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People v. Bruer

December 10, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
HEATHER JEAN BRUER, DEFENDANT-APPELLANT.



Appeal from Circuit Court of McLean County No. 01CF830 Honorable W. Charles Witte, Stephen R. Pacey, Judges Presiding.

The opinion of the court was delivered by: Justice Knecht

In October 2001, defendant, Heather Jean Bruer, pleaded guilty to one count of burglary (720 ILCS 5/19-1(a) (West 2000)). In November 2001, the trial court sentenced defendant to three years in prison, consecutive to two other sentences of imprisonment. The trial court denied defendant's motion to reconsider sentence. Defendant appeals, arguing the trial court committed plain error in refusing to sentence her to probation based on an erroneous belief consecutive probation sentences are prohibited.

I. BACKGROUND

In August 2001, police arrested defendant after she was caught stealing seven packs of cigarettes from a Schnuck's store in Bloomington. A grand jury indicted defendant on one count of burglary (720 ILCS 5/19-1(a) (West 2000)) and one count of misdemeanor retail theft (720 ILCS 5/16A-3(a) (West 2000)).

In September 2001, McLean County Judge W. Charles Witte sentenced defendant as follows on three other pending McLean County felony cases: two years' imprisonment in No. 00-CF-1490 (forgery), five years' imprisonment in No. 01-CF-173 (retail theft over $150), and 30 months' probation in No. 01-CF-416 (retail theft over $150), with all sentences to run consecutively. Judge Witte recommended defendant for impact incarceration.

In October 2001, the trial court convened for a jury trial on the burglary and retail theft charges. Defendant tendered a blind guilty plea to the burglary charge in exchange for the State's agreement to nol-pros the retail theft charge, dismiss a petition to revoke court supervision in another retail theft case, and dismiss a traffic case. In admonishing defendant of the possible penalties, Judge Witte indicated he could place defendant on probation. In explaining the nature of a blind plea, the Judge Witte stated, "there is no agreement what the sentence will be. The judge will make the determination within the statutory guidelines, anything from no prison time, probation, all the way up to 14 years consecutive." The State presented a factual basis, and Judge Witte accepted the plea.

In November 2001, the trial court held a sentencing hearing. The State argued for a seven-year consecutive sentence. Defense counsel requested the trial court to impose probation. Judge Witte noted he was mandated to give her a consecutive sentence, and he had already sentenced her to 30 months' probation. Judge Witte noted, "[t]he [a]ppellate [c]courts have held that I cannot give consecutive probation terms." Judge Witte sentenced defendant to three years in prison, stating it was the minimum sentence authorized by law. He recognized defendant would lose eligibility for impact incarceration. Defendant's mother inquired why the trial court eliminated probation as an option. Judge Witte stated he had originally sentenced defendant to two consecutive terms in prison and consecutive probation in hopes defendant could succeed with impact incarceration. He had given defendant the standard guilty plea admonishments and did not have the other cases in front of him.

In December 2001, defendant filed a motion to reconsider sentence. Defendant's only contention was her sentence was excessive. In January 2001, defense counsel filed a certificate pursuant to Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)). The cause was assigned to Judge Stephen R. Pacey following Judge Witte's retirement. Judge Pacey heard argument on the motion to reconsider and continued the hearing to read the report of proceedings and study the file. At a later hearing, Judge Pacey denied defendant's motion to reconsider, concluding Judge Witte had no alternative other than to do what he did.

This appeal followed.

II. ANALYSIS

Defendant argues the trial court erred in refusing to sentence her to probation based on an erroneous belief consecutive probation sentences are prohibited by the Unified Code of Corrections (Unified Code) (730 ILCS 5/1-1-1 through 8-6-1 (West 2000)).

Initially, we note defendant failed to properly preserve this issue for review by including it in her written motion to reconsider sentence. However, we may review defendant's contention under the plain error rule (134 Ill. 2d R. 615(a)) because sentencing issues are regarded as matters affecting a defendant's substantial rights. See People v. Baaree, 315 Ill. App. 3d 1049, 1050, 735 N.E.2d 720, 722 (2000); see also People v. McCaskill, 298 Ill. App. 3d 260, 264-65, 698 N.E.2d 690, 693 (1998) (waiver is an admonition to the parties and not a limitation upon the reviewing court).

The trial court has broad discretion in sentencing, and a sentence within statutory limits will not be disturbed absent an abuse of discretion. People v. Pippen, 324 Ill. App. 3d 649, 651, 756 N.E.2d 474, 477 (2001). However, to the extent this case presents a question of statutory interpretation, our review is de novo. People v. Lewis, 325 Ill. App. 3d 435, 437, 758 N.E.2d 438, 440 (2001). The principal rule of statutory construction is to ascertain and give effect to the legislature's intent. To determine the legislature's intent, we first look to the statute's language. People v. Slover, 323 Ill. App. 3d 620, 623, 753 N.E.2d 554, 557 (2001). A court must not depart from the statute's plain language by reading into it exceptions, limitations, or conditions the legislature did not express. People v. Ellis, 199 Ill. 2d 28, 39, 765 N.E.2d 991, 997 (2002).

The plain language of section 5-6-1(a) of the Unified Code (730 ILCS 5/5-6-1(a) (West 2000)) reflects the legislature's intent to authorize a sentence of probation unless "specifically prohibited" by other provisions of the ...


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