Opinion
No. 1-14-1902 No. 1-14-1903 (consolidated)
12-02-2016
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHAZZ COLLINS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
Nos. 09 CR 3185 09 CR 4834
Honorable Timothy Joseph Joyce, Judge Presiding.
JUSTICE LAMPKIN delivered the judgment of the court.
Justices Hall and Reyes concurred in the judgment.
ORDER
¶ 1 HELD: Defendant failed to show either plain error or ineffective assistance of trial counsel in defendant's appeal challenging the trial court's ruling that the relevant sentencing statute required defendant's sentences for two separate felony offenses of possession of contraband in a penal institution to run consecutive to each other.
¶ 2 In two separate cases, defendant was charged with and convicted of possession of contraband in a penal institution based on conduct that occurred in January and February 2009. After a 2014 joint sentencing hearing on the two cases, the trial court imposed consecutive sentences pursuant to section 5-8-4(d)(8) of the Unified Code of Corrections (Code) (730 ILCS 5/5-8-4(d)(8) (West 2014)). On appeal, defendant challenges as plain error the trial court's imposition of consecutive sentences, arguing the trial court erroneously believed the consecutive sentences were mandatory rather than discretionary. In the alternative, defendant argues his trial counsel failed to render effective assistance by failing to both timely object during the joint sentencing hearing and raise this claim of error in the motion to reconsider the sentences.
¶ 3 For the reasons that follow, we affirm the judgment of the trial court imposing consecutive sentences.
¶ 4 I. BACKGROUND
¶ 5 According to the record, defendant was first taken into custody in 2007 when he was approximately 19 years old and placed in the Cook County jail. In December 2008, he was in pretrial custody in the Cook County jail for criminal sexual assault and remained in pretrial custody for that offense through the 2014 joint sentencing hearing in the possession of contraband cases at issue in this appeal.
¶ 6 Evidence presented during trial established that on January 3, 2009, a search of defendant's jail cell recovered a sharp metal pipe, which seemed to have been fashioned from a crutch and was hidden inside a pair of jeans inside a bag. Consequently, on February 4, 2009, defendant was charged in case No. 09-CR-3185 with possession of contraband in a penal institution, in violation of section 31A-1.1(b) of the Criminal Code of 1961 (720 ILCS 5/31A-1.1(b) (West 2008)). Defendant did not post bond in that case.
¶ 7 On February 19, 2009, defendant tried to bypass a metal detector at the jail, and a subsequent search of defendant recovered two sharp metal objects concealed in his clothing. Consequently, on March 3, 2009, he was charged in case No. 09-CR-4834 with two counts of possession of contraband in a penal institution. Defendant did not post bond in that case.
¶ 8 Following a bench trial in case No. 09-CR-3185, the trial court, in October 2013, found defendant guilty of possession of contraband in a penal institution, and subsequently denied his amended motion for a new trial.
¶ 9 Following a bench trial in case No. 09-CR-4834, the trial court, in January 2014, found defendant guilty of two counts of possession of contraband in a penal institution, and subsequently denied his motion for a new trial.
¶ 10 At the conclusion of the joint sentencing hearing in April 2014, the trial court sentenced defendant to 10 years' imprisonment in case No. 09-CR-3185 and 11 years' imprisonment in case No. 09-CR-4834. The court stated it was "mindful of the fact [that the sentences for the two felony convictions] must be served consecutively regardless of whether the Court would wish to have them so served or not." Accordingly, the trial court ordered that the sentences "by operation of 5-8-4(d)(8) will run consecutively as required by law." After the trial court denied defendant's motion to reconsider the sentences, defendant timely appealed.
¶ 11 II. ANALYSIS
¶ 12 On appeal, defendant contends the trial court held the mistaken belief that consecutive sentences were mandatory under the statute rather than discretionary for defendant's two Class 1 felony convictions of possession of contraband while incarcerated in Cook County jail. According to defendant, the sentencing statute mandated that his two felony contraband possession convictions run consecutive only to his earlier, criminal sexual assault offense, for
which he was serving pretrial detention. Defendant argues the trial court's mistaken belief that concurrent sentences were not available for his contraband possession convictions meant the trial court also misunderstood the aggregate sentencing range to be a minimum of eight years' imprisonment and a maximum of 30 years' imprisonment, instead of the sentencing range of 4 to 15 years' imprisonment for a Class 1 felony.
