{
  "id": 5448117,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT EISENBERG, Defendant-Appellant",
  "name_abbreviation": "People v. Eisenberg",
  "decision_date": "1982-09-03",
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  "last_updated": "2023-07-14T21:00:34.731811+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT EISENBERG, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE MEJDA\ndelivered the opinion of the court:\nDefendant was sentenced to 12 months\u2019 periodic imprisonment on pleas of guilty to charges of aggravated battery and unlawful restraint. Subsequently, the periodic imprisonment was revoked and defendant was resentenced to concurrent extended terms of 10 years and six years on the respective charges. Ill. Rev. Stat. 1981, ch. 38, par. 1005 \u2014 7\u20142.\nDefendant on appeal asks this court to either vacate the extended-term sentence or, in the alternative, to reverse the judgments entered upon the underlying pleas of guilty, arguing that (1) application of the extended-term sentence under section 5 \u2014 5\u20143.2(b)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 \u2014 5\u2014 3.2(b)(1)) is unconstitutional since it violates the equal protection clause and the due process clause of the United States Constitution (U.S. Const., amend. XIV) in that it irrationally applies only where a prior offense was committed in Illinois; and (2) imposition of an extended term upon defendant under the circumstances at bar was impermissible because (a) his original plea was entered without prior notice that an extended-term sentence was a possibility, as required by section 5 \u2014 8\u20142(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 \u2014 8\u20142(b)), and (b) his original plea was not knowingly and voluntarily entered, in violation of Supreme Court Rule 402. 73 Ill. 2d R. 402.\nThe relevant facts are as follows. In August 1978 defendant was charged by two indictments; No. 78 \u2014 4837, charging him with the crime of unlawful restraint (Ill. Rev. Stat. 1977, ch. 38, par. 10 \u2014 3(a)), and No. 78 \u2014 4838, charging him with the crime of aggravated battery. (Ill. Rev. Stat. 1977, ch. 38, par. 12 \u2014 4.) On October 11, 1979, upon defendant\u2019s pleas of guilty to each of these charges, he was sentenced to a term of 12 months\u2019 periodic imprisonment with certain conditions prohibiting his use of alcoholic beverages, and requiring his participation in an alcoholic treatment program.\nThereafter, in December 1979 the State filed a \u201cPetition for Violation of Periodic Imprisonment,\u201d alleging that defendant failed to report as required on November 18, 1979, and that as of December 6, 1979, he had failed to return to the Department of Corrections work release program. The petition also alleged that defendant had further violated the terms of his periodic imprisonment sentence by committing yet another crime, namely an aggravated battery as charged in indictment No. 79 \u2014 8579.\nAfter a hearing on the State\u2019s petition held on October 31, 1980, the trial court found that defendant had violated the conditions of his periodic imprisonment sentence. The court was then informed by the prosecutor that in July 1979 defendant was convicted of aggravated kidnaping and aggravated battery, which crimes, the court. noted, were of the \u201csame classification or greater than this case.\u201d The court thereafter revoked the periodic imprisonment and imposed an extended-term sentence of 10 years\u2019 imprisonment on the aggravated battery charge, with a concurrent six-year sentence for the unlawful restraint charge. Both sentences were imposed under the \u201cextended term\u201d statute.\nOpinion\nDefendant contends that the extended term of imprisonment must be vacated because his original guilty pleas were entered without notice to him of the possibility of imposition of such a sentence, under section 5 \u2014 8\u20142 of the Unified Code of Corrections. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 \u2014 8\u20142.) This section provides in pertinent part:\n\u201c(b) If the conviction was by plea, it shall appear on the record that the plea was entered with the defendant\u2019s knowledge that a sentence under this Section was a possibility. If it does not so appear on the record, the defendant shall not be subject to such a sentence unless he is first given an opportunity to withdraw his plea without prejudice.\u201d Ill. Rev. Stat. 1981, ch. 38, par. 1005 \u2014 8\u20142(b).\nThe instant record fails to show that defendant was so advised. Accordingly, defendant was not subject to an extended-term sentence at the time of his initial sentencing. Furthermore, since upon revocation of periodic imprisonment the court could impose only another sentence that was available at the time of initial sentencing, the defendant was not subject to the extended term at the subsequent revocation hearing. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 \u2014 7\u20142(c); cf. People v. Brogan (1979), 76 Ill. App. 3d 957, 395 N.E.2d 408.) Accordingly, the extended-term sentence so imposed must be vacated.\nThe defendant has contended that the original pleas should also be vacated as not having been knowingly and voluntarily entered under Supreme Court Rule 402 (73 Ill. 2d R. 402). The State argues that defendant has waived this issue for purposes of review by failing to make it the subject of an appeal from the original conviction. We agree with the State\u2019s position. An appeal from a probation revocation is generally limited to issues arising out of the revocation proceeding. (People v. Smith (1980), 87 Ill. App. 3d 526, 409 N.E.2d 157.) The notice of appeal pertaining to such proceedings cannot be construed as granting an appellate court either authority or jurisdiction to review the initial judgment of conviction. (People v. Susberry (1979), 68 Ill. App. 3d 555, 386 N.E.2d 361.) Defendant here has not filed a notice of appeal from the original judgment of conviction and the appeal before us is effective solely as to the extended-term sentence entered upon the order revoking periodic imprisonment. We see no need to distinguish, for purposes of waiver, between the probation revocation order and the instant order revoking the periodic imprisonment. Accordingly, we do not consider the question of whether there was inadequate admonishment prior to the entry of the guilty pleas at bar. See People v. Haak (1975), 26 Ill. App. 3d 1031, 325 N.E.2d 423.\nSince we have held that defendant was not subject to sentencing under the \u201cextended term\u201d statute (Ill. Rev. Stat. 1981, ch. 38, par. 1005 \u2014 8\u20142), we need not consider his claim that application of the extended term under section 5 \u2014 5\u20143.2 (Ill. Rev. Stat. 1981, ch. 38, par. 1005 \u2014 5\u20143.2) is unconstitutional.\nFor the foregoing reasons, the convictions and the revocations of periodic imprisonment are hereby affirmed, the order imposing extended-term sentences is vacated, and the cause is remanded for re-sentencing in a manner consistent with this opinion.\nConviction and revocation affirmed; sentence vacated and remanded.\nSULLIVAN, P. J., and LORENZ, J., concur.",
        "type": "majority",
        "author": "JUSTICE MEJDA"
      }
    ],
    "attorneys": [
      "John M. Goldberg and Caroline Jaffe, both of Chicago, for appellant.",
      "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Richard J. Cosentino, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT EISENBERG, Defendant-Appellant.\nFirst District (5th Division)\nNos. 81\u2014120, 81\u2014200 cons.\nOpinion filed September 3, 1982.\nJohn M. Goldberg and Caroline Jaffe, both of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Richard J. Cosentino, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0098-01",
  "first_page_order": 120,
  "last_page_order": 123
}