{ "id": 4292356, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN D. McBRIDE, Defendant-Appellant", "name_abbreviation": "People v. McBride", "decision_date": "2009-10-19", "docket_number": "No. 5\u201408\u20140166", "first_page": "204", "last_page": "210", "citations": [ { "type": "official", "cite": "395 Ill. App. 3d 204" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "273 Ill. App. 3d 396", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258757 ], "year": 1995, "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0396-01" ] }, { "cite": "225 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5704376 ], "year": 2007, "pin_cites": [ { "page": "203, 205" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/225/0188-01" ] }, { "cite": "130 Ill. App. 3d 347", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3495215 ], "year": 1985, "pin_cites": [ { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/130/0347-01" ] }, { "cite": "78 Ill. 2d 500", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3073388 ], "year": 1980, "pin_cites": [ { "page": "507-08" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/78/0500-01" ] }, { "cite": "339 Ill. App. 3d 887", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 4284277 ], "year": 2009, "pin_cites": [ { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/389/0398-01" ] }, { "cite": "167 Ill. 2d 439", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 222762 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "443" }, { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/167/0439-01" ] }, { "cite": "194 Ill. App. 3d 527", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498930 ], "year": 1990, "pin_cites": [ { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/194/0527-01" ] }, { "cite": "388 Ill. App. 3d 936", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4283394 ], "year": 2009, "pin_cites": [ { "page": "942" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/388/0936-01" ] }, { "cite": "389 Ill. App. 3d 430", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4284698 ], "year": 2009, "pin_cites": [ { "page": "432" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/389/0430-01" ] } ], "analysis": { "cardinality": 608, "char_count": 14272, "ocr_confidence": 0.755, "pagerank": { "raw": 5.5139347903205204e-08, "percentile": 0.3445789696619378 }, "sha256": "fea2e0b5325298fd9c61bd00b3d70ef413cfb32ab8331b922f88504c7654558b", "simhash": "1:bd52debe734c8bf6", "word_count": 2441 }, "last_updated": "2023-07-14T16:58:02.073967+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. KEVIN D. McBRIDE, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE WEXSTTEN\ndelivered the opinion of the court:\nAfter the trial court sentenced him to a 12-year extended term of imprisonment with credit for time served on probation, the defendant, Kevin D. McBride, filed a motion to reconsider, challenging the extended-term portion of the sentence. Thereafter, the trial court reduced the defendant\u2019s sentence to a seven-year nonextended term but denied him the previously awarded probation credit. On appeal, the defendant maintains that the trial court\u2019s modification of his sentence improperly increased it in violation of section 5 \u2014 8\u20141(c) of the Unified Code of Corrections (the Code) (730 ILCS 5/5 \u2014 8\u20141(c) (West 2006)). For the reasons that follow, we agree and reverse.\nBACKGROUND\nIn March 2004, in Perry County case number 04 \u2014 CF\u201450, the defendant was charged with one count of unlawful possession of a weapon by a felon (720 ILCS 5/24 \u2014 1.1(a) (West 2004)) and one count of criminal trespass to state-supported land (720 ILCS 5/21 \u2014 5(a) (West 2004)). In July 2004, in Perry County case number 04 \u2014 CF\u2014 107, the defendant was charged with one count of harassment of a witness (720 ILCS 5/32 \u2014 4a(a)(2) (West 2004)) and one count of aggravated battery (720 ILCS 5/12 \u2014 4(b)(8) (West 2004)).\nIn November 2004, pursuant to negotiations with the State, the defendant pled guilty to the weapons charge in case number 04\u2014 CF \u2014 50 and the harassment-of-a-witness charge in case number 04\u2014 CF \u2014 107. In exchange for his plea, the remaining counts in both cases were dismissed, and he was sentenced to a 4-year term of imprisonment in case number 04 \u2014 CF\u201450 and a 30-month term of probation in case number 04 \u2014 CF\u2014107. The term of probation was ordered to run consecutively to the term of imprisonment.