Appeal from the Circuit Court of Du Page County. No. 04-CF-3478 Honorable Robert J. Anderson, Judge, Presiding.
The opinion of the court was delivered by: Justice O'malley
Defendant, Akil K. Ellis, appeals from the judgment of the circuit court of Du Page County revoking his probation for the offense of possession of a stolen motor vehicle and sentencing him to a nine-year term of imprisonment. Defendant argues that the trial court erroneously admonished him concerning the potential penalties he faced if he admitted to the allegations in the petition to revoke his probation. Defendant further contends this error was compounded by the trial court's continual understatement of the minimum penalty he faced throughout all phases of his criminal case and the petition to revoke probation. We agree, vacating defendant's sentence and remanding the cause to the trial court with directions to allow defendant to withdraw his admissions to the petition to revoke his probation.
We begin with the underlying criminal case in which defendant received a sentence of probation. In a December 21, 2004, indictment, defendant was charged with the offense of unlawful possession of a stolen or converted motor vehicle (625 ILCS 5/4--103(a)(1) (West 2004)). The indictment also alleged that, within the previous 10 years, defendant had been convicted of a Class 2 or greater felony.
On February 23, 2005, defendant agreed to plead guilty to the charge of unlawful possession of a stolen or converted motor vehicle. In exchange, the State agreed to dismiss other traffic counts pending against defendant. No agreement was reached regarding the terms of defendant's sentence.
The trial court admonished defendant that he was admitting to being in possession of a stolen or converted vehicle, knowing it to have been stolen or converted. The court further advised defendant that he was admitting that he had committed a Class 2 or greater felony within the previous 10 years. The prosecutor interjected that the previous felony rendered defendant eligible to be sentenced as a Class X offender. Both defendant and the State agreed that defendant was eligible for Treatment Alternatives to Street Crime (TASC) probation.
Continuing its admonitions to defendant, the trial court advised that defendant was relinquishing his right to have the State prove him guilty beyond a reasonable doubt as well as his right to any sort of trial, bench or jury. Defendant was relinquishing his right to confront witnesses and to call witnesses on his own behalf. The trial court (erroneously) informed defendant that he faced a sentencing range from a minimum of TASC probation to a maximum of a 30-year term of imprisonment. Defendant maintained that he wished to plead guilty and that he had experienced no threats or coercion in order to procure his guilty plea.
The trial court ascertained that a factual basis for the plea existed. Had witnesses been called, they would have testified that defendant was found in a car that was reported to have been stolen. Defendant further admitted to a police officer that he had borrowed the car from a friend who had informed defendant that he had stolen the car and that the car was "hot." The owner of the car would have testified that, about a week before defendant's arrest, his car had been stolen out of his garage.
Defendant again assured the trial court that he was persisting in his desire to plead guilty. The trial court then accepted defendant's plea, finding it to be knowing and voluntary. The trial court proceeded immediately to sentencing. After argument, the trial court took the matter under advisement, requesting that an official from TASC attend the next hearing to enable the court to understand TASC's recommendation. About a week later, the parties reconvened, and TASC explained that the least restrictive recommendation was intensive outpatient treatment. TASC further explained that, if the outpatient treatment were ineffective, TASC could move toward a more restrictive treatment. Following the TASC presentation, the trial court sentenced defendant to a 30-month term of probation with TASC treatment as one of the conditions of his probation. The trial court also ordered defendant to serve periodic imprisonment while the TASC treatment was being arranged. The trial court emphasized to defendant what a great chance he was being given with TASC probation and cautioned defendant not to "screw up."
About four months later, on July 15, 2005, the State filed a petition to revoke probation. The petition alleged that defendant failed to report to the probation office and that he also failed to attend his TASC meetings. On September 14, 2005, defendant appeared before the trial court on the petition to revoke. On that date, the trial court advised defendant that his minimum penalty would be another sentence of probation and that his maximum penalty would be a sentence to prison. The trial court asked whether defendant was eligible for extended-term sentencing, and the prosecutor stated that he did not believe defendant was eligible. The trial court then advised defendant that his maximum prison sentence was 7 years, unless defendant had a previous Class 2 or greater felony, in which case the maximum prison sentence was 14 years.
At a September 28, 2005, hearing, defendant informed the trial court that he wished to admit the allegations contained in the petition to revoke and requested sentencing. Regarding the potential penalties he faced, the trial court admonished defendant as follows:
"You're on probation for a Class II felony. The minimum sentence for a [C]lass II felony is probation. The maximum sentence is seven years in the penitentiary with two years mandatory supervised release or parole. You could be fined up to $25,000. If you admit the petition to revoke probation, I could give you more probation or I can send you to the penitentiary for up to seven years or do anything in between. There is no agreement as to what the sentence is going to be. Life being what it is, I can tell you that the State is going to ask that you go to the penitentiary. Your lawyer is not going to ask that you go to the penitentiary. I don't know what I'm going to do. More importantly, you don't know what I am going to do today."
The trial court then admonished defendant that, by admitting to the petition, he was giving up the right to have the State prove the allegations by a preponderance of the evidence, giving up the right to confront and cross-examine witnesses, and giving up the right to put on evidence and witnesses on his behalf. Defendant persisted in his desire to admit to the petition, and the trial court accepted admissions that he had violated his probation by failing to report to the probation office, was unsuccessfully terminated by TASC, and had failed to make any payments on the fine, costs, and restitution conditions of his probation.
On October 19, 2005, the trial court conducted a sentencing hearing. Following the parties' arguments, the trial court sentenced defendant to a nine-year term of imprisonment. Defendant filed a motion to reduce his sentence, contending that the sentence was excessive based on defendant's character and ...