Appeal from the Circuit Court of Winnebago County. No. 01-CF-1744 Honorable K. Craig Peterson, Judge, Presiding.
The opinion of the court was delivered by: Justice Callum
Defendant, Jerry A. Wilkins, was convicted of possession of cannabis with intent to deliver within 1,000 feet of a school (720 ILCS 550/5.2(b) (West 2000)). The fact that the offense took place within 1,000 feet of a school raised the offense from a Class 3 to a Class 2 felony. Defendant was sentenced to 10 years' imprisonment, 3 years more than the maximum sentence for a Class 2 felony. The trial court denied his motion to reconsider his sentence. He appeals, arguing that the court erred in sentencing him because (1) the court erroneously believed the offense was nonprobationable, (2) the court's comments at the sentencing hearing indicate it did not intend to sentence defendant to an extended term, and (3) the record before the court at sentencing did not support an extended-term sentence. We vacate and remand.
At the sentencing hearing, the court did not state that it was sentencing defendant to an extended term. The court, did, however, make the following statements:
"In looking at the presentence report and taking into account the comments of [the assistant State's Attorney], which I think was quite accurate, it is clear, Mr. Wilkins, that you are a threat to the public at this point in time.
Even if this were not a Class 2 felony, nonprobationable offense, because of the drug-free zone language, this dropping then to a Class 3 offense, the sentence which I am going to impose would fall within the range of a Class 3 felony under the extended term.
Based upon my assessment of the defendant's prior record and the types of offenses for which he has been convicted, the recency of this offense to his date of parole, I believe a sentence of ten years in the department of corrections is appropriate."
As an initial matter, the State argues that defendant has waived his arguments on appeal because he did not object to the imposition of an extended-term sentence at the sentencing hearing or raise the issue in his motion to reconsider his sentence. The State is correct.
However, "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." 134 Ill. 2d R. 615(a). Under the plain error exception, reviewing courts may address a waived issue where (1) the evidence is closely balanced or (2) an error is so fundamental that the defendant may have been denied a fair sentencing hearing. People v. Hausman, 287 Ill. App. 3d 1069, 1071 (1997). A claim that the trial court misunderstood the minimum and maximum sentences for the offense falls within the second prong of the plain error rule. Hausman, 287 Ill. App. 3d at 1071-72. Also, reviewing courts regularly have applied the plain error rule to address claims that an extended-term sentence was not authorized by law. People v. Kyles, 303 Ill. App. 3d 338, 354 (1998); People v. Bahena, 296 Ill. App. 3d 67, 69 (1998); People v. Hurley, 277 Ill. App. 3d 684, 686 (1996). Therefore, we will address defendant's challenges to his extended-term sentence under the plain error exception to the waiver rule.
Defendant first argues that he is entitled to a new sentencing hearing because the court erroneously believed that the offense of possession of cannabis with intent to deliver within 1,000 feet of a school was nonprobationable. "A trial court's misapprehension of a minimum sentence necessitates a new sentencing hearing when it appears that the trial court's misunderstanding arguably influenced the sentencing decision." Hurley, 277 Ill. App. 3d at 687. The record reflects that the indictment and the presentence report both stated that the offense was nonprobationable. Additionally, the court referred to the offense as nonprobationable at the sentencing hearing. The offense, however, is probationable. See 730 ILCS 5/5--5--3(b), (c)(2) (West 2000). Accordingly, the court misapprehended the minimum sentence.
Defendant contends that this misunderstanding influenced the sentencing decision. Defendant relies on Hausman. In Hausman, the trial court stated that it was imposing "the minimum sentence of three (3) years" imprisonment. Hausman, 287 Ill. App. 3d at 1071. The minimum sentence for the offense, however, was two years. The court remanded for a new sentencing hearing, holding that this misunderstanding arguably influenced the sentencing decision. Hausman, 287 Ill. App. 3d at 1072. The trial court's statement indicated that it may have intended to impose the minimum sentence. Its incorrect belief that the minimum sentence was three years therefore arguably influenced its decision to sentence the defendant to three years' imprisonment.
Hausman is distinguishable. Here, based on the court's comments at the sentencing hearing and the ultimate sentence imposed, the court clearly had no intention of sentencing defendant to the minimum sentence. Accordingly, it does not appear that the court's mistaken belief that the minimum sentence was three years' imprisonment as opposed to probation arguably influenced the court in its sentencing decision.
Defendant next argues that the court's comments indicate it did not understand the sentencing range for a Class 2 offense and did not intend to sentence him to an extended term. Where the trial court imposes a sentence due to a misapprehension of the applicable law, the defendant is entitled to a new sentencing hearing. People v. ...