1 NOTICE Decision fi led 10/ 19/09. The text of this decision may be changed or correct ed prior

to t he fi ling of a Peti tio n for

Rehearing o r th e disposit ion of

the same. NO. 5-08-0166 IN THE AP PE LLA TE C O U R T O F IL LIN O IS

FI FTH DI STRI CT

________________________________________________________________________ TH E P EO PLE OF TH E ST ATE OF ILLINOIS, ) Appeal f rom the ) Circuit Co urt of Plaintiff

-Appell ee, ) Perry County. ) v. ) No. 04-CF-107 ) KEVIN D. McBRI DE, ) Ho nora ble ) James W . Camp anella, De fend ant-Ap pellan t. ) Jud ge, p resid ing.

________________________________________________________________________ PR ESIDIN G JU STICE W EX STT EN delivered the op inion o f the co urt: After the trial c ourt se ntenced hi m to a 12-year exten ded te rm of im prison men t with credit for t ime ser

vedo n pro bation , the d efend ant, K evin D . M cBrid e, filed a motion to reconsider, chall engi ng the extended- term por tionof the s entence. Thereaft er, the trial court reducedthe defe ndant' s sente nce to a se ven-year non extended term but denied hi m the previou sly aw arded prob ation c redit. On appeal, the defendant mainta ins that the tr ia l c ou rt 's mod ification of his sentence improperly increased it in vi olati on of

secti on 5-8-1(c ) of the UnifiedCode of

Correcti ons (the Code) (730 I LCS 5/5- 8-1(c) (West 2006)). For the rea sons that f ollow, we agr ee and rev erse. BACKGR OUND In March 2004, in Perry County case number 04- CF-50, the def endant was charge d with one countof

unl awf ul pos se ss io n of

a wea ponby afe lo n ( 720 I LCS 5/24-1.1(a) (West 2004)) and one countof criminal t respass to stat e-supported land (720 ILCS 5/21-5(a) (West 2004)). In July 2 004 , in Pe rry C oun ty case number 04- CF-107, the def endant was char ged with one count of harassment of a witnes s (720 I LCS 5/32- 4a(a)( 2) (W est 2004)) and one2

count of aggravated ba ttery (720 ILCS 5/12-4 (b)(8) (W est 2004)). In No vembe r 200 4, pu rsuan t to negot iati ons with the State, t he defendant

pledguilty to the w eap ons cha rge in case n umb er 04 -CF -50 a nd th e hara ssmen t-of-a-w itness c harge in
case nu mb er 04 -C F- 10 7. In exchan ge for his plea, the rema ining counts in bo th cases w ere dismi ssed, and he was se ntenced to a four-year term of impr isonment in case number

04-CF50 and a 30-month t erm of probati on in case number 04-CF-107. The term of probati on was orde red to r un co nsec utively to th e term o f impriso nme nt. In Augus t 200 5, in Perry County case number 05- CF-108, the def endant was char ged with one count of residential burglary (720 I LCS 5/19- 3(a) ( West 2004)), one count of criminal trespa ss to stat e-support ed land(720 I LCS 5/21- 5(a) ( West 2004)), and one c ount of resi sti ng a peace of

ficer (720 I LCS 5/31- 1(a) ( West 2004)). In November2005, pursuant to negotiatio ns w ith the State , the d efend ant ple d guilty to the residential burglary charge in
exc han ge fora five-ye ar priso n sen tence and th e dism issal of th e rema ining co unts against him. The term of

probation imposed in case number 04-CF-107 was deemed t o have begun
on August

12, 2005–the day t

hat the defendant

was relea sed from prison i n case number 04- CF-50–and was ordered t o run conc urren tly w ith the five-y ear pris on se ntenc e impo sed in case number 05- CF-108. In October 2007, after

the defe ndant hadbeen charg ed with three counts of resi sti ng
a pea ce o ff

ic er(7 20 I LCS 5/31-1( a) (West 2006)) and one countof batt ery (720 I LCS 5/12- 3(a)( 1) (W est 2006)), the St ate fi led a pet iti on to r evoke his probati on in c ase number 04 -CF107. In No vembe r 200 7, follo win g a hea ring on th e petition , the trial c ourt r evok ed the defendant's probat ion after finding that he had vi olated its terms. In Janu ary 2 008 , the ca use p rocee ded to a resent encinghearing in case number

