Opinion
No. 2-18-0095
04-13-2020
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRUCE MORRIS, 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 Kane County. No. 16-CF-875 Honorable Linda S. Abrahamson, Judge, Presiding. JUSTICE BRIDGES delivered the judgment of the court.
Presiding Justice Birkett and Justice Hudson concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not commit plain error in sentencing defendant to 30 months' probation for aggravated battery and resisting a peace officer: although the aggregate probationary period exceeded the statutory maximum for resisting a peace officer, it was shorter than the statutory maximum for aggravated battery, and thus the sentence was not void. ¶ 2 Following a bench trial, defendant, Bruce Morris, was convicted of aggravated battery (720 ILCS 5/12-3.05(d)(4) (West 2016)) and resisting a peace officer (id. § 31-1(a)). He was sentenced to 30 months of probation and never challenged his sentence in the trial court. On appeal, he argues that, pursuant to the second prong of the plain-error rule, this court must reduce his sentence for resisting a peace officer to 24 months of probation, as that is the maximum probationary term for that offense. Because defendant has not established plain error, we affirm.
¶ 3 I. BACKGROUND
¶ 4 In May 2016, police responded to a disturbance in Aurora. Defendant was arrested at the scene after running from the police and physically fighting them when he was apprehended. Defendant was charged with aggravated battery, a Class 2 felony (id. § 12-3.05(d)(4), (h)) and resisting a peace officer, a Class A misdemeanor (id. § 31-1(a)). ¶ 5 With one exception, every time the case was called, the judge recognized that the pending charges included a felony and a misdemeanor. However, in finding defendant guilty, the court focused on the felony aggravated battery charge. When the misdemeanor was brought to the court's attention, the following exchange was had:
"MS. TROOST [(ASSISTANT STATE'S ATTORNEY)]: Judge, there was also a charge of resisting, obstruction.
THE COURT: I don't think the argument—any of it went to that—any of the case went to that. I mean, we tried that as well, is that correct?
MS. TROOST: Yes, Judge.
THE COURT: You agree with that—Actually, no.
MS. BILBREY [(ASSISTANT PUBLIC DEFENDER)]: I thought we did not.
THE COURT: The second case is the criminal damage.
MS. TROOST: That's the other case. Judge, there was a Count 2, resisting a peace officer.¶ 6 At sentencing, before addressing defendant's posttrial motion, the court asked, "Is the misdemeanor just trialing? I can't remember." Defendant responded, "Yes, Judge." The court then stated "[a]nd also 16 CM 1914," which, as noted, was the criminal damage to property case. ¶ 7 The court denied defendant's posttrial motion and then asked the parties whether they had any additions or corrections to make to the presentence investigation report. At that time, defendant alerted the court that, when he was charged, he was not eligible for probation on the Class 2 felony. However, the law had changed, and under the new statute, defendant was eligible for probation on the Class 2 felony. The State agreed that this was correct. ¶ 8 Following a thorough sentencing hearing, where defendant asked for "a general term of probation," the court sentenced defendant to 30 months of probation. The written sentencing order, which was a preprinted form that one of the attorneys filled out and the trial court signed, noted that defendant was found guilty of aggravated battery and resisting a peace officer. The form also provided that defendant was sentenced to 30 months of probation, but it did not indicate whether the sentences were concurrent or consecutive. ¶ 9 Defendant never challenged his sentence in the trial court. ¶ 10 This timely appeal followed.
THE COURT: That's a Class A. I'm going to enter a finding of guilty. I know most of the discussion was on the Class 2 but I will enter a finding of guilt on the other in the same incident, I guess disregarding the lawful commands of the officer, et cetera."
Defendant was also charged with criminal damage to property (id. § 21-1(a)(1)), but that charge was brought separately in case No. 16-CM-1914.
Defendant was ineligible, because he had been convicted of another Class 2 or higher-class felony within the last 10 years. Compare 730 ILCS 5/5-5-3(c)(2)(F) (West 2016) (probation not available when the defendant convicted of a Class 2 or higher class felony within last 10 years) with 730 ILCS 5/5-5-3(c)(2)(F-3) (West 2018) (probation not available when the defendant convicted of a Class 2 felony sex or firearm offense within the last 10 years). --------
¶ 11 II. ANALYSIS
¶ 12 At issue in this appeal is whether, pursuant to the plain-error rule, this court must reduce defendant's 30-month term of probation on the resisting a peace officer conviction to 24 months. We review that issue de novo. See People v. Johnson, 238 Ill. 2d 478, 485 (2010). ¶ 13 The failure to raise a sentencing issue in the trial court results in forfeiture of that issue on appeal. People v. Adame, 2018 IL App (2d) 150769, ¶ 12. However, the plain-error rule allows us to review sentencing issues, like the one raised here, that were not raised in the trial court. Id. To obtain relief under this rule, the defendant must first establish a "clear or obvious error." People v. Hillier, 237 Ill. 2d 539, 545 (2010). ¶ 14 Here, as noted, defendant was convicted of resisting a peace officer, a Class A misdemeanor. 