NO. 4-02-0259

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

		Plaintiff-Appellee,

		v.

HEATHER JEAN BRUER,

		Defendant-Appellant.	)

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)	Appeal from

Circuit Court of

McLean County

No. 01CF830

Honorable

W. Charles Witte,

Stephen R. Pacey,

Judges Presiding.

_________________________________________________________________

		JUSTICE KNECHT delivered the opinion of the court:

		In October 2001, defendant, Heather Jean Bruer, pleaded

guilty to one count of burglary (720 ILCS 5/19-1(a) (West 2000)). 

In November 2001, the trial court sentenced defendant to three

years in prison, consecutive to two other sentences of imprison

ment.  The trial court denied defendant's motion to reconsider

sentence.  Defendant appeals, arguing the trial court committed

plain error in refusing to sentence her to probation based on an

erroneous belief consecutive probation sentences are prohibited.

		I. BACKGROUND

		In August 2001, police arrested defendant after she was

caught stealing seven packs of cigarettes from a Schnuck's store

in Bloomington.  A grand jury indicted defendant on one count of burglary (720 ILCS 5/19-1(a))  (West 2000)) and one count of

misdemeanor retail theft (720 ILCS 5/16A-3(a) (West 2000)).

		In September 2001, McLean County Judge W. Charles Witte sentenced defendant as follows on three other pending McLean County felony cases:  two years' imprisonment in No. 00-CF-1490 (forgery), five years' imprisonment in No. 01-CF-173 (retail

theft over $150), and 30 months' probation in No. 01-CF-416

(retail theft over $150), with all sentences to run consecu

tively.  Judge Witte recommended defendant for impact incarcera

tion.

		In October 2001, the trial court convened for a jury

trial on the burglary and retail theft charges.  Defendant

tendered a blind guilty plea to the burglary charge in exchange

for the State's agreement to nol-pros the retail theft charge,

dismiss a petition to revoke court supervision in another retail

theft case, and dismiss a traffic case.  In admonishing defendant

of the possible penalties, Judge Witte indicated he could place

defendant on probation.  In explaining the nature of a blind

plea, the Judge Witte stated, "there is no agreement what the

sentence will be.  The judge will make the determination within

the statutory guidelines, anything from no prison time, proba

tion, all the way up to 14 years consecutive."  The State pre

sented a factual basis, and Judge Witte accepted the plea.

		In November 2001, the trial court held a sentencing

hearing.  The State argued for a seven-year consecutive sentence. 

Defense counsel requested the trial court to impose probation. 

Judge Witte noted he was mandated to give her a consecutive

sentence, and he had already sentenced her to 30 months' proba

tion.  Judge Witte noted, "[t]he [a]ppellate [c]ourts have held

that I cannot give consecutive probation terms."  Judge Witte sentenced defendant to three years in prison, stating it was the

minimum sentence authorized by law.  He recognized defendant

would lose eligibility for impact incarceration.  Defendant's

mother inquired why the trial court eliminated probation as an

option.  Judge Witte stated he had originally sentenced defendant

to two consecutive terms in prison and consecutive probation in

hopes defendant could succeed with impact incarceration.  He had

given defendant the standard guilty plea admonishments and did

not have the other cases in front of him.

		In December 2001, defendant filed a motion to recon

sider sentence.  Defendant's only contention was her sentence was

excessive.  In January 2001, defense counsel filed a certificate

pursuant to Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)). 

The cause was assigned to Judge Stephen R. Pacey following Judge

Witte's retirement.  Judge Pacey heard argument on the motion to

reconsider and continued the hearing to read the report of

proceedings and study the file.  At a later hearing, Judge Pacey

denied defendant's motion to reconsider, concluding Judge Witte

had no alternative other than to do what he did.

		This appeal followed.

	II. ANALYSIS

		Defendant argues the trial court erred in refusing to

sentence her to probation based on an erroneous belief consecu

tive probation sentences are prohibited by the Unified Code of

Corrections (Unified Code) (730 ILCS 5/1-1-1 through 8-6-1 (West

2000)).

		Initially, we note defendant failed to properly pre serve this issue for review by including it in her written motion

to reconsider sentence.  However, we may review defendant's

contention under the plain error rule (134 Ill. 2d R. 615(a))

because sentencing issues are regarded as matters affecting a

defendant's substantial rights.  See People v. Baaree, 315 Ill. App. 3d 1049, 1050, 735 N.E.2d 720, 722 (2000); see also People v. McCaskill, 298 Ill. App. 3d 260, 264-65, 698 N.E.2d 690, 693 (1998) (waiver is an admonition to the parties and not a limita

tion upon the reviewing court).

