text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Staten D. TAYLOR, Defendant-Appellant.
    NO. 4-14-0060
    Appellate Court of Illinois, Fourth District.
    Filed March 21, 2018 Rehearing denied April 13, 2018
    Michael J. Pelletier, Patricia Mysza, and Aliza R. Kaliski, of State Appellate Defender's Office, of Chicago, for appellant.
    Jay Scott, State's Attorney, of Decatur (Patrick Delfino, David J. Robinson, and Allison Paige Brooks, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE TURNER delivered the judgment of the court, with opinion.

¶ 1 A jury found defendant, Staten D. Taylor, guilty of aggravated domestic battery ( 720 ILCS 5/12-3.3(a) (West 2012) ) for beating his brother-in-law. The Macon County circuit court sentenced defendant to 15 years in prison. Defendant appealed, claiming (1) he was denied a fair trial on several grounds, (2) his trial attorney rendered ineffective assistance, (3) the court failed to give adequate consideration to his pro se allegations of ineffective assistance of counsel, and (4) his sentence was excessive. We affirmed defendant's convictions, finding (1) he forfeited review of the errors he claimed had deprived him of a fair trial, (2) his ineffective assistance of counsel claims should be raised in postconviction proceedings where a better record can be made, (3) the court conducted an adequate Krankel inquiry ( People v. Krankel , 102 Ill. 2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984) ) into his pro se posttrial allegations of ineffective assistance of counsel, and (4) his sentence was not excessive. People v. Taylor , 2015 IL App (4th) 140060, 398 Ill.Dec. 822, 44 N.E.3d 1234. Defendant filed a petition for leave to appeal with the Supreme Court of Illinois.

¶ 2 On September 27, 2017, the supreme court denied defendant's petition for leave to appeal but issued a supervisory order ( People v. Taylor , No. 120425, 417 Ill.Dec. 843, 89 N.E.3d 762 (Ill. Sept. 27, 2017) (nonprecedential supervisory order on denial of petition for leave to appeal) ), directing this court to vacate our prior judgment and reconsider our decision in light of People v. Veach , 2017 IL 120649, 417 Ill.Dec. 718, 89 N.E.3d 366. There our supreme court noted "ineffective assistance of counsel claims may sometimes be better suited to collateral proceedings but only when the record is incomplete or inadequate for resolving the claim." Veach , 2017 IL 120649, ¶ 46, 417 Ill.Dec. 718, 89 N.E.3d 366. On remand to this court, the parties filed supplemental briefs, addressing the application of the Veach decision to the facts of this case. On December 1, 2017, this court filed a new opinion, in which we reconsidered our decision in light of Veach and again found defendant's ineffective assistance of counsel claims should be raised on collateral review because they depended on proof of matters outside the appellate record.

¶ 3 Defendant filed a petition for rehearing, asserting this court's December 2017 opinion failed to meaningfully address Veach and acknowledge the parties' supplemental briefs on remand. We granted defendant's petition for rehearing. The State filed an answer to the petition for rehearing, and defendant filed a reply to the answer. This court has again reconsidered defendant's ineffective assistance of counsel arguments in light of Veach and now addresses those claims. We affirm the circuit court's judgment.

¶ 4 I. BACKGROUND

¶ 5 Dawnette Sigmon, defendant's estranged wife, began living in a rented single-family home on Church Street in Decatur with her three young children in September 2012, a few months before she met defendant. Dawnette and defendant met in November 2012 and married in January 2013. Dawnette asked defendant to move out of the home in March 2013 after an undisclosed "incident." After this "incident," Dawnette and her children frequently stayed with a friend in Warrensburg. Whenever Dawnette wanted to return to her Church Street home, she would call on her brother, Jashua Sigmon, to check the home to ensure no one, meaning defendant, was there. On April 5, 2013, she reached out to Jashua and asked for a security check of the home.

¶ 6 Jashua testified at defendant's jury trial that on April 5, 2013, he received a call from his sister, asking him to check on her house. At approximately 10 p.m., Jashua drove to the Church Street residence, where he saw defendant standing in the driveway, talking to individuals in a van from the van's driver's side window. Jashua parked his vehicle behind the van and approached defendant, telling defendant he was not supposed to be there. Defendant told Jashua that Dawnette had given him permission to stay there for the last few days. As Jashua approached, defendant shoved him, and Jashua shoved defendant back. Defendant punched Jashua in the face. Jashua grabbed defendant in an attempt to take him to the ground. An unidentified man exited the van and grabbed Jashua from behind, holding his arms behind his back while defendant continuously punched Jashua in the face. The man threw Jashua to the ground, where defendant and the man repeatedly kicked Jashua in his back. Jashua crawled to his vehicle while being kicked. He estimated the two men kicked him between 15 and 25 times. Defendant eventually told the man to stop the beating, saying Jashua had enough to know not to " 'come around here anymore.' "

¶ 7 Jashua made it to his car and drove home, where he and his girlfriend cleaned the blood from his face. He said he did not want to call the police because he was on parole and he feared he would be sent back to prison. He went to the emergency room, where he was diagnosed with a broken nose. He was released after several hours and had surgery to repair his nose several days later.

¶ 8 Dawnette also testified, corroborating Jashua's testimony regarding her request for the welfare check on her home. She denied giving defendant permission to be at her house. She said his name was not on the lease, he did not contribute to the rental payments, and he did not have a key.

¶ 9 Jason Danner, a Decatur police officer, testified he met with Jashua after the hospital had called the police to report the battery incident. Officer Danner said both Jashua and Dawnette cooperated with his investigation. After speaking with the siblings, Officer Danner drove to the Church Street residence, hoping to find defendant. He eventually saw defendant at the house and arrested him there. Officer Danner noticed defendant had a cut on his finger and his fists were red and swollen.

¶ 10 In defendant's case in chief, he presented, by stipulation, the testimony of Greg Bell, defendant's parole officer. If Bell were called to the witness stand, he would testify that defendant was on parole on the date of the incident. He would also testify that defendant's home record listed his address as the Church Street residence.

¶ 11 After deliberations, the jury found defendant guilty of aggravated domestic battery. Defendant filed a pro se motion for ineffective assistance of counsel. The circuit court conducted a Krankel hearing, wherein defendant complained his counsel did not (1) introduce evidence on his behalf at trial, (2) meet with him to discuss the trial, and (3) discuss the State's plea offer before trial. The court asked defendant to explain each allegation in detail. The court then asked defendant's counsel to respond. To the court's satisfaction, counsel explained the issues complained of were either (1) matters involving trial strategy or (2) nonmeritorious. The court denied defendant's motion.

¶ 12 Counsel filed a posttrial motion, claiming the State's evidence was insufficient to support the jury's verdict. The court denied the motion and proceeded to sentencing. We note that, on the day before the sentencing hearing, defendant filed a pro se motion "appealing" the circuit court's denial of his claims of ineffective assistance of counsel.

¶ 13 At sentencing, defendant testified on his own behalf in mitigation. He said that, at the time of the incident, he and Dawnette were married and living together. He was employed and contributing to the household expenses. They were expecting a child together. With regard to the incident, defendant explained he attempted to break up the fight between the unidentified male and Jashua. He said he spoke with Jashua after the incident and apologized. They maintain a personal relationship. Defendant admitted he has a problem with alcohol addiction.

¶ 14 During sentencing recommendations from counsel, the State advised the court defendant was to be sentenced as a Class X offender because he had twice previously been convicted of residential burglary, a Class 1 felony, in 1995 and 2001. See 730 ILCS 5/5-4.5-95(b) (West 2012). After considering defendant's testimony, the presentence investigation report, counsels' recommendations, and the statutory factors in aggravation and mitigation, the circuit court sentenced defendant to 15 years in prison.

¶ 15 Defendant filed two pro se motions, challenging his sentence as excessive. The circuit court gave counsel the opportunity to file an amended motion on defendant's behalf. Counsel explained to the court defendant had filed a complaint with the Illinois Attorney Registration and Disciplinary Commission (ARDC) regarding his representation. The court asked defendant if he wished counsel to represent him in his motion to reduce his sentence. Defendant replied: "I'm fine with him." Counsel stood on defendant's pro se motions, providing no additional argument. The court denied defendant's motions.

¶ 16 This appeal followed.

¶ 17 II. ANALYSIS

¶ 18 Defendant raises several contentions of error, including allegations he was denied a fair trial, his counsel was ineffective, and his sentence was excessive. Specifically, with regard to his fair trial claims, he argues (1) the State elicited statements from his wife in violation of the marital privilege, (2) the jury was not given an instruction regarding the impeachment of Jashua's testimony based upon his prior convictions, and (3) the prosecutor in the State's closing argument improperly vouched for Jashua's and Dawnette's credibility, misstated Jashua's testimony, and improperly implied Dawnette feared a violent confrontation with defendant. Defendant also claims (1) the circuit court failed to adequately inquire into his pro se allegations of ineffective assistance of counsel, (2) his 15-year sentence was excessive, and (3) his counsel rendered ineffective assistance of counsel throughout the trial. We address each contention in turn.

¶ 19 A. Marital Privilege

¶ 20 In Illinois, neither spouse may testify against the other as to any conversation, communication, or admission made between them or against the other in criminal cases, unless a spouse is charged with an offense against the other. 725 ILCS 5/115-16 (West 2012). The purpose of this privilege is "intended to further marital harmony, mutual understanding and trust by encouraging full disclosure, free communication, and confidential communications between spouses." People v. Trzeciak , 2013 IL 114491, ¶ 41, 378 Ill.Dec. 761, 5 N.E.3d 141. Our supreme court has narrowed the application of this privilege to only communications intended to be confidential . Trzeciak , 2013 IL 114491, ¶ 42, 378 Ill.Dec. 761, 5 N.E.3d 141. "There is a presumption that communications between spouses, privately made, are intended to be confidential. However, where it appears from the nature or circumstances under which the communication was made that confidentiality was not intended, the communication is not privileged." Trzeciak , 2013 IL 114491, ¶ 42, 378 Ill.Dec. 761, 5 N.E.3d 141.

¶ 21 Two elements must be met before a communication between spouses is deemed privileged. First, the statement must convey a message. Second, the message must be intended to be confidential. Trzeciak , 2013 IL 114491, ¶ 44, 378 Ill.Dec. 761, 5 N.E.3d 141.

¶ 22 The statements defendant is challenging in this appeal are from Dawnette's testimony at trial where she reiterated the voicemail messages defendant purportedly left on her telephone after the incident. Dawnette testified defendant left a voicemail message indicating he was sorry for fighting Jashua and asked if he could come home. Specifically, Dawnette testified defendant said he "was sorry for fighting [her] brother, that he shouldn't have been there, that it shouldn't have happened, and he wished it didn't happen like that."

