People v. Sophanavong

2020 IL 124337

181 N.E.3d 154

450 Ill.Dec. 154

The PEOPLE of the State of Illinois, Appellant,

v.Phouvone V. SOPHANAVONG, Appellee.

Docket No. 124337

Supreme Court of Illinois.

Opinion filed August 20, 2020

Rehearing denied November 16, 2020

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Michael M. Glick and Nicholas Moeller, Assistant Attorneys General, of Chicago, of counsel), for the People.

James E. Chadd, State Appellate Defender, Peter A. Carusona and Thomas A. Karalis, Deputy Appellate Defenders, and Santiago A. Durango, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.

OPINION

JUSTICE GARMAN delivered the judgment of the court, with opinion.

¶ 1 Section 5-3-1 of the Unified Code of Corrections (Code) ( 730 ILCS 5/5-3-1 (West 2012) ) requires a circuit court to consider a presentence investigation (PSI) report prior to sentencing a defendant for a felony offense. However, with one exception,

"the court need not order a presentence report of investigation where both parties agree to the imposition of a specific sentence, provided there is a finding made for the record as to the defendant's history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment." Id.

¶ 2 This appeal asks whether a circuit court's failure to strictly comply with the requirements to forgo a PSI report requires remand for a new sentencing hearing or whether a defendant can waive the issue by pleading guilty as well as forfeit the claim by failing to raise it in a postplea motion. We find waiver and forfeiture apply. Thus, we reverse the appellate court's judgment and affirm the circuit court's judgment.

¶ 3 BACKGROUND

¶ 4 In December 2013, a Tazewell County grand jury indicted defendant on three counts of first degree murder ( 720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2012)) in connection with the death of Laongdao Phangthong. The grand jury also indicted defendant on single counts of aggravated kidnapping (id. § 10-2(a)(8)) and violating an order of protection (id. § 12-3.4(a)(1)).

¶ 5 In April 2014, defendant agreed to plead guilty to one count of first degree murder. In return, the State agreed to dismiss the remaining charges in the indictment and to recommend a sentence of 55 years in prison, which included 30 years for first degree murder and a 25-year firearm enhancement ( 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012)).

¶ 6 At the plea hearing, defense counsel asked that the record reflect that the agreed-upon terms were "effectively a life sentence" for defendant and, against counsel's advice, defendant insisted on accepting those terms. Although he expressed dissatisfaction with the agreed-upon sentence, defendant chose to "take it."

¶ 7 At the circuit court's request, the State offered a factual basis for defendant's guilty plea. On October 11, 2013, defendant's estranged wife, Laongdao Phangthong, obtained a plenary order of protection against him, after she alleged that he threatened to shoot and kill her, then commit suicide. Less than a month later, on November 4, 2013, defendant parked his car at the factory where he worked and took something from the trunk. Shortly thereafter, defendant confronted Phangthong at a nearby factory where she worked, and an argument ensued. He then forced her into the passenger seat of her car and drove away.

¶ 8 The next day, police officers discovered Phangthong's car in a hospital parking lot. She was inside, dead from gunshot wounds. Officers later found defendant, armed with a handgun, in the basement of his home. During negotiations with police, he admitted kidnapping and then killing Phangthong. He stated that he "was going to jail for a long time" and shot himself in the chest. Bullets recovered from Phangthong matched the gun that defendant used. Police later recovered a note in defendant's handwriting, indicating that he did not intend to kill her but only did so after she tased him.

¶ 9 The circuit court accepted the factual basis, found defendant guilty per the negotiated plea agreement, and dismissed the remaining counts. The court then proceeded to sentencing and inquired about defendant's criminal history.

¶ 10 The State informed the circuit court that defendant had previously been convicted of manufacture or delivery of cannabis, a Class 1 felony, in 2004 and had also been convicted of a speeding offense and a seatbelt offense. The State did not mention the disposition of any of defendant's prior offenses. Upon inquiry, the parties informed the court that they were waiving a PSI report.

¶ 11 The circuit court concluded the sentencing hearing by sentencing defendant to 55 years in prison. The court then addressed him directly:

"Mr. Sophanavong, even though you have plead[ed] guilty, you do have rights of appeal. But before taking an appeal you must file a Motion in this Court within 30 days seeking leave to withdraw your plea of guilty and vacate this judgment and sentence.

That Motion must be in writing and set forth with particularity why it ought to be granted, or any claim not stated may be waived for purposes of appeal."

¶ 12 The following month, May 2014, defendant filed a timely pro se motion to withdraw his guilty plea, claiming he was not "in a coherent state of mind when [he] accepted the plea" and counsel was ineffective. He did not raise a claim that the circuit court failed to comply with section 5-3-1.