		The trial court has broad discretion in sentencing, and

a sentence within statutory limits will not be disturbed absent

an abuse of discretion.  People v. Pippen, 324 Ill. App. 3d 649, 651, 756 N.E.2d 474, 477 (2001).  However, to the extent this case presents a question of statutory interpretation, our review

is de novo.  People v. Lewis, 325 Ill. App. 3d 435, 437, 758 N.E.2d 438, 440 (2001).  The principal rule of statutory con

struction is to ascertain and give effect to the legislature's

intent.  To determine the legislature's intent, we first look to

the statute's language.  People v. Slover, 323 Ill. App. 3d 620, 623, 753 N.E.2d 554, 557 (2001).  A court must not depart from the statute's plain language by reading into it exceptions,

limitations, or conditions the legislature did not express. 

People v. Ellis, 199 Ill. 2d 28, 39, 765 N.E.2d 991, 997 (2002).

		The plain language of section 5-6-1(a) of the Unified

Code  (730 ILCS 5/5-6-1(a) (West 2000)) reflects the legislature's intent to authorize a sentence of probation unless "specifically prohibited" by other provisions of the Unified Code.  Section 5- 6-1(a) of the Unified Code states:

			"Except where specifically prohibited by other provisions of this [Unified] Code, the court shall impose a sentence of probation or conditional discharge upon an offender un

less, having regard to the nature and circum

stance of the offense, and to the history,

character[,] and condition of the offender,

the court is of the opinion that:

			(1) his imprisonment or periodic impris

onment is necessary for the protection of the

public; or

			(2) probation or conditional discharge

would deprecate the seriousness of the of

fender's conduct and would be inconsistent

with the ends of justice."  (Emphases added.) 

730 ILCS 5/5-6-1(a) (West 2000).

		We must therefore determine whether any provision of

the Unified Code specifically prohibits a sentence of probation

in this case.  No exception in section 5-5-3(c)(2) of the Unified

Code (730 ILCS 5/5-5-3(c)(2) (West 2000)) applies to this case.

	A. Section 5-8-4(h) of the Unified Code

		The State maintains section 5-8-4(h) of the Unified Code (730 ILCS 5/5-8-4(h) (West 2000)) mandated the trial court

to sentence defendant to a consecutive term of imprisonment because she committed the burglary while on pretrial release for

separate felonies.  Section 5-8-4(h) provides:

			"If a person charged with a felony com

mits a separate felony while on pre[]trial

release or in pretrial detention in a county

jail facility or county detention facility,

the sentences imposed upon conviction of

these felonies shall be served consecutively

regardless of the order in which the judg

ments of conviction are entered."  730 ILCS

5/5-8-4(h) (West 2000).

		We disagree with the State and determine the plain

language of section 5-8-4(h) of the Unified Code does not mandate

imprisonment nor prohibit probation.  The State's interpretation

of section 5-8-4(h) would depart from the statute's plain lan

guage and read into the Unified Code a limitation the legislature

did not express.  We note section 5-8-4(h) does not mention imprisonment or probation.  Instead, section 5-8-4(h) merely

states the "sentences imposed upzon conviction of these felonies shall be served consecutively" (emphasis added).  730 ILCS 5/5-8- 4(h) (West 2000).  "Sentence" is defined in the Unified Code as

"the disposition imposed by the court on a convicted defendant." 

730 ILCS 5/5-1-19 (West 2000).  Section 5-5-3(b)(1) of the Unified Code (730 ILCS 5/5-5-3(b)(1) (West 2000)) lists probation as a disposition. 

		Further, we reject the State's reliance on the Code's

article and section headings as evidence of legislative intent to require imprisonment for sentences under section 5-8-4(h). 

Section 8-3-1 of the Unified Code (730 ILCS 5/8-3-1 (West 2000)) states:  "Chapter, [a]rticle or [s]ection headings contained in

this [Unified] Code shall not be deemed to govern, limit, mod

ify[,] or in any manner affect the scope, meaning[,] or intent of

the provisions of any [c]hapter, [a]rticle[,] or [s]ection

hereof."