¶ 23 Defendant claims his statements to Dawnette were "undoubtedly intended to be confidential," in that they were pleas to save their marriage. Thus, he asserts those statements were inadmissible. However, defendant forfeited review of this issue by failing to (1) invoke the privilege during Dawnette's testimony (see People v. Hall , 194 Ill. 2d 305, 334-35, 252 Ill.Dec. 653, 743 N.E.2d 521, 539 (2000) ) and (2) object to the admission of this evidence at trial and raise the issue in a posttrial motion (see People v. Enoch , 122 Ill. 2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124, 1130 (1988) ). In his original brief, defendant asked us to apply the plain-error doctrine or review the issue for ineffective assistance of counsel based on counsel's failure to object to Dawnette's testimony. Our supreme court has directed us to consider the effect of its Veach decision on whether defendant's ineffective assistance of claim may be properly considered on direct appeal. Taylor , No. 120425 (Ill. Sept. 27, 2017).

¶ 24 In his supplemental brief on remand, defendant contended that, in light of Veach , this court should now decide his three ineffective assistance of counsel claims. He addressed the merits of his three claims in the brief as well. In its brief, the State addressed the merits of the three ineffective assistance of counsel claims. We again reconsider defendant's claims in light of Veach and find the record is sufficient to review defendant's claim.

¶ 25 This court evaluates ineffective assistance of counsel claims under the standard set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). People v. Evans , 186 Ill. 2d 83, 93, 237 Ill.Dec. 118, 708 N.E.2d 1158, 1163 (1999). For a successful ineffective assistance of counsel claim, a defendant must demonstrate (1) defense counsel's performance fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defendant. Strickland , 466 U.S. at 687, 104 S.Ct. 2052. To satisfy the deficiency prong of Strickland , the defendant must demonstrate counsel made errors so serious and counsel's performance was so deficient that counsel was not functioning as "counsel" guaranteed by the sixth amendment ( U.S. Const., amend. VI ). Evans , 186 Ill. 2d at 93, 237 Ill.Dec. 118, 708 N.E.2d 1158. Further, the defendant must overcome the strong presumption the challenged action or inaction could have been the product of sound trial strategy. Evans , 186 Ill. 2d at 93, 237 Ill.Dec. 118, 708 N.E.2d 1158. To satisfy the prejudice prong, the defendant must prove a reasonable probability exists that, but for counsel's unprofessional errors, the proceeding's result would have been different. Evans , 186 Ill. 2d at 93, 237 Ill.Dec. 118, 708 N.E.2d 1158. Additionally, the Strickland Court noted that, when a case is more easily decided on the ground of lack of sufficient prejudice rather than that counsel's representation was constitutionally deficient, the court should do so. Strickland , 466 U.S. at 697, 104 S.Ct. 2052.

¶ 26 As to the prejudice prong, defendant contends he suffered prejudice from Dawnette's testimony about his voicemail messages to her because the evidence was close. We disagree. Jashua testified that, as he approached defendant, defendant shoved him. Jashua shoved defendant back, and defendant punched him in the face. When Jashua grabbed defendant, an unidentified man grabbed Jashua from behind and held Jashua's arms behind his back while defendant continuously punched Jashua in the face. The man threw Jashua to the ground, and defendant and the man kicked Jashua in the back between 15 and 25 times. Jashua eventually went to the emergency room, where he was diagnosed with a broken nose. Officer Danner, who arrested defendant after speaking with Jashua and Dawnette, noticed defendant had a cut on his finger and his fists were red and swollen. Jashua's version of the events was not refuted. During closing arguments, defense counsel conceded defendant battered Jashua. Defendant only challenged whether Jashua suffered great bodily harm. Defendant contends the evidence was close because (1) the evidence conflicted on whether defendant had a right to be at Dawnette's home, (2) the evidence suggested Dawnette sent Jashua to her house knowing he would find defendant, (3) Jashua was on parole for home invasion and armed robbery, and (4) Jashua did not contact the police or Dawnette after the altercation. Those contentions do not call into question Jashua's unrefuted version of the facts. We disagree with defendant significant weakness existed in Jashua's and Dawnette's narratives. Accordingly, we find defendant failed to establish the prejudice prong of the Strickland test, and thus he cannot establish ineffective assistance of counsel based on counsel's failure to raise the marital privilege. Additionally, since defendant's plain-error argument rests on his contention the evidence was closely balanced and we have disagreed with that contention, defendant's plain-error argument also fails.

¶ 27 B. Failure To Give Jury Instruction on Prior Convictions

¶ 28 Defendant next claims he was denied a fair trial because Jashua testified he had two prior convictions and the circuit court failed to give Illinois Pattern Jury Instruction, Criminal, No. 3.12 (4th ed. 2000) (hereinafter IPI Criminal 4th No. 3.12), which states, "[e]vidence that a witness has been convicted of an offense may be considered by you only as it may affect the believability of the witness." Defendant contends IPI Criminal 4th No. 3.12 is a mandatory instruction. Defendant has again forfeited this issue by failing to raise an objection during the trial court proceedings. See Enoch , 122 Ill. 2d at 186, 119 Ill.Dec. 265, 522 N.E.2d 1124. As with the marital privilege, defendant asked us to apply the plain-error doctrine or review the issue for ineffective assistance of counsel based on counsel's failure to tender IPI Criminal 4th No. 3.12.

¶ 29 In our original opinion, we found the circuit court did not err. Generally, the circuit court is under no obligation to give instructions not tendered. People v. Barrow , 133 Ill. 2d 226, 266, 139 Ill.Dec. 728, 549 N.E.2d 240, 258 (1989). In Barrow , our supreme court found no reversible error for failing to give the jury IPI Criminal 4th No. 3.12. Barrow , 133 Ill. 2d at 267, 139 Ill.Dec. 728, 549 N.E.2d 240. The court found defendant had forfeited the issue, but it also found no error despite the fact the prosecutor, the trial judge, and defense counsel had told the jury it should judge the credibility of the State's witness, a convicted felon, by the same standard as any other witness. However, counsel also reminded the jury that the witness had been convicted and argued that he should not be believed. Barrow , 133 Ill. 2d at 267, 139 Ill.Dec. 728, 549 N.E.2d 240. Additionally, the committee notes do not indicate IPI Criminal 4th No. 3.12 is a mandatory instruction. It would have been up to defendant to tender the instruction if he sought to undermine Jashua's credibility. He failed to do so.

¶ 30 Next, in our original opinion, we declined to address defendant's alternative argument his attorney rendered ineffective assistance of counsel by failing to tender IPI Criminal 4th No. 3.12, finding the record was insufficient to address it. However, as previously stated, we now find the record is sufficient to consider defendant's argument.

¶ 31 As with defendant's marital privilege argument, we apply the two-pronged test of Strickland to defendant's claim. Strickland , 466 U.S. at 687, 104 S.Ct. 2052. Regarding prejudice, defendant again asserts the evidence is close. However, we have already found that is not the case. In light of the strong evidence against defendant, the result of defendant's trial would not have been different even if defense counsel had requested IPI Criminal 4th No. 3.12. Moreover, the lack of an instruction allowed the jury to consider Jashua's prior convictions against him without limitation. Accordingly, we find defendant failed to establish the prejudice prong of the Strickland test as to his claim of ineffective assistance of counsel based on counsel's failure to request IPI Criminal 4th No. 3.12. As with the marital privilege issue, defendant's plain-error argument also fails because we have found the evidence was not closely balanced.

¶ 32 C. State's Closing Argument

¶ 33 Defendant contends that, in closing arguments, the prosecutor improperly vouched for the credibility of Jashua and Dawnette, which deprived him of a fair trial when the State's case centered solely on the witnesses' credibility. Specifically, the prosecutor stated both witnesses were credible because they cooperated with the police. Defendant also claims the prosecutor improperly implied Dawnette feared a violent confrontation would occur if she went home and found defendant there. Defendant failed to pose any objection during the argument and likewise failed to raise the contentions of error in a posttrial motion. Therefore, defendant has forfeited this argument for appellate review. See Enoch , 122 Ill. 2d at 186, 119 Ill.Dec. 265, 522 N.E.2d 1124. Like the previous two issues, he contends we should review this issue under the plain-error doctrine or for ineffective assistance of counsel. We begin by examining whether the prosecutor's comments were improper.

¶ 34 Our supreme court has explained closing arguments as follows:

"The purpose of closing arguments is to give the parties a final opportunity to review with the jury the admitted evidence, discuss what it means, apply the applicable law to that evidence, and argue why the evidence and law compel a favorable verdict. [Citation.] A prosecutor has wide latitude in making a closing argument. [Citation.] In closing, the prosecutor may comment on the evidence and any fair, reasonable inferences it yields [citation], even if such inferences reflect negatively on the defendant [citation]." (Internal quotation marks omitted.) People v. Nicholas , 218 Ill. 2d 104, 121, 299 Ill.Dec. 637, 842 N.E.2d 674, 685 (2005).

Moreover, the supreme court has recognized a prosecutor's closing argument may reflect upon a witness's credibility if it is based on facts in the record or inferences fairly drawn from those facts. People v. Shum , 117 Ill. 2d 317, 348, 111 Ill.Dec. 546, 512 N.E.2d 1183, 1194 (1987). "In addition, a prosecutor is permitted to discuss subjects of general knowledge, common experience, or common sense in closing argument." People v. Beard , 356 Ill. App. 3d 236, 242, 292 Ill.Dec. 97, 825 N.E.2d 353, 359 (2005).

¶ 35 Here, defendant challenges the prosecutor's comment to the jury Jashua was cooperative with the police, "which is how you would expect the victim of a crime like this to act and corroborates his testimony." He also challenges the prosecutor's comment Dawnette was cooperative, "which corroborates her testimony and bolsters her credibility." Evidence was presented at trial showing Jashua and Dawnette were cooperative with the police investigation. Moreover, it is common sense and experience a crime victim would cooperate with the police. Thus, it naturally flows cooperation with the police is indicative of credibility. Accordingly, we find the prosecutor's comments about credibility were a fair inference from the trial evidence.

¶ 36 Further, this case is distinguishable from People v. Bell , 152 Ill. App. 3d 1007, 106 Ill.Dec. 59, 505 N.E.2d 365 (1987), which defendant cited in support of his argument. There, the prosecutor stated the following: "What we know is people have a human, natural, impulsive desire to tell the truth, to confess when they've done something bad; to tell the honest, true version of what has happened * * *." (Internal quotation marks omitted.) Bell , 152 Ill. App. 3d at 1018, 106 Ill.Dec. 59, 505 N.E.2d 365. The Third District found the comment was improper because the remark lacked any basis in the evidence and was an attempt to add further weight to the defendant's tape recorded confession. Bell , 152 Ill. App. 3d at 1018, 106 Ill.Dec. 59, 505 N.E.2d 365. The reviewing court also found the prosecutor improperly stated her personal opinion concerning the truth of the taped statement because "[a] prosecutor may not interject his personal belief in the veracity of a witness' testimony." Bell , 152 Ill. App. 3d at 1018, 106 Ill.Dec. 59, 505 N.E.2d 365. In this case, the evidence showed the witnesses assisted the police, and it is common experience for victims to cooperate with the police. Additionally, this court has held that, "for a prosecutor's closing argument to be improper, he must explicitly state that he is asserting his personal views, stating for example, 'this is my personal view.' " (Emphasis in original.) People v. Pope , 284 Ill. App. 3d 695, 707, 220 Ill.Dec. 309, 672 N.E.2d 1321, 1329 (1996). Here, the prosecutor did not state it was his personal view.

¶ 37 Defendant also challenges the prosecutor's statement Dawnette wanted Jashua "to make sure [her house] was secure so that she could return there that evening with her children without having to worry about any confrontation taking place or what was going to happen." He claims the statement suggests Dawnette feared a confrontation with defendant and invited the jury to speculate that defendant might be violent. Defendant further contends no evidence was presented Dawnette feared defendant.

¶ 38 "Confrontation" has the following definitions: (1) "face-to-face meeting," (2) "the clashing of forces or ideas: conflict," and (3) "comparison." Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/confrontation (last visited Jan. 26, 2018). None of the definitions include violence. In fact, the example for the second definition, "a violent confrontation between rival gangs," adds the adjective "violence" to indicate violence. (Emphasis omitted). Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/confrontation (last visited Jan. 26, 2018). Thus, we disagree with defendant the prosecutor's statement invited the jury to speculate whether defendant might be violent.

¶ 39 Moreover, we find the prosecutor's statement about a confrontation was based on the trial evidence. Dawnette testified she asked Jashua to check on her house because she was ready to go home. She wanted Jashua to secure the house and make sure no one was there, so she "could go home and everything would be okay." Dawnette testified it was common practice for her to ask Jashua to secure her residence before she returned home. She did so because of a prior incident with defendant. On the day of the battery, she had not been home in a week because of a "prior incident." Jashua also testified it was common practice for Dawnette to ask him to go to her home and make sure defendant was not there. Due to the fact Dawnette had a common practice of asking Jashua to make sure defendant was not at the home when she returned, it is a reasonable inference she feared a confrontation with defendant.

¶ 40 Since we have found the prosecutor's statements were proper, defendant has failed to establish both that defense counsel was ineffective for failing to object to them and plain error.

¶ 41 D. Krankel Inquiry

¶ 42 Defendant claims the circuit court did not adequately inquire into his pro se allegations of ineffective assistance of counsel. In particular, defendant argues the circuit court did not inquire into the ARDC complaint defendant had filed relating to counsel's representation. The law requires a circuit court to conduct some type of inquiry into a defendant's pro se claim of ineffective assistance of counsel. People v. Moore , 207 Ill. 2d 68, 78, 278 Ill.Dec. 36, 797 N.E.2d 631, 637 (2003). Thus, the concern is " 'whether the trial court conducted an adequate inquiry' into the allegations." People v. Peacock , 359 Ill. App. 3d 326, 339, 295 Ill.Dec. 563, 833 N.E.2d 396, 407 (2005) (quoting Moore , 207 Ill. 2d at 78, 278 Ill.Dec. 36, 797 N.E.2d 631 ). In our original opinion, we concluded the circuit court's inquiry was adequate. In his supplemental brief, defendant asks us to reconsider our original holding on this issue. However, our supreme court specifically directed us to consider the effect of the Veach decision on whether defendant's ineffective assistance of counsel claims could be properly considered on direct appeal. Taylor , No. 120425 (Ill. Sept. 27, 2017). This issue is outside the supreme court's directions on remand, and thus we decline to reconsider this issue. The following is our original disposition of the issue.

¶ 43 On August 25, 2013, approximately 10 days after defendant's jury trial, defendant filed a handwritten letter, stating he was not happy with counsel's representation. On August 29, 2013, defendant filed a handwritten "motion for ineffective counseling." The circuit court, the Honorable Scott B. Diamond, presiding, filed a letter in response, addressed to defendant, indicating defendant's filings had "trigger[ed] a ' Krankel ' hearing." On October 10, 2013, the circuit court, the Honorable Timothy J. Steadman, presiding, conducted a Krankel hearing. At the hearing, the court asked defendant to explain his allegations "one at a time." After defendant mentioned each of his complaints, the court addressed defendant's counsel and asked him to respond. After considering defendant's and counsel's arguments, the court denied defendant's motion.

¶ 44 In January 2014, Judge Steadman conducted a hearing on counsel's motion to reconsider defendant's sentence. Prior to beginning the hearing, counsel informed the court defendant had filed an ARDC complaint against him. The court asked defendant if he wanted "an attorney to represent [him] on this motion to reduce sentence." Defendant responded: "No, I'm fine with him."

¶ 45 In this case, the circuit court satisfied the inquiry requirement set forth in Moore . The court gave defendant ample opportunity to explain each of his allegations. The court questioned defendant and trial counsel, and therefore, it adequately inquired into and considered defendant's allegations in his filings with the court. Cf. Peacock , 359 Ill. App. 3d at 339-40, 295 Ill.Dec. 563, 833 N.E.2d 396.

¶ 46 E. Sentence

¶ 47 Defendant contends his 15-year sentence is excessive given (1) the State had previously offered him a 4-year plea agreement, (2) the circumstances of the case favored a lesser sentence, and (3) defendant was gainfully employed and supporting his child and his wife's three children at the time of the offense.

¶ 48 First, the record does not contain any evidence of the State's initial plea offer. Defendant indicated at the Krankel hearing that the State had offered him a four-year plea deal, but his statement is not corroborated anywhere in the record. Thus, we will not rely on that basis as a ground for finding his sentence excessive. See People v. Parsons , 284 Ill. App. 3d 1049, 1064, 220 Ill.Dec. 435, 673 N.E.2d 347, 357 (1996) (sentencing court did not err by sentencing the defendant to 15 years after the State had proposed a plea deal of 6 to 10 years). The State may have tried to induce defendant to enter into an early plea agreement with the lure of a lesser sentence than typically warranted, but such an offer has no effect on an argument challenging a greater sentence. Parsons , 284 Ill. App. 3d at 1064, 220 Ill.Dec. 435, 673 N.E.2d 347 ("Moreover, there is nothing inherently unconstitutional in increasing a sentence after trial. Such an increase need not connote the imposition of a penalty because the defendant elected to proceed to trial, but, rather, the disparity may simply reflect an inducement given to a defendant to plea bargain in exchange for a sentence less than that which is ordinarily warranted. That, by itself, is not unlawful.").

¶ 49 Defendant also contends the circuit court failed to consider the factual circumstances of the offense and the fact defendant was providing for his family. When addressing an excessive sentence claim, this court has explained its role in reviewing a defendant's sentence as follows:

"A trial court's sentencing determination must be based on the particular circumstances of each case, including factors such as the defendant's credibility, demeanor, general moral character, mentality, social environment, habits, and age. [Citations.] Generally, the trial court is in a better position than a court of review to determine an appropriate sentence based upon the particular facts and circumstances of each individual case. [Citation.] Thus, the trial court is the proper forum for the determination of a defendant's sentence, and the trial court's decisions in regard to sentencing are entitled to great deference and weight. [Citation.] Absent an abuse of discretion by the trial court, a sentence may not be altered upon review. [Citation.] If the sentence imposed is within the statutory range, it will not be deemed excessive unless it is greatly at variance with the spirit and purpose of the law or is manifestly disproportionate to the nature of the offense." (Internal quotation marks omitted.) People v. Price , 2011 IL App (4th) 100311, ¶ 36, 354 Ill.Dec. 598, 958 N.E.2d 341.

¶ 50 Defendant, based on his criminal record, was to be sentenced as a Class X offender. The State had recommended a sentence of 20 years, while defendant's attorney recommended a sentence of 6 years. The court considered defendant's "very poor prior record of prior criminal convictions, at least three residential burglaries, one as a juvenile, two as an adult, prior acts of violence and aggravated battery, felony domestic battery, misdemeanor domestic battery, at least three resisting a peace officer convictions, and then other convictions like escape and the cannabis conviction referred to by counsel." Additionally, the court considered defendant had committed this offense while on parole, an "extremely serious situation." The court found defendant was "a person who the public has to be protected from."

¶ 51 Defendant's sentence falls within the applicable statutory guidelines. Sentencing for a Class X offender is 6 to 30 years in prison. 730 ILCS 5/5-4.5-25(a) (West 2012). The circuit court's imposition of a sentence of 15 years falls squarely within the time prescribed. Given the relevant factors and considerations, we conclude the circuit court did not abuse its discretion in sentencing defendant.

¶ 52 III. CONCLUSION

¶ 53 For the reasons stated, we affirm the Macon County circuit court's judgment. As part of our judgment, we award the State its $75 statutory assessment against defendant as costs of this appeal.

¶ 54 Affirmed.

Justices Steigmann and DeArmond concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    IN RE L.W., a Minor
    (The People of the State of Illinois, Petitioner-Appellee, v. Jeremie G., Respondent-Appellant).
    Appeal No. 3-17-0405
    Appellate Court of Illinois, Third District.
    Opinion filed March 21, 2018 Special Concurrence filed April 25, 2018
    Angela P. Madison, of Pekin, for appellant.
    Stewart J. Umholtz, State's Attorney, of Pekin (Patrick Delfino, Lawrence M. Bauer, and Richard T. Leonard, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
    Aimee E. Dluski, of Pekin, guardian ad litem.
   PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.

¶ 1 In the context of a juvenile neglect proceeding, respondent, Jeremie G., filed a supplemental petition to reinstate wardship (petition) over his minor child, L.W., so that respondent could establish that he was no longer dispositionally unfit as a parent. The State and the Department of Children and Family Services (DCFS) opposed respondent's petition, and the guardian ad litem (GAL) for the minor child supported the petition. After a hearing, the trial court denied the petition. Respondent appeals. We affirm the trial court's judgment.

