People v. Sophanavong, 2018 IL App (3d) 170450 (November). Episode 569 (Duration 4:20)
They didn’t tell the judge the prior sentences on the prior convictions so this 55 year sentence has to be vacated and remanded for a new sentencing hearing.
Defendant was charged by indictment with three counts of first degree murder, one count of aggravated kidnapping, and one count of violation of an order of protection in the kidnapping and shooting death of his estranged wife. For a complete list of Illinois crimes see the crimes index.
Pursuant to a fully negotiated plea agreement, defendant pled guilty to one count of first degree murder and was sentenced to 55 years in prison (30 years for murder plus a 25-year sentencing enhancement for personally discharging a firearm).
Pursuant to the terms of the plea agreement, the State nol prossed the remaining charges and agreed not to file certain other charges.
During The Plea Hearing
During the plea hearing, the trial court inquired as to defendant’s criminal history.
The State informed the trial court that defendant had previously been convicted of manufacture or delivery of cannabis, a Class 1 felony, in a 2004 Tazewell County case and that defendant had also been convicted of a speeding offense and of a seatbelt offense.
The State did not, however, report to the trial court the disposition on any of defendant’s prior offenses.
Upon inquiry, the parties informed the trial court that they were waiving a presentence investigation report (PSI). The trial court accepted the plea agreement and entered the agreed upon conviction and sentence.
On appeal, defendant abandons his challenge to the trial court’s ruling on his second amended motion to withdraw guilty plea and argues instead that his sentence should be vacated and the case remanded for a new sentencing hearing because the trial court failed to strictly comply with section 5-3-1 of the Code when it accepted the parties’ plea agreement. More specifically, defendant asserts that vacation and remand are required under section 5-3-1 because no PSI was ordered and the trial court was not informed of the dispositions on defendant’s prior criminal offenses when the trial court accepted the plea agreement and sentenced defendant.
The Sentencing Code
Section 5-3-1 of the Code, which states that:
“A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court. However, other than for felony sex offenders being considered for probation, the court need not order a presentence report of investigation where both parties agree to the imposition of a specific sentence, provided there is a finding made for the record as to the defendant’s history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment. The court may order a presentence investigation of any defendant.”
The PSI requirement contained in section 5-3-1 is a mandatory legislative requirement that cannot be waived except as provided for in the statute. The purpose of the requirement is to ensure that the trial court has all of the necessary information about the defendant, including the defendant’s criminal history, before the trial court imposes a sentence.
Can’t Waive PSI
A defendant cannot waive the PSI requirement, other than as noted above, because the requirement serves not only to benefit the defendant, but also to enlighten the trial court and is a useful tool for the sentencing judge.
Although section 5-3-1 is primarily concerned with making the sentencing judge aware of the dangerousness of a particular defendant, the lack of a criminal history is also relevant in determining the appropriateness of the sentence. When the trial court is presented with a negotiated plea for an agreed-upon sentence, section 5-3-1 of the Code requires that the trial court be aware of the history of the defendant’s criminality and delinquency in determining whether to accept the negotiated plea.
Strict compliance with section 5-3-1 is mandatory. People v. Harris, 105 Ill. 2d 290, 302-03 (1985); Bryant, 2016 IL App (5th) 140334, ¶ 49. If the trial court fails to strictly comply with section 5-3-1, the sentence imposed must be vacated, and the case must be remanded for a new sentencing hearing so that the trial court can consider the defendant’s criminal history before deciding if the negotiated sentence is appropriate.
Although the State provided the trial court with some information as to defendant’s prior criminal history, no information whatsoever was presented as to the dispositions defendant received in his prior criminal cases.
Defendant’s sentence, therefore, must be vacated and the case remanded for a new sentencing hearing so that the trial court can be informed of defendant’s history of delinquency and criminality before it determines whether the agreed-upon sentence is appropriate. Once informed, if the trial court determines that the sentence is appropriate, it should resentence defendant in accordance with the terms of the plea agreement.
If the sentence is not appropriate, however, the trial court should allow defendant to withdraw his guilty plea.
To the extent that the appellate court in Haywood reached a different conclusion we disagree. See Haywood, 2016 IL App (1st) 133201 (March), (Since we have affirmed the trial court’s denial of defendant’s motion to withdraw his guilty plea, and the negotiated plea agreement remains in effect, defendant has no basis on which to challenge his sentence.
Sentence vacated; cause remanded.