No. 2--95--0164

_________________________________________________________________

                              IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE OF     )  Appeal from the Circuit Court

ILLINOIS,                      )  of McHenry County.

                               )

     Plaintiff-Appellee,       )  No. 90--CF--509

                               )

v.                             )

                               )  

WALTER BLANCK,                 )  Honorable

                               )  Henry L. Cowlin,

     Defendant-Appellant.      )  Judge, Presiding.

_________________________________________________________________

     JUSTICE McLAREN delivered the opinion of the court:

     The defendant, Walter Blanck, appeals from his sentence for

aggravated kidnaping (720 ILCS 5/10--2 (West 1994)).  We reverse

and remand for the issuance of a corrected judgment order and

mittimus sentencing the defendant to 13 years' imprisonment.  

     On February 20, 1992, after a jury trial, the defendant was

convicted of aggravated kidnaping (720 ILCS 5/10--2 (West 1994))

and aggravated criminal sexual assault (720 ILCS 5/12--14 (West

1994)).  Aggravated criminal sexual assault is a Class X felony

for which the normal sentence range is 6 to 30 years'

imprisonment, but the extended range is 30 to 60 years'

imprisonment.  720 ILCS 5/12--14(d) (West 1994); 730 ILCS 5/5--8-

-1(a)(3) (West 1994); 730 ILCS 5/5--8--2(a)(2) (West 1994). 

Aggravated kidnaping is a Class 1 felony for which the normal

sentence range is 4 to 15 years' imprisonment, but the extended

range is 15 to 30 years' imprisonment.  720 ILCS 5/10--2 (West

1994); 730 ILCS 5/5--8--1(a)(4) (West 1994); 730 ILCS 5/5--8--

2(a)(3) (West 1994).  At the defendant's sentencing hearing on

April 9, 1992, the trial court found the defendant eligible for

an extended-term sentence for the crime of aggravated criminal

sexual assault because the offense was accompanied by

exceptionally brutal and heinous behavior indicative of wanton

cruelty.  Under Illinois law, the court could not impose an

extended term for aggravated kidnaping because the defendant was

being sentenced for a more serious felony.  730 ILCS 5/5--8--2(a)

(West 1994); People v. Jordan, 103 Ill. 2d 192, 205-06 (1984). 

The court imposed a sentence of 60 years' imprisonment for the

aggravated criminal sexual assault and a consecutive 13 years'

imprisonment for aggravated kidnaping.

     The defendant appealed to this court, and on April 15, 1994,

we issued an opinion reversing the defendant's conviction of

aggravated criminal sexual assault because the State had failed

to prove sufficiently jurisdiction, i.e., whether the offense

occurred in Illinois or Wisconsin.  Further, we vacated the

sentence for aggravated kidnaping and remanded the cause for

resentencing.  We denied the defendant's petition for rehearing

but issued a modified opinion on June 15, 1994.  See People v.

Blanck, 263 Ill. App. 3d 224 (1994).  With respect to the

aggravated kidnaping conviction, our opinion directed the trial

court to consider whether it could, in accordance with law,

impose an extended-term sentence for that conviction because it

was now the most serious offense of which the defendant was

convicted.  Blanck, 263 Ill. App. 3d at 231.

     Upon remand, the resentencing hearing occurred on January

27, 1995.  Neither the State nor the defense offered evidence

based upon conduct on the part of the defendant occurring after

the original sentencing hearing.

     The trial court judge decided that he had the authority to

impose an extended-term sentence.  He recognized that he could

not originally have set a sentence in the extended-term range for

the Class 1 offense of aggravated kidnaping, but decided that the

range was available after our reversal of the Class X conviction

of aggravated criminal sexual assault.  The trial court judge

then sentenced the defendant to 30 years' imprisonment for the

aggravated kidnaping conviction.  The defendant appeals.

