--2(a)(1) (West 1994)) and concealment of a homicidal death (concealment) (720 ILCS 5/9--3.1(a) (West 1994)). In exchange for the plea, the State agreed that it would dismiss the previously filed indictment charging defendant with first-degree murder (720 ILCS 5/9--1(a)(2) (West 1994)), would not request an extended-term sentence, and would recommend only a "substantial" prison sentence. The trial court sentenced defendant to 15 years' imprisonment for the offense of second-degree murder and a consecutive term of 5 years' imprisonment for the offense of concealment. The trial court subsequently denied defendant's motion to reconsider his sentence. On appeal, this court is called upon to determine (1) whether we have jurisdiction to entertain this appeal and, if so, (2) whether the trial court erred when it sentenced defendant on the charge of concealment. We conclude that this court does have jurisdiction, and we vacate the sentences imposed by the circuit court and remand for resentencing.
In March 1996 defendant and Marcie Evans were indicted for the first-degree murder (720 ILCS 5/9--1(a)(2) (West 1994)) of the victim, Jeff Suski. Another co-defendant, Nicole Downing, was indicted for concealment. After Downing pleaded guilty to concealment and received probation with 90 days in jail, a superseding indictment charged defendant with both first-degree murder and concealment. On November 18, 1997, after voir dire commenced but before a jury was seated, the parties indicated to the trial court that they had reached an agreement. Defense counsel represented to the trial court:
"The agreement is in this case that [defendant] would plead guilty to the offense of second degree murder as stated in Count One of this information that we have before us. He will further plead guilty to Count Two, which is concealment of a homicidal death. Your Honor, these would be open pleas which would necessitate a sentencing hearing. The [S]tate has promised only that in consideration for this--for pleas to Count One and Count Two, they would dismiss the Bill of Indictment previously filed, including, obviously, the first degree murder count. They would agree that there is no extended term application which would apply to this plea. And further, they would agree that at sentencing they would state that they seek substantial prison time."
The State also noted for the trial court, "based upon the statute[,] that the sentence would be consecutive; that the concealment of the homicidal death is a mandatory consecutive sentence pursuant to the statute and that's a Class Three felony."
The trial court questioned defendant regarding his ability to understand the procedures for pleading guilty. The trial court also explained to defendant the possible penalties for the offense of second-degree murder and concealment. With respect to the offense of concealment, the trial court stated that it required a consecutive sentence. Defendant indicated to the trial court that he understood its admonitions.
The State next gave the factual basis for defendant's guilty plea. The trial court found that defendant understood the charges, consequences, and possible penalties of sentencing and fines and that defendant freely, knowingly, and voluntarily waived his rights. The trial court further found that a factual basis existed to support the convictions and entered judgment as to each count. Thereafter, the trial court ordered a presentence investigation report.
In February 1998 the trial court conducted hearings on defendant's sentencing issues. The trial court heard testimony in aggravation and mitigation. At a hearing conducted on March 2, 1998, the trial court announced its sentencing decision. The trial court discussed defendant's presentence investigation report; testimony from family members of the victim and defendant; expert testimony regarding defendant's mental state; arguments made by both counsel; and the statutory factors in mitigation and aggravation. The trial court noted that defendant had a negligible prior criminal record that included offenses for criminal damage to property, a conviction of driving under the influence, and minor traffic offenses. The trial court also noted defendant's alcohol and substance abuse, his work history, his violent nature, his mental state, the potential for rehabilitation, and defendant's involvement in the offense. The trial court proceeded:
"[P]erhaps most important, involving *** defendant and the victim, was what occurred on the day that [the victim] died. [Defendant] has *** stated that he was either upstairs or downstairs at the time when [the victim] was strangled. The question of whether he hit and wrestled the victim or just hit the victim was also presented. Evidence was presented that he tied up the victim or helped tie up the victim. There is no dispute as to *** defendant's involvement with actively concealing [the victim's] body.
Whatever [defendant's] exact role in the victim's death was, it is clear that he was legally accountable for the actions of others. *** [H]e actively participated and legally, actively aided in the death of [the victim].
This was a beating. A concussion resulted. The deceased died from suffocation. There is a factual basis for strangulation. A death of this type is particularly personal. It is a hands-on affair. It is one that involves a personal decision to end the life of another person.
*** [T]he seriousness of the offense is the most important factor, not necessarily the lack of other aggravating factors, nor the presence of mitigating factors, which in fact the defense *** has presented.
Considering all the factors ***, I find in this case that probation would deprecate the seriousness of *** defendant's conduct and would be inconsistent with the ends of justice."
The trial court sentenced defendant to 15 years' imprisonment for the offense of second-degree murder and 5 years' imprisonment for the offense of ...