Opinion
4-22-0680
07-28-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYRONE ABNER FOY, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of McLean County No. 19CF909 Honorable William A. Yoder, Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court. Justices Zenoff and Knecht concurred in the judgment.
ORDER
STEIGMANN, JUSTICE
¶ 1 Held: The appellate court affirmed the judgment of the trial court because defendant was not entitled to be sentenced under the new mandatory Class X sentencing scheme when he was sentenced before the statutory changes took effect.
¶ 2 In February 2020, defendant, Tyrone Abner Foy, pleaded guilty to one count of possession with intent to deliver a controlled substance (720 ILCS 570/401(c)(2) (West 2018)), a Class 1 felony subj ect to mandatory Class X sentencing due to defendant's prior felony convictions (730 ILCS 5/5-4.5-95(b) (West 2018)).
¶ 3 Following a May 2020 sentencing hearing, the trial court sentenced defendant to 22 years in prison, to be followed by a 3-year period of mandatory supervised release (MSR). Subsequently, defendant filed a motion to reconsider his sentence, which the court denied.
¶ 4 In September 2021, defendant appealed his conviction and sentence. In February 2022, this court entered an agreed order remanding the case to the trial court for strict compliance with Illinois Supreme Court Rule 604(d) (eff July 1, 2017) and the opportunity to file a new motion to reconsider his sentence.
¶ 5 In August 2022, defendant's attorney filed a new Rule 604(d) certificate and elected to stand on the original motion to reconsider the sentence filed in May 2020. Later in August 2022, following a hearing, the trial court denied defendant's motion to reconsider his sentence.
¶ 6 Defendant appeals, arguing that he was denied his right to elect sentencing under a new sentencing scheme, effective July 1, 2021, that (1) made mandatory Class X sentencing applicable to only forcible felonies, and (2) reduced the term of MSR for Class 1 felonies from two years to one year. Specifically, defendant contends that because his motion to reconsider his sentence was pending at the time the statutory changes went into effect, he had the right to elect to be sentenced as a Class 1 offender with a one-year term of MSR. Defendant asserts that his claim of error can be reviewed as either plain error or as ineffective assistance of counsel.
¶ 7 We disagree and affirm.
¶ 8 I. BACKGROUND
¶ 9 A. The Initial Trial Court Proceedings
¶ 10 In September 2019, a grand jury indicted defendant on six counts of delivery or possession with intent to deliver cocaine (720 ILCS 570/401 (c)(2), (d)(i) (West 2018)), arising from a series of controlled buys conducted by the Bloomington Police Department on August 26, August 29, and September 4, 2019.
¶ 11 In February 2020, defendant tendered a plea of guilty to count VI, which alleged that on September 4, 2019, defendant possessed with the intent to deliver more than 1 gram but less than 15 grams of cocaine (id. § 401(c)(2)). The only agreement by the State was to dismiss the remaining five counts.
¶ 12 At the plea hearing, the trial court explained to defendant that the count to which he was pleading, although a Class 1 felony, was subject to mandatory Class X sentencing due to his criminal history. The court further explained that it would conduct a sentencing hearing, at the conclusion of which it would impose a sentence somewhere between 6 and 30 years, followed by a period of MSR of 3 years. Defendant stated that he understood the possible range of penalties and persisted with his plea.
¶ 13 In May 2020, the trial court conducted a sentencing hearing. The court observed that defendant had 11 prior felony convictions, the last of which was a similar offense from 2007 for which defendant was sentenced to 22 years in prison. Defendant had been released from custody in June 2018 and was still on parole for his last offense when he committed the new offense. Accordingly, the court concluded that it would "match" defendant's last sentence and imposed a term of 22 years in the Illinois Department of Corrections, to be followed by 3 years of MSR.
¶ 14 Later in May 2020, defendant filed a motion to reconsider his sentence, arguing that the trial court failed to consider (1) the difference in circumstances between the 2007 conviction and the present offense, (2) defendant's lack of parole violations, and (3) defendant's full-time employment.
¶ 15 In September 2021, the trial court denied defendant's motion to reconsider.
¶ 16 That same month, defendant appealed. While the case was on appeal, in January 2022, defendant filed a "Motion for Agreed Summary Remand" alleging that the parties agreed that summary remand was necessary because plea counsel had not strictly complied with the requirements for filing a Rule 604(d) certificate.
