## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Deng, 2013 IL App (2d) 111089

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. GARENG DENG, De fenda nt-Appellant.

District & N o. Second District Docke t No. 2-11-1089

Filed J une 14, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s agree ment to plead guilty to first-degree murder in exchang e for a sentenc e of 35 y ear s’ imprisonment for shootin g th e victim of a residential burg lary was void, since he wa s not admonished about the mandatory sentenc ing enhanc ement of 25 year s to life that applied to his offe nse; there fore
, the judgme nt was vacated and the cause was rema nded to allow defe ndant to withdraw his plea and proc eed to tria l.

Dec ision Under Review Appea l from the Circuit C o u rt of Kane County
, No. 07-CF- 2958; the Hon. Allen M. Ande rson, J udg e, pre siding.

J udg ment Vac ated a nd rema nded.Counsel on

Appea l T h o m as A. L ilien and Steven E. Wil tge n, both of State Appellate Def ender ’s Off

ice, of Elg in, for appe llant.

J oseph H. McMahon, State’s Attorney
, of St. C h ar les (L awr ence M. Ba uer a nd Aline Dias, both of State’ s Attorney s Appellate Prosecutor’s Offic e, of c ounsel), for

the People.

Panel J USTI CE Z ENOF F de livered the judgme nt of the cour t, with opinion.
J ustices Hutchinson and J org ensen concur red i n t he judgme nt and opinion.

OP INION ¶ 1 Def

endant, Gar eng Deng
, appea ls his sentenc e of 35 y ear s’ incar cer ation for first-degree

m urd er (720 I L CS 5/9-1(a) (3) (West 2004)). He contends that his sentenc e and pl ea agree ment are void beca

use he did not rec eive, and was not admonished about, a mandatory
sentenc ing enhanc ement. We agree

. Acc ording ly
, we vacate th e s en tence and rema nd to allow def endant to withdra

w his plea.

¶ 2 I . BA CKGROUND ¶ 3 In November 2007, defe ndant was charg ed wi t h m u l t i p l e co u n t s in connec tion with
events that occur

red in October 2005. He later pleade d guilty to count I I I
, which charg ed that defe ndant, without lawful justification, while committing the f orcible f elony of residential burg lary
, shot Marily

n Be thell with a firea

rm, causing her death. 720 I L CS 5/9-1(a) (3) (West 2004). Other counts also involved the use of a firea rm. In particula

r, count I alleg ed that defe ndant, without lawful justification and with the intent to kill, shot Be thell with a firea rm, causing her death when he personally discharg ed the firea rm. 720 I L CS 5/9-1(a)(1 ) (W est 2004). C ount I I alleg ed that defe ndant, wit hout lawful justification, shot Be thell, knowing that the act cre ated a strong probability of death or g reat bodily harm when he persona lly discharg ed the f

irea rm. 720 I L CS 5/ 9-1(a )(2) (West 2004). ¶ 4 At the preli m i n ar y h ea ri n g, t h e S tate told the court that counts I and I I alleg ed that defe ndant persona lly discharg ed a firea rm, such that a mandatory enhanc ement of 25 y ear s to life applied to those counts. 730 I L CS 5/5-8-1(a )(1) (d)( iii) (West 2004). The court asked for clar ification, inquiring if an enhanc ement was all ege d o n l y in counts I and I I
, and the State aff irmed this. The court then admonished defe ndant that counts I and I I subjected him
to 20 to 60 y ear s’ incar cer ation, 3 y ear s of mandatory supervised release, fines of up to $25,000, and a 25-year -t o -l ife enhanc ement. Def endant was admonished that count I I I subjected him to 20 to 60 year s’ incar cer ation, 3 y ear s of mandatory supervised rele ase, and fines of up to $25,000. De fenda nt stated that he unde rstood.

-2-¶ 5 On May 9, 2009, defe ndant pleade d guilty to count I I I under a neg otiated plea a g ree ment.

Def endant stipulated to a fac tual basis that restate d the charg e, including that he shot Be thell during a residential burg lary

. T h e fa ct u al basis also included that Be thell was found dead along a path, with a gunshot wound to the head, and that she was shot at the location wher e her body was found. Def

endant was seen exit ing Be thell’s vehicle afte r an acc ident and then
enter ing another vehicle. His DNA was rec overe d from Be thell’s home and f rom a bicycle found near her home. A “CZ caliber ” T o rk er ev wea pon was rec overe d and compar ed to bullets rec overe d from Be thell’s body
, but no match could be made. How ev er , a bullet showed the c lass char acte ristics of a Tor kere v. ¶ 6 The State informed the court that, in exchang e for the plea, defe ndant would be sentenc ed
to 35 y ear s’ incar cer ation to be serve d at 100% and the other counts would be dismiss ed. The
court admonished defe ndant that the offe nse car ried a penalty of 20 to 60 y ear s’ incar cer ation and it acc epted the ple a. ¶ 7 Def

endant moved to wi t h d ra w h i s p lea, arguing ineffe ctive assistance of counsel a nd alleg ing that a person named Robert actua lly committed the crime. The motion was denied. Def endant a ppeals.

