People v. Gansz

1

2024 IL App (4th) 230243-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD D. GANSZ, Defendant-Appellant.

Nos. 4-23-0243, 4-23-0244

Court of Appeals of Illinois, Fourth District

July 2, 2024

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Jersey County Nos. 20CF89 21CF79 Honorable Allison Lorton, Judge Presiding.

JUSTICE LANNERD delivered the judgment of the court. Justices Steigmann and Turner concurred in the judgment.

ORDER

LANNERD, JUSTICE.

¶ 1 Held: The appellate court vacated and remanded for a new sentencing hearing, concluding the trial court committed plain error when it improperly sentenced defendant based on (1) his conduct while on conditional discharge and (2) the mistaken belief he was eligible for extended-term sentencing.

¶ 2 Defendant, Richard D. Gansz, appeals from the Jersey Count circuit court's judgments in case Nos. 21-CF-79 and 20-CF-89, which this court docketed for appeal as appellate court case Nos. 4-23-0243 and 4-23-0244, respectively. In July 2023, this court granted a motion to consolidate the two cases. On appeal, defendant argues (1) the trial court abused its discretion when it sentenced him to two consecutive two-year sentences based primarily on his conduct while on conditional discharge and not for the original offense, (2) the trial court erroneously believed defendant was eligible for extended-term sentencing, and (3) to the extent the aforementioned issues have been forfeited, they constitute plain error, or alternatively, trial counsel was ineffective for failing to preserve these allegations of error. The State responds (1) the trial court's belief defendant was extended-term eligible was not erroneous, or in the alternative, amounted to harmless error because defendant did not receive an extended-term sentence, (2) the court did not abuse its discretion when it sentenced defendant to two consecutive two-year sentences for domestic battery because the sentences were within the standard statutory sentencing range for Class 4 felonies, and (3) defendant's trial counsel was not ineffective for failing to preserve the aforementioned issues for appeal. We vacate defendant's sentences and remand for a new resentencing hearing.

¶ 3 I. BACKGROUND

¶ 4 A. Original Charges and Sentencing

¶ 5 In June 2020, the State charged defendant with domestic battery (720 ILCS 5/12-3.2(a)(1) (West 2020)) in Jersey County case No. 20-CF-89. The information alleged defendant caused bodily harm to B.D., a household or family member, in that he punched her in the face multiple times. In March 2021, while awaiting trial in case No. 20-CF-89, the State charged defendant with domestic battery (id.) in Jersey County case No. 21-CF-79. The information alleged defendant shot B.D. with a BB gun. The charging documents filed in each case stated the charge was a Class 4 felony based on defendant having been previously convicted of domestic battery on July 9, 2012, in Jersey County case No 12-CF-32. Additionally, both charging documents further stated the sentencing range included "(1-3 years [in the Illinois Department of Corrections (IDOC)], 1-6 years extended-term eligible, one (1) year mandatory supervised release), probation or conditional discharge not to exceed 30 months, periodic imprisonment not to exceed 18 months."

¶ 6 In March 2021, defendant signed a jury trial waiver and guilty plea form in both cases. At the sentencing hearing the parties informed the trial court that in exchange for defendant's plea of guilty in both cases, defendant would be sentenced to consecutive terms of two years in prison, to be "stayed" pending defendant's successful completion of two years' conditional discharge. The court accepted defendant's plea and entered a written sentencing order. In the order, the court checked a box indicating defendant was sentenced to "conditional discharge." In lines provided next to a box stating, "Other," the court wrote, "Defendant sentenced to 2 years' each mandatory consecutive in IDOC. Sentence stayed successful completion of conditional discharge."

¶ 7 B. Petition to Revoke and Motions to Lift Stay

¶ 8 In June 2021, the State filed a petition to revoke defendant's conditional discharge. The petition alleged defendant violated the terms of his conditional discharge when he received citations for driving while his license was revoked and driving an uninsured vehicle in Jersey County case Nos. 21-TR-1434 and 21-TR-1435, respectively.