¶ 13 Defendant acknowledges that he has forfeited review of this issue but argues that this court should review his claim under the plain error doctrine because the trial court's error was so fundamental that it denied him a fair sentencing hearing. In the alternative, he argues trial counsel rendered ineffective assistance by failing to preserve this issue for review with a timely objection and inclusion in the motion to reconsider the sentences.
¶ 14 In general, a defendant preserves an issue for review by timely objecting to it and including it in a posttrial motion. People v. Denison, 2014 IL 116213, ¶ 11. The same procedure applies to errors occurring during sentencing: defendant must object to the issue at the sentencing hearing and include it in a written motion to reconsider the sentence, otherwise the issue is considered forfeited. People v. Ballard, 206 Ill. 2d 151, 192 (2002). However, we may review claims of error under the plain error rule (Ill. S. Ct. R. 615(a)), which is a narrow and limited exception to forfeiture (People v. Hiller, 237 Ill. 2d 539, 545 (2010)). To obtain relief under this rule, defendant must show that a clear or obvious error occurred. Id. In the sentencing context, a defendant bears the burden of persuading the court that either (1) the evidence at the sentencing hearing was so closely balanced (regardless of the seriousness of the error) as to severely threaten to tip the scales of justice against the defendant, or (2) the error was so serious (regardless of the closeness of the evidence) as to deny the defendant a fair sentencing hearing and challenge the integrity of the judicial process. Id.; People v. Herron, 215 Ill. 2d 167, 187
(2005). In order to determine whether the plain-error doctrine should be applied, we must first determine whether any error occurred. Herron, 215 Ill. 2d 187.
¶ 15 When defendant committed the offenses of possession of contraband in jail in January and February of 2009, section 5-8-4 of the Code provided, in pertinent part:
"(h) If a person charged with a felony commits a separate felony while on pre-trial release or in pretrial detention in a county jail facility or county detention facility, the sentences imposed upon conviction of these felonies shall be served consecutively regardless of the order in which the judgments of conviction are entered.
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(j) If a person is found to be in possession of an item of contraband *** while serving a sentence in a penal institution or while in pre-trial detention in a county jail, the sentence imposed upon conviction for the offense of possessing contraband in a penal institution shall be served consecutively to the sentence imposed for the offense in which the person is serving sentence in the county jail or serving pretrial detention, regardless of the order in which the judgments of conviction are entered." (Emphasis added.) 730 ILCS 5/5-8-4 (h), (j) (West 2008).
When the sentencing hearing was held in 2014, Public Act 95-1052 (eff. July 1, 2009) had changed the designations of the above-cited subsections "(h)" and "(j)" to "(d)8" and "(d)10," respectively. Accordingly, when the trial court stated in 2014 that consecutive sentences were required by law "by operation of 5-8-4(d)(8)," the trial court was referring to subsection (h) of the version of the statute in effect when defendant committed the possession of contraband offenses.
¶ 16 Statutory interpretation constitutes a matter of law, which we review de novo. People v. Baskerville, 2012 IL 111056, ¶ 18. When construing a statute, a court must give full effect to the intent of the legislature. Id. The most reliable indicator of legislative intent is the statute's language, which is given its plain and ordinary meaning. Id. A court may not depart from the plain meaning of a statute by reading into it exceptions, limitations, or conditions, and will not rely on extrinsic aids where the language of the statute is clear. Id. In addition to the language of the statute, a court may properly consider the reason and necessity for the law, the evils sought to be remedied, and the purpose to be achieved to determine the legislature's intent. People v. Karmatzis, 373 Ill. App. 3d 714, 718 (2007). If the language is ambiguous, making construction of the language necessary, we construe the statute so that no part of it is rendered meaningless or superfluous. People v. Jones, 214 Ill. 2d 187, 193 (2005).
¶ 17 Giving the words their plain and ordinary meaning, we conclude that subsection (h) is not ambiguous and mandated consecutive sentences upon the conviction of multiple felonies for a person who was charged with one felony and committed a separate felony while in pretrial detention in the county jail, regardless of the order in which the judgments of conviction on these felonies were entered. The record shows that while defendant was in pretrial detention in the county jail, he was charged on February 4, 2009, with felony possession of contraband in the jail. Then, on February 19, 2009, defendant, while still in pretrial detention in the county jail, committed the separate felony offense of possession of contraband in jail. Defendant was found guilty of these separate felonies in separate bench trials in October 2013 and January 2014. Consequently, the sentences imposed upon defendant's conviction of these felonies were mandatory consecutive sentences regardless of the order in which the judgments of conviction were entered.