\nIn August 2005, in Perry County case number 05 \u2014 CF\u2014108, the defendant was charged with one count of residential burglary (720 ILCS 5/19 \u2014 3(a) (West 2004)), one count of criminal trespass to state-supported land (720 ILCS 5/21 \u2014 5(a) (West 2004)), and one count of resisting a peace officer (720 ILCS 5/31 \u2014 1(a) (West 2004)). In November 2005, pursuant to negotiations with the State, the defendant pled guilty to the residential burglary charge in exchange for a five-year prison sentence and the dismissal of the remaining counts against him. The term of probation imposed in case number 04 \u2014 CF\u2014107 was deemed to have begun on August 12, 2005 \u2014 the day that the defendant was released from prison in case number 04 \u2014 CF\u2014 50 \u2014 and was ordered to run concurrently with the five-year prison sentence imposed in case number 05 \u2014 CF\u2014108.\nIn October 2007, after the defendant had been charged with three counts of resisting a peace officer (720 ILCS 5/31 \u2014 1(a) (West 2006)) and one count of battery (720 ILCS 5/12 \u2014 3(a)(1) (West 2006)), the State filed a petition to revoke his probation in case number 04 \u2014 CF\u2014 107. In November 2007, following a hearing on the petition, the trial court revoked the defendant\u2019s probation after finding that he had violated its terms.\nIn January 2008, the cause proceeded to a resentencing hearing in case number 04 \u2014 CF\u2014107. Arguing that the defendant\u2019s previous convictions in case numbers 04 \u2014 CF\u201450 and 05 \u2014 CF\u2014108 made him eligible for an extended-term sentence pursuant to section 5 \u2014 5\u2014 3.2(b)(1) of the Code (730 ILCS 5/5 \u2014 5\u20143.2(b)(1) (West 2004)), the State asked the trial court to impose the maximum available prison sentence of 14 years. See 720 ILCS 5/32 \u2014 4a(a)(2) (West 2004); 730 ILCS 5/5 \u2014 8\u20142(a)(4) (West 2004). Defense counsel argued that, because the defendant\u2019s conviction in case number 04 \u2014 CF\u201450 was entered at the same time as his conviction in case number 04 \u2014 CF\u2014 107 and because the defendant\u2019s conviction in case number 05 \u2014 CF\u2014 108 was entered after he had been convicted in case number 04 \u2014 CF\u2014 107, the defendant\u2019s convictions in case numbers 04 \u2014 CF\u201450 and 05 \u2014 CF\u2014108 did not constitute previous convictions for purposes of section 5 \u2014 5\u20143.2(b)(1). The trial court ultimately resolved the issue in the State\u2019s favor and determined that the defendant\u2019s conviction in case number 04 \u2014 CF\u201450 made him eligible to receive an extended-term sentence. Thereafter, the court sentenced the defendant to a 12-year extended-term prison sentence with credit for time served while on probation pursuant to section 5 \u2014 6\u20144(h) of the Code (730 ILCS 5/5 \u2014 6\u20144(h) (West 2004)). The court then admonished the defendant that, to properly challenge his sentence on appeal, he needed to file a motion for reconsideration within 30 days.\nIn February 2008, the defendant filed a timely motion to reconsider the sentence (see 730 ILCS 5/5 \u2014 8\u20141(c) (West 2006)), in which he reiterated his contention that, because his convictions in case numbers 04\u2014 CF \u2014 50 and 04 \u2014 CF\u2014107 were entered simultaneously, his conviction in case number 04 \u2014 CF\u201450 did not constitute a previous conviction for purposes of section 5 \u2014 5\u20143.2(b)(1). The defendant maintained that a seven-year prison sentence was the maximum sentence that he could have properly received following the revocation of his probation in case number 04 \u2014 CF\u2014107, and he asked that the trial court reduce his sentence accordingly.\nIn March 2008, the trial court held a hearing on the defendant\u2019s motion to reconsider. In addition to raising the defendant\u2019s section 5\u2014 5 \u2014 3.2(b)(1) argument, defense counsel noted, inter alia, that when the defendant entered his plea in case number 04 \u2014 CF\u2014107, the court and the State had both stated that he was not eligible to receive an extended-term sentence. Acknowledging that was the case, the trial court vacated the extended-term portion of the defendant\u2019s sentence, thus reducing it to a seven-year prison term. The court then announced that it was denying the defendant the previously awarded credit for time served on probation and was only awarding him credit for his time served following his arrest on the charges underlying the State\u2019s petition to revoke probation. The defendant complained about the court\u2019s denial of his probation credit, but the court noted that the defendant would ultimately be released from prison \u201cabout two months earlier than what [he had been] originally scheduled out for on the 12 years.\u201d The trial court did not admonish the defendant that he had needed to file a second motion to reconsider sentence to preserve any sentencing issue that he might want to raise on appeal. In April 2008, the defendant filed a timely notice of appeal.\nDISCUSSION\nSection 5 \u2014 8\u20141(c) of the Code states, in pertinent part, as follows: \u201cA 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. *** However, the court may not increase a sentence once it is imposed.\u201d 730 ILCS 5/5 \u2014 8\u20141(c) (West 2006). \u201c \u2018Sentence\u2019 is the disposition imposed by the court on a convicted defendant.\u201d 730 ILCS 5/5 \u2014 1\u201419 (West 2006).\nOn appeal, the defendant argues that, when modifying his sentence in case number 04 \u2014 CF\u2014107, the trial court violated section 5 \u2014 8\u2014 1(c)\u2019s prohibition against increasing a sentence by denying him the credit for time served on probation that it had previously awarded him. In response, the State suggests that the defendant has forfeited this claim by not filing a second motion to reconsider his sentence and that, forfeiture aside, the defendant\u2019s argument is without merit because he ultimately received a sentence less than that originally imposed.\nWe first address the State\u2019s forfeiture argument. \u201cNormally, any sentencing issues not raised in a motion to reconsider the sentence are forfeited.\u201d In re Angelique E., 389 Ill. App. 3d 430, 432 (2009). Here, although the defendant did not file a second motion to reconsider his sentence, he complained when the court stated that it was denying him the previously awarded probation credit, and he was not admonished that he needed to file a second motion to reconsider to preserve his complaint for appellate review. Under the circumstances, a relaxation of the forfeiture rule is appropriate. See People v. Dowding, 388 Ill. App. 3d 936, 942 (2009). Furthermore, because an improper increase in sentence is a matter affecting a defendant\u2019s substantial rights, the instant claim is reviewable as plain error. See People v. Barnes, 194 Ill. App. 3d 527, 529 (1990). We will therefore address the merits of the argument that the defendant raises on appeal.\n\u201cUnder well-settled rules of statutory construction, section 5 \u2014 8\u2014 1(c) is to be interpreted according to the plain meaning of its terms, in order to ascertain and give effect to the intent of the legislature, bearing in mind the reasons for the provision, the harms to be remedied, and the goals to be achieved.\u201d People v. Kilpatrick, 167 Ill. 2d 439, 443 (1995). \u201cBecause the construction of a statute is a matter of law, review is de novo.\u201d In re Application of the County Treasurer & ex officio County Collector, 389 Ill. App. 3d 398, 401 (2009).\n\u201c[Section 5 \u2014 8\u20141(c)] is consistent with the United States Supreme Court\u2019s decision in North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072, in which the Court stated that due process may prohibit a judge from imposing a more severe sentence when the defendant has been convicted following a retrial because a greater sentence may penalize the defendant\u2019s right to challenge his conviction and sentence.\u201d People v. Jones, 168 Ill. 2d 367, 371-72 (1995). Because a defendant should not have to \u201crun the risk\u201d that challenging his sentence in the trial court might \u201cresult in a resentencing of increased length,\u201d section 5 \u2014 8\u20141(c) should be interpreted so that it does not lend itself to the possibility that a defendant will be \u201cpenalized for his efforts to seek and obtain relief with respect to alleged errors in the sentence he received.\u201d Kilpatrick, 167 Ill. 2d at 447. We must also presume that, as used in section 5 \u2014 8\u20141(c), the word \u201csentence\u201d refers to a valid sentence or the valid portion of a sentence. See People v. Garcia, 179 Ill. 2d 55, 73 (1997); People v. Lee, 376 Ill. App. 3d 951, 967 (2007).