{ "id": 1156840, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL McCLEARY, Defendant-Appellant", "name_abbreviation": "People v. McCleary", "decision_date": "1996-02-26", "docket_number": "No. 1 \u2014 94 \u2014 2706", "first_page": "498", "last_page": "502", "citations": [ { "type": "official", "cite": "278 Ill. App. 3d 498" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "568 N.E.2d 74", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "209 Ill. App. 3d 212", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2541484 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/209/0212-01" ] }, { "cite": "237 N.E.2d 495", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "40 Ill. 2d 62", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2855116 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-2d/40/0062-01" ] }, { "cite": "644 N.E.2d 1153", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "163 Ill. 2d 263", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477978 ], "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/163/0263-01" ] }, { "cite": "652 N.E.2d 1041", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "273 Ill. App. 3d 798", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258742 ], "pin_cites": [ { "page": "806" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0798-01" ] }, { "cite": "645 N.E.2d 455", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "269 Ill. App. 3d 67", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 365859 ], "pin_cites": [ { "page": "77" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/269/0067-01" ] }, { "cite": "577 N.E.2d 762", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "143 Ill. 2d 477", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592152 ], "pin_cites": [ { "page": "484" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0477-01" ] }, { "cite": "634 N.E.2d 717", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "158 Ill. 2d 386", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780286 ], "opinion_index": 0, "case_paths": [ "/ill-2d/158/0386-01" ] }, { "cite": "127 N.E. 379", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "293 Ill. 91", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4986927 ], "opinion_index": 0, "case_paths": [ "/ill/293/0091-01" ] }, { "cite": "530 N.E.2d 1173", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "176 Ill. App. 3d 339", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3588133 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/176/0339-01" ] }, { "cite": "553 N.E.2d 1187", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "197 Ill. App. 3d 215", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2481171 ], "year": 1988, "pin_cites": [ { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0215-01" ] }, { "cite": "567 N.E.2d 434", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "208 Ill. App. 3d 466", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2549026 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/0466-01" ] } ], "analysis": { "cardinality": 564, "char_count": 9462, "ocr_confidence": 0.763, "pagerank": { "raw": 2.8019503487030467e-07, "percentile": 0.8369051631967732 }, "sha256": "088d9e37bf205000b78de36a3febf62fc145c07161f5e175e781e7fdeab1665b", "simhash": "1:22107c861c426ddf", "word_count": 1609 }, "last_updated": "2023-07-14T17:33:42.611238+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. MICHAEL McCLEARY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nMichael McCleary, found guilty of two voluntary manslaughter charges, contends he must be resentenced for two reasons: First, the trial court failed to advise him of his right to elect to be sentenced under the law in effect at the time the crimes were committed; second, the trial court believed consecutive sentences were required by law, when they were not.\nDespite the defendant\u2019s failure to preserve these issues for appeal, we vacate the sentences imposed and remand this cause for resentencing.\nPROCEEDINGS IN THE TRIAL COURT\nMcCleary originally was charged with two counts of murder in relation to the May 14, 1986, bludgeoning death of Ivory Barrett and Tony King. He was tried by a jury and found guilty but mentally ill on both counts. On appeal, his convictions were reversed and the case remanded for a new trial. See People v. McCleary (1990), 208 Ill. App. 3d 466, 567 N.E.2d 434.\nOn remand, McCleary was found guilty but mentally ill on two counts of voluntary manslaughter. On June 3,1994, he was sentenced to two consecutive terms of 14 years\u2019 imprisonment.\nUntil 1986, consecutive sentencing for these offenses was discretionary. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 \u2014 8 \u2014 4(a).) The statute provided that, under circumstances that fit this case, \"the court may enter sentences to run consecutively.\u201d (Emphasis added.)\nAn amendment to the statute went into effect July 1,1988. \"May\u201d was changed to \"shall.\u201d Consecutive sentencing was made mandatory. 730 ILCS 5/5 \u2014 8 \u2014 4(a) (West 1992).\nSubsection (b) of the statute remained the same: consecutive sentences may be imposed by the court when, \"having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.\u201d (Emphasis added.) 730 ILCS 5/5 \u2014 8 \u2014 4(b) (West 1992).\nIt is undisputed that the trial judge did not tell McCleary he had the right to be sentenced under the law as it existed at the time of the offenses. Before passing sentence, the trial judge said:\n\"I\u2019ve observed your demeanor and the way you acted since you have been assigned to this courtroom. I\u2019ve seen the progress when you got your glasses, and I\u2019ve read some of the motions and letters that you\u2019ve given to me. And I\u2019m impressed with your conduct right now. I\u2019m not going to give you the maximum. This is almost on the 50th anniversary of D-Day and the landing of Normandy. You served your country. What I will do, though, and I think is mandated by law, or my opinion of what the law is, I\u2019ll have to sentence you on Count 1 to fourteen years in the Illinois Department of Corrections. How many days does he get credit for?\nMR. KING: I have to calculate it. He\u2019s been in custody \u2014 .\nTHE COURT: That\u2019s why I\u2019m asking you the amount of days. And on Count 2 I\u2019m going to sentence you to fourteen years in the Illinois Department of Corrections. That\u2019s going to be consecutive to Count 1.\u201d (Emphasis added.)