Appeal from the Circuit Court of Cook County. No. 97 CR 01085 The Honorable Thomas R. Sumner, Presiding Judge.
The opinion of the court was delivered by: Justice Buckley
In December 1996, a grand jury indicted defendant Felix Caban, Jr., for first degree murder. In October 1998, pursuant to a plea agreement, the trial court sentenced defendant to 52 years' imprisonment. Two days later, the State moved to vacate the plea and sentence, arguing that defendant's sentence did not conform to statutory guidelines set forth in section 5-8-1(a)(1)(c)(ii) of the Unified Code of Corrections (Code of Corrections) (730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1998)). The trial court granted the State's motion. Defendant then filed a motion to dismiss, arguing that trial would subject defendant to double jeopardy (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10). The trial court denied defendant's motion and he appeals, arguing that (1) the trial court should have done nothing insofar as section 5-8-1(a)(1)(c)(ii)'s constitutionality was in question; (2) the sentencing scheme under section 5-8-1(a)(1)(c)(ii) did not apply; (3) the trial court's decision to vacate the plea agreement constituted a fourteenth amendment due process violation; and (4) the trial court's decision deprived defendant of his right to avoid double jeopardy. We affirm.
On October 5, 1998, the trial court conducted a hearing on defendant's case. The parties advised the trial court that they had reached a plea agreement under which defendant would serve 52 years in the penitentiary.
The State advised the trial court that, if the matter proceeded to trial, the evidence would show that, on December 13, 1996, defendant was baby-sitting for his live-in girl friend, Nancy Barrera. Barrera had two children: Arturo (then age five) and Vanessa (then age six). At approximately 8 p.m., Vanessa left the apartment and knocked on her neighbor Angel Baez' door and asked him to come to her apartment. If called upon, Baez would testify that he entered the apartment and saw Arturo lying on the floor. He also saw defendant, who had blood on his face and left hand. Baez saw that Arturo was unconscious and shaking very badly. Baez called for his wife. She entered the apartment, made the same observations, and called 911.
Paramedics arrived and found Arturo lying on the floor and having seizures. They noted bruises on his head and body and rushed him to the hospital, where he died. One paramedic, Arturo Alvarado, would testify that defendant admitted that he struck the boy.
Dr. Al Johnson examined Arturo at Children's Memorial Hospi-tal and would testify that he could determine, within a reasonable degree of medical and scientific certainty, that Arturo's injuries were not accidental and were caused by an adult.
Dr. Mitra Kalelkar would testify that she is a licensed medical doctor and an expert in forensic science. She would tes-tify that she examined Arturo's body on December 16, 1996, and observed several injuries on his head and face. Specifically, she observed a skull fracture involving the left parietal temporal bone and several subdural brain hemorrhages. She noted lacerations of the left parietal lobe of the brain and a cerebral edema. She also noted a healing rib fracture on the right tenth rib, a healing adrenal laceration on the right side, and other multiple injuries about the body. The State advised the court that, if called to testify, Dr. Kalelkar would opine, within a reasonable degree of medical and scientific certainty, that Arturo died from cranial cerebral injuries sustained as a result of blunt trauma to the head and face. Further testimony from Dr. Mark Reyes, a neuropatholo-gist, would support that of Dr. Kalelkar.
Finally, Assistant State's Attorney Karen O'Malley would testify that she interviewed defendant at police headquarters. O'Malley would testify that defendant admitted that he had been beating Arturo for approximately two or three months, usually once or twice per week. Defendant further admitted to O'Malley that, on the night in question, he lifted Arturo and threw him to the ground.
Defendant stipulated to the facts as the State presented them. The court accepted the parties' plea agreement and, after admonish-ing defendant, sentenced him to 52 years' imprisonment.
On October 7, 1998, the State moved to vacate the plea and sentence, arguing that the sentence did not conform with section 5-8-1(a)(1)(c)(ii) of the Code of Corrections, which mandates a natural life sentence. On December 21, 1998, the court agreed and granted the State's motion.
On December 30, 1998, the court denied defendant's motion to reconsider. Defendant also filed a motion to dismiss, arguing that trial would subject defendant to double jeopardy (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10). The trial court denied defendant's motion, and defendant then filed the instant appeal.
On appeal, defendant argues that (1) the trial court should have done nothing insofar as the statute's constitutionality was in question; (2) the sentencing scheme under the amended statute did not apply; (3) the trial court's decision to vacate the plea agreement constituted a fourteenth amendment due process violation; and (4) the trial court's decision deprived him of his right to avoid double jeopardy.
In 1994, section 5-8-1(a) of the Code of Corrections read in pertinent part as follows:
"(a) Except as otherwise provided in the statute defining the offense, a sentence of imprisonment for a felony shall be a determi-nate sentence set by the court under this [s]section, according to the following limita-tions:
(1) for first degree murder,
(a) a term shall be not less than 20 years and not more ...