No. 2-- 05--0400 filed: 11/7/06

__________________________________________ ___________________________ IN THE APPELLATE COURT OFILLINOIS SECOND DISTRICT

__________________________________________ ___________________________ THE PEO PLE OF THE STAT E ) Appeal from the Circuit Court OF ILLINOIS, ) of W inne bago Coun ty. ) Plaintiff-Appelle e, ) ) v. ) No. 03--CF --2811 ) GILBERT E. TAYLOR, ) Honorable ) Jose ph G. McGra w, Defendant-Appellant. ) Judge, P residing.

__________________________________________ ___________________________ JUSTICE BYR NE deliv ered the opinion of the court: Defendant, Gilbert E. Taylor, pleaded guilty to aggravated battery (720 ILCS 5/12--4(a), (e) (West 2002)), a Cl ass 3 felony, and criminal trespass to a residence (7 20 ILCS 5/19--4( a)(2), (b) (2) (West 2002)), a Cl ass 4 felony, and was sentenced to 30 months' probation . Later, the tr ial court r evoked his probation and impos ed concurrent extended-ter m sentences of 10 years' impri sonment with credit for 436 day s served. After the trial court decli ned to reconsid er the sentences , defendant appealed. On appeal, defendant conte nds that (1) t he extended-term sentences must be vacated becaus e the record doe s not show that, when he pleaded guil ty, he knew that extended-ter m sentencing w as possible for

either offense; (2)

he was in eligiblefor an extended-term sentence for criminal trespass to a residence; (3) even if he was eligible for an extended-term sen tence for criminal trespass to a reside nce, the sentenceNo. 2--05--0400

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imposed exceeds the statut ory maximum; and (4) he is entitled to an extra day of credit for time served against his sentences. T he State confesse s error on all but the first contention. We vacate the ex tended-term sentences, impose the max imum nonextended-ter m sentences, gr ant defendant an extr

a day of sentenci ng credit, and otherwis e affirm the judgment. On January 12, 2004, at a heari ng at whi ch Judge Kathr yn E. Zenoff presi ded, the parties pr

esented an agre ement under whi ch defendant would plead guil ty to aggravated battery and criminal trespass to a residence, the State would dismiss a charge of home invasion (720 ILCS 5 /12--11(a)(2) (W est 2002)), and the parties would recommend a sentence of 30 months' probati on. In the cours e of admonishing defendant, Judge Zenoff rec ited the charg e of aggravated battery, then stated:

"That is a Class 3 felony. That is punishable by probation and a term in the Winnebago County Jail of up to 6 months and a fine up [ sic ] $25,000. It is also p unishable by a term in pri son of 2 to 5 year s in the Depar

tment of Corrections . If extended ter m applies, it' s 2 to 10 year s. The period of par

ole, mandatory super

vised rel ease, is one year. Do you understand the r ange of pen alty [ sic ]?" After defendant responded, "Yes," Judg e Zenoff recited the c harge of cri minal trespass to a residence and s tated:

"That is a Clas s 4 felony. That is also a pr obational offense. The probation can be accompanied by up to six months in the Winnebago County Jail and fined [ sic ] up to $25,000. The per iod of parole, mandator y superv ised release, is one year.No. 2--05--0400

-3- If extended term app lies, the term is instead of 1 to 3 years in prison, it's 1 to 6 years in prison. Do you under stand that?" After defendant responded affirmat ively , the court hear d the factual basis