¶ 8 I I . ANALYSI S ¶ 9 Def

endant contends that, under People v. W hite
, 20 1 1 I L 109616, his sentenc e is void beca use it was subject to a mandatory enhanc ement of 25 y ear s to life and the failu re to proper ly admonish him of the enhanc ement made the plea a g ree ment void. ¶ 10 Under section 5-8-1 of the Unified Code of Correc tions (730 I L CS 5/5-8-1 (West 2004)), the sentenc ing rang e for first-degree murder is 20 to 60 y ear s’ incar cer ation (730 I L CS 5/5-8- 1(a) (1)( a) (West 2004)). Howeve r, section 5-8-1 require s the imp o s i t i o n of an enhanc ed
sentenc e wher e a firea

rm is used in the offe nse, providing that “if, during the commission of the offense, the person personally discharg ed a firea rm th at p ro x i m ately cause d *** death
t o an o t h er person, 25 y ear s or up to a term of natura l life shall be added to the term o f imprisonment impos ed by the cour t.” 730 I L CS 5/ 5-8-1( a)( 1)(d) (iii) (West 2004). ¶ 11 I llinois Supreme Court Rule 402(c) (ef f. J uly 1, 1997) provides that a trial court c annot enter a final judgme nt on a plea of guilty without first deter mining that there is a fac tual basis for the plea. W

hite
, 2011 I L 109616, ¶ 17. “The fac tual basis for a guilty plea g ener ally will consist of an exp ress admissi on by the defendant that he commit ted t he acts alleg ed in the indictment or a re ci tal to the court of the evidenc e that supports the alleg ations in the indictment.” Id. “[T] he fac tual basis will be established as long as there is a basis any wher e in the rec o rd up to the final judgme nt from which the judge could rea sonably rea ch the conclusion that the defe ndant actua lly committed the acts with the intent, if any , require d to constitute the offe nse to which he is pleading guilty .” People v. B r a z ee , 3 1 6 I l l. App. 3d 1230, 1236 (2000). ¶ 12 “Onc e a trial court acc epts a plea of guilty
, it is the duty of the court to fix punishment.” W h i t e , 2 0 1 1 I L 109616, ¶ 20. The supreme court has “ ‘re peate dly rec og nized that the leg islature has the power to presc ribe penal t i es for define d offe nses, and that power

nece ssarily includes the authority to pr escr ibe mandatory sentenc es, even if such sentenc es

-3-restric t the judiciary ’s discretion in imposing sentenc es.’ ” I d

. ( q u o ting People v. Huddleston
, 212 I ll. 2d 107, 129 (2004))

. A court does not have authority to impose a sentenc e that does
not confor

m with statutory guidelines and it e x cee ds its a uthority when it or ders a lesser or g reater sentenc e than mandated by statu t e. Id

. “In such a case , the defe ndant’s sentenc e is i l l ega l an d void.” Id. “Whether a sentenc e is void is a question of law subject to de n o vo revie w.” People v . Cortez , 2012 I LApp (1st) 102184, ¶ 9. ¶ 13 In W

hite
, the defe ndant p l ea d ed gu i l t y t o fi rs t -d egr ee m u rder and possession of
contra band in a penal institution, in exchang e for consec utive prison sentenc es of 28 and 4
y ear s. W hite
, 2011 I L 109616, ¶ 4. The fac tual basis for the plea established that, if the case proce eded to trial, the evidence would show that the defendant and a code fenda nt planned
to rob a taxi driver and wer e both inside the taxi when the driver was shot in the temple with

a handg un. It was further stipulated that, afte r the driver was shot, the defe ndant took the handgun from the codef

endant and put it in h is back pocket. Id. ¶ 6. The defe ndant later moved to withdraw his plea, arguing in part that he was not proper ly admonished about the
sentenc ing rang e beca

use he was subject to a 15-year mandatory enhanc ement for being

arme d with a firea

rm while committing the offe nse. Id. ¶ 9; see 730 I L CS 5/5-8-1(a )(1) (d)( i) (West 2004). As a result, the defe ndant argued, his sentenc e was void beca use it was below the mandator