\nHere, when entering his guilty plea in case number 04 \u2014 CF\u2014 107, the defendant was not advised that an extended-term sentence was a possibility. As a result, the extended-term portion of his sentence was void pursuant to section 5 \u2014 8\u20142(b) of the Code (730 ILCS 5/5\u2014 8 \u2014 2(b) (West 2006)), and the trial court properly vacated it. See People v. Taylor, 368 Ill. App. 3d 703, 707-08 (2006). Whether to award the defendant sentencing credit for his time spent on probation was a matter within the trial court\u2019s discretion. See People v. Whitfield, 228 Ill. 2d 502, 507 (2007); 730 ILCS 5/5 \u2014 6\u20144(h) (West 2006). Had the defendant not challenged his sentence in the trial court, however, he could have had the extended-term portion vacated on direct appeal without losing the probation credit that he had previously been awarded. If the extended-term portion of a sentence is void, a defendant can attack it any time, and such a challenge \u201cis not subject to waiver.\u201d People v. Thompson, 209 Ill. 2d 19, 27 (2004); see also People v. Muntaner, 339 Ill. App. 3d 887, 889 (2003) (\u201cWhen a sentence greater than that authorized by statute is imposed, the excess portion of that sentence is void and may be attacked at any time\u201d). Thus, by denying the defendant the probation credit that it had previously awarded him, the trial court, in effect, penalized him for correcting the error in the sentence that he received, because the court, in effect, increased the length of the valid sentence that had been originally imposed. See People v. Hills, 78 Ill. 2d 500, 507-08 (1980). \u201c[T]he trial court may not increase a sentence once it has been imposed by subsequently denying credit for time served on probation, since such a denial would result in an increased length of sentence.\u201d People v. Tackett, 130 Ill. App. 3d 347, 349 (1985). The State\u2019s argument that section 5 \u2014 8\u20141(c) was not violated in the present case ignores that the extended-term portion of the sentence originally imposed was \u201cvoid from its inception\u201d and that only the \u201clegally authorized portion\u201d was valid (People v. Brown, 225 Ill. 2d 188, 203, 205 (2007)).\nThe valid sentence that the trial court originally imposed when resentencing the defendant in case number 04 \u2014 CF\u2014107 was a seven-year term of imprisonment with credit for time served on probation. By taking away the previously awarded probation credit when vacating the void portion of the sentence, the trial court impermissibly increased the previously imposed sentence in violation of section 5 \u2014 8\u20141(c).\nThe defendant\u2019s term of probation commenced on August 12, 2005. When modifying the defendant\u2019s sentence, the trial court awarded him sentencing credit from October 3, 2007. As a result of the court\u2019s modification, the defendant lost 782 days of sentencing credit. Pursuant to Supreme Court Rule 615(b)(1) (134 Ill. 2d R. 615(b)(1)), we therefore order that the defendant\u2019s mittimus be amended to reflect credit for the 782 days that the defendant served on probation. See People v. McCray, 273 Ill. App. 3d 396, 403 (1995).\nCONCLUSION\nFor the foregoing reasons, we reverse the trial court\u2019s judgment and order that the defendant\u2019s mittimus be amended accordingly.\nReversed; mittimus to be corrected.\nCHAPMAN and STEWART, JJ., concur.\nWe note that the legislature recently repealed section 5 \u2014 8\u20141(c), and it recodified the rules governing motions to reduce sentence, in a newly created section 5 \u2014 4.5\u201450(d), which also states, \u201cThe court may not increase a sentence once it is imposed\u201d (730 ILCS 5/5 \u2014 4.5\u201450(d) (West 2008)). Pub. Act 95 \u2014 1052, eff. July 1, 2009 (amending 730 ILCS 5/5 \u2014 8\u20141 (West 2008) and adding 730 ILCS 5/5 \u2014 4.5\u201450).", "type": "majority", "author": "PRESIDING JUSTICE WEXSTTEN" } ], "attorneys": [ "Michael J. Pelletier, Jo Beth Weber, and Rita K. Peterson, all of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "David Stanton, State\u2019s Attorney, of Pinckneyville (Patrick Delfino, Stephen E. Norris, and Kelly M. Stacey, all 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. KEVIN D. McBRIDE, Defendant-Appellant.\nFifth District\nNo. 5\u201408\u20140166\nOpinion filed October 19, 2009.\nMichael J. Pelletier, Jo Beth Weber, and Rita K. Peterson, all of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nDavid Stanton, State\u2019s Attorney, of Pinckneyville (Patrick Delfino, Stephen E. Norris, and Kelly M. Stacey, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0204-01", "first_page_order": 220, "last_page_order": 226 }