04- CF-107. Arguing that the defendant's prev ious convicti ons in case numbers 04-CF-50 and 05-CF-108 made him el igible for an extend ed-ter

m sentence pur suant t o secti on 5-5-3

3.2(b)( 1) of the Code (730 ILCS 5/5- 5-3.2 (b)(1) (W est 20 04)), th e State asked the trial court to impose t

he maximum av aila

ble pri son sentence of 14 years . See 720 ILCS 5/32- 4a(a)( 2) (West 2004); 730 ILCS 5/5-8-2(a)( 4) (West 2004). D efense counsel argued that, because the defendant 's co nvicti on in case n umb er 04 -CF -50 w as en tered a t the sam e time a s his convi ctionin case number 04-CF-107 and because t he defendant 's convi ctionin case number 05-CF-108 was entered a fter he had been convi cted i n case number 04- CF-107 , t he de fe nd an t's convi ctions in c ase numb ers 04-CF-50 and 05- CF-108 did not cons tit ute prev ious convi ctions for purpos es of sec tion 5- 5-3. 2(b)(1) . The tri al court ultimatel y resol ved the issue in the S tate 's favor and deter

minedthat the defendant' s convicti on in case number 04- CF-50 made hi m e l igible to receive an extende d-term sentenc e. There after, the court sentence d the defe ndant to a 12-year ext ended-te rm pri son sente nce wi th cr edit for time
serv ed while on probation pursuant to s ecti on 5-6-4(h) of the Code (730 ILCS 5/5- 6-4(h) (West 200 4)). T he co urt then adm onish ed the defen dant th at, to pr oper ly cha llenge his sentence on appeal, he needed to file a motion for reconsi deration within 30 days. In Feb ruary 200 8, the defen dant file d a time ly motionto recons ider t he sentenc e (see 730 ILCS 5/5-8-1(c) (W est 2006)), i n whi ch he reiterated his co ntentio n that, b ecau se his convi ctions in case num bers 0 4-C F-50 and 0 4-C F-10 7 w ere en tered s imultan eous ly, his convi ction in case number 04- CF-50 did not cons tit ute a pre vious convi ction f or purposes of sect ion 5-5- 3.2(b)( 1). The defendant mainta ined that a sev en-year prison sentence was the maximum sentence that he co uld h ave pro perly r eceived follow ing the re vocation of his probati on in case number 04-CF-107, and he asked that the trial c ourt r educe his s entence accordi ngly. In Ma rch 200 8, the trial court held a hearing on the defenda nt's motion to reconsider. In additi on to rai singthe defe ndant' s sect ion 5-5-3.2(b)(1) argument , defense counsel not ed, inter alia , that w hen th e defe ndan t entere d his plea i n case number 04- CF-107, the cour t and1 We note th at the legisla ture rec ently repea led sec tion 5-8 -1(c), a nd it recodif ied the rules gove rningmotions to reduce sentence , in a newly creat ed secti on 5-4.5-50( d), which also states, "The court may not increase a sentenc e once it is i mposed" (730 ILCS 5/5- 4.5- 50(d) (W est 2008)). Pub. Act95-1052, eff. July 1, 2009 (amending 730 ILCS 5/5-8-1 (West 2008) a nd add ing 730 ILCS 5/5-4.5 -50). 4 the State had both state d thathe was not eli gibl e to rec eiv e an extended- term s entence. Acknowledg ing that was t he case, t

he tri al court

vacat ed the ext ended-te rm port ion of t he de fe nd an t's sentence , thus reducing it to a seven- year pri son ter m. The court t

hen announced that it was deny ing the d efend ant the previou sly awarded credi t for time s erved

on probati on and was only a wa rding him credit for hi s ti me serv ed foll owing his arres t on the c harges underlying the St ate' s peti tion to r evo ke probation. The defe ndant compl ained about the
co ur t's denial of his pro bation credit, bu t the court noted that the defen dant w ould ultimate ly be release d from prison "abo ut tw o mo nths e arlier th at wh at [he h ad be en] o riginally scheduled out

for on the 12 years. " The tri al court did not admoni sh the def endant that he had n eede d to fil e a second moti on to recons ider s entence t o preser ve anysentencing is sue that he might

want to raise o n app eal. In Ap ril 2008, the def endant fi led a t imely notice of appeal. DI SC USS I ON Sect ion 5-8-1(c ) of the Code state s, in per tinent part, as fol lows: "A motion to r educe
a sentence m ay be m ade, or the c ourt may reduce a se ntence wit hout moti on, withi n 30 days after the sent ence is i mposed. *** However, t he court may not

increa se a sent ence once it is imposed." 1 730 IL CS 5/5-8- 1(c) (West 2006). " ' Sente nce' is the dispositionimposed by the court on a convicted de fendant." 7 30 ILCS 5/5-1-19 (W est 2006). On appe al, the defe ndant argues that, when modifyinghis sentence in cas e number 04-C F-107, the tri al court viol ated sec tion 5- 8-1(c) 's prohibi tion ag ainst increa singa sentenc e5

