Appeal from the Circuit Court of Winnebago County. No. 11-CF-1400. Honorable Rosemary Collins, Judge, Presiding.
The sentences imposed on defendant following his guilty plea to home invasion and aggravated unlawful use of a dangerous weapon other than a firearm were upheld over his contention that the extended term imposed for the aggravated unlawful use of a dangerous weapon other than a firearm was void because it was imposed on the less serious of defendant's offenses since, in defendant's case, the amendment of the original charge of home invasion committed while armed with a firearm was amended for purposes of the plea agreement to charge home invasion while armed with a dangerous weapon other than a firearm, thereby supporting the factual basis presented for defendant's plea and allowing a determination that defendant's two offenses arose from unrelated courses of conduct and rendering the imposition of the extended term on the conviction for aggravated unlawful use of a firearm valid, even though it was the less serious of defendant's two convictions.
Thomas A. Lilien, Paul J. Glaser, State Appellate Defender's Office, of Elgin, for Appellant.
Joseph B. Bruscato, State's Attorney, of Rockford (Lawrence M. Bauer, Marshall M. Stevens, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Presiding Justice Schostok and Justice Burke concurred in the judgment and opinion.
[¶1] On appeal, defendant, Luis I. Avila, challenges his sentence, imposed upon a plea of guilty, for home invasion (720 ILCS 5/12-11(a)(1) (West 2010) (possession of a dangerous weapon other than a firearm)) and aggravated unlawful use of a firearm (AUUF) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2010) (failure to possess a currently valid firearm owner's identification card)). He contends that (1) his extended-term sentence on the AUUF conviction is void because it is on the less serious of his two convictions; and (2) his sentence for home invasion is excessive under the facts. We reject both contentions and affirm.
[¶2] I. BACKGROUND
[¶3] In June 2011, the State brought a five-count indictment against defendant. Counts I and II alleged that defendant committed home invasion while armed with a firearm (720 ILCS 5/12-11(a)(3) (West 2010)), count III charged unlawful possession of a firearm by a street gang member (720 ILCS 5/24-1.8(a)(1) (West 2010)), and counts IV and V charged AUUF (respectively, 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010) (" firearm possessed was uncased, loaded and immediately accessible at the time of the offense" ) and 720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2010) (failure to possess a currently valid firearm owner's identification card)). Both home invasion counts alleged that defendant entered the dwelling place of Paulette Mattson while armed with a firearm and threatened her with the imminent use of force.
[¶4] In each of the five counts the State alleged a basis for an extended-term sentence: on count I because Mattson was over 60 years of age at the time of the offense (730 ILCS 5/5-5-3.2(b)(3)(ii) (West 2010)); and on counts II through V because the firearm defendant wielded was equipped with a laser sight (730 ILCS 5/5-5-3.2(b)(6) (West 2010)).
[¶5] On June 1, 2012, the trial court and the parties held an unrecorded conference under Illinois Supreme Court Rule 402 (eff. July 7, 1997). On July 2, 2012, the State amended count I, deleting the reference to " firearm" and alleging instead that defendant possessed " a dangerous weapon, *** a bludgeon." The State accordingly amended the statutory reference (see 720 ILCS 5/12-11(a)(1) (West 2010) (possession of a dangerous weapon other than a firearm)). In court that day, defense counsel announced that, " based on th[e] amendment" to count I, his client would plead guilty to counts I and V, and the remaining counts would be dismissed.
The trial court commented that the amendment to count I eliminated " the additional enhancement language," namely, the mandatory 15-year add-on term for home invasion while armed with a firearm (720 ILCS 5/12-11(c) (West 2010)). After a question arose regarding the sentence credit available on count I, the parties agreed to continue the matter " for a plea."
[¶6] At the next court date, defense counsel asked for a continuance while the parties explored the possibility of a " fully negotiated plea." Three days later, the parties presented a plea agreement with the following terms:
" Count 1 *** has already been amended. [Defendant] would plead guilty to Count 1 and also to Count 5 ***, and we would ask to have this matter set for a sentencing hearing. There's no cap, no agreement."
[¶7] In a colloquy with the court, defendant acknowledged that he was entering an " open plea" as there was no agreement on sentencing. The court admonished defendant that home invasion, a Class X felony, was normally punishable by a prison term of 6 to 30 years, but that defendant was eligible for an extended term of 30 to 60 years (730 ILCS 5/5-4.5-25(a) (West 2010)) because Mattson was over 60 years old when the offense occurred (730 ILCS 5/5-5-3.2(b)(3)(ii) (West 2010)). Likewise, for AUUF, which was a Class 4 felony normally punishable by a prison term of one to three years, defendant was eligible for an ...