Appeal from ircuit Court of Champaign County No. 09CF936 Honorable Harry E. Clem, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
JUSTICE APPLETON delivered the judgment of the court, with opinion. Justices Cook and Knecht concurred in the judgment and opinion.
¶ 1 A jury found defendant, Dewayne L. Gillespie, guilty of two counts of armed robbery (720 ILCS 5/18-2(a)(2) (West 2008)), for which the trial court sentenced him to 2 concurrent prison terms of 40 years. Each of these prison terms included a 15-year enhancement pursuant to subsection (b) of the armed-robbery statute (720 ILCS 5/18-2(b) (West 2008)).
¶ 2 Defendant appeals on three grounds. First, he observes that before allowing him to proceed pro se in the posttrial hearing and the sentencing hearing, the trial court failed to admonish him regarding the potential penalties he faced for his convictions of armed robbery, as Illinois Supreme Court Rule 401(a)(2) (Ill. S. Ct. R. 401(a)(2) (eff. July 1, 1984)) required the court to do, and he argues that his waiver of counsel consequently is invalid. Second, he argues the court violated Illinois Supreme Court Rule 402(f) (eff. July 1, 1997) in the sentencing hearing by considering, as an aggravating factor, some statements he had made to the court in a pro se letter attempting to negotiate a plea deal. Third, he argues the court erred by adding 15 years to each of his prison terms for armed robbery, because the statute authorizing those 15-year enhancements, section 18-2(b) of the Criminal Code of 1961 (720 ILCS 5/18-2(b) (West 2008)), is void ab initio by reason of its violation of the proportionate-penalties clause (Ill. Const. 1970, art. I, §11).
¶ 3 One of these arguments is dispositive of this appeal: the failure to follow Rule 401(a)(2). The State concedes, and we agree, that by omitting to tell defendant the potential punishment he faced for armed robbery, the trial court failed to give him all the admonitions that Rule 401(a) required. Therefore, we vacate the rulings on the posttrial motions, and we vacate the sentences, and we remand this case with directions to give defendant a new posttrial hearing and a new sentencing hearing, either with the assistance of counsel or-only after full admonitions and a valid waiver-without the assistance of counsel.
¶ 4 Because the remaining two issues in this appeal are likely to arise again on remand, we will address them. See Fosse v. Pensabene, 362 Ill. App. 3d 172, 189 (2005) ("The most important function of a court of review is to provide direction to the trial court as to how to address issues that are likely to arise on remand."). Defendant's letter to the trial court contains no offer to plead guilty in return for a proposed concession by the State; thus, it is not a plea discussion, and Rule 402(f) is inapplicable. Defendant is correct, however, that the provision in section 18-2(b) (720 ILCS 5/18-2(b) (West 2008)) requiring the 15-year enhancements is void ab initio. When enacted, this provision violated the proportionate-penalties clause, and therefore, in the eyes of the law, the provision never came into being. It follows that the new sentences should not include any 15-year enhancements, given that the statutory authority for those enhancements is nonexistent.
¶ 6 A. Defendant's Self-Representation in the Posttrial Hearing and the Sentencing Hearing
¶ 7 The trial court admonished defendant in June 2009, at the time of his first appearance, describing to him the charges and informing him of the potential penalty he faced if found guilty. He would be ineligible for probation, and he could be sentenced to an extended prison term of not less than 21 years and not more than 75 years, the court told him.
¶ 8 On April 12, 2010, after the jury trial but before the posttrial hearing and the sentencing hearing, defendant requested to discharge his appointed counsel and to proceed pro se. The trial court admonished defendant that a licensed attorney had superior knowledge of law and procedure and that, on appeal, defendant would be precluded from raising his own ineffectiveness. At that time, however, the court did not admonish defendant of the potential sentences he faced.
¶ 9 The trial court accepted defendant's waiver of counsel, and defendant thereafter represented himself in the posttrial proceedings and the sentencing hearing. On November 5, 2010, after denying defendant's posttrial motions, the court sentenced him to 2 concurrent 40-year terms of imprisonment, each of which included a 15-year enhancement based on his possession of a firearm during the robbery. See 720 ILCS 5/18-2(a)(2), (b) (West 2008).
¶ 10 B. Defendant's Letter to the Trial Court
¶ 11 In October 2009, before the jury trial, defendant personally wrote a letter to the trial court, requesting that when sentencing him for the armed robberies in the present case, the court would disregard his previous conviction of murder. (A motion to withdraw, by defendant's second attorney, was pending at the time.) Defendant argued, in this letter, that the court should not hold his murder conviction against him, because the murder victim was his abusive father. His father had beat him over and over again. He had complained to the police and to the Department of Children and Family Services, to no avail. Finally, at age 16, after receiving yet another beating, he decided he had had enough, and he shot his father. Defendant believed that if defense counsel had not "tricked" him into pleading guilty in the murder case, he would have been convicted of second-degree murder instead of first-degree murder.
¶ 12 As for the armed robberies, defendant (then age 29) explained to the trial court that he had fallen under the influence of a bad person, Jimeal Green. Defendant wrote:
"Your Honor, I just need for u [sic] to allow me another chance. I'm a half-way decent person who allowed the wrong person into my life, and that person is Jimeal Green! I was threatened to the point I feared what would happen to me & my family. Despite that fact, I still committed ah [sic] crime & I'm willing to take responsibility for that! My father did teach me that's what a real man should always be willing to do!
With that said, your Honor, I ask that you sentence me as if I never had the murder in my background, and sentence me as if I only have an armed robbery! So your Honor I'm writing you today asking for 'a sentence of eight years/four months bootcamp.' As for the bussiness [sic] (fantacies [sic]) I'm willing to do 'two years community service,' cause I honestly feel bad for what happen [sic]!" (Fantasy's Adult Bookstore was where defendant had committed the armed robberies of which he eventually would be found guilty. He was on mandatory supervised release on May 31, 2009, when he committed the armed robberies.)
¶ 13 At the end of his letter, defendant pointed out that, for a year while he was on mandatory supervised release, he had "walked a straight line" and stayed out of trouble. He promised he would walk a straight line again if only the trial court would give him another chance. He wrote:
"I truely [sic] don't feel what Im [sic] asking is out of line your Honor, so I ask that you really give it some serious thought! All together I'll be doing about six months in prison, four months bootcamp, two years Community Service for fantacies [sic] / And two years probation upon my Release! Your Honor I want this, cause it allowed me to be punished, and at the same time, be restored back to useful citizenship, where I will be ah [sic] productive citizen of Champaign County! Just please allow me this chance! So your Honor to sum it up, this is what I'll do if you grant this. - parole violation: 6 to 9 months in prison - 8 years / Bootcamp: 4 months in Bootcamp - two years of Community Service at fantacies [sic] - two years of probation upon my release Please consider this you [sic] Honor!"
¶ 14 During the sentencing hearing, the trial court used this letter against defendant. After imposing 2 concurrent prison terms of 40 years for the 2 counts of armed robbery, the court explained its reasons for these sentences, and one of the reasons was that, in his letter (as the court interpreted it), defendant had attempted to "deflect blame onto someone else and ha[d] refused to take personal responsibility for his conduct." The court understood defendant as saying, in his letter, that "the murder conviction was really his father's fault." Also, in the court's interpretation, defendant had blamed his trial counsel for losing the trial in the murder case instead of blaming himself for committing the murder in the first place.
¶ 16 A. Omitting an Admonition That Supreme Court Rule 401(a) Required
¶ 17 Rule 401(a) provides in part:
"The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior ...