No. 3--01--0537

_________________________________________________________________

							IN THE

							APPELLATE COURT OF ILLINOIS

							THIRD DISTRICT

							A.D., 2002 

THE PEOPLE OF THE STATE 			)	Appeal from the Circuit Court

OF ILLINOIS,					)	of the 9th Judicial Circuit, 

							)	McDonough County, Illinois

	Plaintiff-Appellee,			)	

							)

	v.						)	No. A0--CF--61

							)	

WAYNE M. DORETHY, JR.,			)	Honorable

                                )	John R. Clerkin,

	Defendant-Appellant.		)	Judge, Presiding

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	JUSTICE HOLDRIDGE delivered the opinion of the court:

_________________________________________________________________

	The defendant, Wayne M. Dorethy, Jr., pled guilty to

criminal sexual assault (720 ILCS 5/12--13 (West 2000)).  In

another case that is not th e jusubject of this appealsub, he pled

guilty to aggravated robbery (720 ILCS 5/18--5 (West 2000)). 

Both pleas were fully negotiated.  The defendant was admonished

that he could be ordered to serve his sentences for these

offenses either consecutively or concurrently.  The defendant was

sentenced to concurrent terms of six and four years'

imprisonment, respectively, for these offenses.  His motion to

withdraw his guilty plea was denied.

	For the first time on appeal, the defendant argues that his

sentence is void because consecutive sentences were mandatory

under the applicable sentencing statute (730 ILCS 5/5--8--4(b)

(West 2000)).  He contends that because his sentence is void, we may consider this argument for the first time on appeal.  The

defendant further submits that his plea was not given knowingly

and voluntarily because he was not admonished that consecutive

sentences were mandatory rather than discretionary.  He argues,

therefore, that he should be allowed to withdraw his guilty plea. 

He also contends that his attorney failed to comply with the

certificate requirements of Supreme Court Rule 604(d) (188 Ill.

2d R. 604(d)).  We reverse and remand.

BACKGROUND

	The defendant was charged with having committed armed

robbery on January 5, 2000, in case No. A0--CF--95.  In case No.

A0--CF--61, he was charged with having committed criminal sexual

assault on January 10, 2000.  After negotiating with the

prosecutor, the defendant agreed to plead guilty to aggravated

robbery rather than armed robbery in case No. A0--CF--95 and to

plead guilty to criminal sexual assault in case No. A0--CF--61. 

In exchange for the defendant's guilty pleas, the State would (1)

dismiss a charge for driving while license revoked or suspended

in case No. A0--TR--3536; (2) recommend a six-year sentence for

aggravated robbery; (3) recommend a four-year sentence for

criminal sexual assault; and (4) recommend that the sentences be

served concurrently rather than consecutively.

	At the plea hearing held on February 5, 2001, the judge

admonished the defendant that his sentences "could run

consecutively, one after the other; or concurrently, at the same

time."  The judge concurred in the terms of the plea agreement.  The defendant was sentenced consistently with this agreement at

the conclusion of the hearing.

	On March 7, 2001, the defendant filed a pro se motion to withdraw his guilty pleas in both cases.  In his motion, he

argued that (1) he was not guilty, and (2) he had entered his

plea without fully understanding the nature of the agreement and

the consequences of his plea.  He contended that he had not been

informed that he would serve 85% of his sentence under the truth-

in-sentencing statute.  The court denied the defendant's motion

to withdraw.  The defendant appealed.

ANALYSIS

I. Consecutive Sentencing

	For the first time on appeal, the defendant contends that

the court's sentencing order is void because consecutive

sentences were mandatory.

	When multiple sentences are imposed, and one of the offenses

for which the defendant was convicted was section 12--13 of the

Criminal Code of 1961 (720 ILCS 5/12--13 (West 2000)), the court

shall enter sentences to run consecutively.  730 ILCS 5/5--8--

4(a, b) (West 2000).

	The State relies upon People v. Maxwell, 264 Ill. App. 3d 323, 636 N.E.2d 980 (1994), and People v. Caruth, 322 Ill. App. 3d 226, 751 N.E.2d 1160 (2001), for the proposition that consecutive sentences were discretionary rather than mandatory in

this case.  Maxwell concerned the 1987 version of section 5--8-- 4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005--8--4(a)), which was substantially different

from the statute under which the defendant was sentenced.  We

find Maxwell to be inapposite to the present case.

	In Caruth, the defendant pled guilty to home invasion in one case, and he was found guilty of residential burglary and

aggravated criminal sexual assault in another case.  At a joint

sentencing hearing, the trial court imposed consecutive sentences

for all three offenses.  This court stated in Caruth that "consecutive sentencing is mandatory for certain triggering

offenses" under section 5--8--4(a), (b).  Caruth, 322 Ill. App. 3d at 230, 751 N.E.2d at 1163.  The triggering offense in Caruth was aggravated criminal sexual assault (720 ILCS 5/12--14 (West

1998)).

	In the present case, Caruth is helpful to the defendant, but not to the State.  This defendant was convicted of criminal

sexual assault (section 12--13), which is listed as a triggering

offense in section 5--8--4(b) just before aggravated criminal

sexual assault (section 12--14).  Under Caruth, we agree with the defendant that consecutive sentences were mandatory in this case.

	The State contends that the defendant's argument is waived

because he failed to raise it in his motion to withdraw the

guilty plea.  Supreme Court Rule 604(d) states that on appeal,

any issue not raised in a defendant's motion to withdraw shall be

deemed waived.  188 Ill. 2d R. 604(d).  Therefore, we agree with

the State that the defendant's argument was waived.  The defendant's rejoinder is that we may consider his argument

regardless of waiver because his sentencing order is void.

	A sentence that does not conform to statutory requirements

is void.  People v. Arna, 168 Ill. 2d 107, 658 N.E.2d 445 (1995).  A void sentence may be challenged at any time.  People v. Ortiz, 321 Ill. App. 3d 920, 748 N.E.2d 793 (2001).

	In this case, the defendant's sentences are void because

they do not conform to the statutory requirement making

consecutive sentences mandatory under these circumstances. 

Because his sentences are void, we may consider his argument

regardless of waiver.

II. Admonishments

	The defendant further submits that he was not properly

admonished that consecutive sentences were mandatory rather than

discretionary.

	At the guilty plea hearing, the trial court must

substantially comply with admonishing the defendant by informing

him of the minimum and maximum sentences prescribed by law,

including consecutive sentencing.  177 Ill. 2d R. 402(a). 

Informing a defendant of the possibility of consecutive sentences

when consecutive sentences are mandatory is an inadequate

admonishment under Rule 402.  Under such circumstances, the

defendant should be allowed to withdraw his guilty plea and plead

anew.  People v. Hampton, 249 Ill. App. 3d 873, 620 N.E.2d 3 (1993).

	In this case, the defendant was improperly admonished that

consecutive sentences were discretionary rather than mandatory. 

Therefore, we rule that he should be permitted to withdraw his

guilty plea and plead anew.  Because of this ruling, we need not

address the defendant's argument concerning his attorney's Rule

604(d) certificate.

CONCLUSION

	For the foregoing reasons, we reverse the judgment of the

McDonough County circuit court and remand for further

proceedings.

	Reversed and remanded.

	LYTTON, P.J., AND and MCDADE, J., cocncur.

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