¶ 2 FACTS

¶ 3 Respondent and Sonja W. were the biological parents of the minor child, L.W., who was born in September 2007. In September 2009, the State filed a juvenile petition alleging that L.W. was a neglected minor due to an injurious environment. After hearings were held on the petition, the trial court found that L.W. was a neglected minor, made L.W. a ward of the court, found that respondent was dispositionally unfit as a parent, found that Sonja W. was dispositionally fit as a parent, and awarded guardianship of L.W. to DCFS. L.W.'s placement was kept with Sonja W.

¶ 4 At the first and second permanency review hearings in September 2010 and May 2011, at which respondent did not appear, the trial court found that respondent had not made reasonable efforts or progress due to a lack of interest and cooperation and that respondent was still unfit as a parent. At the conclusion of the May 2011 hearing, the trial court returned guardianship of the child to Sonja W., terminated wardship, and closed the case.

¶ 5 More than five years later, in December 2016, respondent filed a pro se petition to restore his fitness as a parent. The trial court appointed an attorney for respondent. In February 2017, respondent's attorney filed a supplemental petition to reinstate wardship (the petition at issue in the present case) pursuant to section 2-33(1) of the Juvenile Court Act of 1987 (Act) ( 705 ILCS 405/2-33(1) (West 2016) ), which provided, in pertinent part, that:

"(1) Any time prior to a minor's 18th birthday, pursuant to a supplemental petition filed under this Section, the court may reinstate wardship and open a previously closed case when:
(a) wardship and guardianship under the Juvenile Court Act of 1987 was vacated in conjunction with the appointment of a private guardian under the Probate Act of 1975;
(b) the minor is not presently a ward of the court under Article II of this Act nor is there a petition for adjudication of wardship pending on behalf of the minor; and
(c) it is in the minor's best interest that wardship be reinstated." 705 ILCS 405/2-33(1) (West 2016).

Respondent alleged in the petition that, after warship was terminated in the present case, he had completed several services and had put himself in a position to be found dispositionally fit as a parent. Respondent alleged further that he had maintained his relationship with L.W., he had continued to have regular supervised visits with L.W., and it was in L.W.'s best interest to reinstate wardship. Respondent also sought leave to file a motion for a finding of fitness, which respondent had attached to the petition, if the trial court granted respondent's petition to reinstate wardship.

¶ 6 The State filed a response, alleging that the trial court did not have jurisdiction to rule upon the petition because the facts in this particular case did not comply with the requirements of section 2-33(1)(a) of the Act. DCFS filed a motion to dismiss respondent's petition on that same basis. Respondent filed a memorandum of law in support of his petition.

¶ 7 In June 2017, a hearing was held on respondent's petition and the various responses. At the hearing, respondent argued in support of the petition and asked that the petition be granted. The State and DCFS opposed the petition, and the GAL joined respondent in support of the petition. Sonja W.'s attorney had not been able to make contact with Sonja W. and did not, therefore, take a position on the matter.

¶ 8 After listening to the arguments of the attorneys and taking the matter under advisement for a short period, the trial court denied respondent's petition. As a matter of statutory interpretation, the trial court found that all three conditions listed in section 2-33(1) of the Act had to be satisfied before a supplemental petition to reinstate wardship could be granted. The trial court concluded that the factual situation in the present case did not satisfy the requirements of section 2-33(1) because wardship and guardianship in the present case had not been vacated in conjunction with the appointment of a private guardian under the Probate Act, which was listed as the first condition in the statute (see 705 ILCS 405/2-33(1)(a) (West 2016) ). In making that determination, the trial court relied upon the Second District Appellate Court's decision in In re Tr. O. , 362 Ill. App. 3d 860, 866, 298 Ill.Dec. 828, 840 N.E.2d 1263 (2005), which had reached the same conclusion in a similar factual situation. The trial court, therefore, denied respondent's petition and also denied respondent's request for leave to file his motion for fitness. As part of its ruling, the trial court stated that its decision was final and appealable and made an Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) finding that there was no just reason to delay enforcement or appeal of its decision. Respondent brought this appeal to challenge the trial court's ruling.

¶ 9 ANALYSIS

¶ 10 On appeal, respondent argues that the trial court erred in interpreting section 2-33(1) of the Act and in denying his supplemental petition to reinstate wardship. Respondent asserts that the trial court's overly restrictive interpretation of the statute (1) is inconsistent with the Act as a whole, (2) is contrary to the Act's purpose to preserve and strengthen the minor's family ties whenever possible, (3) would render the statute useless, as an unfit parent would never be able to establish fitness or to obtain unsupervised visitation after wardship had been terminated, and (4) would lead to negative unintended consequences where courts would be reluctant to terminate wardship or to make findings of parental unfitness because such rulings would leave an unfit parent with no ability to establish fitness. Respondent contends instead that section 2-33(1) of the Act should be read so that the first condition listed in the statute serves as one basis upon which reinstatement of wardship may be granted and the second and third conditions listed in the statute, taken together, serve as a second basis upon which reinstatement may be granted (that the word "and," between subsections (b) and (c), should be read as only applying to those two subsections and that the word "or" should be read into the statute between subsections (a) and (b) ). In the alternative, respondent asserts that section 2-33(1) should be read so that each of the three conditions listed in the section is considered a separate basis upon which reinstatement of wardship may be granted (that the word "and," between subsections (b) and (c), should actually be read as "or"). Thus, respondent asserts that he was not required to satisfy the condition listed in subparagraph (a) of section 2-33(1) to obtain reinstatement of wardship as to L.W. In support of his assertion, respondent points to section 2-34 of the Act ( 705 ILCS 405/2-34 (West 2016) ), wherein the legislature specifically stated that all of the conditions listed in that particular statute had to be satisfied. Respondent contends that had the legislature wanted section 2-33 to be read in that manner, it would have used the same type of language that it had used in section 2-34. In making his assertions on this issue, respondent contends that the Tr. O. case, upon which the trial court relied, was incorrectly decided and should not be followed here. Respondent maintains that, unlike the appellate court's interpretation of the statute in Tr. O. , both of his two proposed interpretations of section 2-33(1) in the present case would be consistent with the Act and would provide a remedy for an unfit parent to seek a finding of fitness in the event that his juvenile case was closed, that he corrected the condition that led to the removal of the minor, and that he was capable of being found fit. For all of the reasons stated, respondent asks that we reverse the trial court's ruling and, presumably, that we remand this case for further proceedings.

¶ 11 The State argues first that this court lacks jurisdiction to hear this appeal and that this appeal should be dismissed. The State asserts that appellate jurisdiction is lacking because respondent did not file his pro se petition for fitness or a notice of appeal within 30 days after the trial court entered its final order in May 2011 terminating wardship and closing the case (see In re C.S., Jr. , 294 Ill. App. 3d 780, 786-87, 229 Ill.Dec. 225, 691 N.E.2d 161 (1998) ). Second, and in the alternative, the State argues that if this court has jurisdiction to hear this appeal, the trial court's ruling was proper and should be upheld. In support of that argument, the State asserts that section 2-33(1) of the Act clearly and unambiguously requires that all three conditions listed in the statute must be satisfied before a supplemental petition to reinstate wardship may be granted. The State asserts further that, as the trial court correctly found, respondent was unable to satisfy the first condition because this case did not involve the appointment of a guardian under the Probate Act. According to the State, the Second District Appellate Court's decision in the Tr. O. case is directly on point and should be followed here. Furthermore, the State contends that respondent's assertion regarding possible negative unintended consequences is purely speculative and does not justify ignoring the plain language of the statute and that respondent's remaining assertions on this issue are better directed to the legislature, rather than to the court. For all of the reasons set forth, the State asks first that we dismiss this appeal for lack of jurisdiction and, second, and in the alternative, that we affirm the trial court's judgment.

¶ 12 I. Appellate Jurisdiction

¶ 13 Before we address the merits of the parties' arguments on appeal, we must first address the State's contention that appellate jurisdiction is lacking in this case and that this appeal must be dismissed. Although it is well-settled that an appeal must be dismissed if appellate jurisdiction is lacking (see Archer Daniels Midland Co. v. Barth , 103 Ill. 2d 536, 539, 83 Ill.Dec. 332, 470 N.E.2d 290 (1984) ), we do not believe that appellate jurisdiction is lacking in the present case. Contrary to the State's contention, the time-limits that apply to the filing of a post-judgment motion do not apply to a section 2-33(1) petition because, pursuant to the statute, such a petition may be filed any time prior to the minor's 18th birthday. See 705 ILCS 405/2-33(1) (West 2016). Under our reading of the plain language of the statute, once a section 2-33(1) petition is filed, the trial court has authority and jurisdiction to consider reinstating wardship. See In re T.W. , 352 Ill. App. 3d 1208, 1213, 288 Ill.Dec. 199, 817 N.E.2d 557 (2004). To the extent that the Second District Appellate Court took a different position on jurisdiction in the Tr. O. case (see Tr. O. , 362 Ill. App. 3d at 865-66, 298 Ill.Dec. 828, 840 N.E.2d 1263 ), we disagree with that conclusion. Furthermore, although permanency-type orders are typically not final and appealable, the trial court order that was appealed from in the present case was permanent in nature and had the characteristics of a final and appealable order. See In re Faith B. , 216 Ill. 2d 1, 16-18, 295 Ill.Dec. 1, 832 N.E.2d 152 (2005) (finding that under the facts of that particular case, the permanency order entered by the trial court was a final and appealable order). We conclude, therefore, that appellate jurisdiction is not lacking in this case since respondent's notice of appeal was timely filed within 30 days after the trial court entered its order denying respondent's section 2-33(1) petition. See Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303(a)(1) (eff. July 1, 2017); Archer Daniels Midland Co. , 103 Ill. 2d at 538, 83 Ill.Dec. 332, 470 N.E.2d 290 (the filing of a timely notice of appeal vests the appellate court with jurisdiction); T.W. , 352 Ill. App. 3d at 1213, 288 Ill.Dec. 199, 817 N.E.2d 557 ; Faith B. , 216 Ill. 2d at 16-18, 295 Ill.Dec. 1, 832 N.E.2d 152. Having found that appellate jurisdiction exists in this case, we now turn to the merits of the parties' statutory interpretation arguments.

