{ "id": 3719058, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY A. WILKINS, Defendant-Appellant", "name_abbreviation": "People v. Wilkins", "decision_date": "2003-09-19", "docket_number": "No. 2\u201402\u20140252", "first_page": "147", "last_page": "152", "citations": [ { "type": "official", "cite": "343 Ill. App. 3d 147" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "269 Ill. App. 3d 546", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 365915 ], "year": 1995, "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/269/0546-01" ] }, { "cite": "277 Ill. App. 3d 684", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1172429 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "686" }, { "page": "687" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/277/0684-01" ] }, { "cite": "296 Ill. App. 3d 67", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 222669 ], "year": 1998, "pin_cites": [ { "page": "69" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/296/0067-01" ] }, { "cite": "303 Ill. App. 3d 338", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 511415 ], "year": 1998, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/303/0338-01" ] }, { "cite": "287 Ill. App. 3d 1069", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521033 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "1071" }, { "page": "1071-72" }, { "page": "1071" }, { "page": "1072" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/287/1069-01" ] } ], "analysis": { "cardinality": 430, "char_count": 9595, "ocr_confidence": 0.742, "pagerank": { "raw": 1.2609847266479104e-07, "percentile": 0.6124521159341723 }, "sha256": "c4c1a31b4096c100ff5394241aa046850744875459f47b64eda2af06d216e092", "simhash": "1:f31a1e8573651400", "word_count": 1582 }, "last_updated": "2023-07-14T15:02:30.760533+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "RAPALA and GILLERAN JOHNSON, JJ., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY A. WILKINS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE CALLUM\ndelivered the opinion of the court:\nDefendant, Jerry A. Wilkins, was convicted of possession of cannabis with intent to deliver within 1,000 feet of a school (720 ILCS 550/5.2(b) (West 2000)). The fact that the offense took place within 1,000 feet of a school raised the offense from a Class 3 to a Class 2 felony. Defendant was sentenced to 10 years\u2019 imprisonment, 3 years more than the maximum sentence for a Class 2 felony. The trial court denied his motion to reconsider his sentence. He appeals, arguing that the court erred in sentencing him because (1) the court erroneously believed the offense was nonprobationable, (2) the court\u2019s comments at the sentencing hearing indicate it did not intend to sentence defendant to an extended term, and (3) the record before the court at sentencing did not support an extended-term sentence. We vacate and remand.\nAt the sentencing hearing, the court did not state that it was sentencing defendant to an extended term. The court, did, however, make the following statements:\n\u201cIn looking at the presentence report and taking into account the comments of [the assistant State\u2019s Attorney], which I think was quite accurate, it is clear, Mr. Wilkins, that you are a threat to the public at this point in time.\nEven if this were not a Class 2 felony, nonprobationable offense, because of the drug-free zone language, this dropping then to a Class 3 offense, the sentence which I am going to impose would fall within the range of a Class 3 felony under the extended term.\nBased upon my assessment of the defendant\u2019s prior record and the types of offenses for which he has been convicted, the recency of this offense to his date of parole, I believe a sentence of ten years in the department of corrections is appropriate.\u201d\nAs an initial matter, the State argues that defendant has waived his arguments on appeal because he did not object to the imposition of an extended-term sentence at the sentencing hearing or raise the issue in his motion to reconsider his sentence. The State is correct. However, \u201c[p]lain 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). Under the plain error exception, reviewing courts may address a waived issue where (1) the evidence is closely balanced or (2) an error is so fundamental that the defendant may have been denied a fair sentencing hearing. People v. Hausman, 287 Ill. App. 3d 1069, 1071 (1997). A claim that the trial court misunderstood the minimum and maximum sentences for the offense falls within the second prong of the plain error rule. Hausman, 287 Ill. App. 3d at 1071-72. Also, reviewing courts regularly have applied the plain error rule to address claims that an extended-term sentence was not authorized by law. People v. Kyles, 303 Ill. App. 3d 338, 354 (1998); People v. Bahena, 296 Ill. App. 3d 67, 69 (1998); People v. Hurley, 277 Ill. App. 3d 684, 686 (1996). Therefore, we will address defendant\u2019s challenges to his extended-term sentence under the plain error exception to the waiver rule.\nDefendant first argues that he is entitled to a new sentencing hearing because the court erroneously believed that the offense of possession of cannabis with intent to deliver within 1,000 feet of a school was nonprobationable. \u201cA 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.\u201d Hurley, 277 Ill. App. 3d at 687. The record reflects that the indictment and the presentence report both stated that the offense was nonprobationable. Additionally, the court referred to the offense as nonprobationable at the sentencing hearing. The offense, however, is probationable. See 730 ILCS 5/5 \u2014 5\u20143(b), (c)(2) (West 2000). Accordingly, the court misapprehended the minimum sentence.