\nThe statutory range for voluntary manslaughter, both at the time the offenses were committed and at the time of sentencing, was 4 to 15 years. It was 15 to 30 years if an extended term were imposed.\nOPINION\nTHE SENTENCING HEARING \u201e\nA defendant is entitled to be sentenced in accord with the law in effect at the time of the offense. People v. Bosley (1990), 197 Ill. App. 3d 215, 220, 553 N.E.2d 1187; People v. Clodfelder (1988), 176 Ill. App. 3d 339, 530 N.E.2d 1173.\nIf McCleary\u2019s sentences were based on the 1988 amendment to section 5 \u2014 8 \u2014 4(a), they would run afoul of the constitutional prohibition against ex post facto laws. People v. Ostrowski (1920), 293 Ill. 91, 127 N.E. 379.\nWhether McCleary was given the right to elect which law he would be sentenced under is not a serious issue. There would be no reason to choose the statute that virtually guaranteed consecutive sentences. The failure of the trial judge to state which sentencing law he was using relates to the more important question: whether the trial judge believed he was required to impose consecutive sentences. If he believed that he was, he would have been mistaken and the error would be of constitutional dimension.\nThe State contends that the trial judge understood his sentencing discretion under the 1986 statute. The State believes the trial judge was using subsection 5 \u2014 8 \u2014 4(b) to impose the consecutive sentences. That provision would have authorized the trial judge to impose consecutive sentences for the 1986 offenses.\nDuring the sentencing hearing, the State points out, the prosecutor referred to the defendant\u2019s criminal history and the nature of the crimes when asking that consecutive sentences be imposed. True, but there is nothing in the judge\u2019s comments that indicated he was basing the sentences on subsection 5 \u2014 8 \u2014 4(b). Nothing about the need \"to protect the public from further criminal conduct by the defendant.\u201d In fact, before imposing sentence, the trial judge praised the defendant for his demeanor in court and his service to his country.\nThe record of the sentencing hearing does not provide an answer to our conundrum. The only way to find out is to return the case to the trial judge for resentencing.\nWAIVER OF THE SENTENCING ISSUE\nThe defendant failed to raise the sentencing issue either at the time of sentencing or in a motion to reconsider. The State, citing subsection 5 \u2014 8 \u2014 1(c) (730 ILCS 5/5 \u2014 8 \u2014 1(c) (West Supp. 1993), contends he has waived the issue for purpose of appeal.\nSubsection 5 \u2014 8 \u2014 1(c) was amended on August 11, 1993, before the sentencing in this case. Until the change, the pertinent part of the statute provided:\n\"A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 30 days after the sentence is imposed ***.\u201d (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 8 \u2014 1(c).\nThe supreme court held the language of the statute was permissive. No motion to reduce was required of a defendant who wished to appeal the severity of his sentence. People v. Lewis (1994), 158 Ill. 2d 386, 634 N.E.2d 717.\nThe 1993 amendment, which applies to this case, added:\n\"A defendant\u2019s challenge to the correctness of a sentence or to any aspect of the sentencing hearing shall be made by a written motion filed within 30 days following the imposition of sentence.\u201d (Emphasis added.) 730 ILCS 5/5 \u2014 8 \u2014 1(c) (West Supp. 1993).\nIt is apparent that the legislature intended to make the written motion mandatory for appeal. See People v. Williams (1991), 143 Ill. 2d 477, 484, 577 N.E.2d 762 (use of the word \"shall\u201d is generally indicative of a mandatory intent).\nThe State contends the amendment requires us to say any error in sentencing was waived by the defendant\u2019s inaction.\nThat will be true in most cases. Not all. Not this one.\nSupreme Court Rule 615 provides:\n\"Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.\u201d 134 Ill. 2d R. 615(a).\nSentencing issues are regarded by courts as matters affecting a defendant\u2019s substantial rights \"and, thus, have been excepted from the doctrine of waiver.\u201d (People v. Burrage (1994), 269 Ill. App. 3d 67, 77, 645 N.E.2d 455.) Clearly, the right to be sentenced according to law is a substantial right.\nWe have held that the \"erroneous imposition of an extended-term sentence on a defendant affects his fundamental right to liberty.\u201d (People v. Askew (1995), 273 Ill. App. 3d 798, 806, 652 N.E.2d 1041.) No less can be said about a sentence based on judicial misconception of applicable law.\nWe do not read the amended statute as an attempt to deprive this court of all power to review sentences. Such a reading would violate the supreme court\u2019s authority to fashion rules governing appeal and \"encroaches upon judicial power and thereby violates the separation of powers clause of our constitution.\u201d In re C.R.H. (1994), 163 Ill. 2d 263, 275, 644 N.E.2d 1153 (provision of Juvenile Court Act providing for automatic waiver on appeal of right to parental notice if timely objection not made violated separation of powers clause of Illinois constitution). Also see People ex rel. Stamos v. Jones (1968), 40 Ill. 2d 62, 237 N.E.2d 495; People v. Riley (1991), 209 Ill. App. 3d 212, 568 N.E.2d 74.\nIf the trial judge in this case believed the statute required him to impose consecutive sentences, he committed plain error. We do not hold he must have held that belief. He may have very clearly understood his discretionary powers. But the record is ambiguous. Guesswork would not be appropriate where personal liberty is at risk.\nCONCLUSION\nFor the reasons stated, we vacate the sentences imposed on the defendant and remand this cause for resentencing. We express no view on what those sentences should be.\nVacated and remanded.\nBUCKLEY and BRADEN, JJ., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Rita A. Fry, Public Defender, of Chicago (Todd Avery Shanker, Assistant Public Defender, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Latisha Foster, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL McCLEARY, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1 \u2014 94 \u2014 2706\nOpinion filed February 26, 1996.\nRehearing denied April 2, 1996.\nRita A. Fry, Public Defender, of Chicago (Todd Avery Shanker, Assistant Public Defender, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Latisha Foster, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0498-01", "first_page_order": 516, "last_page_order": 520 }