¶ 14 II. Interpretation of Section 2-33(1) of the Act

¶ 15 The interpretation of a statute is a question of law and is subject to de novo review on appeal. In re M.M. , 2016 IL 119932, ¶ 15, 410 Ill.Dec. 874, 72 N.E.3d 260. The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature. Id. ¶ 16. The most reliable indicator of that intent is the plain and ordinary meaning of the language of the statute itself. Id. In determining the plain meaning of statutory terms, a court should consider the statute in its entirety and keep in mind the subject the statute addresses and the apparent intent of the legislature in enacting the statute. Id. ; 5 ILCS 70/1.01 (West 2016) (in construing a statute, "[a]ll general provisions, terms, phrases and expressions shall be liberally construed in order that the true intent and meaning of the General Assembly may be fully carried out"). If the statutory language is clear and unambiguous, it must be applied as written, without resorting to further aids of statutory construction. Gaffney v. Board of Trustees of the Orland Fire Protection District , 2012 IL 110012, ¶ 56, 360 Ill.Dec. 549, 969 N.E.2d 359. A court may not depart from the plain language of the statute and read into it exceptions, limitations, or conditions that are not consistent with the express legislative intent. Id. However, if the language of a statute is ambiguous in that it is susceptible to more than one reasonable interpretation, a court may consider extrinsic aids to determine the meaning of the statutory language. See Williams v. Illinois State Scholarship Comm'n , 139 Ill. 2d 24, 51, 150 Ill.Dec. 578, 563 N.E.2d 465 (1990).

¶ 16 The statute at issue in the present case is section 2-33 of the Act, which, in pertinent part, provides as follows:

"§ 2-33. Supplemental petition to reinstate wardship.
(1) Any time prior to a minor's 18th birthday, pursuant to a supplemental petition filed under this Section, the court may reinstate wardship and open a previously closed case when:
(a) wardship and guardianship under the Juvenile Court Act of 1987 was vacated in conjunction with the appointment of a private guardian under the Probate Act of 1975;
(b) the minor is not presently a ward of the court under Article II of this Act nor is there a petition for adjudication of wardship pending on behalf of the minor; and
(c) it is in the minor's best interest that wardship be reinstated.
(2) Any time prior to a minor's 21st birthday, pursuant to a supplemental petition filed under this Section, the court may reinstate wardship and open a previously closed case when:
(a) wardship and guardianship under this Act was vacated pursuant to:
(i) an order entered under subsection (2) of Section 2-31 in the case of a minor over the age of 18;
(ii) closure of a case under subsection (2) of Section 2-31 in the case of a minor under the age of 18 who has been partially or completely emancipated in accordance with the Emancipation of Minors Act; or
(iii) an order entered under subsection (3) of Section 2-31 based on the minor's attaining the age of 19 years;
(b) the minor is not presently a ward of the court under Article II of this Act nor is there a petition for adjudication of wardship pending on behalf of the minor; and
(c) it is in the minor's best interest that wardship be reinstated.
(3) The supplemental petition must be filed in the same proceeding in which the original adjudication order was entered." 705 ILCS 405/2-33 (West 2016).

¶ 17 In the Tr. O. case, the Second District Appellate Court found that the statutory language of section 2-33(1) of the Act was clear and that, as a matter of statutory interpretation, all three of the conditions listed in section 2-33(1) had to be satisfied before a supplemental petition to reinstate wardship could be granted. Tr. O. , 362 Ill. App. 3d at 866, 298 Ill.Dec. 828, 840 N.E.2d 1263. In reaching that conclusion, the Second District Appellate Court noted that the legislature had plainly limited the application of section 2-33(1) to situations where wardship and guardianship under the Act were vacated in conjunction with the appointment of a private guardian under the Probate Act of 1975 ( 755 ILCS 5/1-1 et seq . (West 2016) ). See Tr. O. , 362 Ill. App. 3d at 866, 298 Ill.Dec. 828, 840 N.E.2d 1263.

¶ 18 Although, as noted above, we do not agree with the Second District Appellate Court's statement in Tr. O. regarding jurisdiction as it relates to section 2-33(1), we do agree with the Second District's interpretation of the conditions portion of the statute. We find, therefore, as did the Second District Appellate Court in Tr. O. , that all three conditions listed in section 2-33(1) of the Act must be satisfied before a supplemental petition for reinstatement of wardship may be granted. See 705 ILCS 405/2-33(1) (West 2016); Tr. O. , 362 Ill. App. 3d at 866, 298 Ill.Dec. 828, 840 N.E.2d 1263. In addition to the plain language of section 2-33(1) and the appellate court's decision in Tr. O. , our interpretation of the statute is further supported by the fact that the legislature used both the words "and" and "or" in section 2-33(2) of the Act (see 705 ILCS 405/2-33(2) (West 2016) ), thus, clearly showing that the legislature intended to use the word "and" when it did so in section 2-33(1). Applying that interpretation to the facts at hand, we find that respondent's supplemental petition to reinstate wardship was properly denied because the factual situation failed to satisfy the first condition listed in the statute-that wardship and guardianship under the Act were vacated in conjunction with the appointment of a private guardian under the Probate Act of 1975. See 705 ILCS 405/2-33(1) (West 2016); Tr. O. , 362 Ill. App. 3d at 866, 298 Ill.Dec. 828, 840 N.E.2d 1263.

¶ 19 We are not persuaded to reach a different conclusion in this case based upon the proposed interpretations of section 2-33(1) that respondent suggests. Indeed, as our supreme court has pointed out, the use of the conjunctive "and" generally indicates that the legislature intended that all of the listed conditions or requirements in a statute be satisfied. M.M. , 2016 IL 119932, ¶ 21. Nor do we believe that any additional insight is gained by considering the language the legislature used in section 2-34 of the Act, when the legislature clearly demonstrated in section 2-33 that it had stated "and" when it meant "and" and that had it stated "or" when it meant "or." Furthermore, we believe that respondent's remaining concerns regarding possible unintended negative consequences and whether a person in respondent's position lacks a remedy to establish fitness are more appropriately directed to the legislature, rather than to this court.

¶ 20 CONCLUSION

¶ 21 For the foregoing reasons, we affirm the judgment of the circuit court of Tazewell County.

¶ 22 Affirmed.

Justice O'Brien concurred in the judgment and opinion.

Justice Schmidt specially concurred, with opinion.

¶ 23 JUSTICE SCHMIDT, specially concurring:

¶ 24 While I concur, I write separately to address respondent's contention that the procedure utilized in this case terminated his parental rights for all fundamental purposes. It did not. Pursuant to section 1-3(13) of the Act ( 705 ILCS 405/1-3(13) (West 2016)), respondent continues to have residual parental rights and responsibilities over L.W. As his parental rights were not terminated, nothing prevents him from seeking unsupervised visitation or custody by filing a petition for allocation of parental responsibilities under the Illinois Marriage and Dissolution of Marriage Act. See 750 ILCS 5/601.2 (b) (West 2016).


text:
    Thomas J. ROTTMAN Jr., Plaintiff-Appellee, v. The ILLINOIS STATE OFFICERS ELECTORAL BOARD and Its Members, William J. Cardigan, John R. Keith, Andrew K. Carruthers, Ian K. Linnabary, William M. McGuffage, Katherine S. O'Brien, Charles W. Scholz, and Cassandra B. Watson; the Illinois State Board of Elections; and Scott Drury, Defendants
    (Scott Drury, Defendant-Appellant).
    No. 1-18-0234
    Appellate Court of Illinois, First District, SIXTH DIVISION.
    Opinion Filed March 23, 2018
    Reed Smith LLP (Casey L. Westover, of counsel), and Dwyer & Coogan, P.C. (Patrick E. Dwyer III, of counsel), both of Chicago, for appellant.
    James P. Nally, P.C. (James P. Nally, of counsel), and Michael J. Kasper, both of Chicago, for appellee.
   JUSTICE CONNORS delivered the judgment of the court, with opinion.

¶ 1 Defendant, Scott Drury, is a candidate for the Democratic nomination for the office of Illinois Attorney General in the general primary election to be held on March 20, 2018. Plaintiff, Thomas J. Rottman Jr., objected to Drury's nomination petition. The State Officers Electoral Board (Board) overruled Rottman's objection. Rottman sought review of the Board's decision in the circuit court, which reversed the Board's decision and ordered that Drury's name not appear on the ballot. Drury appeals, contending that the Board correctly found that he satisfied the requirements of section 7-12(8) of the Election Code ( 10 ILCS 5/7-12(8) (West 2016) ) when he submitted a receipt with his nomination petition, showing that within the preceding year, he filed his statement of economic interests with the Secretary of State in connection with his position as state representative. We reverse the circuit court's decision and conclude that Drury's name should appear on the ballot.

¶ 2 Drury has been a state representative in the General Assembly. On November 27, 2017, Drury filed a nomination petition with the Illinois State Board of Elections for nomination as the Democratic candidate for the office of Illinois Attorney General. The nomination petition included a statement of candidacy and a receipt from the Office of the Secretary of State, dated November 17, 2017, which stated:

"Please accept this receipt as acknowledgment that our office has received and filed your Statement of Economic Interests pursuant to the Illinois Governmental Ethics Act. Your statement was filed on April 10, 2017 for the following agencies:
REPRESENTATIVE IN THE GENERAL ASSEMBLY."

¶ 3 On December 11, 2017, Rottman filed an objection with the Illinois State Board of Elections, contending that under section 7-10 of the Election Code ( 10 ILCS 5/7-10 (West 2016) ), Drury should have filed a statement of economic interests " 'in relation to his candidacy,' to-wit, his candidacy for Illinois Attorney General, not later than December 4, 2017." Rottman continued that the Election Code only excused this requirement where, within the last year, a candidate filed a statement of economic interests in relation to the same governmental unit for which the candidate now sought office. However, state representative and attorney general are not in the same governmental unit because the positions are in two distinct and separate branches of government. According to Rottman, Drury should have filed a new statement of economic interests and receipt, and by not doing so, Drury failed to comply with the Election Code and should be removed from the ballot.

¶ 4 Drury opposed the objection before the Board, contending that the positions of state representative and attorney general relate to the same governmental unit-the State of Illinois. On January 5, 2018, a hearing examiner recommended that the objection be sustained and Drury's name not appear on the ballot for the March 20 election. The hearing examiner concluded that members of the General Assembly are in a different unit of government than members of the executive branch, and so Drury should have submitted a new statement of economic interests for his attorney general candidacy.

¶ 5 The General Counsel of the Illinois State Board of Elections disagreed with the hearing examiner. In his recommendation, the General Counsel stated in part that he was not convinced that the legislative and executive branches are separate units of government. The General Counsel further stated that Drury's statement of economic interests, which he filed as a state representative, related to the State of Illinois and not only to the representative district that he represents.

¶ 6 On January 11, 2018, the Board issued a decision that adopted the General Counsel's recommendation and overruled Rottman's objection. The Board found that the offices of state representative and attorney general were the same governmental unit for the purposes of filing a statement of economic interests. Thus, Drury's filing of a statement of economic interests for the office of state representative within a year preceding the date on which he filed his nomination papers for attorney general satisfied the requirements of the Election Code. The Board ordered that Drury's name be certified for the primary election ballot.