     Section 5--5--3(d) of the Unified Code of Corrections (Code)

provides:

          "In any case in which a sentence originally imposed is

     vacated, the case shall be remanded to the trial court.  The

     trial court shall hold a hearing under Section 5--4--1 of

     the Unified Code of Corrections which may include evidence

     of the defendant's life, moral character and occupation

     during the time since the original sentence was passed.  The

     trial court shall then impose ***.  *** any sentence which

     could have been imposed at the original trial subject to

     Section 5--5--4 of the Unified Code of Corrections."  730

     ILCS 5/5--5--3(d) (West 1994).

Section 5--5--4 provides:

          "Where a conviction or sentence has been set aside on

     direct review or on collateral attack, the court shall not

     impose a new sentence for the same offense or for a

     different offense based on the same conduct which is more

     severe than the prior sentence less the portion of the prior

     sentence previously satisfied unless the more severe

     sentence is based upon conduct on the part of the defendant

     occurring after the original sentencing."  730 ILCS 5/5--5--

     4 (West 1994).

     The 1973 Council Commentary to section 5--5--4 indicates

that the provision sets out the rule adopted by the United States

Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 23 L.

Ed. 2d 656, 89 S. Ct. 2072 (1969), and followed by the Illinois

Supreme Court as set forth in People v. Baze, 43 Ill. 2d 298,

302-03 (1969).  730 ILCS Ann. 5/5--5--4, Committee Comments--

1973, at 546 (Smith-Hurd 1992).  Those decisions recognize that a

defendant is denied due process of law if he receives a heavier

sentence for an offense after successfully obtaining a new trial

through an appeal or collateral challenge unless the longer

sentence is based on conduct occurring after the sentencing date

for the original conviction.  Pearce, 395 U.S. at 725, 23 L. Ed.

2d at 669, 89 S. Ct. at 2080; Baze, 43 Ill. 2d at 302-03.  A

defendant must be able to pursue his right to appeal a conviction

without fear of retaliation from the trial court should he

succeed.  Pearce, 395 U.S. at 725, 23 L. Ed. 2d at 669, 89 S. Ct.

at 2080; Baze, 43 Ill. 2d at 302.

     Applying the clear terms of section 5--5--4 to the present

case, we determine that the trial court erred in sentencing the

defendant to 30 years' imprisonment for the aggravated kidnaping

conviction.  The defendant was originally sentenced to 13 years'

imprisonment for aggravated kidnaping.  He then had his sentence

for aggravated kidnaping set aside on direct review by this

court.  On remand, he was resentenced for the exact same offense. 

No evidence was presented regarding the defendant's conduct after

the date of the original hearing so as to provide a basis for an

increased term.  Under the plain language of the statute, the

sentence for aggravated kidnaping could not lawfully be

increased.  730 ILCS 5/5--5--4 (West 1994).

     The State contends in this appeal that the defendant was not

being resentenced for the same offense.  We find this position

meritless.  The offense of aggravated kidnaping is committed when

a person commits a kidnaping as defined by statute (720 ILCS

5/10--1 (West 1994)) with one of five other defined circumstances

(720 ILCS 5/10--2 (West 1994)).  The State has not presented any

evidence, nor does the record show, that the defendant was

somehow convicted of another act which constituted aggravated

kidnaping in-between the trial court's original sentencing and

the trial court's resentencing.  The reversal or vacation of a

more serious offense that precluded the imposition of an extended

sentence on the charge in question does not transmute the charge

in question into a different offense upon remand.