for the plea. Judge Z enoff then asked whether defendant had any pr ior convi ctions. The assistant State's Attorney stated th at, in January 2003, defe ndant was fined for a misdemeanor conv iction of resi sting a peac e officer and that, "according to a pretrial service s report dated September 29, 2003, thedefendant was i n prison in 1 999 for Possession of a C ontrolled Subs tance, a Class 4 felony, w ith a parole v iolation in 2002 it l ookslike." D efend ant' s co unse l ag reed wi th th is s ummar y. Judg e Zen off admonished def endant furthe r as required (see 177 Ill. 2d R. 402) and sentenced him to 30 months' proba tion per the pl ea agreement. On June 1, 2004, the State petitioned to revoke d efendant's probation. On December 23, 2004, the trial court, Judge J oseph G. McGr aw presi ding, held an evidentiary hearing and found that de fendant had violated his probation. The cause proceeded to a sentencing heari ng before JudgeMcGraw on March 22, 2005. Def end ant' s att orne y, Kun al Ku lkarn i, who had n ot re pres ente d def end ant a t the guilt yplea hearing, referred the cou rt to the presentencing investigation report (PSIR), particular ly its summary of defendant's prior conv ictions. The PS IR states that , on January 27, 1997, defendant was fined for "Use of Metal Point Bullets ." According to Kulkarni, the PSIR seemed to imply that this offense was a Class 2 felony, but defendant c laimed that it was a misde meanor. Kulkar ni said that he was uncertain whether defen dant was "ultimately extended term eligible in this case." He added that he had spoken with offici als of the Depart ment of Correcti ons (DOC) andNo. 2--05--0400

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ascertained tha t defendant had prior convicti ons of "both a Class 2 and a Class4." Thus, as Kulkar ni "had attempted to ex plain to [defendant]," defendant was "ex tended term eligi ble on a Class 3, so that isan issue as far as the sentencin g parameters go. That's what w

e wish to raise to the C ourt." The assis tant State's Attorney, Mi chael Combs, told the court that the D OC had informed him t hat, in case N o. 99--CR- -41301, defendant had been sentenced to concurrent three-year terms "for a Class 2 an d Class 4 felony." Combsconceded that "Us e of Metal Point B ullets" appeared to have been a misdemeanor. Judge McGraw agreed with Kulkarni and Combs tha t defendant's criminal r

ecord needed clar ification. After a witnesstestified in ag gravati on, the hearing was conti nued. The next day, after two witnesses testified in mitigation , Combs told the court that, in casesNos. 99--C R--41301 and 98- -CR--1828 001, defendant had recei ved

conc urre nt th ree- year p rison term s fo r a Cla ss 2 f elon y and a Class 4 fe lony, respectively. Kul karni commented tha t, in the pres ent case, Kulka rni did not k now whether "at the time [defendant] enter ed into this pl ea for aggra vated battery *** [defendant] did know

whether or

not he was extended term el igible." At a short hear ing on April 1, 2005, Kulkarni and Com bs agreed that, under People v. Eisenberg , 109 Ill. App. 3d 98 (1982), defendant could not r eceive an ex

tended-term sentence if he had not been admonished before pleading g uilty that extended-ter m sentencing w as possible. On April 22, 2005, the cause pr oceeded to sentenci ng. In pronoun cing the sentences, Judg e McGraw stated in part :No. 2--05--0400

-5- "I do find that he is

eligibl e for extended ter m. I do find that at t he time he pled guilt y to this offense, he was placed on probation, hewas adv ised of the range of exte nded term penaltie s. He knew what his criminal r

ecord wasat the time he pled gu ilty to this offense, even i f for some reason the pr osecutor and the defense attorney

either didn' t know or

didn't accur

ately art iculate the ex

tent of his prior r

ecord. But at t he time that he ple d guilty he had those Cook

County convictions. And for whatever reason, that was not known to the Stat e's Attorney. But he was eligible. The point is he was told that--told that if you are eligiblethis is thesentencing range, and I be lieve that 's what t he statute requires ." Conclud ing that d efen dant's criminal history was "e xtremely se rious," Judge McGra w sent ence d him to co ncur rent 10-ye ar pri son t erms , with c redi t fo r 436 days

serve d in cu stod y. Defendant mo ved to reconsider, asserting that, when he pleaded guilty, "all parties beli eved" that he w as inelig ible for extended-term sentenc ing. Thus, he argued, based on Eisenberg , the extended-term sentences w ere improper. Judge McGr aw disagreed, explaining that, when de fendant pleaded guil ty, he knew that he had a convicti on of a Class 2 felony , and Judge Zen off admonished him "what the range of penalties w

ould be if he was extended ter m eligibl e." Defendant appealed. On appeal, defendant arg ues that (1) h is extended-term sentences mus t be vacated becaus e, when he pl eaded guilty , he was not properly admonished that extended-ter m sentencing w as possible; (2) even i f extended-term s entencing w asNo. 2--05--0400