¶ 7 On January 16, 2018, Rottman sought review of the Board's decision in the circuit court. On February 2, 2018, after a hearing, the court reversed the Board's decision and ordered that Drury's name not appear on the primary ballot as a candidate for attorney general. Drury filed a notice of appeal on the same day. On February 5, 2018, pursuant to a motion by Drury, this court (1) stayed enforcement of the circuit court's order and judgment pending the outcome of the instant appeal and (2) granted a request for expedited consideration.

¶ 8 On appeal, Drury contends that the Board correctly held that he satisfied the requirements of section 7-12(8) of the Election Code ( 10 ILCS 5/7-12(8) (West 2016) ). Drury argues that he filed his statement of economic interests in relation to the same governmental unit for which he now seeks office. Drury asserts that with respect to state offices, the State of Illinois is the applicable governmental unit for a statement of economic interests. Drury maintains that statutory and constitutional language support the Board's decision and basic canons of statutory interpretation dictate that Illinois's executive and legislative branches are not separate governmental units.

¶ 9 Meanwhile, Rottman contends that Drury could not use the statement of economic interests receipt that relates to his position as state representative for his attorney general candidacy. Rottman argues that Drury cannot use the receipt he filed for a legislative office to support his candidacy for an executive office position because legislative and executive offices are different units of government. Rottman states that per the Illinois Constitution, "[t]he legislative, executive and judicial branches are separate." Ill. Const. 1970, art. II, § 1. As such, Drury's nomination papers are invalid.

¶ 10 The parties dispute whether Drury met the following requirement in the Election Code:

"Nomination papers filed under this Section are not valid if the candidate named therein fails to file a statement of economic interests as required by the Illinois Governmental Ethics Act [ (Ethics Act) ( 5 ILCS 420/1-101 et seq. (West 2016) ) ] in relation to his candidacy with the appropriate officer by the end of the period for the filing of nomination papers unless he has filed a statement of economic interests in relation to the same governmental unit with that officer within a year preceding the date on which such nomination papers were filed. If the nomination papers of any candidate and the statement of economic interest of that candidate are not required to be filed with the same officer, the candidate must file with the officer with whom the nomination papers are filed a receipt from the officer with whom the statement of economic interests is filed showing the date on which such statement was filed. Such receipt shall be so filed not later than the last day on which nomination papers may be filed." 10 ILCS 5/7-12(8) (West 2016).

¶ 11 Drury seeks to fall under the provision stated above that he did not need to file a statement of economic interests in relation to his attorney general candidacy because he filed a statement of economic interests in relation to the same governmental unit within the preceding year. Thus, at issue is the meaning of "governmental unit." Because this issue requires us to construe the Election Code, Ethics Act, and Illinois Constitution, our review is de novo . See Bettis v. Marsaglia , 2014 IL 117050, ¶ 12, 387 Ill.Dec. 659, 23 N.E.3d 351 (issues of statutory construction are reviewed de novo ); see also Cortez v. Municipal Officers Electoral Board , 2013 IL App (1st) 130442, ¶ 14, 369 Ill.Dec. 376, 986 N.E.2d 689 (a dispute over the interpretation of a statute is a question of law that calls for de novo review). Further, on appeal from a decision of the circuit court that affirmed or reversed an electoral board's decision, we review the decision of the board and not the circuit court. Guerrero v. Municipal Officers Electoral Board , 2017 IL App (1st) 170486, ¶ 11, 414 Ill.Dec. 753, 81 N.E.3d 19.

¶ 12 Two statutes and the Illinois Constitution reference the requirement that a candidate file a statement of economic interests and include the word "unit." Above, we noted that section 712(8) of the Election Code ( 10 ILCS 5/7-12(8) (West 2016) ) requires candidates to file a statement of economic interests. Additionally, section 4A-101 of the Ethics Act (5 ILCS 420/4A101 (West 2016) ) requires candidates to file such a statement. The Ethics Act provides two forms for the statement of economic interests: one that pertains to a candidate's connections to entities "doing business in the State of Illinois" and another that pertains to a candidate's connections to entities "doing business with a unit of local government." Id. §§ 4A-103, 4A-104. The disclosures "are intended to avoid any conflict of interest between the government and its officers and employees and to instill in the public trust and confidence in its elected officials." Crudup v. Sims , 292 Ill. App. 3d 1075, 1076, 226 Ill.Dec. 931, 686 N.E.2d 714 (1997).

¶ 13 The Illinois Constitution also requires candidates to file a statement of economic interests:

"All candidates for or holders of state offices and all members of a Commission or Board created by this Constitution shall file a verified statement of their economic interests, as provided by law. The General Assembly by law may impose a similar requirement upon candidates for, or holders of, offices in units of local government and school districts. * * * This Section shall not be construed as limiting the authority of any branch of government to establish and enforce ethical standards for that branch." Ill. Const. 1970, art. XIII, § 2.

¶ 14 "With both constitutional and statutory interpretation, our primary goal is to ascertain the drafters' intent * * *." People v. Chatman , 2016 IL App (1st) 152395, ¶ 30, 408 Ill.Dec. 623, 66 N.E.3d 415. The best indication of intent is the plain language of the drafters' words. Id. Words and phrases are not viewed in isolation, and are considered in light of other relevant provisions of the statute at issue. Bettis , 2014 IL 117050, ¶ 13, 387 Ill.Dec. 659, 23 N.E.3d 351. Each word, clause, and sentence must be given a reasonable construction if possible, and should not be rendered superfluous. Id. Where the meaning of an enactment is unclear from the language itself, we may look beyond the language used and consider the purpose behind the law and the evils the law was designed to remedy. Id. We also note that statutes are read together and construed in a harmonious fashion. Fischetti v. Village of Schaumburg , 2012 IL App (1st) 111008, ¶ 6, 359 Ill.Dec. 920, 967 N.E.2d 950.

¶ 15 We find that the word "unit" in the Election Code, Ethics Act, and Illinois Constitution means either the state or a local government entity, and not the executive, legislative, or judicial branch of state government. We begin with the Illinois Constitution. When the word "unit" is used in that document, it is used to distinguish a local government entity from the state government. Section 1 of article VII, "Municipalities and Units of Local Government," defines "[u]nits of local government" as "counties, municipalities, townships, special districts, and units, designated as units of local government by law, which exercise limited governmental powers or powers in respect to limited governmental subjects, but does not include school districts." Ill. Const. 1970, art. VII, § 1. Section 2 of article XIII, "Statement of Economic Interests," separates candidates for state offices from candidates for "units of local government and school districts"-all candidates for "state offices" must file a statement of economic interests, while the General Assembly may impose a similar requirement on candidates for "offices in units of local government and school districts." Ill. Const. 1970, art. XIII, § 2. Further, "any branch of government" may establish and enforce ethical standards for "that branch." Id. The Illinois Constitution therefore provides that state offices, units of local government, and-key for this case-branches of government are not synonymous.

¶ 16 Further underlining that "unit" and "branch" are not synonymous is our constitution's use of the word "branch" in other provisions. Section 1 of article II states that "[t]he legislative, executive and judicial branches are separate." Ill. Const. 1970, art. II, § 1. We recall the principle that " 'when the legislature uses certain words in one instance and different words in another, different results are intended.' " Jackim v. CC-Lake, Inc. , 363 Ill. App. 3d 759, 767-68, 299 Ill.Dec. 761, 842 N.E.2d 1113 (2005) (quoting Hoffman v. Altamore , 352 Ill. App. 3d 246, 256, 287 Ill.Dec. 340, 815 N.E.2d 984 (2004)). If the drafters intended that the legislature and executive parts of our government were units, they would have said so. Instead, they are described as different branches. Additionally, nowhere in the sections pertaining to the contents of the General Assembly or the executive branch, where the attorney general is mentioned, does the word "unit" appear. See Ill. Const. 1970, art. IV, § 1 ; art. V, § 1. Specifically, our constitution provides that the "Executive Branch shall include a Governor, Lieutenant Governor, Attorney General, Secretary of State, Comptroller and Treasurer elected by the electors of the State." Ill. Const. 1970, art. V, § 1.

¶ 17 The two different forms of statements of economic interests in the Ethics Act also support our finding that "governmental unit" in the Election Code means either the state or a local government entity. As we stated above, one form seeks information about the candidate's connections to "any entity doing business in the State of Illinois," while the other form seeks information about the candidate's connections to "any entity doing business with a unit of local government." 5 ILCS 420/4A-103, 4A-104 (West 2016). Notably, the word "branch" does not appear on the forms. See also Cortez , 2013 IL App (1st) 130442, ¶ 28, 369 Ill.Dec. 376, 986 N.E.2d 689 (noting that there is one form for candidates for statewide office that asks questions about the State of Illinois and one form for local candidates that asks questions about the local unit of government at issue). We presume that the legislature did not intend absurdity, inconvenience, or injustice. Bettis , 2014 IL 117050, ¶ 13, 387 Ill.Dec. 659, 23 N.E.3d 351. If Drury were required to fill out a new statement of economic interests because he sought to move from one state office to another, he would be filling out the exact same form. We do not believe that the legislature intended that result.

¶ 18 Our review of the relevant statutes and the Illinois Constitution convinces us the phrase "governmental unit" in section 7-12(8) of the Election Code ( 10 ILCS 5/7-12(8) (West 2016) ) means either the state or a local government entity. As a result, because state representatives and the position of attorney general are both part of the state government, as opposed to either position being part of a local government entity, Drury was not required to file a new statement of economic interests. To the extent that Rottman takes issue with the fact that Drury's receipt indicates that his statement was filed for "REPRESENTATIVE IN THE GENERAL ASSEMBLY," we note that "nothing in article 7 or 8 [of the Election Code] prescribes that a receipt must contain a specific description of the office the candidate is seeking." Cardona v. Board of Elections Commissioners , 346 Ill. App. 3d 342, 344, 281 Ill.Dec. 992, 805 N.E.2d 360 (2004).

¶ 19 We will briefly comment on the cases that Rottman relied on to support his position. Kellogg v. Cook County Illinois Officers Electoral Board , 347 Ill. App. 3d 666, 283 Ill.Dec. 320, 807 N.E.2d 1161 (2004), did not concern whether the candidate could rely on the statement of economic interests filed in relation to the same governmental unit. There, the candidate failed to file a receipt and submitted a statement of economic interests to the Illinois State Board of Elections, instead of filing the statement with the Secretary of State. Id. at 668, 283 Ill.Dec. 320, 807 N.E.2d 1161. Those circumstances did not occur here. Jones v. Municipal Officers Electoral Board , 112 Ill. App. 3d 926, 68 Ill.Dec. 522, 446 N.E.2d 256 (1983), is unhelpful because that case also did not involve whether a candidate could rely on a previously-filed statement for the same governmental unit. Instead, Jones considered whether a candidate's statement sufficiently identified the office for which the statement was filed. Id. at 928, 68 Ill.Dec. 522, 446 N.E.2d 256.