		Finally, we distinguish a case cited by the State,

People v. Clark, 183 Ill. 2d 261, 266, 700 N.E.2d 1039, 1042 (1998), in which the Supreme Court of Illinois stated, "By

operation of [section 5-8-4(h)], once a defendant stands guilty

of the felony, the only discretionary option left available to

the circuit court is the duration of the sentence" (emphasis added).  Clark concerned whether a defendant's plea constituted an open, as opposed to a negotiated, plea agreement.  Clark, 183 Ill. 2d at 265, 700 N.E.2d at 1042.  We consider the quoted

statement to be dictum because a trial court's authority to impose probation under section 5-8-4(h) was not an issue before

the court in Clark.  The State cites no other case concerning section 5-8-4(h).

		In conclusion, the plain language of section 5-8-4(h)

of the Unified Code merely requires a trial court to impose

consecutive sentences, not imprisonment.  Section 5-8-4(h) does

not specifically prohibit a trial court from imposing a sentence

of probation consecutive to a sentence of imprisonment.  Section

5-5-3(b) of the Unified Code (730 ILCS 5/5-5-3(b) (West 2000)) specifically authorizes such a combination of sentences for separate offenses.  People v. Wendt, 163 Ill. 2d 346, 354, 645 N.E.2d 179, 183 (1994); cf. People v. Williams, 179 Ill. 2d 331, 335, 688 N.E.2d 1153, 1155 (1997) (consecutive imprisonment and

probation is improper sentence for single offense).

	B. Consecutive Terms of Probation

		We next decide whether the Unified Code prohibits

consecutive terms of probation, as the trial court determined. 

The supreme court in Wendt noted, "the legislature expressly prohibited consecutive sentences of probation only in a limited

situation as set forth in section 5-6-2(b)."  Wendt, 163 Ill. 2d at 353-54, 645 N.E.2d at 183.  Section 5-6-2(b) of the Unified

Code (730 ILCS 5/5-6-2(b) (West 2000)) provides, in relevant

part:  "[m]ultiple terms of probation imposed at the same time

shall run concurrently."

		In People v. Gischer, 51 Ill. App. 3d 847, 855, 366 N.E.2d 521, 527 (1977), the Fifth District determined a trial

court has authority to impose consecutive terms of probation not

imposed at the same time.  In People v. Redman, 122 Ill. App. 3d 787, 793, 462 N.E.2d 21, 25 (1984), this court followed Gischer.  		We adhere to Gischer and Redman and conclude the trial court could have imposed a term of probation consecutive to the term of 30 months' probation imposed earlier in McLean County

case No. 01-CF-416.  The trial court abused its discretion by refusing to consider probation in the erroneous belief consecu

tive probation sentences are prohibited.

	C. Remand for Resentencing

		Citing People v. Washington, 297 Ill. App. 3d 790, 796- 97, 697 N.E.2d 1241, 1246 (1998), defendant requests this court

to give effect to Judge Witte's clear intent and modify her

sentence to a term of probation.  However, this court has no authority under Supreme Court Rule 615(b) (134 Ill. 2d R. 615(b))

to reduce a sentence of imprisonment to a sentence of probation. 

People v. Bolyard, 61 Ill. 2d 583, 588, 338 N.E.2d 168, 170 (1975).  Therefore, we vacate defendant's sentence of three

years' imprisonment and remand for resentencing.

  		III. CONCLUSION

		For the reasons stated, we affirm defendant's convic

tion, vacate her sentence, and remand for resentencing.

		Affirmed in part and vacated in part; cause remanded

with directions.

		COOK and TURNER, JJ., concur.

State of Illinois

APPELLATE COURT

Fourth District

INTER-OFFICE MEMORANDUM

To:	Judge Cook			Date: October __, 2002

     Judge Turner

						From: Judge Knecht

					  	Subject:  People v. Bruer

						  No. 4-02-0259   Nonoral

						  KNECHT, Cook, Turner

		Enclosed for your consideration is a proposed opinion

prepared by Anastacia Brooks.

Enc.

cc:  Judge McCullough

	Judge Myerscough

	Judge Steigmann

	Judge Appleton

	Clerk

State of Illinois

APPELLATE COURT

Fourth District

INTER-OFFICE MEMORANDUM

To:	Judge Knecht			Date: October __29, 2002

     (author only)

						From: Anastacia Brooks

					  	Subject:  People v. Bruer

						  No. 4-02-0259   Nonoral

						  KNECHT, Cook, Turner

		Enclosed for your consideration is a proposed opinion.  It has been citechecked.

Enc.

cc:  Clerk