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proper, the tr ial court erred in imposi ng an extend ed-term sentence on the convi ction of criminal tr

espass to a res idence; (3) even if extended-term sentenc es for both convictions were proper, the 10-year sentence for criminal tresp ass to a residence exceeds the s tatutory max imum of 6 years a nd must be reduced to 6 years; and (4) he is entitled to an extra day of credit for time that he sp ent in custody before he was sentenced. We hold that (1) defendant w as inelig ible for extended-term sentenc ing on either conv iction; (2)

defendant's second and third clai ms of error aretherefore moot; and (3) defendant is

entitled to an extra day of sentencing c redit. Defendant cont ends first that the trial court erred in imp osing extended-term sentences after r

evoking his probation. Defendant relie s on section 5- -8--2(b) of the Unified Code of Correction s (Code), which states, "If the conviction was by plea, it shall appear on the record that the pleawas enter ed with the defendant's knowl edge that [an extended-ter m sentence] was a possibil ity. If it does not so appear

on the record, the defendant shall not be subject to suc h a sentence unles s he is first given a n opportunity to withdr aw his pl ea without p rejudice." 73 0 ILCS 5/5--8 --2(b) (West 2004). Defendant cont end s tha t thi s case is con troll ed by Eisenberg 's construc tion and application of section 5-- 8--2(b). We agree. In Eisenberg , the defendant pleaded g uilty to two offenses and w as sentenced to 12 months of pe riodic imprisonment. Three m onths later, the State pe titioned to revoke his periodi c imprisonment. The trial co urt granted the petition and s entenced the defendant to an extended term on the more s erious offense. On appea l, the defendant contended that, under

section 5-- 8--2(b) of the Code, the extended term was improper because, when he pleaded guil ty, the tr ial court di d not inform him that an extended-No. 2--05--0400

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term sentence w

as possible. The appellate cour t agreed, vacated the extended sentence, and remanded the cause for sentencing in accordance w ith section 5- -8--2(b) of the Code. Eisenberg , 109 Ill. App. 3d at 100. We note that section 5--8-- 2(b) of the Code r equires tha t, for an extende d sentence to be impos ed on a guilt y plea, "it

shall appear on the record t hat the plea was entered with a defenda nt's knowledge that [an extended-term sen tence] was a possibilit y." 730 ILCS 5/5--8--2 (b) (West 2004). Thus, sect ion 5--8-- 2(b) does not explicitly require the trial court to admonish a defenda nt that an extended-term sentence is a po ssibilit y. However, the Eisenberg court sensi bly presu med that, absent such an admonishment, the defendant did not know that extended-term sentencing was possible. Eisenberg , 109 Ill. App. 3d at 100. Secti on 5--8--2( b) does not place the burden on the def endant to establish tha t he did not know that extended-term sentencing w

as possible; instead, it r equires tha t the record s how that he di d know of such a possibi lity. Thus , the revi ewing court in Eisenberg concluded, absent any indication oth erwise, that the defendant pleaded guilty without k nowing t hat he was eligiblefor extended-term sentencing

. Eisenberg , 109 Ill. App. 3d at 100. We also agree with the Eisenberg court that, when an extended-term sen tence is imposed after the r

evocation of a l esser punishment such as probat ion, the proper remedy is to vacate the extended-term sente nce so that a nonextended -term sentence may be imposed. Section 5-- 8--2(b) of the Code does not ex plicitly provide for

such a remedy. It states that, i f the defendant does not rec eive the pr oper admonishments, he shall not be s ubject to an ex tended-term sentence unless he is first allow

ed to withdr

aw his plea without prejudice. 730 ILCS 5--8--2(b) (W est 2004). Thus, if a de fendant isNo. 2--05--0400

