People v. Golen

29 N.E.3d 1119

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Frank GOLEN, Defendant–Appellant.

No. 1–13–3433.

Appellate Court of Illinois, First District, Sixth Division.

March 20, 2015.

Rehearing Denied April 27, 2015.

Michael J. Pelletier, Alan D. Goldberg, and Kieran M. Wiberg, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Tasha-Marie Kelly, and Douglas P. Harvath, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice LAMPKIN delivered the judgment of the court with opinion.

¶ 1 Defendant, Frank Golen, appeals from the trial court's resentencing order following this court's mandate remanding the cause for resentencing because we found defendant's initial concurrent sentence entered on a negotiated guilty plea was void. People v. Golen, 2012 IL App (1st) 102862–U, 2012 WL 6951886. Defendant contends the trial court had authority to impose a sentence less than the aggregate initially imposed; therefore, the trial court erred by failing to order a presentence investigation report and his counsel was ineffective for failing to advocate for a lower sentence. In addition, defendant contends the trial court erred by failing to provide admonishments pursuant to Illinois Supreme Court Rule 605(c) (eff. Oct. 1, 2001). Based on the following, we affirm.

¶ 2 FACTS

¶ 3 Defendant was charged by indictment with multiple counts of first degree murder, armed robbery, and possession of a stolen motor vehicle in connection with the December 27, 2004, murder of the 70–year–old victim, wherein the victim was bludgeoned to death and had his wallet, keys, and car stolen. On December 20, 2005, defendant entered a negotiated plea of guilty to first degree murder and armed robbery. Prior to sentencing, defendant waived his right to a presentence investigation report both verbally and in writing. He was sentenced to concurrent terms of 45 years' imprisonment on the murder charge and 25 years' imprisonment on the armed robbery charge. The trial court admonished defendant of his appeal rights, including the need to first file a motion to withdraw his guilty plea and the right to assistance of counsel in the preparation of that motion. Defendant did not file a motion to withdraw his guilty plea.

¶ 4 On September 29, 2008, defendant filed a pro se postconviction petition alleging that he was denied effective assistance of counsel because trial counsel failed to seek a fitness hearing despite knowing defendant was taking psychotropic medication. The petition was docketed and defendant was appointed counsel. Postconviction counsel filed a supplemental petition alleging trial counsel was ineffective for failing to investigate and adequately consult with defendant, for misinforming and misleading defendant concerning the agreed sentence, and for coercing him into pleading. Postconviction counsel additionally alleged defendant's plea was not voluntary and knowing. Postconviction counsel maintained defendant's plea should be vacated and the charges reset for a new trial. The State filed a motion to dismiss defendant's postconviction petition. Following a hearing, the trial court granted the State's motion to dismiss. Defendant appealed.

¶ 5 On appeal, defendant argued that the trial court erred in dismissing his postconviction petition where he made a substantial showing that his trial counsel was ineffective and that his guilty plea was not voluntary and knowing. In addition, defendant argued, for the first time, that his concurrent sentences were void because the relevant sentencing statute (730 ILCS 5/5–8–4(a)(i) (West 2004)) required the imposition of consecutive sentences. On August 7, 2012, in an unpublished order, this court affirmed the trial court's finding that defendant failed to substantially show his trial counsel was ineffective and his guilty plea was not knowing and voluntary. People v. Golen, 2012 IL App (1st) 102862–U, ¶ 33, 2012 WL 6951886. With regard to the argument that defendant's sentence was void, this court agreed, relying on People v. Donelson, 2011 IL App (1st) 092594, 356 Ill.Dec. 106, 960 N.E.2d 1229, aff'd, 2013 IL 113603, 371 Ill.Dec. 173, 989 N.E.2d 1101. This court explicitly found that defendant's plea agreement was enforceable because he pleaded guilty in exchange for a total of 45 years' imprisonment and, given the sentencing ranges for murder and armed robbery, namely, 20 to 60 years and 6 to 30 years, respectively, he could be sentenced properly to consecutive terms totaling 45 years' imprisonment consistent with section 5–8–4(a)(i) of the Unified Code of Corrections (Code) (730 ILCS 5/5–8–4(a)(i) (West 2004)). Golen, 2012 IL App (1st) 102862–U, ¶ 25, 2012 WL 6951886. This court provided that “we find that the appropriate remedy is to enforce the overall plea agreement consistent with the relevant statute by vacating the void sentence and remanding for resentencing to a total prison term, with mandatory consecutive sentencing, of not more than 45 years.” Id.