¶ 13 In October 2014, newly appointed counsel filed an amended motion to withdraw the guilty plea, alleging defendant had been suffering from extreme anxiety and duress when he pleaded guilty, he was unaware of potential lesser included offenses, he was actually innocent of first degree murder, and he was denied the effective assistance of counsel. Counsel did not raise any claim pertaining to section 5-3-1.

After the circuit court denied the amended motion, defendant appealed, and the cause was remanded for compliance with Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013). People v. Sophanavong , No. 3-14-0864 (Sept. 19, 2016) (letter ruling vacating and remanding with instructions).

¶ 14 On remand, the circuit court appointed new counsel, who filed a second amended motion to withdraw the guilty plea in May 2017. Counsel alleged that defendant did not knowingly, understandingly, and voluntarily enter his guilty plea and that he received ineffective assistance of counsel. The motion did not raise any issue regarding section 5-3-1. In July 2017, the court denied the second amended motion.

¶ 15 On appeal, defendant abandoned his challenge to the circuit court's ruling on his second amended motion to withdraw his guilty plea. Instead, he argued his sentence should be vacated and the cause remanded for a new sentencing hearing because the court failed to strictly comply with section 5-3-1 of the Code when it accepted the parties' plea agreement without ordering a PSI report or being informed of the dispositions of defendant's prior criminal offenses. 2018 IL App (3d) 170450, ¶ 9, 428 Ill.Dec. 104, 121 N.E.3d 516.

¶ 16 In response, the State relied on People v. Haywood , 2016 IL App (1st) 133201, ¶ 41, 401 Ill.Dec. 755, 50 N.E.3d 1237, which found that the defendant could not challenge his sentence on appeal because his guilty plea and the negotiated plea agreement were still in effect. 2018 IL App (3d) 170450, ¶ 10, 428 Ill.Dec. 104, 121 N.E.3d 516. In the alternative, the State asserted that section 5-3-1 was complied with because the circuit court had been sufficiently informed of defendant's criminal history and the court could reasonably infer the range of sentences defendant had received for his prior convictions. Id.

¶ 17 The appellate court, with one justice dissenting, agreed with defendant, vacated his sentence, and remanded for a new sentencing hearing in strict compliance with section 5-3-1. Id. ¶ 1. The court disagreed with Haywood and found the PSI requirement of section 5-3-1 is a mandatory legislative requirement that cannot be waived by the defendant. Id. ¶ 12.

¶ 18 In December 2018, the State filed a petition for leave to appeal, which we allowed. Ill. S. Ct. R. 315(a) (eff. July 1, 2018).

¶ 19 ANALYSIS

¶ 20 This case requires discussion of the doctrines of forfeiture and waiver. Over the years, this court has noted that the terms forfeiture and waiver have, at times, been used interchangeably, and often incorrectly, in criminal cases. People v. Hughes , 2015 IL 117242, ¶ 37, 410 Ill.Dec. 246, 69 N.E.3d 791 ; People v. Blair , 215 Ill. 2d 427, 443, 294 Ill.Dec. 654, 831 N.E.2d 604 (2005). Forfeiture is defined "as the failure to make the timely assertion of [a] right." People v. Lesley , 2018 IL 122100, ¶ 37, 429 Ill.Dec. 1, 123 N.E.3d 1060 ; see also Buenz v. Frontline Transportation Co. , 227 Ill. 2d 302, 320 n.2, 317 Ill.Dec. 645, 882 N.E.2d 525 (2008) (stating "forfeiture is the failure to timely comply with procedural requirements"). Waiver, on the other hand, "is an intentional relinquishment or abandonment of a known right or privilege." Lesley , 2018 IL 122100, ¶ 36, 429 Ill.Dec. 1, 123 N.E.3d 1060.

¶ 21 In this appeal, the State has abandoned its arguments made in the appellate court and now argues that defendant forfeited his section 5-3-1 claim, under Illinois Supreme Court Rule 604(d) (eff. July 1, 2017), by failing to raise the issue in his postplea motions. We note the State failed to raise the issue of defendant's forfeiture in the appellate court. As the doctrine of forfeiture applies to the State as well as to defendant ( People v. Artis , 232 Ill. 2d 156, 178, 327 Ill.Dec. 556, 902 N.E.2d 677 (2009) ), the State has forfeited its ability to raise its argument now on appeal ( People v. McKown , 236 Ill. 2d 278, 308, 338 Ill.Dec. 415, 924 N.E.2d 941 (2010) ). However, because forfeiture is a limitation on the parties and not the court, we will consider the State's...