{
  "id": 1172429,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM HURLEY, Defendant-Appellant",
  "name_abbreviation": "People v. Hurley",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM HURLEY, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE DOYLE\ndelivered the opinion of the court:\nDefendant, William Hurley, appeals the order of the circuit court of Lake County which denied his motion to reconsider his sentence. We vacate defendant\u2019s sentence and remand the cause for a new sentencing hearing.\nFollowing a jury trial, defendant was convicted of one count of unlawful delivery of a controlled substance (720 ILCS 570/401(c)(2) (West 1992)) and one count of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 1992)). Thereafter, defendant entered guilty pleas on three other offenses of unlawful delivery of a controlled substance. On December 2, 1994, the trial court conducted a sentencing hearing on the four charges of unlawful delivery of a controlled substance. At the conclusion of the hearing, the trial court sentenced defendant to four terms of 12 years\u2019 imprisonment to run concurrently. The trial court denied defendant\u2019s motion to reconsider the sentence on January 20, 1995. Defendant filed a timely notice of appeal.\nOn appeal, defendant makes three arguments: (1) the trial court improperly considered the compensation defendant received for committing the offenses; (2) the trial court abused its discretion by failing to accord the proper weight to factors in mitigation; and (3) the trial court placed too much weight on defendant\u2019s 1960 murder conviction as a factor in aggravation. On its own motion, this court ordered the parties to submit supplemental briefs addressing the following issues: \"whether the trial court erred in assuming that an extended term sentence of 30 years was an authorized disposition by reason of the aggravating factor defined in 730 ILCS 5/5 \u2014 5\u20143.2(b)(1), and, if so, whether the cause must be remanded for a new sentencing hearing.\u201d\nDuring the sentencing hearing, the State noted that defendant was convicted of murder in 1960 and sentenced to 14 years in the Department of Corrections. The State then asked the trial court to sentence defendant to a 20-year term of incarceration in the Department of Corrections. After defense counsel asserted that the sentence for a nonprobationable Class 1 felony was 4 to 15 years in the Department of Corrections, the trial court interrupted counsel\u2019s argument, stating that defendant was eligible for a sentence of 4 to 30 years because defendant\u2019s sentence could be extended in light of his prior murder conviction. Defense counsel then agreed that the proper sentencing range was from 4 to 30 years. In reaching its sentencing decision, the trial court stated:\n\"[Although probation is not likely or is not available for him because of the other case, he could get probation on the others, but it really doesn\u2019t matter one way or the other I don\u2019t think unless I give him consecutive, and I\u2019m not really considering that right now nor is that even contemplated in the State\u2019s request because the 20 years falls well within the \u2014 well, it does, it\u2019s extended, and it\u2019s available for that.\u201d\nWe further note that, in its original appellate brief, the State asserted that defendant\u2019s sentence could have been extended to 30 years.\nAlthough defendant did not argue at his sentencing hearing that an extended-term sentence was improper, Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)) allows this court to take notice of plain errors or defects affecting substantial rights although they were not brought to the attention of the trial court. In the present case, the trial court\u2019s improper consideration of an extended-term sentence permits this court to review the issue under the plain error doctrine. See People v. Gresham, 104 Ill. App. 3d 81, 88 (1982).\nThe delivery of 1 gram or more but less than 15 grams of a substance containing cocaine is a Class 1 felony (720 ILCS 570/ 401(c)(2) (West 1992)), punishable by a sentence of not less than 4 years and not more than 15 years (730 ILCS 5/5 \u2014 8\u20141(a)(4) (West 1992)). However, a trial court may impose an extended-term sentence:\n\"(1) When a defendant is convicted of any felony, after having been previously convicted *** of the same or similar class felony or greater class felony, when such conviction has occurred within 10 years after the previous conviction, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts.\u201d 730 ILCS 5/5 \u2014 5\u20143.2(b)(1) (West 1992).\nAn extended-term sentence for a Class 1 felony is a term of imprisonment of not less than 15 years and not more than 30 years. 730 ILCS 5/5 \u2014 8\u20142(a)(3) (West 1992).\nIn the present case, the trial court believed defendant was eligible for an extended-term sentence based on defendant\u2019s prior murder conviction. The State apparently asked for an extended-term sentence, and defendant\u2019s attorney also agreed to defendant\u2019s eligibility for an extended-term sentence. However, defendant was sentenced to a term of 14 years in the Department of Corrections for murder on June 3, 1960. Defendant was released on parole on June 27, 1968, and his parole terminated on June 8, 1969. Accordingly, defendant could not be sentenced to an extended-term sentence because his release from custody occurred more than 10 years before his present convictions. Therefore, the trial court was under the mistaken belief that defendant was eligible for an extended-term sentence. The issue before this court is whether defendant must receive a new sentencing hearing because of the trial court\u2019s misapprehension concerning defendant\u2019s eligibility for an extended-term sentence.