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original ly sentenc ed to an extended term witho ut having received the proper admonishments, hisremedy isto move to w ithdraw h is guilt y plea. See Peop le v. Cavins , 288 Ill. App. 3d 173, 180 (1997). However, if the trial court does not initially sentence the defendant to an extended ter m, but does so only after the revocation of his periodi c imprisonment (as in Eisenberg ) or probati on (as here), the statutory remedy is unavail able. In a probat ion-revoc ation p roceed ing, the d efen dant m ay not cha llenge the basis of the under lying convicti on. People v. D ieterman , 243 Ill. App. 3d 838, 841 (1993). Thus, w

e agree w ith Eisenberg that the proper remedy isto vacate t he extended-ter m sentence so that the defendant may be se ntenced in accor dance with the a dmo nish men ts th at he rece ived b efo re he plea ded guilt y. W e now a pply Eisenberg to this case. The record doesnot show th at, at the guilty-plea hearing , defendant was admoni shed that an ex tended-term sentence was possible. J udge Zenoff told defendant that his convi ction of aggr

avated batter

y was "punishable by

a term in pri son of 2 to 5 year s in the Depar

tment of Correcti ons. If extended term ap plies, it' s 2 to 10 year s." (Emphasisadded.) Simil arly, i n admonishing defe ndant about t he pote ntial se ntence for crim inal tres pass to a residen ce, Judge Zenoff stated, " If

extended ter m applies, the te rm is *** 1 to 6 years in prison." (Emphasis added.) Thu s, Judge Zenoff did no t inform defe ndant that he was eligible for extended-term sentencing; she merely stated that, if he were eligible, certain penalties could follow. This type of conditional, tentative admo nishment leaves a defendant to speculate whether an extended-term sentence is indeed possible in his case. Therefore, i t does not establ ish that secti on 5--8--2( b) of the Code has be en satisfied.No. 2--05--0400

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Moreover , the remainder of the record not on ly fails to rebut the pres umption that defendant did not know that extended-term sentencing was possi ble; it rei nforces the presum ption. At the guil ty-plea he aring, even the att orneys an d the tria l judge expressed u ncertainty

about defendant's pri or convic tions, whi ch provid ed whatev er basis exi sted for the ex tended-term sentences that wer e imposed later. Even at resentencing, the parties and th e trial judge apparently did not realize that defen dant's prior convictions included a Class 2 felony. (W ithout this conviction, defen dant would not have been el igible for an extended-term sentence on the C lass 3 felony of aggravated battery. See 730 ILCS 5/5--5--3. 2(b)(1) (W est 2004).) Moreover , Kulkarni told the court that, even after defendant had pleaded gui lty and been s entenced to probation, Kulkarni had "a ttempted to explain" to de fendant that an extended-term sentence for agg ravated batte ry was possible. The proceedings at the guil ty-plea hearing and after

ward do not suggest t hat, when he pl eaded guilty , defendant knew that he could r

eceive an ex

tended-term sentence. Indeed, the record creates do ubt that, when defendant pleaded guil ty, anyone realiz ed that he was eligibl e for extendedterm sen tencin g. Judge McGraw's observation that defendan t always knew that he had a Class 2 felony conv iction mayhave been acc urate, but it w as beside the poi nt. That defendant knew of his C lass 2 felony convicti on does not imply that he knew

the legal

cons equ ence s of t he co nvi cti on. T o pr esum e suc h le gal exp ert ise on th e par t of a defendant would v itiate secti on 5--8--2( b) of the Code and, mor e generally , imply tha t a trial court need not admon ish a defendant who pleads guilty about the possible penalties that he fa ces. Of course, the law is otherwise. See 177 Ill. 2d R. 402(a)(2).No. 2--05--0400

