Appeal from the Circuit Court of Du Page County. No. 99-CF-0760 Honorable Michael J. Burke and Kathryn E. Creswell, Judges, Presiding.
The opinion of the court was delivered by: The opinion of the court was delivered by: Justice Callum
Modified Upon Denial of Rehearing August 6, 2003
Defendant, Domingo Mendoza, entered a blind guilty plea to burglary (720 ILCS 5/19--1(a) (West 1998)), and the trial court sentenced him to three years' probation with the condition that he comply with the Treatment Alternatives for Safe Communities (TASC) program (see 20 ILCS 301/40--5 et seq. (West 1998)). The State petitioned to revoke defendant's probation, and defendant admitted the allegations of the petition. The trial court sentenced defendant to 10 years' imprisonment after finding he was subject to a mandatory Class X sentence under section 5--5--3(c)(8) of the Unified Code of Corrections (Code) (730 ILCS 5/5--5--3(c)(8) (West 1998)). On appeal, defendant argues that (1) because he was not "over the age of 21 years" when he was convicted, the trial court improperly enhanced his sentence under section 5--5--3(c)(8) of the Code and (2) even if section 5--5--3(c)(8) applies here, when defendant pleaded guilty, the trial court failed to admonish him that he could be sentenced as a Class X offender. We affirm.
Defendant was born on February 10, 1978. The State charged defendant with burglary and theft (720 ILCS 5/16--1(a)(1)(A) (West 1998)). The indictment alleged that the offenses occurred on March 24, 1999. On July 23, 1999, the parties presented a plea agreement to the trial court. Defendant would plead guilty to burglary, and the State would nol-pros the theft charge. While admonishing defendant, Judge Burke advised him that burglary was a Class 2 felony punishable by 3 to 7 years' imprisonment or, if defendant was eligible for an extended term, 7 to 14 years' imprisonment. While arguing the aggravating sentencing factors, the assistant State's Attorney stated, "[t]he only reason he's not Class X eligible, Judge, is the fact that he is 21. I believe the statute requires an individual to be over the age of 21." The State asked the court to impose an extended term of eight years' imprisonment based on defendant's criminal history. See 730 ILCS 5/5--5--3.2(b)(1) (West 1998). The trial court sentenced defendant to 3 years' TASC probation and 364 days of periodic imprisonment with credit for 122 days served.
On February 2, 2000, the State petitioned to revoke defendant's probation on the ground that TASC terminated him from its treatment program. The hearing on the petition commenced on April 6, 2000. The trial court heard testimony from one witness and continued the hearing. On April 13, 2000, pursuant to the parties' agreement, the trial court continued the cause until June 15, 2000, "for status on TASC compliance." The court ordered defendant to comply with all of the conditions of the TASC program. During the June 15 hearing, a TASC representative reported that defendant was complying with the treatment program and was "doing extremely well."
On November 15, 2000, the State filed a second petition to revoke, again on the ground that TASC terminated defendant from its program. The State alleged additionally that, on August 10, 2000, he tested positive for drugs and missed several treatment appointments in July and August 2000.
Defendant admitted the allegations of the petition. During the hearing, the State informed Judge Creswell that defendant was eligible to be sentenced as a Class X offender, and Judge Creswell admonished defendant accordingly.
The trial court continued the cause for sentencing. Defendant again petitioned for TASC treatment, and TASC accepted him. At the conclusion of the sentencing hearing, the trial court found that it was unlikely that defendant would comply with a treatment program and that TASC probation would deprecate the seriousness of defendant's conduct. Accordingly, the court sentenced defendant to 10 years' imprisonment.
Defendant timely moved to reconsider the sentence. The motion argued that a sentence of six years' imprisonment would better recognize the gains defendant made while undergoing treatment and help him to progress by continuing treatment. Defendant filed a second motion arguing that section 5--5--3(c)(8) of the Code violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11) and the due process guarantees recognized in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The trial court denied the motions, and defendant timely appealed.
On appeal, defendant argues first that, because he was only 21 years old when he was convicted and not "over 21," the Class X recidivist provision could not be applied to him. That provision states in pertinent part:
"When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender." 730 ILCS 5/5--5--3(c)(8) (West 1998).
Defendant never raised this argument in the trial court. If, as defendant argues, however, section 5--5--3(c)(8) cannot be applied to him because of his age when convicted, then the Class X sentence is void and may be challenged on this basis for the first time on appeal. See People v. Bradley, 336 Ill. App. 3d 62, 72 (2002) (sentence not authorized by statute is void and may be attacked at any time).
When interpreting a statute, the court's primary objective is to ascertain and give effect to the legislature's intent. People v. Jurisec, 199 Ill. 2d 108, 118 (2002). The most reliable indicator of legislative intent is the language of the statute which, if unambiguous, must be read without exception, limitation, or other condition. People v. Davis, 199 Ill. 2d 130, 135 (2002). The court must give the language of the statute its plain and ordinary meaning. People v. Morgan, 197 Ill. ...