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People v. Wells

Court of Appeals of Illinois, First District, Third Division

May 24, 2017

CRANDELL WELLS, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 07 CR 4176 The Honorable Marguerite A. Quinn, Judge Presiding.

          JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and opinion.


          LAVIN, JUSTICE

         ¶ 1 Defendant Crandell (also referred to as Crandall) Wells filed a collateral petition and appeal from his 10-year negotiated guilty plea conviction, and this court remanded for withdrawal of the plea. The State reinstated certain charges, and following a jury trial, defendant was found guilty of aggravated battery of a senior citizen and robbery and was sentenced to 15 years in prison. Defendant appeals arguing, among other claims, that the trial court erred in denying his motion to dismiss the reinstated charges as time-barred. We reverse.

         ¶ 2 BACKGROUND

         ¶ 3 On January 25, 2007, defendant beat a 65-year-old woman over the head with a BB gun, resulting in stitches in four places on her head, and then took her purse. He fled in a black Volkswagen but was later stopped by police, who promptly discovered the gun and the victim's purse. Defendant was arrested shortly thereafter, and, on February 14, 2007, a grand jury indicted defendant on six counts. He was charged with armed robbery, aggravated robbery, robbery, aggravated battery of a senior citizen, and two counts of aggravated battery.

         ¶ 4 Following an Illinois Supreme Court Rule 402 (eff. July 1, 1997) conference, on June 12, 2007, defendant entered a negotiated guilty plea to count I, armed robbery with a bludgeon (i.e., the BB gun). In exchange, the State entered a nolle prosequi of the remaining charges, and defendant was sentenced to the agreed term of 10 years' imprisonment at 85% based on the finding of great bodily harm. A nolle prosequi is the formal record entry by the State denoting an unwillingness to prosecute a charge, and while not an acquittal, it leaves the matter in the same condition as before the prosecution commenced. People v. Hughes, 2012 IL 112817, ¶¶ 22, 23. Thereafter, defendant did not move to withdraw his guilty plea or file a direct appeal.

         ¶ 5 Defendant nonetheless filed a pro se postconviction petition (see 725 ILCS 5/122-1 (West 2008)) arguing he was not admonished during guilty plea proceedings, as required by People v. Whitfield, 217 Ill.2d 177 (2005), regarding the three-year period of mandatory supervised release (MSR) to follow his sentence. He requested modification of his sentence to 7 years, followed by 3 years' MSR, to approximate the bargain struck by the parties. On January 24, 2008, at a hearing on the petition, the trial court acknowledged it failed to admonish defendant of the MSR period and granted defendant's petition. Instead of accepting defendant's requested remedy, the court stated defendant could proceed to trial or accept the offer of 10 years' imprisonment at 85 percent. Defendant, while represented by stand-in counsel, withdrew his guilty plea and then entered the same negotiated guilty plea to armed robbery with a bludgeon in exchange for 10 years, only this time he was admonished of the 3 years' MSR. Defendant did not move to withdraw his guilty plea or file a direct appeal.

         ¶ 6 Following his second guilty plea, on August 20, 2010, defendant filed a petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)) alleging his attorney at the January 2008 plea hearing was ineffective for failing to argue defendant was entitled to the remedy of correcting his sentence to 7 years in prison, plus 3 years' MSR, rather than withdrawing his guilty plea. Defendant's section 2-1401 petition was ultimately recharacterized as a postconviction petition and dismissed.

         ¶ 7 On appeal from that judgment, defendant argued for the first time that his 10-year sentence for armed robbery violated the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) because it contained the same elements as armed violence, but carried a stiffer sentence. This court agreed and declared his armed robbery conviction was void. People v. Wells, 2012 IL App (1st) 103757-U, ¶¶ 12, 19; see also People v. Taylor, 2015 IL 117267, ¶ 15 (a sentence based on a statute that violates the proportionate penalties clause is facially unconstitutional and thus void ab initio). As a remedy, defendant asked that we impose the maximum sentence for the identical armed violence offense, which was seven years, or remand for resentencing on that offense. Wells, 2012 IL App (1st) 103757-U, ¶ 16. The State urged upholding defendant's armed robbery sentence absent an alternative argument as to a remedy should we find a proportionate penalties violation. This court found the usual remedies available in proportionate penalties cases did not apply in part because this case involved a negotiated guilty plea. We held defendant's proposed remedy was inappropriate since defendant had entered into a negotiated guilty plea to armed robbery alone and was not charged with armed violence. Id. ¶¶ 16, 23. We noted it is the State's role to bring charges and plea bargain with the defendant should it so choose, and defendant's remedy essentially violated the contract principles involved in negotiated pleas. Accordingly, we held defendant's guilty plea and sentence were void and remanded the matter for withdrawal of the plea and further proceedings.

         ¶ 8 Defendant's case was then redocketed. Neither party on appeal disputes that the charges were reinstated. According to the trial court, the counts were "alive" again. On November 13, 2013, following a Rule 402 conference, defendant declined an offer to receive a 10-year sentence on a different count.

         ¶ 9 Facing a new trial, defendant moved to dismiss the reinstated charges for violating the statute of limitations (see 725 ILCS 5/114-1(a)(2) (West 2006), 720 ILCS 5/3-5(b) (West 2006)) and asked to be released from custody. That section of the Code states that generally "a prosecution *** must be commenced within 3 years after the commission of the offense if it is a felony." 720 ILCS 5/3-5(b) (West 2006). The relevant statute defined a " '[p]rosecution' " as "all legal proceedings by which a person's liability for an offense is determined, commencing with the return of the indictment or the issuance of the information, and including the final disposition of the case upon appeal." 720 ILCS 5/2-16 (West 2006). Defendant argued that the remaining five felony charge counts were barred by the three-year limitations period of section 3-7 of the Code which states that "[t]he period within which a prosecution must be commenced does not include any period in which *** [a] prosecution is pending against the defendant for the same conduct, " even if the "proceedings thereon are set aside, or are reversed on appeal." 720 ILCS 5/3-7(c) (West 2006). Defendant argued that his collateral petition and appeal filed after his 2008 guilty plea did not toll the statute of limitations, in that it did not constitute a "pending prosecution" under section 3-7. He maintained the statute of limitations expired as of June 2010.

         ¶ 10 The State responded relying principally on People v. McCutcheon, 68 Ill.2d 101 (1977), where our supreme court held that a prosecutor can reinstate charges when a defendant withdraws his guilty plea in the circuit court or after a reviewing court vacates the guilty plea on direct appeal. Contrary to the defendant's contention, the court held reinstating charges was not barred by double jeopardy. The court wrote:

"In short, defendant's first successful appeal of his guilty plea placed him in the position he held prior to the plea or in the position he would have held had he been allowed to withdraw his plea. The appellate court's mandate to plead anew encompassed starting the process over. *** Fairness for the interests of the People demands that the State not be bound by a plea agreement, once ...

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