¶ 18 Defendant claims subsection (j) indicates the trial court had discretion to order that his two possession of contraband sentences run concurrent to each other because the statutory provision concerning the imposition of a mandatory consecutive sentence applied only to the offense that caused him to be incarcerated in the first place, i.e., his criminal sexual assault offense. We disagree. According to the plain and unambiguous language of subsection (j), if a person was found to be in possession of an item of contraband while in pre-trial detention in a county jail, the sentence imposed upon conviction for the offense of possessing contraband in a penal institution must be served consecutively to the sentence imposed for the offense in which the person is serving pretrial detention, regardless of the order in which the judgments of conviction are entered. Defendant committed the second possession of contraband offense on February 19, 2009, while he was in the county jail in pre-trial detention for both the January 3, 2009 contraband possession offense (for which he was charged on February 4, 2009) and the earlier criminal sexual assault offense. Thus, once defendant was convicted of the two possession of contraband offenses, the imposition of consecutive sentences would also have been proper under subsection (j).
¶ 19 Defendant argues the legislative history supports his interpretation that the statute requires a sentence upon conviction of possession of contraband while in jail to be served consecutively only "with the sentence for the charge that caused the defendant to be in jail in the first place." Notwithstanding the principle that courts do not rely on extrinsic aids to construe an unambiguous statute, the legislative history cited by defendant referred to a scenario that differs from the facts in the instant case. The legislative history referred to a situation involving just two convictions for two separate offenses. The instant case, however, involved three separate offenses where the earlier offense, criminal sexual assault, was still pending when defendant was
found guilty of the two subsequent offenses and sentenced for those offenses. Consequently, defendant's criminal sexual assault offense is irrelevant to the mandatory consecutive sentence analysis.
¶ 20 To support his claim that consecutive sentences are not mandatory for subsequent felonies that were committed while on pretrial release or in pretrial detention for the initial felony, defendant cites People v. Davis, 2013 IL App (4th) 110785. In Davis, the defendant was convicted and sentenced for three separate felony offenses. Specifically, he initially committed aggravated battery, was charged with that offense and then released on bond. While on bond, he committed the separate felonies of home invasion and delivery of cannabis. He was charged for home invasion and taken into custody. Then, while in custody, he was later charged for the delivery of cannabis conduct he had committed while on bond for the initial aggravated battery offense. Id. ¶ 4.
¶ 21 The defendant was first convicted and sentenced for aggravated battery, then he pled guilty to and was sentenced for delivery of cannabis, and finally pled guilty to and was sentenced for home invasion. Id. ¶¶ 5-7. The defendant's sentences for the later-committed offenses of delivery of cannabis and home invasion ran concurrent to each other but consecutive to his initial felony of aggravated battery. Id. When he argued that his sentences were void because section 5-8-4(h) of the Code required all three sentences to run consecutive to each other, the court upheld the sentences, stating section 5-8-4(h) "does not require that consecutive sentences be imposed regarding each of the later-committed felonies after sentence is imposed on the first of those felonies." Id. ¶ 32.
¶ 22 Defendant's reliance on Davis is misplaced. Because defendant Davis committed both the home invasion and delivery offenses after he was charged with and while he was released on
bond for aggravated battery, his sentences for home invasion and delivery were required to run consecutive to his aggravated battery sentence. However, because the defendant had already committed the delivery offense before he was charged for the home invasion offense, the sentences for delivery and home invasion were not required to run consecutive to each other under the plain terms of section 5-8-4(h). Contrary to the facts in Davis, the timing of defendant's commission of the second possession of contraband offense—i.e., while he was in jail and after he had been charged for the first possession of contraband offense—mandates consecutive sentences for these two offenses upon conviction. Furthermore, as discussed above, defendant's criminal sexual assault case is irrelevant to the sentencing analysis because it was still pending when he was sentenced for the possession of contraband felonies.
¶ 23 Based on our construction of the statute, we conclude that no error occurred when the trial court imposed consecutive sentences in the instant case. Accordingly, we need not address defendant's alternative argument alleging ineffective assistance of counsel because, absent any sentencing error by the trial court, defendant cannot satisfy either the performance or prejudice prong of the test under Strickland v. Washington, 466 U.S. 668, 687-688, 694 (1984) (the defendant must show that counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different).
¶ 24 III. CONCLUSION
¶ 25 For the foregoing reasons, we affirm the trial court's order imposing consecutive sentences for case Nos. 09-CR-3185 and 09-CR-4834.
¶ 26 Affirmed.