{ "id": 3086246, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS P. WALSH, Defendant-Appellant", "name_abbreviation": "People v. Walsh", "decision_date": "1981-10-27", "docket_number": "No. 80-2707", "first_page": "1146", "last_page": "1150", "citations": [ { "type": "official", "cite": "101 Ill. App. 3d 1146" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "429 N.E.2d 520", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "87 Ill. 2d 77", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3031235 ], "weight": 2, "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/87/0077-01" ] }, { "cite": "230 N.E.2d 831", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "38 Ill. 2d 223", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2861276 ], "pin_cites": [ { "page": "224" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/38/0223-01" ] }, { "cite": "259 N.E.2d 241", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. 2d 388", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2896944 ], "pin_cites": [ { "page": "397-98" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0388-01" ] }, { "cite": "245 N.E.2d 560", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "565-66" } ], "opinion_index": 0 }, { "cite": "106 Ill. App. 2d 160", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1598185 ], "pin_cites": [ { "page": "169-70" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/106/0160-01" ] }, { "cite": "311 N.E.2d 796", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "19 Ill. App. 3d 541", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2698920 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-app-3d/19/0541-01" ] }, { "cite": "338 N.E.2d 487", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "pin_cites": [ { "page": "488-89" } ], "opinion_index": 0 }, { "cite": "33 Ill. App. 3d 863", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2875402 ], "year": 1974, "pin_cites": [ { "page": "864-65" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/33/0863-01" ] }, { "cite": "102 N.E.2d 114", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "410 Ill. 363", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5311781 ], "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/ill/410/0363-01" ] }, { "cite": "407 N.E.2d 1038", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1041" } ], "opinion_index": 0 }, { "cite": "85 Ill. App. 3d 735", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3196693 ], "pin_cites": [ { "page": "739" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/85/0735-01" ] }, { "cite": "427 N.E.2d 122", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "86 Ill. 2d 291", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5468706 ], "opinion_index": 0, "case_paths": [ "/ill-2d/86/0291-01" ] }, { "cite": "288 N.E.2d 894", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "897" } ], "opinion_index": 0 }, { "cite": "7 Ill. App. 3d 869", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2678592 ], "year": 1981, "pin_cites": [ { "page": "872" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/7/0869-01" ] }, { "cite": "400 N.E.2d 587", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "599" } ], "opinion_index": 0 }, { "cite": "80 Ill. App. 3d 754", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3234045 ], "pin_cites": [ { "page": "770" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0754-01" ] } ], "analysis": { "cardinality": 466, "char_count": 9058, "ocr_confidence": 0.897, "pagerank": { "raw": 2.3807698606544594e-07, "percentile": 0.7967939443573737 }, "sha256": "28739c1624395a27d76c1f91912216b77aa0ecec0b4b23d8da18280ecee2201e", "simhash": "1:f3f7be2a5844acd4", "word_count": 1472 }, "last_updated": "2023-07-14T15:21:39.102418+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS P. WALSH, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE PERLIN\ndelivered the opinion of the court:\nDefendant, Thomas Walsh, was convicted of two counts of aggravated kidnapping and one count of deviate sexual assault and elected to be sentenced under the determinate sentencing provisions of the Class X legislation. The trial court sentenced defendant to two concurrent extended terms of 60 years for the aggravated kidnapping convictions but inadvertently failed to sentence defendant for the deviate sexual assault conviction. On appeal, we affirmed defendant\u2019s convictions but remanded the cause to the trial court with directions to enter proper sentences on the aggravated kidnapping convictions and to impose sentence on the deviate sexual assault conviction. People v. Walsh (1980), 80 Ill. App. 3d 754, 770, 400 N.E.2d 587, 599.\nFollowing remand, the trial court permitted both the State and defendant to introduce further evidence in aggravation and mitigation. The State, however, offered nothing in aggravation beyond that which was presented at defendant\u2019s first sentencing hearing. Further, the trial court denied defendant\u2019s request that he be allowed to elect anew between the indeterminate sentencing provisions in effect at the time of his offenses and the determinate provisions in effect at the time of sentencing. The court sentenced defendant to 50 years for deviate sexual assault; ordered one count of aggravated kidnapping merged with deviate sexual assault; and resentenced defendant to an extended term of 30 years on the remaining aggravated kidnapping count. From those sentences, defendant has appealed.\nThe sole issue presented by this appeal is whether the trial court properly carried out this court\u2019s directions for resentencing when, on remand, it refused to allow defendant to elect again between determinate and indeterminate sentencing. The mandate reads, in part, that \u201cthe cause is remanded for sentencing not inconsistent with the opinion of this court filed herein.\u201d By express direction of the mandate, therefore, the proceedings in the trial court upon remand had to conform to the views expressed in the opinion. Cohn v. Receivables Finance Co. (1972), 7 Ill. App. 3d 869, 872, 288 N.E.2d 894, 897; PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 427 N.E.2d 122.\nDefendant acknowledges that \u201cthe mandate of a reviewing court gives the trial court jurisdiction to do only that which the mandate requires,\u201d (People v. Lowther (1980), 85 Ill. App. 3d 735, 739, 407 N.E.2d 1038, 1041) and that \u201c[p]recise and unambiguous directions 800 must be obeyed\u201d (Thomas v. Durchslag (1951), 410 Ill. 363, 365, 102 N.E.2d 114), but contends that the directions in this case were ambiguous. Because of this alleged ambiguity, defendant argues that the trial court erred when it interpreted this court\u2019s opinion to preclude defendant from making a second election between determinate and indeterminate sentencing. We find no such ambiguity and reject defendant\u2019s argument.