\nA trial court\u2019s misapprehension of a minimum sentence necessitates a new sentencing hearing when it appears that the trial court\u2019s misunderstanding arguably influenced the sentencing decision. People v. Eddington, 77 Ill. 2d 41, 48 (1979). Our supreme court and the appellate court have intimated that the standard expressed in Eddington applies to cases in which the trial court mistakenly believed that a defendant was eligible for an extended-term sentence. See People v. White, 114 Ill. 2d 61, 68 (1986); see also People v. Fletcher, 156 Ill. App. 3d 405, 415 (1987). We agree that the Eddington standard applies to a mistaken belief regarding the application of an extended-term sentence.\nIn the present case, the trial court\u2019s comments during the sentence hearing and during the hearing on defendant\u2019s motion to reconsider indicate that the court considered defendant\u2019s eligibility for an extended-term sentence as a reference point in deciding what sentence to impose. Specifically, in rejecting defendant\u2019s motion to reconsider the sentence, the trial court stated:\n\"In my mind this was a pretty decent sentence considering he did have the prior murder conviction and taking that not for his proneness to violence, but only as to he does have a prior history and something that could really accelerate his sentence or something that I could consider anyway.\u201d\nThis statement reveals the trial judge\u2019s belief he could use the murder conviction to extend defendant\u2019s sentence. The statement further discloses that the trial court considered defendant\u2019s eligibility for an extended-term sentence in deciding on an appropriate sentence. Accordingly, the trial court\u2019s mistaken belief that defendant was eligible for an extended-term sentence arguably influenced the court\u2019s sentencing decision. Because the trial court utilized an erroneous view of the permissible sentencing range in determining defendant\u2019s sentence, we conclude that the cause must be remanded for a new sentencing hearing.\nWe note that the facts of the present case differ from those in People v. Kunze, 193 Ill. App. 3d 708 (1990). In Kunze, the trial court stated during the sentencing hearing that defendant was eligible for an extended-term sentence. The State\u2019s Attorney replied that defendant was not eligible for an extended-term sentence because his present conviction was a higher class offense than his prior convictions. In determining that the record did not support a conclusion that the sentence was the product of a mistaken belief by the trial court that defendant was eligible for an extended-term sentence, the appellate court noted the State\u2019s Attorney\u2019s statement that defendant was not eligible for an extended-term sentence and that the sentence imposed was well within the statutory range. Kunze, 193 Ill. App. 3d at 727-28. Accordingly, the facts in Kunze indicate that the trial court\u2019s misapprehension did not influence the court\u2019s sentencing decision. However, in the present case, the trial court\u2019s remarks reveal that, in reaching its sentencing decision, the court considered the fact that defendant was eligible for an extended-term sentence. Furthermore, both the State and defendant\u2019s attorney agreed on defendant\u2019s eligibility for an extended-term sentence. The facts in the present case indicate that the trial court\u2019s misapprehension that the State\u2019s recommended sentence of 20 years was within a permissible sentencing range of 30 years arguably influenced its sentencing decision.\nBecause we remand for resentencing on the extended-term sentence issue, we will not consider the other issues raised in defendant\u2019s brief. We express no opinion on the correctness of the sentence imposed, although we note that the sentence is within the statutory range. In resentencing defendant, the trial court is entitled to weigh the fact of defendant\u2019s murder conviction as an aggravating factor.\nWe vacate the sentence imposed by the circuit court of Lake County and remand the cause for a new sentencing hearing.\nVacated and remanded.\nTHOMAS and HUTCHINSON, JJ\u201e concur.",
        "type": "majority",
        "author": "JUSTICE DOYLE"
      }
    ],
    "attorneys": [
      "Robert P. Ritacca, of Ritacca & Potkonjak, of Waukegan, for appellant.",
      "Michael J. Waller, State\u2019s Attorney, of Waukegan, and Stephen D. Ko-slow, of Elmhurst (William L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM HURLEY, Defendant-Appellant.\nSecond District\nNo. 2\u201495\u20140160\nOpinion filed February 1, 1996.\nRobert P. Ritacca, of Ritacca & Potkonjak, of Waukegan, for appellant.\nMichael J. Waller, State\u2019s Attorney, of Waukegan, and Stephen D. Ko-slow, of Elmhurst (William L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "0684-01",
  "first_page_order": 702,
  "last_page_order": 706
}