¶ 20 Miceli v. Lavelle , 114 Ill. App. 3d 311, 70 Ill.Dec. 111, 448 N.E.2d 989 (1983), dealt with the same issue presented here, but Rottman has misinterpreted the holding. In Miceli , the court considered whether a previously-filed statement of economic interests in relation to employment by the Board of Education of the City of Chicago could be used to satisfy the filing requirements of the Election Code with respect to a candidacy for alderman. Id. at 313, 70 Ill.Dec. 111, 448 N.E.2d 989. The candidate conceded that the Board of Education and the City of Chicago were not the same governmental unit. Id. at 317, 70 Ill.Dec. 111, 448 N.E.2d 989. Indeed, the Board of Education was created statutorily as " 'a body politic and corporate' and is necessarily a unit of government itself, having been thereby so designated by law." Troutman v. Keys , 156 Ill. App. 3d 247, 256, 108 Ill.Dec. 757, 509 N.E.2d 453 (1987). As such, the candidate in Miceli could not rely on the statement he filed in relation to his employment with the Board of Education. Miceli , 114 Ill. App. 3d at 317, 70 Ill.Dec. 111, 448 N.E.2d 989. Here, in contrast, state representative and attorney general are part of the same governmental unit. There is absolutely no support in Miceli for Rottman's assertion that the candidate in Miceli could not use the same statement because the Board of Education was an executive office position and alderman was a legislative office position.

¶ 21 Finally, both parties cited Purnell v. Municipal Officers Electoral Board , 275 Ill. App. 3d 1038, 212 Ill.Dec. 360, 657 N.E.2d 55 (1995), but that case was decided on grounds other than whether a candidate could use a previously-filed statement of economic interests for the same governmental unit. The previously-filed statement was for employment as a Chicago police officer, and the candidate sought to run for alderman. Id. at 1038-39, 212 Ill.Dec. 360, 657 N.E.2d 55. Ultimately, the court stated that "[v]iewed as an earlier filing made in the same calendar year, the statement is defective because it was late." Id. at 1039, 212 Ill.Dec. 360, 657 N.E.2d 55. The court also asserted that, viewed as an original filing-that is, not falling into the provision that allows a candidate to rely on a previously-filed statement, "the statement is defective because it misstates the office for which it was filed." Id. at 1039-40, 212 Ill.Dec. 360, 657 N.E.2d 55. The dispositive issue was that the statement was untimely. The court did not comment on whether a Chicago police officer was in the same governmental unit as an alderman.

¶ 22 As a final matter, Drury moves this court to strike certain facts that Rottman included in his brief about search results on the Secretary of State website for other candidates for attorney general. In his brief, Rottman states that before the Board, Rottman argued that a person who put Drury's name and "attorney general" in the Secretary of State's website would not find a statement of economic interests listed. Rottman further asserts in his brief that Drury is the only candidate for attorney general whose statement does not appear and voters could find the statements filed for each of the other candidates. Drury seeks to strike the assertions related to purported searches of other candidates or Drury or facts about other candidates' backgrounds. Drury states that Rottman failed to refer to the pages of the record where these assertions could be found and the evidence that Rottman relies on in his brief was not presented to the Board.

¶ 23 We recognize that Rottman did not provide a citation to the record for his statements about finding the statements of economic interests for other candidates, which violates Illinois Supreme Court Rule 341(h)(7) (eff. Nov. 1, 2017) (argument "shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on"). Indeed, Rottman could not have provided such a citation. Per the transcript of the Board hearing, the record did not include the results of a search of other candidates' names and the term "attorney general" on the Secretary of State's website. On this topic, a Board member and Rottman's counsel had the following exchange:

"VICE CHAIRMAN KEITH: Mr. Nally [Rottman's counsel], you've indicated in your argument that if one were to go to the Secretary White's website and look up Representative Drury's name and Attorney General you would find nothing, was that in the record?
MR. NALLY: Yes.
VICE CHAIRMAN KEITH: Was it in the record what you would find if you put in Patrick Quinn, Attorney General?
MR. NALLY: No, it was not.
VICE CHAIRMAN KEITH: Was it in the record what you would find if you put in Renato Mariotti, Attorney General?
MR. NALLY: No, because I'm assuming those clients filed proper Statements of Economic Interest.
VICE CHAIRMAN KEITH: Would it surprise you if you found out it wasn't there?
MR. NALLY: I wasn't looking for him, and that's not the case before this Board."

Although Rottman failed to cite to the record in support of this part of his argument, and moreover, asserted facts that were not in the record, we will not strike this portion of his brief. "[S]triking of an appellate brief, in whole or in part, is a harsh sanction and is appropriate only when the alleged violations of procedural rules interfere with or preclude review." (Internal quotation marks omitted.) Independent Trust Corp. v. Kansas Bankers Surety Co. , 2016 IL App (1st) 143161, ¶ 33, 408 Ill.Dec. 24, 64 N.E.3d 1109. Because the violation is not so flagrant that we are unable to review the appeal, we have simply disregarded the inappropriate statements. Affiliated Health Group, Ltd. v. Devon Bank , 2016 IL App (1st) 152685, ¶ 15, 405 Ill.Dec. 511, 58 N.E.3d 772.

¶ 24 Our supreme court has stated that "access to a place on the ballot is a substantial right not lightly to be denied." Jackson-Hicks v. East St. Louis Board of Election Commissioners , 2015 IL 118929, ¶ 32, 390 Ill.Dec. 1, 28 N.E.3d 170 ; Welch v. Johnson , 147 Ill. 2d 40, 56, 167 Ill.Dec. 989, 588 N.E.2d 1119 (1992). Further, we must tread cautiously when construing statutory language that restricts the people's right to endorse and nominate the candidate of their choice. Lucas v. Lakin , 175 Ill. 2d 166, 176, 221 Ill.Dec. 834, 676 N.E.2d 637 (1997). We believe that our interpretation of the relevant enactments comports with those principles. Drury complied with section 7-12(8) of the Election Code ( 10 ILCS 5/7-12(8) (West 2016) ) when he relied on his previously-filed statement of economic interests for his position as state representative.

¶ 25 For the foregoing reasons, we reverse the judgment of the circuit court, affirm the Board's decision to overrule Rottman's objection, and certify Drury's name for the March 20, 2018, general election primary ballot.

¶ 26 Circuit court judgment reversed.

¶ 27 Board decision affirmed.

Presiding Justice Hoffman and Justice Pierce concurred in the judgment and opinion.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Adam D. BELMONT, Defendant-Appellant.
    No. 2-15-0886
    Appellate Court of Illinois, Second District.
    Opinion filed March 26, 2018
    Michael J. Pelletier, Thomas A. Lilien, and Kerry Goettsch, of State Appellate Defender's Office, of Elgin, for appellant.
    Robert B. Berlin, State's Attorney, of Wheaton (Lisa Anne Hoffman and Kristin M. Schwind, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 Defendant, Adam D. Belmont, appeals his sentence of 12 years' incarceration for aggravated criminal sexual assault with a dangerous weapon ( 720 ILCS 5/11-1.30(a)(1) (West 2012) ). He contends that the sentence was plain error when the trial court was not informed of, and thus did not apply, a sentencing enhancement that required the court to add 10 years to the sentence, making the lowest legal sentence 16 years. The State contends that the matter is not plain error or that defendant is estopped from challenging the sentence when he benefited from the error. We determine that plain error does not apply, because defendant was not prejudiced or deprived of a fair sentencing hearing. Accordingly, we affirm.

¶ 2 I. BACKGROUND

¶ 3 Defendant was initially charged in January 2013 with 22 counts of various crimes in connection with the sexual assault and murder of his former girlfriend. In May 2015, defendant entered a blind guilty plea to one count of aggravated criminal sexual assault with a dangerous weapon and one count of first-degree murder (id. § 9-1(a)(1) ). In exchange, the State dismissed the remaining counts.

¶ 4 At the plea hearing, the trial court clarified with the State that the sentencing ranges were 20 to 60 years for murder and 6 to 30 years for aggravated criminal sexual assault, with the sentences to run consecutively. The court also asked: "[B]ased upon the defendant's criminal history, there are no issues of extended term eligibility; correct?" The State replied that defendant had no criminal history. There was no discussion of a mandatory enhancement of 10 years because the crime was committed with a dangerous weapon (id. § 11-1.30(d)(1) ). The factual basis for the plea showed that defendant sexually assaulted and murdered the victim using a knife.

¶ 5 At sentencing, the State sought sentences of at least 50 years for murder and 15 years for aggravated criminal sexual assault. The defense asked for sentences closer to the minimum. A lengthy and thorough sentencing hearing was held, with both the parties and the court assuming that no sentencing enhancements applied. Without discussion of the minimum and maximum sentences, the court sentenced defendant to consecutive terms of 35 years for murder and 12 years for aggravated criminal sexual assault. Defendant moved to reconsider the sentences, arguing that they were excessive. The motion was denied, and he appeals.

¶ 6 II. ANALYSIS

¶ 7 Defendant contends that the court plainly erred when it sentenced him, because it failed to apply a mandatory 10-year enhancement to his sentence for aggravated criminal sexual assault. The State contends that there was no plain error or, alternatively, that defendant is estopped from raising the matter when he helped create the error to his benefit.

¶ 8 Defendant was convicted under section 11-1.30(a)(1) of the Criminal Code of 2012, which defines aggravated criminal sexual assault in instances where the defendant displays, threatens to use, or uses a dangerous weapon other than a firearm. Id. § 11-1.30(a)(1). The crime is a Class X felony, which generally carries a minimum sentence of six years' incarceration. Id. § 11-1.30(a)(1), (d)(1); 730 ILCS 5/5-4.5-25(a) (West 2012). However, when a defendant is convicted under section 11-1.30(a)(1), section 11-1.30(d)(1) provides that "10 years shall be added to the term of imprisonment imposed by the court." 720 ILCS 5/111.30(d)(1) (West 2012). Accordingly, with the enhancement, defendant's total sentence for aggravated criminal sexual assault should have been at least 16 years.