     While a review of Illinois law indicates that the present

factual situation is one of first impression, previous cases lend

support to the decision we reach in the present case.  In People

v. Cunitz, 59 Ill. App. 3d 701, 702 (1978), the Appellate Court,

Fifth District, faced a situation where a defendant was convicted

of felony theft and escape and was originally sentenced to an

indeterminate term of 3 years and 4 months' to 10 years'

imprisonment on each count.  The trial court made the sentences

consecutive, thus imposing an aggregate sentence of 6 years and 8

months' to 20 years' imprisonment.  On direct appeal, the

Appellate Court, Fifth District, reduced the felony theft

conviction to one for misdemeanor theft and remanded the entire

cause for resentencing.  See People v. Cunitz, 45 Ill. App. 3d

165 (1977).  On remand, the trial court imposed concurrent

sentences of 364 days' imprisonment for theft and 5 to 20 years'

imprisonment for escape.  Cunitz, 59 Ill. App. 3d at 703.  The

defendant appealed again.  See Cunitz, 59 Ill. App. 3d 701.

Relying upon section 5--5--4, the Appellate Court, Fifth

District, found that the defendant had received a more severe

sentence for escape upon remand and that the sentence was not

based upon conduct occurring after the original sentencing

hearing.  Cunitz, 59 Ill. App. 3d at 703-04.  Consequently, the

court reduced the sentence for escape to the original sentence of

3 years and 4 months' to 10 years' imprisonment.  Cunitz, 59 Ill.

App. 3d at 705. 

     In the present case, one of two of the defendant's

convictions was reversed outright, not just reduced to a

misdemeanor.  However, we determine that the defendant should no

more be subject to an increased sentence for aggravated kidnaping

upon remand than the defendant in Cunitz for escape.  The trial

court's effort to come as close as possible to the originally

imposed consecutive terms with only one sentence must not succeed

in the present case any more than the trial court's effort in

Cunitz.  See Cunitz, 59 Ill. App. 3d at 704.  

     Two recent decisions of our supreme court also demonstrate

that the defendant at bar should prevail in this appeal.  The two

cases interpret section 5--8--1(c) of the Code (730 ILCS 5/5--8--

1(c) (West 1994)).  Section 5--8--1(c) is a parallel provision to

section 5--5--4 that applies in the trial court when a motion to

reduce sentence is at issue.  Any increase in sentence after the

receipt of a motion to reconsider sentence is barred.  730 ILCS

5/5--8--1(c) (West 1994).  In People v. Kilpatrick, 167 Ill. 2d

439, 447 (1995), our supreme court found that this section

prohibited a trial court from vacating two sentences of 6 and 9

years' imprisonment, to be served consecutively, and imposing a

single term of 15 years' imprisonment for both offenses.  Our

supreme court found that a defendant should not have to risk an

increase in the individual terms to challenge his consecutive

sentences.  Kilpatrick, 167 Ill. 2d at 447.

     Similarly, in People v. Jones, 168 Ill. 2d 367, 372 (1995),

our supreme court found that the trial court was barred from

vacating two sentences, to be served consecutively, for 25 years'

imprisonment each with one single sentence of 30 years'

imprisonment to be served for one of the charges. The supreme

court held that the trial court had unlawfully increased the

sentence for the charge of attempted murder from 25 to 30 years'

imprisonment.  Jones, 168 Ill. 2d at 372-73.  

     While the instant case does not involve consecutive

sentences for different offenses being altered to one sentence

and the instant case stems from a new sentencing after remand

rather than after a motion to reconsider sentence, we determine

that the tenets of our supreme court cases may be properly

applied in the case at bar.  In accordance with the principles

laid out in Pearce (395 U.S. at 725, 23 L. Ed. 2d at 669-70, 89

S. Ct. at 2080-81) and Baze (43 Ill. 2d at 302-03) and the clear

language of section 5--5--4, we determine that a defendant should

not have to risk an increase in one term to seek appellate review

of either that term or a second term, imposed for a second crime.

     For the foregoing reasons, the judgment and sentence of the

circuit court of McHenry County is reduced to a sentence to the

Department of Corrections of 13 years' imprisonment, less time

served, and this cause is remanded for the issuance of a

corrected judgment order and mittimus not inconsistent with this

opinion.

     Reversed and remanded with directions.

     INGLIS and DOYLE, JJ., concur.