¶ 6 On remand, the trial court stated that this court issued a mandate wherein defendant's sentence was vacated and the trial court was to resentence defendant “in order to impose consecutive sentences with an aggregate cap of 45 years' imprisonment.” Defendant's attorney and the State were provided time to confer off the record. When the proceeding resumed on the record, the trial court asked whether the State and defense had “a disposition that pursuant to [the] mandate that you are agreeing to.” The State responded, “the armed robbery with a Class X would carry a minimum of 6 years. To reach the aggregate sentence, the sentence on the murder would have to be 39 years to reach the 45.” Defense counsel responded, “That's correct, Your Honor.” The trial court then stated the following:

“Mr. Golen, pursuant to the mandate of the Appellate Court you are resentenced to 39 years in the Illinois Department of Corrections on the First Degree Murder Charge which is Count [II]. You'll receive a credit of 3,198 days towards that sentence. The sentence you receive on Count [II] must be served at a calculable rate of a hundred percent. And this sentence will run consecutive to the sentence that you received on Count [VII], the Armed Robbery Charge, in which you will be re-sentenced to six years in the Illinois Department of Corrections. And that sentence is served at an 85 percent calculable rate.

* * *

And, obviously, you have the right to appeal this re-sentencing. If you choose to do so, you must do so within 30 days of today's date. You must file a written motion setting forth all grounds why you wish to have your sentence reconsidered, and anything you fail or forget to put in that motion would be waived or given up for all times.

If that motion were denied, you would have 30 days from the date of denial to file any notice of appeal. And if you choose not to file a motion to reconsider the sentence, you have 30 days from today's date to file your notice of appeal.”

¶ 7 Defendant did not file any postsentencing motions in the trial court. This appeal followed.

¶ 8 ANALYSIS

¶ 9 The issues presented in this case involve questions of law, which we review de novo. People v. Breedlove, 213 Ill.2d 509, 512, 290 Ill.Dec. 602, 821 N.E.2d 1176 (2004).

¶ 10 I. Scope of Remand for Resentencing

¶ 11 Defendant contends this court's August 7, 2012, mandate ordering his resentencing on remand gave the trial court the authority to resentence him to a term of less than 45 years' imprisonment. As a result, defendant contends the trial court was required to order a presentence investigation report pursuant to section 5–3–1 of the Code (730 ILCS 5/5–3–1 (West 2004) ). Defendant maintains the trial court's failure to do so was error. Defendant additionally contends that his resentencing counsel was ineffective where counsel agreed with the State that a total term of 45 years' imprisonment was necessary instead of advocating for a sentence of less than 45 years.

¶ 12 In order to address defendant's contentions, we first turn to the express language of this court's mandate, which established the purpose and scope of the proceedings on remand. This court's August 7, 2012, order provided, “we find that the appropriate remedy is to enforce the overall plea agreement consistent with the relevant statute by vacating the void sentence and remanding for resentencing to a total prison term, with mandatory consecutive sentencing, of not more than 45 years. Donelson, [2011 IL App (1st) 092594, ¶¶] 15, 18–19 [356 Ill.Dec. 106, 960 N.E.2d 1229 ].” Golen, 2012 IL App (1st) 102862–U, ¶ 25, 2012 WL 6951886. Later in the order, this court concluded, “[b]ased on the foregoing, we vacate defendant's sentences and remand to the trial court for resentencing to impose consecutive sentences with an aggregate cap of 45 years' imprisonment and affirm the judgment in all other respects.” Id. ¶ 34.

¶ 13 Defendant's contentions rely on the faulty premise that the trial court was authorized to impose a sentence of less than 45 years. We recognize that the State agreed with this premise in its appellate brief; however, we find the language of the mandate does not support the parties' belief. This court's mandate instructed the trial court to sentence defendant to “not more than” and “an aggregate cap of” 45 years; the mandate did not state that defendant's sentence can be less than 45 years. “The trial court has no authority to act beyond the dictates of the mandate.” PSL Realty Co. v. Granite Investment Co., 86 Ill.2d 291, 309, 56 Ill.Dec. 368, 427 N.E.2d 563 (1981) ; People ex rel. Daley v. Schreier, 92 Ill.2d 271, 276, 65 Ill.Dec. 874, 442 N.E.2d 185 (1982) (“a trial court must obey the clear and unambiguous directions in a mandate issued by a reviewing court”). In fact, a sentence of less than 45 years would violate an essential term of the parties' negotiated plea agreement and would prevent the...