Plea negotiation drug case should be better for the defense. The double drug conviction enhancement appears to be dead in the water. When two sentencing enhancement provisions are in conflict the later one that uses the word “shall” wins.
People v. Williams, 2014 IL App (3d) 120824 (August).
It was a plea negotiation drug case.
Defendant was charged with a class 2 felony for unlawful delivery of a controlled substance under 720 ILCS 570/401(d)(i). Because of prior felonies he was mandatory X eligible. However, he was also admonished that he was extended term eligible because at least one his three priors was a class 1 felony drug conviction.
Defendant had previously been convicted of a Class 1 violation of the Illinois Controlled Substances Act (Act) in 2004. 720 ILCS 570/401. In addition, defendant’s record showed three previous convictions for Class 2 felonies: burglaries committed in 1984 and 2000, and a robbery committed in 1991.
So Defendant thought he was looking at a maximum sentence of 60 years.
Defendant, then, plead guilty in exchange for a sentencing cap of 25 years on his sentence. The only problem here is that the extended term provision did not apply and defendant actually only faced a maximum term of 30 years imprisonment as part of the mandatory X Sentencing.
Defendant filed a motion to withdraw his guilty plea. He said the plea was not a knowing and voluntary waiver because he was misinformed on the law. Should he have been allowed to withdraw the guilty plea?
The Sentencing Provisions
Class X Sentencing
Defendant was eligible for Class X sentencing pursuant to the Unified
Code of Corrections (Code). The relevant section of the Code says:
“When a defendant …is convicted of a Class 1 or Class 2 felony, after having twice been convicted in any state or federal court of an offense that contains the same elements as an offense now (the date the Class 1 or Class 2 felony was committed) classified in Illinois as a Class 2 or greater Class felony …, that defendant shall be sentenced as a Class X offender.”
730 ILCS 5/5-4.5-95(b).
This section clearly kicked in because of his burglary and robbery convictions. This made it a 6-30 years sentencing range. For Class X felonies, “[t]he sentence of imprisonment shall be a determinate 4 sentence of not less than 6 years and not more than 30 years.” 730 ILCS 5/5-4.5-25(a)
Exclusive Extended Term Provision
This is where things get tricky.
The court explained that the exclusive authority for sentences beyond the maximum for that class of offense is contained in section 730 ILCS 5/5-8-2. This must mean no other sections in the Code are authorized to go beyond the maximum.
This section states that:
A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Article 4.5 of Chapter V for an offense or offenses within the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in Section 5-5-3.2 or clause (a)(1)(b) of Section 5-8-1 were found to be present.
730 ILCS 5/5-8-2 (the exclusive extended term section).
What About the Doubling Sentence Provision?
However, there is another section in the Code that appears to allow a sentence beyond the maximum for that classification.
This section states that …
any person convicted of a second or subsequent offense under this Act may be sentenced to imprisonment for a term up to twice the maximum term otherwise authorized.
720 ILCS 570/408 (the double drug sentencing provision). The Act being referred to in the code is The Controlled Substance Act.
So What’s Going On
The trial court applied both the exclusive extended term section and the double drug sentencing provision. That is how it came up with the 60 year maximum it used to admonished the defendant.
The exclusive extended term section, however, makes it clear that an extended-term sentence is only permitted under the specific circumstances in section 5-5-3.2.
The relevant portion of that subsection provides:
The following factors, related to all felonies, may be considered by the court as reasons to impose an extended term sentence under Section 5-8-2 upon any offender: (1) When a defendant is convicted of any felony, after having been previously convicted in Illinois or any other jurisdiction 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[.]
720 ILCS 5/5-5-3.2(b)(1).
It appears that a defendant may not be sentenced to a Class X extended term sentence under section 5-5-3.2(b)(1) of the Code if that defendant has not been convicted of a Class X felony. Though the defendant faced Class X sentencing, he had never been convicted of a Class X felony and was, therefore, not eligible for extended-term Class X sentencing.
There is a Conflict
In so far as there is a conflict with the exclusive extended term section (730 ILCS 5/5-8-2) and the double drug sentencing provision (720 ILCS 570/408), the later provision wins.
Because section 5-8-2 was enacted and took effect after section 408, that section should therefore control.
Although section 408 of the Act would permit such a sentencing range, sections 5-8-2 and 5-5-3.2 of the Code must control. Defendant should only have faced a maximum term of 30 years’ imprisonment at sentencing and was therefore improperly admonished when the court advised him that he faced a maximum term of 60 years’ imprisonment.
Defendant should have been allowed to withdraw his guilty plea. Clearly, the plea negotiation drug case was affected.