¶ 9 Defendant concedes that he forfeited the issue by failing to raise the matter in the trial court. See People v. Price , 2016 IL 118613, ¶ 27, 412 Ill.Dec. 782, 76 N.E.3d 1240 (a defendant may no longer argue that a statutorily unauthorized sentence is void). However, under the plain-error rule, reviewing courts may address a forfeited issue when (1) the evidence is closely balanced or (2) an error is so serious that the defendant was denied a fair sentencing hearing. People v. Wilkins , 343 Ill. App. 3d 147, 149, 277 Ill.Dec. 884, 797 N.E.2d 231 (2003). "The right to be lawfully sentenced is a substantial right." People v. Whitney , 297 Ill. App. 3d 965, 967, 232 Ill.Dec. 73, 697 N.E.2d 815 (1998). Thus, generally, "impermissible or illegal sentences may be attacked on appeal as plainly erroneous." Id. For example, "reviewing courts regularly have applied the plain error rule to address claims that an extended-term sentence was not authorized by law." Wilkins , 343 Ill. App. 3d at 149, 277 Ill.Dec. 884, 797 N.E.2d 231.

¶ 10 Here, however, defendant claims that an enhanced sentence was required by law. "The plain-error rule is not a general saving clause for all trial errors." People v. Scott , 2015 IL App (4th) 130222, ¶ 41, 389 Ill.Dec. 231, 25 N.E.3d 1257. "Rather, it is a limited and narrow exception 'designed to redress serious injustices.' " Id. (quoting People v. Baker , 341 Ill. App. 3d 1083, 1090, 276 Ill.Dec. 458, 794 N.E.2d 353 (2003) ). We see no such injustice here.

¶ 11 First, defendant was not prejudiced by the error. Instead he benefited from it, with an unlawfully lenient sentencing range. In the absence of prejudice, defendant cannot show plain error under the first prong of the plain-error rule. See People v. Johnson , 2017 IL App (2d) 141241, ¶ 50, 414 Ill.Dec. 381, 80 N.E.3d 114. Second, and similarly, we fail to see how the application of an unlawfully lenient sentencing range deprived defendant of a fair sentencing hearing. To whatever extent that the outcome of the hearing was unfair, it was unfair only to the State. The parties and the court were misinformed, but the hearing itself was lengthy, thorough, and fair. Thus, the plain-error rule does not apply here.

¶ 12 At oral argument, defendant suggested that the State could wait until his imminent release from incarceration and bring a mandamus action seeking to correct the illegal sentence. See People v. Castleberry , 2015 IL 116916, ¶¶ 26-27, 398 Ill.Dec. 22, 43 N.E.3d 932. Thus, he argued that he has been denied certainty in his sentence. However, the State, which alternatively argued that estoppel barred defendant from raising the illegal sentence, specifically conceded that it too would be estopped from changing its position and raising the matter in the future. Further, such an action by the State would be subject to a valid argument by defendant for the application of laches to bar the State's action. See People ex rel. Alvarez v. Gaughan , 2016 IL 120110, ¶ 16, 410 Ill.Dec. 890, 72 N.E.3d 276 (distinguishing a timely brought mandamus action from one in which the inmate is about to walk out the prison door when the State seeks correction of his sentence). Were the State to timely bring such an action, defendant arguably would not be prejudiced, because he would not be close to the date of his release and he would be provided with the corrected sentence that he himself seeks. In any event, we accept the State's concession that it would be estopped from changing its position on the matter in the future.

¶ 13 Defendant also suggested at oral argument that he was precluded from raising an excessive-sentence claim, because doing so could lead the State to discover the illegal sentence and seek to correct it. But defendant raised an excessive-sentence argument in his motion to reconsider and then raised the illegal sentence himself on appeal; thus, he also could have raised an excessive-sentence claim on appeal. Instead, it appears that defendant is seeking another bite at the sentencing apple, through a creative legal avenue. Defendant's bare speculation that a resentencing would ultimately benefit him, despite an increase in his sentence for aggravated criminal sexual assault, is insufficient to establish plain error. See People v. Borys , 2013 IL App (1st) 111629, ¶ 29, 374 Ill.Dec. 360, 995 N.E.2d 499. Thus, we simply find the matter forfeited, and we do not address the parties' remaining arguments.

¶ 14 III. CONCLUSION

¶ 15 Defendant forfeited his argument that his sentence was too lenient. Accordingly, the judgment of the circuit court of Du Page County is affirmed. As part of our judgment, we grant the State's request that defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls , 71 Ill. 2d 166, 178, 15 Ill.Dec. 759, 374 N.E.2d 194 (1978).

¶ 16 Affirmed.

Justices Hutchinson and Jorgensen concurred in the judgment and opinion.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael E. MUNSON, Defendant-Appellant.
    Appeal No. 3-15-0544
    Appellate Court of Illinois, Third District.
    Opinion filed March 27, 2018
    Michael J. Pelletier, Peter A. Carusona, and Sean Conley, of State Appellate Defender's Office, of Ottawa, for appellant.
    Karen Donnelly, State's Attorney, of Ottawa (Patrick Delfino, Lawrence M. Bauer, and Gary F. Gnidovec, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE McDADE delivered the judgment of the court, with opinion.

¶ 1 Defendant, Michael E. Munson, appeals from the circuit court's dismissal of his motion for leave to file a successive postconviction petition. Defendant argues that the court erred because it impermissibly allowed the State to provide input on his motion for leave. We vacate and remand with directions.

¶ 2 FACTS

¶ 3 Defendant was convicted of unlawful possession of a controlled substance with intent to deliver ( 720 ILCS 570/401(a)(2)(D) (West 2002) ) and sentenced to 40 years' imprisonment. On direct appeal, we affirmed defendant's conviction and sentence. People v. Munson , No. 3-040703, 371 Ill.App.3d 1218, 344 Ill.Dec. 477, 936 N.E.2d 1234 (2007) (unpublished order under Illinois Supreme Court Rule 23 ). On May 30, 2008, defendant filed a postconviction petition alleging ineffective assistance of appellate counsel. Following a third-stage evidentiary hearing, the circuit court denied defendant's petition. We affirmed the denial on appeal. People v. Munson , No. 3-08-0803, 2011 WL 10457807 (2011) (unpublished order under Illinois Supreme Court Rule 23 ). Between January and June 2013, defendant filed two petitions for relief from judgment under section 2-1401 of the Code of Civil Procedure ( 735 ILCS 5/2-1401 (West 2012)) and a complaint for mandamus relief. The circuit court dismissed each of these filings. On appeal, we affirmed the circuit court's dismissals. People v. Munson , No. 3-13-0367 (2016) (unpublished summary order under Illinois Supreme Court Rule 23(c) ).

¶ 4 On August 4, 2014, defendant filed a motion for leave to file a successive postconviction petition. Defendant alleged the following cause for filing a successive petition: he inadvertently discovered new information when he sought information about his seized firearms in a Freedom of Information Act (FOIA) ( 5 ILCS 140/1 et seq. (West 2014) ) request to the Illinois State Police. Through the request, defendant learned that the State had failed to disclose evidence of a laboratory test on inositol-a vitamin B compound that defendant alleged was used to cut cocaine. Defendant alleged that he suffered prejudice as a result of the undisclosed evidence because it could have been used to impeach a witness for the prosecution. The State filed a motion to dismiss defendant's petition.

¶ 5 At the hearing on the State's motion to dismiss, the State argued that defendant had failed to show the cause and prejudice required to bring a successive petition. Defendant argued that he was unable to bring his claim in a prior proceeding because he discovered the results of the laboratory test after he filed an unrelated FOIA claim. Defendant argued he suffered prejudice from the State's failure to disclose the evidence because the defense likely could have used the evidence to obtain a different result at trial. The court granted the State's motion to dismiss, finding that defendant had not shown the requisite prejudice to receive leave to file a successive postconviction petition. Defendant appeals.

¶ 6 ANALYSIS

¶ 7 Defendant argues that the circuit court erred when it allowed the State to respond to defendant's motion for leave and to make arguments against the motion. Defendant specifically argues the Post-Conviction Hearing Act (Act) prohibits the State from participating in the postconviction proceedings until the petition is advanced to the second stage. See 725 ILCS 5/122-5 (West 2014). Therefore, defendant contends the cause should be remanded for the circuit court to consider his motion for leave to file a successive postconviction petition without input from the State.

¶ 8 In October 2017, the supreme court addressed this issue in People v. Bailey , 2017 IL 121450, 421 Ill.Dec. 833, 102 N.E.3d 114. In Bailey , the supreme court determined "it is premature and improper for the State to provide input to the court before the court has granted a defendant's motion for leave to file a successive petition." Id. ¶ 20. That is, it is improper for the circuit court to allow and consider the State's objection to defendant's motion for leave to file a successive postconviction petition. Id. Instead, the court must conduct an independent inquiry, without input from the State, into whether defendant should be granted leave to file a successive postconviction petition. Id. Applying Bailey to this case, we find the circuit court erred when it allowed the State to provide input on defendant's motion for leave.

¶ 9 Having found error, we must determine the proper relief. In Bailey , the supreme court acknowledged defendant's request to remand the matter for new proceedings before a new judge. Id. ¶ 41. However, the supreme court declined to remand the matter under the circumstances and, instead, conducted a de novo review of whether defendant had satisfied the cause and prejudice test. Id. ¶ 42. The court concluded that defendant had not satisfied the test and affirmed the circuit court's denial of leave to file a successive postconviction petition. Id. ¶¶ 42-45.

¶ 10 Unlike the supreme court, we do not have broad supervisory authority. People v. Whitfield , 228 Ill. 2d 502, 520-21, 321 Ill.Dec. 233, 888 N.E.2d 1166 (2007). Instead, we are authorized to "(1) reverse, affirm, or modify the judgment or order from which the appeal is taken; (2) set aside, affirm, or modify any or all of the proceedings subsequent to or dependent upon the judgment or order from which the appeal is taken; (3) reduce the degree of the offense of which the appellant was convicted; (4) reduce the punishment imposed by the trial court; or (5) order a new trial." Ill. S. Ct. R. 615(b). Notably, Illinois Supreme Court Rule 615 does not provide the appellate court with the power to conduct a de novo hearing on defendant's motion for leave to file a successive postconviction petition. This is consistent with the Act, which expressly contemplates the filing of the petition in the "trial court." 725 ILCS 5/122-1 (West 2014). Therefore, we do not have the power under Rule 615 or the Act to conduct a de novo review of defendant's motion for leave.

¶ 11 CONCLUSION

¶ 12 The order of the circuit court of La Salle County that dismissed defendant's motion for leave to file a successive postconviction petition is vacated. The cause is remanded with directions for the court to consider defendant's motion without input from the State.

¶ 13 Vacated and remanded with directions.

Justices Lytton and O'Brien concurred in the judgment and opinion.