\nIn part IV of our original opinion we concurred with the State\u2019s contention that \u201cthe cause should be remanded 080 for sentencing because the trial court failed to sentence defendant for deviate sexual assault, a Class X felony,\u201d and noted defendant\u2019s election to be sentenced under the Class X legislation. (Walsh, at 770 n.5.) In light of these explicit references to Class X, we cannot agree that the remandment \u201cfor sentencing on the deviate sexual assault conviction\u201d (Walsh, at 770) created any ambiguity as to which sentencing statute was to be applied.\nWith respect to the aggravated kidnapping counts, we accepted defendant\u2019s contention that \u201cthe cause should be remanded so that the trial court may correctly sentence defendant to an extended term of not more than 30 years for each of the convictions of aggravated kidnapping, a Class 1 felony [citations].\u201d (Walsh, at 770.) We stated further, at page 770, that \u201cwhen factors in aggravation are found to be present, a judge may sentence an offender who has committed a Class 1 felony to an extended term of not more than 30 years.\u201d The remandment for \u201cproper sentencing on the aggravated kidnapping convictions\u201d (Walsh, at 770) left no doubt as to which sentencing statute was to be applied but clearly envisioned resentencing under the extended term provisions of the Class X legislation. We have also examined the briefs defendant filed in the first appeal and observe that defendant specifically requested proper resentencing under the extended term provisions of the new code.\nBased on the foregoing, we conclude that the trial court did not err when it refused to permit defendant to elect anew. This conclusion bars consideration of defendant\u2019s related claim that a new election should have been allowed because the trial court misclassified the aggravated kidnapping convictions as Class X felonies at defendant\u2019s first sentencing hearing. A new election would have contravened the directions set forth in our opinion. (People v. Dukett (1975), 33 Ill. App. 3d 863, 864-65, 338 N.E.2d 487, 488-89; People v. Street (1974), 19 Ill. App. 3d 541, 311 N.E.2d 796; Beaven v. Village of Palatine (1969), 106 Ill. App. 2d 160, 169-70, 245 N.E.2d 560, 565-66.) Moreover, this claim must be deemed waived since defendant failed to raise it in the original appeal. Dukett; Street.\nAccordingly, the sentences entered on defendant\u2019s convictions are affirmed.\nAffirmed.\nHARTMAN, P. J., and STAMOS, J., concurring.\nSUPPLEMENTAL OPINION ON DENIAL OF REHEARING\nMr. JUSTICE PERLIN\ndelivered the opinion of the court:\nIn his petition for rehearing defendant argues for the first time that an extended term could not be imposed for the offense of aggravated kidnapping other than for ransom because it was not \u201cthe most serious offense of which the offender was convicted.\u201d Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 \u2014 8\u20142(a).\nSection 5 \u2014 8\u20142 of the Unified Code of Corrections states:\n\u201cA judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 \u2014 8\u20141 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 \u2014 5\u20143.2 were found to be present.\u201d Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 \u2014 8\u20142(a).\nDefendant was convicted of aggravated kidnapping other than for ransom, a Class 1 felony, and deviate sexual assault, a Class X felony, and was sentenced to serve extended terms of imprisonment on both convictions. He now argues that the extended term of 30 years for aggravated kidnapping other than for ransom was an illegal sentence because it did not belong to \u201cthe class of the most serious offense of which the offender was convicted.\u201d\nIn their response to defendant\u2019s petition the State initially maintains that defendant has waived this issue by failing to raise it before the trial court or in his first appeal. Under normal circumstances, we would agree that an issue may not be argued for the first time in a petition for rehearing. (Ill. Rev. Stat. 1979, ch. 110A, pars. 341(e)(7), 367(b); People v. Mallett (1970), 45 Ill. 2d 388, 397-98, 259 N.E.2d 241.) The waiver rule, however, is not a limitation upon the jurisdiction of the reviewing court but an admonition to the parties. (Hux v. Raben (1967), 38 Ill. 2d 223, 224, 230 N.E.2d 831.) Because defendant\u2019s petition concerns the legality and not merely the excessiveness of a sentence, in the interest of substantial justice, we choose to address it.\nIn People v. Evans (Docket Nos. 54395, 54396, November 20, 1981), 87 Ill. 2d 77, 429 N.E.2d 520, the supreme court held that an extended term may be imposed only for the most serious offense of which the offender is convicted. (87 Ill. 2d 77, 87.) In light of this holding we conclude that the trial court erred in sentencing defendant to an extended term of 30 years for the offense of aggravated kidnapping other than for ransom. Accordingly we reduce defendant\u2019s sentence on that conviction to 15 years, which is the maximum for a Class 1 felony. As modified, defendant\u2019s sentences for aggravated kidnapping other than for ransom and deviate sexual assault are affirmed. Defendant\u2019s petition for rehearing is denied.\nSentences affirmed, as modified.\nHARTMAN, P. J., and STAMOS, J., concur.\nAggravated kidnapping other than for ransom is a Class 1 felony. (Ill. Rev. Stat. 1977, ch. 38, par. 10 \u2014 2(b)(2).) The maximum extended term for a Class 1 felony is 30 years. Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 \u2014 8\u20142(a)(3).", "type": "majority", "author": "Mr. JUSTICE PERLIN Mr. JUSTICE PERLIN" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Mary T. Woodward, Assistant Public Defender, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Martin D. Reggi, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS P. WALSH, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 80-2707\nOpinion filed October 27, 1981.\n\u2014 Supplemental opinion filed on denial of rehearing December 15, 1981.\nJames J. Doherty, Public Defender, of Chicago (Mary T. Woodward, Assistant Public Defender, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Martin D. Reggi, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "1146-01", "first_page_order": 1168, "last_page_order": 1172 }