\nDefendant contends that this misunderstanding influenced the sentencing decision. Defendant relies on Hausman. In Hausman, the trial court stated that it was imposing \u201cthe minimum sentence of three (3) years\u201d imprisonment. Hausman, 287 Ill. App. 3d at 1071. The minimum sentence for the offense, however, was two years. The court remanded for a new sentencing hearing, holding that this misunderstanding arguably influenced the sentencing decision. Hausman, 287 Ill. App. 3d at 1072. The trial court\u2019s statement indicated that it may have intended to impose the minimum sentence. Its incorrect belief that the minimum sentence was three years therefore arguably influenced its decision to sentence the defendant to three years\u2019 imprisonment.\nHausman is distinguishable. Here, based on the court\u2019s comments at the sentencing hearing and the ultimate sentence imposed, the court clearly had no intention of sentencing defendant to the minimum sentence. Accordingly, it does not appear that the court\u2019s mistaken belief that the minimum sentence was three years\u2019 imprisonment as opposed to probation arguably influenced the court in its sentencing decision.\nDefendant next argues that the court\u2019s comments indicate it did not understand the sentencing range for a Class 2 offense and did not intend to sentence him to an extended term. Where the trial court imposes a sentence due to a misapprehension of the applicable law, the defendant is entitled to a new sentencing hearing. People v. Kang, 269 Ill. App. 3d 546, 553 (1995). At the sentencing hearing, the court stated:\n\u201cEven if this were not a Class 2 felony, nonprobationable offense, because of the drug-free zone language, this dropping then to a Class 3 offense, the sentence which I am going to impose would fall within the range of a Class 3 felony under the extended term.\u201d\nDefendant asserts that this statement reflects the court\u2019s belief that 10 years is a permissible sentence for a Class 2 offense without the extended term, or for a Class 3 offense with the extended term. Because the sentencing range for a Class 2 offense is three to seven years (730 ILCS 5/5 \u2014 8\u20141(a)(5) (West 2000)), defendant contends that the court\u2019s comments indicate it misapprehended the sentencing range. The State responds that the court was only pointing out that a 10-year sentence fell within the extended sentence range for either a Class 2 or Class 3 offense. See 730 ILCS 5/5 \u2014 8\u20142(a)(4), (a)(5) (West 2000) (the extended-term sentencing range is 7 to 14 years for a Class 2 offense and 5 to 10 years for a Class 3 offense).\nWe agree with the State. The court apparently was stating that even if the offense had not been raised to a Class 2 felony, the court still could have sentenced defendant to 10 years, as 10 years is a permissible extended-term sentence for either a Class 2 or Class 3 offense. The court\u2019s comments, therefore, do not establish that the court misunderstood the sentencing range for a Class 2 offense. Accordingly, defendant is not entitled to a new sentencing hearing on these grounds.\nDefendant\u2019s final argument is that the record before the court at the sentencing hearing did not provide a basis for an extended-term sentence. Although the court at the sentencing hearing did not specifically state what factor it was relying on in sentencing defendant to an extended term, it did make reference to his criminal record. An extended-term sentence may be imposed when a defendant has been previously convicted of a same or greater class felony within 10 years of the present conviction, excluding time spent in custody. 730 ILCS 5/5 \u2014 5\u20143.2(b)(1), 5 \u2014 8\u20142(a) (West 2000).\nDefendant was convicted of the current offense in 2002. The record reflects that the only documentation considered by the court at sentencing was the presentence report. The presentence report indicates that defendant was previously convicted of only one same or greater class felony, residential burglary in 1988 (Ill. Rev. Stat. 1987, ch. 38, par. 19 \u2014 3 (now 720 ILCS 5/19 \u2014 3 (West 2002))). He was later convicted of two other lower class felonies for which he received sentences of imprisonment. Because the only prior conviction that could be the basis of an extended term occurred approximately 14 years before the current conviction, defendant, in order to still qualify for an extended term, must have spent more than four years in custody between 1988 and 2002. The presentence report reflects that during this period, defendant was sentenced to terms of imprisonment of 5 years, 180 days, and 7 years. It does not, however, contain a complete record of the time defendant actually spent in custody, and does not establish that defendant spent four years in custody. Accordingly, the presentence report does not demonstrate that defendant\u2019s residential burglary conviction occurred within 10 years of the current conviction, excluding time in custody. Therefore, the record before the court did not provide a basis for an extended term pursuant to section 5 \u2014 5\u2014 3.2(b)(1).\nWe vacate the sentence imposed by the circuit court of Winnebago County and remand the cause for a new sentencing hearing.\nVacated and remanded.\nRAPALA and GILLERAN JOHNSON, JJ., concur.", "type": "majority", "author": "JUSTICE CALLUM" } ], "attorneys": [ "G. Joseph Weller, of State Appellate Defender\u2019s Office, of Elgin, and Carol L. Anfinson, of Aurora, for appellant.", "Paul A. Logli, State\u2019s Attorney, of Rockford (Martin E Moltz and Peggy F. J. Bradford, both 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. JERRY A. WILKINS, Defendant-Appellant.\nSecond District\nNo. 2\u201402\u20140252\nOpinion filed September 19, 2003.\nG. Joseph Weller, of State Appellate Defender\u2019s Office, of Elgin, and Carol L. Anfinson, of Aurora, for appellant.\nPaul A. Logli, State\u2019s Attorney, of Rockford (Martin E Moltz and Peggy F. J. Bradford, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0147-01", "first_page_order": 165, "last_page_order": 170 }