Appeal from the Circuit Court of Kane County No. 07-CF-2958 Honorable Allen M. Anderson, Judge, Presiding.
Justices Hutchinson and Jorgensen concurred in the judgment and opinion.
¶ 1 Defendant, Gareng Deng, appeals his sentence of 35 years' incarceration for first-degree murder (720 ILCS 5/9-1(a)(3) (West 2004)). He contends that his sentence and plea agreement are void because he did not receive, and was not admonished about, a mandatory sentencing enhancement. We agree. Accordingly, we vacate the sentence and remand to allow defendant to withdraw his plea.
¶ 2 I. BACKGROUND
¶ 3 In November 2007, defendant was charged with multiple counts in connection with events that occurred in October 2005. He later pleaded guilty to count III, which charged that defendant, without lawful justification, while committing the forcible felony of residential burglary, shot Marilyn Bethell with a firearm, causing her death. 720 ILCS 5/9-1(a)(3) (West 2004). Other counts also involved the use of a firearm. In particular, count I alleged that defendant, without lawful justification and with the intent to kill, shot Bethell with a firearm, causing her death when he personally discharged the firearm. 720 ILCS 5/9-1(a)(1) (West 2004). Count II alleged that defendant, without lawful justification, shot Bethell, knowing that the act created a strong probability of death or great bodily harm when he personally discharged the firearm. 720 ILCS 5/9-1(a)(2) (West 2004).
¶ 4 At the preliminary hearing, the State told the court that counts I and II alleged that defendant personally discharged a firearm, such that a mandatory enhancement of 25 years to life applied to those counts. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2004). The court asked for clarification, inquiring if an enhancement was alleged only in counts I and II, and the State affirmed this. The court then admonished defendant that counts I and II subjected him to 20 to 60 years' incarceration, 3 years of mandatory supervised release, fines of up to $25, 000, and a 25-year-to-life enhancement. Defendant was admonished that count III subjected him to 20 to 60 years' incarceration, 3 years of mandatory supervised release, and fines of up to $25, 000. Defendant stated that he understood.
¶ 5 On May 9, 2009, defendant pleaded guilty to count III under a negotiated plea agreement. Defendant stipulated to a factual basis that restated the charge, including that he shot Bethell during a residential burglary. The factual basis also included that Bethell was found dead along a path, with a gunshot wound to the head, and that she was shot at the location where her body was found. Defendant was seen exiting Bethell's vehicle after an accident and then entering another vehicle. His DNA was recovered from Bethell's home and from a bicycle found near her home. A "CZ caliber" Torkerev weapon was recovered and compared to bullets recovered from Bethell's body, but no match could be made. However, a bullet showed the class characteristics of a Torkerev.
¶ 6 The State informed the court that, in exchange for the plea, defendant would be sentenced to 35 years' incarceration to be served at 100% and the other counts would be dismissed. The court admonished defendant that the offense carried a penalty of 20 to 60 years' incarceration and it accepted the plea.
¶7 Defendant moved to withdraw his plea, arguing ineffective assistance of counsel and alleging that a person named Robert actually committed the crime. The motion was denied. Defendant appeals.
¶ 8 II. ANALYSIS
¶ 9 Defendant contends that, under People v. White, 2011 IL 109616, his sentence is void because it was subject to a mandatory enhancement of 25 years to life and the failure to properly admonish him of the enhancement made the plea agreement void.
¶10 Under section 5-8-1 of the Unified Code of Corrections (730 ILCS 5/5-8-1 (West 2004)), the sentencing range for first-degree murder is 20 to 60 years' incarceration (730 ILCS 5/5-8-1(a)(1)(a) (West 2004)). However, section 5-8-1 requires the imposition of an enhanced sentence where a firearm is used in the offense, providing that "if, during the commission of the offense, the person personally discharged a firearm that proximately caused death to another person, 25 years or up to a term of natural life shall be added to the term of imprisonment imposed by the court." 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2004).
¶11 Illinois Supreme Court Rule 402(c) (eff. July 1, 1997) provides that a trial court cannot enter a final judgment on a plea of guilty without first determining that there is a factual basis for the plea. White, 2011 IL 109616, ¶ 17. "The factual basis for a guilty plea generally will consist of an express admission by the defendant that he committed the acts alleged in the indictment or a recital to the court of the evidence that supports the allegations in the indictment." Id. "[T]he factual basis will be established as long as there is a basis anywhere in the record up to the final judgment from which the judge could reasonably reach the conclusion that the defendant actually ...