by denyinghim the c redit for t ime ser

ved on probation that

it had pr evi ousl y awarde d him. In respo nse, th e Sta t e su ggests t hat th e de fen dan t has forfe ited t his c laim by n ot filin g a second motion to reco nside r his sentence and that , forf eiture aside, the defe ndant' s argument is withoutmerit because he ul timat ely rec eiv ed a sente nce less than that ori gina lly imposed. We fi rs t a dd re ss th e S ta te 's forfeiture argument. "Normally, any sentenc ing i ssues not rais ed in a moti on to recons ider t he sentenc e are forfeit ed." In re Ange li que E. , 389 Ill. App. 3d 430, 432 (2009). Here, alt hough the defendant

did n ot file a second moti on to recons ider his senten ce, h e com plaine d w hen th e cou rt stated th at it wa s den ying him th e previousl y awarded probati on credit , and he was not admonis hed that he needed to f

ile a second moti on to reconsi der to pr es erve his complaint for a ppellate review. U nder the circu mstances, a relaxationof the f

orfei ture r

ule is appropri ate. S ee People v. Dowding , 388 I ll. App. 3d 936, 942 (200 9). Fu rtherm ore, b ecau se an impro per inc rease in sentence is a mat ter affe cting a defendant 's substantial right s, the instant claim is reviewable as p lain error. See People v. Barnes , 194 Il l. App. 3d 527, 529 (1990). We will t herefor e address the merits of t he argume nt that th e defe ndan t raises o n app eal. "Under wel l-settl ed rules of stat utory cons truction, sec tion 5- 8-1(c) is t o be inte rpret ed accordi ng to the pl ain meani ng of its term s, in ord er to asc ertai n an d give effect to the intent of the l egi slat

ure, bearing in mind the r easons for the prov isi on, the har

ms to be r emedied, and the goals t o be achieved." People v. Kilpatrick , 167 Ill . 2d 439, 443 (1995 ). "Because the constr

uction of a stat ute is a matter o f law , review is de novo. " In re Appli cation of the County Treasurer

& ex off icio Count

y Collect or , 389 Ill. App. 3d 3 98, 401 (2009). "[Section 5-8-1 (c)] is co nsisten t with the Uni ted S tat es S upreme Co urt's decisio n in No rth Carolina v. Pearce (1969), 395 U.S . 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072, in which the Court st ated that due process mayprohibi t a judg e from i mposinga more sev ere sent ence when the defendant

has been conv icte d foll owing a retrial because a greate r sent ence may6

pen ali ze the defendant's right to challenge hi s convicti on and sentence." People v. Jones , 168 Ill. 2d 367, 371-7 2 (1995 ). Because a defendant should not

have t o "run the risk " that chall engi ng his sentence in the trial court might "result in a resentencing of inc reased length," secti on 5-8-1(c ) should beinter pretedso that it do es no t lend itse lf to the p ossibility that a defendant

will be "pen alized for his e fforts to seek and obtain rel ief wit h respect to all eged
errors in the sentence he received." Kilpatrick , 167 I ll . 2d at 447. We must

als o pres ume that, as used i n secti on 5-8-1(c ), the word "sentenc e" refer s to a v alid s entence or the valid porti on of a sent ence. Se e Peop le v. G arcia , 179 Ill. 2d 5 5, 73 (199 7); Peop le v. Lee , 376 Ill. App. 3d 951, 9 67 (200 7). Here, when enteri ng his guilt y plea i n case number 04- CF-107, the def endant was not advi sed that an extend ed-term sentenc e was a possibility. As a result, the exten ded-term porti on of his s entence was void pur suant t o secti on 5-8-2(b) of the Code (730 IL CS 5/5-8- 2(b) (West 2006)), and the trialcourt pr operly v acated i t. S ee People v. Taylor , 368 I ll. App. 3d 703, 70 7-08 (20 06). W hethe r to award the def endant sent encingcredit for hi s ti me spent
on probati on w as a m at te r w it hi n t he tr ia l c ou rt 's discr etion. See Peop le v. W hitfield , 228 Ill. 2d 502, 507 (2007); 730 IL CS 5/5-6- 4(h) (West 2006). Had the de fendant not chall enged his senten ce in the trial c ourt, howev er, he could hav e had the ext ended-te rm port ion va cated
on direct appeal wit