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The record does not

demonstrate that, when he pleaded guilty , defendant knew that extended- term sentencing was a poss ibility . Therefore, in ac cordance w ith Eisenberg , we vacate defendant's extended -term sentences. Under the circumsta nces, it is not necessary to remand the cause to th e trial court for resentencing. The record establishes that Judge McGraw intended to imp ose the maximum available senten ce for each convi ctio n. Th us, u nde r Sup reme Court Rule 6 15(b )(4) (1 34 R. 615( b)(4 )), we reduce defendant's concurrent sentences to the max imum nonextended terms, five years for ag gravated battery and t hree years for criminal trespass to a residence. Because we v

acate both extended-term sentences, we need no t consider defendant's arguments that he could not

receive extended-ter m sentences on both convictions and that his extended-term se ntence for criminal trespass to a residence

exce eds thestatutory maxim um. Finally , defendant contends that he is entitl ed to an extr a day of sentenci ng credit, for a total of 437 days, instead of the 436 day s that the tri al court aw arded. The State confesses er ror, and we accept the confess ion. Therefore, w e modify the sentences to award defen dant a total of 437 days' credit for time that he spent in custod y before senten cing. In sum, we r

educe defendant's concu rrent sentence s to five years' impri sonment for aggravated battery and three year s' imprison ment for criminal trespass to a residence, and we amend the judgment and the mittimu s to reflect that def endant is award ed 43 7 days ' cred it fo r time serve d bef ore s ente ncin g. In a ll oth er res pect s, we affirm the judgment. The judgment of the ci rcuit cour t of Winnebago County is affirmed as modified.No. 2--05--0400

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Affirmed as modified. GILLERAN JOHNSON, J., concurs. JUSTICE KAPALA, concurring in part and di ssenting i n part: I agree with that part of the majority decision that m odifies defen dant's sentence for criminal trespass to a residence to three years' imprisonment, although, as I explain below, I di sagree w ith its anal ysis. I also agreethat defendant is enti tled to a total of 437 days' c redit for time s erved. Howeve r, I cannot ag ree with the majority that defendant was inel igible for an extended-term sentence for his convicti on of aggravated battery. Therefore, I respectfully dissent from the part of the major ity deci sion that reduces defendant's sentence for agg ravated batte ry to five years' imprisonment. The majority concludes that de fendant was ineligible for an extende d-term sentence because, in contrav ention of section 5- -8--2(b) of the Code, the r

ecord does not reflect that w hen he entered hisplea he had know ledge of the possi bility of extended-ter m sentencing. The majority indicates tha t it applied Eisenberg , 109 Ill. App. 3d 98, to deter mine that the tri al court did not adequately inform defendant of the possibilit y of an extend ed-term sentence. However, Eisenberg supports only the proposition t hat the record must reflect that prior to hi s plea the defendant had knowledg e of the possibil ity of an ex tended-term sentence. Eisenberg , 109 Ill. App. 3d at 100. Eisenberg does no t addr ess w hat sta tement b y a tr ial c ourt s ufficie ntly informs a defendant of the possibility that he could receive an extende d-term sentence. Unlike the case at bar, in Eisenberg there was no indication in the record that the cou rt informed the defendant of the poss ibility of an extended-term sentence. Eisenberg , 109 Ill. App. 3d at 100. In con trast, in this case, prior to defend ant's plea, the trial courtNo. 2--05--0400

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judge advi sed defendant that if ex tended-term sentenc ing applied, his convi ction of aggravated battery could result in a sentence of 2 to 10 years'imprisonment. I find no case that disc usses the lang uage a trial court judg e must use to prop erly al ert a defendant to the possibi lity of an ex tended-term sentence. Howeve r, I disagree with the majority's conclusion that the trial court's admo nishment failed to satisfy section 5--8-- 2(b) of the Code. Section 5--8- -2(b) state s, in part: "If the convict ion was by plea, it shal l appear on the r ecord that the pl ea was entered wit h the de fendant' s know ledgethat a senten ce unde r thi s [ex tended-term] [s]ection was a possibilit y ." (Emphasis added.) 730 IL CS 5/5--8--2(b) (W est 2004). The majority concludes that t he trial cour t judge's s tatement to defendant that "[i ]f extended term ap plies, it' s 2 to 10 year s" was too tentative todemonstrate that defendant had knowl edge that an ex tended-term sentence was a poss ibility . I disagr ee. Black's Law