¶ 9 Later in June 2021, the State filed a motion to lift the IDOC stay. In the motion, the State asserted in Jersey County case Nos. 20-CF-89 and 21-CF-79 (the domestic battery cases), defendant had been sentenced to two consecutive terms of two years in prison, which were stayed pending defendant's completion of conditional discharge. The State further asserted defendant violated the terms of his "Probation" when he was charged in Jersey County case Nos. 21-TR-1434 and 21-TR-1435. Based on this violation, the State requested the stay be lifted and defendant remanded to IDOC custody.

¶ 10 In May 2022, the State filed a second motion to lift the IDOC stay. In addition to the previously mentioned traffic citations, the amended motion asserted defendant violated his conditional discharge in the domestic battery cases when he was charged with two counts of unlawful delivery of methamphetamine in Jersey County case No. 22-CF-52. The charges alleged the offenses occurred in January 2022. The amended motion requested the stay be lifted in the domestic battery cases and defendant be remanded to IDOC custody.

¶ 11 In December 2022, the State filed a third motion to lift the IDOC stay. In addition to the traffic citations and unlawful delivery of methamphetamine charges, the State asserted, on December 22, 2022, defendant had been charged with violating an order of protection in Jersey County case No. 22-CM-154. The State again requested the stay be lifted in the domestic battery cases and defendant remanded to IDOC custody.

¶ 12 In January 2023, the State filed an amended third motion to lift the IDOC stay. In addition to the traffic citations, unlawful delivery of methamphetamine charges, and violation of an order of protection, the State asserted, in January 2023, defendant had been charged with threatening a public official (Jersey County case No. 23-CF-2), unlawful possession of methamphetamine, and unlawful possession of drug paraphernalia (Jersey County case No. 23-CF-3).

¶ 13 C. Hearing

¶ 14 The trial court conducted a hearing on the State's amended third motion to lift IDOC stay and petition to revoke defendant's conditional discharge on January 13, 2023.

¶ 15 The State informed the court it intended to proceed on the portion of the motion to lift IDOC stay alleging defendant violated the terms of his conditional discharge when he was charged with unlawful possession of methamphetamine and unlawful possession of drug paraphernalia in Jersey County case No. 23-CF-3.

¶ 16 Before proceeding with the State's first witness, the trial court addressed defendant as follows:

"The State has the burden which is preponderance of the evidence standard that you committed the violation of the alleged violation of your conditional discharge. *** At this hearing, if I find the State has not proven that you violated a term of your conditional discharge then the petition is dismissed and your conditional discharge continues. However at that hearing, if I *** find the State has proven by a preponderance of the evidence that you have violated a term of your conditional discharge you-the matter will be set down for sentencing. Now, if I recall, we had, pursuant to the plea, it was two years consecutive-

***

THE COURT: -total of four in 20-CF-89 and 21-CF-79. However, I do have to advise you, pursuant to Supreme Court Rule, [defendant], the sentence to be imposed is within the discretion of this Court and the possible range of sentence that you face, I believe both of these are class four felonies, extended term eligible. So, actually a maximum of six years if they are consecutive. Six years each. So, a maximum of a total of 12."

¶ 17 The State called Deputy Kevin Ayres to testify. Ayres testified that while on duty with Deputy Michael Klunk on January 6, 2023, around 2 to 2:30 p.m., they were looking for defendant to execute a warrant. They proceeded to defendant's home, where they knocked on his door but received no answer. While driving in the area, Ayres saw defendant cross the highway on his bicycle with two other individuals also riding their bikes. Ayres attempted to stop defendant by activating his lights and yelling out the window for him to stop. At first, defendant did not stop but instead turned around and proceeded in the opposite direction. Ayres exited his car and yelled again for defendant to stop, which he did. Ayres approached defendant and advised him he was under arrest pursuant to the warrant. According to Ayres, defendant started pulling away and resisting, so Ayres walked him over to his vehicle and started to pat him down. While searching defendant's pockets for weapons, Ayres found a glass pipe that had white residue "and everything in it." Deputy Klunk searched a fanny pack attached to defendant's bike and found a brown pill bottle containing two small, clear baggies of cannabis, a "one hitter" cannabis pipe, and a small, clear bag of suspected methamphetamine. Ayres conducted field tests on the suspected methamphetamine, which came back positive for methamphetamine.

¶ 18 Defendant testified, on the day of his arrest, he was biking with his friends around 1 p.m. Defendant testified he ...