hout los ing t

he probati on credit

that he had previ ous ly been a warded. If the extended-term porti on of a se ntence is v oid, a def endant can at

tack it any time, and such a cha llenge "is n ot sub ject to waiver." People v. Thompson , 209 Ill. 2d 19, 2 7 (2004 );
see also People v. Mu ntaner , 339 I ll. App. 3d 887, 889 (2003) ("When a sentence greate r than thatautho rized b y statute is impo sed, th e exc ess po rtion of that sen tence is void an d may be att acked at

any time "). Thus, bydenyingthe defe ndantthe pro bation credit th at it had previ ously awardedhim, the tri al court , in ef fect, penali zed him for

correcting t

he error in the sent ence that

he recei ved, bec ause the c ourt, in effect , incr eased the leng th of t he valid7

sentence that ha d been orig inal ly imposed

. See Peop le v. H ills , 78 I ll. 2d 500, 507-08 ( 19 80). "[T]he t

rialcourt may not

increa se a sent ence once it has been impos ed by subs eque ntly denyingcredit for t ime ser

ved on probation si nce such a denia l wo uld res ult in an incre ased length of sent ence." Peop le v. T acke tt , 130 Ill. App. 3d 3 47, 349 (1985). The Stat e' s argument that section 5-8- 1(c) was not viol atedin the present

case ignores that the extended- term por

tion of the sentence orig inally imposed was "v oid from its incept ion" and that only the " leg ally a

uthori zed porti on" was val id (People v. B rown , 225 Ill. 2d 188, 203, 20 5 (2007 )). The val id sent ence that the trial c ourt originally imposed when r esentenc ing t he defendant

in case number 04-CF-107 was a seven- year te rm of i mprisonment with credit for ti me serv ed on probati on. By taking away the pr evi ously awarded pr obation c redit when vacating the v oid port ion of t he sentenc e, the t

rialcourt impermiss ibly increased t he previously impo sed senten ce in violation of section 5 -8-1(c). The defendant 's term of

probati on comme nced o n August 12, 2 005. When modifying the defendant 's sentence , the t rialcourt awarde d him sent encingcredit from October

3, 2007. As a resul t of the co urt's mod ification , the d efend ant lost 7 82 d ays o f sente ncing c redit. Pursuant to Supr eme Court Rule 615(b) (1) (134 I ll. 2d R. 615(b)(1) ), we ther efore or der that the defen dant's mittimu s be a men ded to reflect c redit for th e 782 days th at the def endant
serv ed on probati on. See People v. McCray , 273 Ill. App. 3d 3 96, 403 (1995). CONCL USI ON For the f ore goin g reas ons , w e reve rse th e tria l cou rt's jud gm e nt and order that t he defendant 's mittimus be amended a ccording ly.
Reversed; mittimus t o be correc ted.8

CH APM AN a nd STE W ART , JJ., concu r.NO. 5-08-0166 IN THE AP PE LLA TE C O U R T O F IL LIN O IS

FI FTH DI STRI CT

___________________________________________________________________________________ TH E P EO PLE OF TH E ST ATE OF ILLINOIS, ) Appeal f rom the ) Circuit Co urt of Plaintiff

-Appell ee, ) Perry County. ) v. ) No. 04-CF-107 ) KEVIN D. McBRI DE, ) Ho nora ble ) James W . Camp anella, De fend ant-Ap pellan t. ) Jud ge, p resid ing.

___________________________________________________________________________________ Opini on Fi led : October 19, 2009

___________________________________________________________________________________ Justi ces : Honorable James M . Wex stten, P.J.

Honorable Meliss a A. Chapman, J., and Hon orable B ruce D . Stewart, J., Concur

___________________________________________________________________________________ Attorn eys Mich ael J. Pelletier, State Appellate D efender, Jo Beth W eber, D eputy D efender, for Rita K . Pete rson, Assistan t Appe llate D efend er, O ffice of th e State Ap pellate Appe llant Defender, Fi fth Judi cialDistri ct, 117 Nort h Tenth St

reet, Suit e #300, Mt. Vernon, IL62864

___________________________________________________________________________________ Attorn eys Hon. David St anton, S tate 's Attor ney, Perry Count

y Courthouse, P. O. Box 377, for Pinckne yvil le, IL62274; PatDelfino, Director, St ephen E. N orris, Dep uty Directo r, Appell ee Ke lly M . Stacey , Staff Attorn ey, O ffice of th e State's Attorn eys A ppella te

Pr os ec ut or , 7 30 E. Illin oi s H igh w ay 15 , Su ite 2, P. O . B ox 22 49 , M t. V er no n, IL 62864

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