y minimum

. W

hite , 2011 I L109616, ¶ 9. The tr ial court de nied the motion. ¶ 14 Our supreme court held that the defe ndant’s sentenc e was void. Id. ¶ 21. The court noted that a trial co u rt may not impose a sentenc e inconsistent with the g overning statutes even wher e the parties and the trial court agree to the sentenc e. Id. ¶ 23. The court then specific ally reje cted an argument that the intent of the parties to agree to a murder conviction without the
sentenc ing e nhance ment was c ontrolling, notingthat, in enac ting se ction 5-8-1( a)( 1)(d) (i), the leg islature took awa

y any discretion the State and the trial court had to fashion a sentenc e that did not in clude the enhanc ement. Id. ¶ 26. The court conclude d that, since the fac tual basis for the defe ndant’s plea established that the victim died of a gu n s h ot wound, the
sentenc ing enhanc ement was mandatory and the defe ndant’s sentenc e, which did not contain the enhanc ement, was void. Id. ¶ 21. Fur ther, beca use the defe ndant was not admonished of the enha nceme nt, the plea a g ree ment was void as we ll. Id. The court rema nded the case to the t ri al co urt with direc tions to permit the defe ndant to withdraw his plea. Id. ¶ 31. In a specia l concur

renc e, J ustice Theis observe d that, had the S tate wished to neg otiate around the enhanc ement, it should have prese nted a fac tual basis that ref err ed to a dang erous wea

pon instead of a

firea rm. Id. ¶ 41 (The is, J ., specia lly concur ring ). ¶ 15 Her e, the State prese nted a fac tual bas i s th at i n cl u d ed the fac t that defe ndant “shot” Be thell with a firea

rm, causing her death. Thu s , defe ndant argues, he was subject to the mandatory enhanc ement. The State attempts to distinguish W hite
, arguing that t he fac tual basis did not incl u de the words “per sonally discharg ed” or otherwise show that defe ndant “per sonally discharg ed” a firea rm. Instead, the State sug g ests, the rec ord shows an intent to plead guilty to an offe nse based on an acc ountability theory

. In doing so, the State relies on

a case holding that the term “per sonally discharg ed” in se ction 5-8-1 distinguishes case s in which the defe ndant actua lly fired the shot from case s in which the defe ndant could be held

ac countable for a shooting done by another

. People v. Rodriguez
, 229 I ll. 2d 28 5
, 2 9 4 -9 5 (2008). The State then relies on a case in which mul tiple people fired s h ots, the defendant

-4-and another wer e charg ed with shooting the victim, and the court h el d th at it was not

nece ssary to prove that the defe ndant fired the shot that wounded the victim. People v. Allen
, 56 I ll. 2d 536, 540 (1974). But those case s are not applicable here
, beca use an acc ountability theory was not pre sented by

the fa ctual basis. ¶ 16 The State asser ts that the fac tual basis, by ref er ri n g t o d ef

en d ant’s enter ing a

nother vehicle, could have implied the involvement of another person. B ut that ref

ere nce was not sufficie nt to show that defe ndant was guilty only under an acc ountability theory

. There was

no alleg ation that any other person s h o t Be thell or was even prese nt when the shooting

occur red. To the contrary
, the charg e, which was specifica lly included in the fa ctual basis, stated that defe ndant “shot” Be thell, causing her death, and the addit i o nal fac ts provided

serve d to place defe ndant at Be thell’s home. The brief mention of another vehicle does not transfor m the matter into one involvingacc ountability

. ¶ 17 Whil e it is possib l e t h at t h e S t at e intended to remove the enhanc ement when it was
neg otiating the plea, as evince d by the State’s telling the court at the preliminary hearing that only counts I and I I involved the enhanc ement, it did nothing to remove the en h an ce m en t from the fac tual basis for the p l ea

. Ha d the State wished to neg otiate a plea based on an

acc ountability theory
, it could have amende d the fac tual basis to support such a theory

. In the alternative, it could have amende d the fac tual basis to alleg e that defe ndant cause d the death with a dang erous wea

pon, as sug g ested by J ustice Theis specia lly concur ring in W hite

. But it did not do so. Acc ording ly
, the trial court was left with no sufficie n t b asi s to find that
anyone other than defe ndant persona lly discharg ed the firea rm that cause d Be thell’s death. It was thus require d to sentenc e defe ndant with the 25-year -to-life enhanc ement, making 45
y ear s the minimum possib l e sentenc e. Be cause defe ndant was sentenc ed to less than that amount, and was not admonished of the enhanc ement, his sentenc e and the plea agree ment that led to it are void.

¶ 18 I I I . CONCLUSI ON ¶ 19 Def

endant’ s sentenc e and plea agree men t ar e v o i d

. Ac co rd i n gl y , under W hite , the judgme nt of the circ uit court of Kane County is vacated and the cause is rema nded to the trial
court with direc tions to allow defe ndant to withdraw his guilty plea and proce ed to trial if he chooses to do so.

¶ 20 Vac ated a

nd rema nded.

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