720 ILCS 5/31-1(a) (West 2016). The maximum sentence of probation a defendant faces when convicted of a Class A misdemeanor is 24 months. See 730 ILCS 5/5-4.5-55(d) (West 2016). Defendant was sentenced to 30 months of probation, 6 months more than the maximum. Imposing a term of probation that was in excess of the maximum would constitute a clear and obvious error. See People v. Belmont, 2018 IL App (2d) 150886, ¶ 9. ¶ 15 That said, even if defendant established a clear or obvious sentencing error, he would not necessarily be entitled to relief. See Adame, 2018 IL App (2d) 150769, ¶¶ 17-18. Rather, once a clear or obvious error is established, the defendant must prove that either (1) the evidence presented at the sentencing hearing was closely balanced or (2) the error was so serious that it denied the defendant's right to a fair sentencing hearing. Id. ¶ 12. ¶ 16 Here, defendant argues that sentencing him to more than the maximum 24 months of probation falls under the second prong. The second prong of " '[t]he plain-error rule is not a general saving clause for all trial error.' " Belmont, 2018 IL App (2d) 150886, ¶ 10 (quoting People v. Scott, 2015 IL App (4th) 130222, ¶ 41). Rather, "only extraordinarily serious error" renders a proceeding unfair under the second prong of the plain-error rule. People v. Johnson, 2017 IL App (2d) 141241, ¶ 51. Such "extraordinarily serious error" amounts to structural error or, put another way, "an error affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." (Internal quotation marks omitted.) Id. Structural error includes, but is not limited to, "the complete denial of counsel, trial before a biased judge, racial discrimination in the selection of a grand jury, denial of the right of self-representation at trial, denial of a public trial, and defective reasonable doubt instructions." People v. Washington, 2012 IL 110283, ¶ 59; People v. Getter, 2015 IL App (1st) 121307, ¶¶ 58-59. ¶ 17 We conclude that the alleged error here does not rise to the level of structural error because it is not even clear that the sentence was imposed on the misdemeanor alone. The trial court was well aware of the fact that defendant was convicted of both a Class 2 felony and a Class A misdemeanor. At sentencing, in light of the recent change in the law, defendant requested a "general term of probation." The court sentenced defendant to 30 months of probation, suggesting in the written order that this sentence covered both convictions. Although the court did not impose separate terms of probation on the two convictions, neither the parties nor this court found any authority indicating that the court was required to do so. Moreover, although the court did not indicate that the sentences were concurrent or consecutive, "in the absence of a provision to the contrary in the judgment order, the sentences are presumed to run concurrently." In re Detention of Gavin, 382 Ill. App. 3d 946, 950 (2008). Nothing in the court's judgment, or for that matter the relevant sentencing law (see 730 ILCS 5/5-8-4(d) (West 2016)), indicated that the sentences imposed on defendant's convictions had to be served consecutively. This is important, because defendant's 30-month term of probation for the Class 2 felony fell well under the 48-month maximum. See id. § 5-4.5-35(d). Thus, modifying the Class A misdemeanor probationary term to 24 months would not afford defendant any relief, as he would still have to serve 30 months of probation on the properly imposed sentence for the Class 2 felony. Because defendant would not get any effective relief if we were to modify his sentence in the way he suggests, plain error cannot be established. See People v. Brown, 2013 IL App (3d) 110669, ¶ 38. ¶ 18 Supporting our position is People v. Wagener, 196 Ill. 2d 269 (2001). In addressing a sentencing issue concerning Apprendi v. New Jersey, 530 U.S. 466 (2000), our supreme court observed that "[s]everal other federal courts have implicitly reached the same conclusion by finding no plain error in sentencing even though individual sentences exceeded the maximum allowable sentence based on facts found by the jury—in violation of Apprendi—because on remand the sentences could be made consecutive to reach the same total sentence." Wagener, 196 Ill. 2d at 285. One of the cases to which our supreme court cited, United States v. Sturgis, 238 F.3d 956 (2001), is particularly instructive here. ¶ 19 In Sturgis, the defendant was convicted of two offenses, and the court imposed concurrent sentences. Id. at 957-58. On appeal, the defendant argued for the first time that one of his sentences, which exceeded the statutory maximum, was imposed in violation of Apprendi. Id. at 960. The court found no plain error, "[b]ecause [the defendant's improper] sentence could be reformed to avoid an Apprendi error." Id. at 961. ¶ 20 Here, although no Apprendi violation is at issue, defendant's improper sentence can nevertheless be reformed to avoid any error. That is, like in Sturgis, defendant's 30 months of probation for the Class A misdemeanor could be reduced to 24 months, which would still run concurrently with the 30 months of probation on the Class 2 felony. Because defendant's sentences could be modified in this way, resulting in the same aggregate sentence, plain error is not implicated. Id. ¶ 21 Citing People v. White, 2016 IL App (2d) 140479, defendant argues that the trial court's sentencing error amounted to plain error. There, the defendant was convicted of a Class X felony and a Class 3 felony. Id. ¶ 46. The trial court sentenced the defendant to an extended term on the Class 3 felony. Id. The defendant argued on appeal that this sentence was void, as an extended-term sentence was proper only on the Class X felony. Id. ¶ 41. Although the defendant neither argued plain error nor invoked that rule, the State conceded error. Id. ¶ 42. Thus, this court addressed the issue and reduced the defendant's sentence on the Class 3 felony to the maximum nonextended term. Id. Given the procedural difference between this case and White, i.e., the State conceded error on the sentencing issue the defendant raised, we find White inapposite here. ¶ 22 As a final matter, we mention that the State argues at great length that defendant was not prejudiced. That argument is inapplicable here. See People v. Herron, 215 Ill. 2d 167, 187 (2000) ("Prejudice to the defendant is presumed [under the second prong] because of the importance of the right involved.").
¶ 23 III. CONCLUSION
¶ 24 For the reasons stated, we affirm the judgment of the circuit court of Kane County. ¶ 25 Affirmed.