Dictionar

y defines a "poss ibility " as, "An event that may or may not happen." Black's

Law Dic tionary 118 5 (7th ed. 1999). According ly, sect ion 5--8-- 2(b) required only that the record reflect that de fendant knew that an e xtended-term sentence may or

may not occur . When the trial court judg e informed defendant of the consequences o f extended-term s entencing, s he alerted defendant to the fact that a sentence of 2 to 10 years' impri sonment may or may not happen. I do not believe that using the ter m "if" before "extended term" negates the defendant's knowl edge of the possibility of extended-term senten cing. In fact, by using the term "if," the trial courtNo. 2--05--0400

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specifically indicated that extended -term sentencing may or may not apply and, thus, suggested that it wa s a possibil ity for defendant. The majority asserts that defendant did not beli eve extend ed-term sentenci ng applied to him. Howeve r, this does notobviate the fact that the tr ial court al erted defendant that extended-term sentencing was a poss ibility . Simply because defendant did n ot be lieve exten ded -term sent enci ng ap plie d to h im do es no t mea n he d id no t have knowledg e that an extend ed-term sentence was a poss ible result of a convicti on of aggravated battery. Defendant had kno wledge of the possibility, but believed that it would not oc cur. Thus, becaus e the record s hows that defendant had knowledg e of the possibility of an extended-term sente nce, I believe that the trial court could impose upon defendant an extended -term sentence for aggravated battery. As a resul t, I oppose the majori ty's modification of defendant's senten ce for aggr avated batter

y from 10 years' imprisonment to 5years' imprisonment. Although the maj ority uti lizes th e same analys is to show that defendant wasnot subject to an ex

tended-term sentence for criminal trespass to a residence, I agree on other grounds. Defendan t argues that imposing an extended-term sentence for his convicti on of criminal t respass to a r esidence was erroneous because an extendedterm sentence may

be imposed only

for a defendant's most s erious conv iction. The State concedes su ch an error. Our supreme court has held t hat the plain l anguage of section 5-- 8--2(a) of the Code (730 ILCS 5/5--8--2( a) (West 2004)) requi res that w hen a defendant has been conv icted of multipleoffenses of differing clas ses, an exte ndedterm sentence may

be imposed only

on the convi ction wi thin the most ser ious class. People v. Thompson , 209 Ill. 2d 19, 2 3 (2004 ), citing People v. J ordan , 103 Ill. 2d 19 2No. 2--05--0400

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(1984). As t he majority points out, defendant p leaded guilt y to agg ravated batte ry, a Class 3 fe lony, and c rimin al tre spas s to a resid ence , a Cla ss 4 f elon y. Acco rdin gly, because defendant wa s convic ted of two offenses of differing classes, he could be sentenced to an ex

tended-term sentence only for ag gravated battery. S ee Thompson , 209 Ill. 2d at 23. Theref ore, I agree with the majority that the trial court erred when it sentenced defendant to an ex tended term for cr iminal tresp ass to a resi dence, and I support the major ity's modi fication of defendant's sen tence for that offense to thr ee years' i mprisonmen t. In addition, because the majority properly reduced defendan t's sentence for criminal trespa ss to a residence to 3 years' imprisonment, de fendant's argument that a sentence of 10 year s' imprison ment exceeds th e statutory maximum for that offense is now

moot. For the foregoing reasons, I respectf ully dissent from the part of th e majority's decision that vacated defendant's extended-ter m sentence for agg ravated batte ry and modified defendant's sentence for aggrav ated battery from 10 years'imprisonment to 5 yea rs' impr iso nment . Ot herw ise , I c oncu r w ith the m ajor ity 's d eci sio n to m odif y defendant 's sentences and aff irm the trial court in all other respects.