¶ 17 In January 2022, this court granted defendant's motion and entered defendant's proposed agreed order, remanding the case to the trial court for the filing of a new Rule 604(d) certificate and the opportunity to file a new motion to reconsider his sentence.
¶ 18 B. The Proceedings on Remand
¶ 19 In March 2022, the trial court conducted a status hearing at which defendant was not personally present. Defense counsel represented to the trial court that the appellate defender had advised counsel that defendant "may have the option of withdrawing his guilty plea and being sentenced under the new statutory guidelines that were put into place." (We note that counsel was referring to certain amendments to section 5-4.5-95(b) of the Unified Code of Corrections, effective July 1, 2021, which changed the requirements for mandatory Class X felonies. Pub. Act 101-652, § 10-281 (eff July 1, 2021) (amending 730 ILCS 5/5-4.5-95(b)). Counsel told the court that he needed to speak with defendant and "see what he would like to do," explaining that even if defendant were sentenced for a Class 1 felony instead of a Class X felony, he would still be eligible for an extended-term sentencing range of 4 to 30 years in prison.
¶ 20 In August 2022, the trial court conducted a hearing at which defendant was personally present. Defendant's counsel had filed a new Rule 604(d) certificate but did not file a new motion to reconsider the sentence, electing instead to stand on the original motion to reconsider the sentence filed in May 2020. After hearing the arguments of the parties, the court denied defendant's motion.
¶ 21 This appeal followed.
¶ 22 II. ANALYSIS
¶ 23 Defendant appeals, arguing that he was denied his right to elect sentencing under a new sentencing scheme, effective July 1, 2021, that (1) made mandatory Class X sentencing applicable only to forcible felonies, and (2) reduced the term of MSR for Class 1 felonies from two years to one year. Specifically, defendant contends that because his motion to reconsider his sentence was pending at the time the statutory changes went into effect, he had the right to elect to be sentenced as a Class 1 offender with a one-year term of MSR. Defendant asserts that his claim of error can be reviewed as either plain error or as ineffective assistance of counsel.
¶ 24 We disagree and affirm.
¶ 25 A. The Applicable Law
¶ 26 When determining whether a statute applies retroactively or prospectively, Illinois courts first look to the text of the statute to determine whether the legislature has clearly indicated the statute's temporal reach. People v. Hunter, 2017 IL 121306, ¶ 20, 104 N.E.3d 358. If so, courts give effect to the legislature's intent. Id. However, "if the temporal reach of the statute is not clearly indicated in its text, then the statute's temporal reach is provided by default in section 4 of the Statute on Statutes." (Emphasis added.) Id. ¶ 22. Relevant to this appeal, that section provides that "[i]f any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect." (Emphasis added.) 5 ILCS 70/4 (West 2020).
¶ 27 The supreme court has interpreted that provision of section 4 to mean that new laws or statutory changes that mitigate a punishment cannot be applied to defendants who have already been sentenced when the changes took effect. Hunter, 2017 IL 121306, ¶ 54 (quoting People v. Hansen, 28 Ill.2d 322, 340-41, 192 N.E.2d 359, 369 (1963) (" '[A] punishment mitigated by a new law is applicable only to judgments after the new law takes effect.' ");citing People v. Bradford, 106 Ill.2d 492, 504, 478 N.E.2d 1341, 1346 (1985) ("[U]nder section 4, the defendant was not eligible to be sentenced under a statutory amendment that became effective while his case was pending in [the appellate court] because he had already been sentenced prior to the statute's effective date.")); see People v. Lisle, 390 Ill. 327, 328, 61 N.E.2d 381, 381-82 (1945) ("Section 4 of the act does not give the defendant the right to be sentenced under a law not in full force and effect at the time of his sentence. It could only be applied to those classes of cases in which a new law had become effective prior to the date of the actual sentence.").
¶ 28 Whether a statutory amendment applies retroactively is reviewed de novo. Hunter, 2017 IL 121306, ¶ 15.
¶ 29 B. This Case
¶ 30 The parties do not dispute that when defendant was sentenced in March 2020, he was subject to mandatory Class X sentencing under the version of section 5-4.5-95(b) then in effect. Nonetheless, defendant argues that because section 5-4.5-95(b) was amended effective July 1, 2021-after defendant was sentenced but while his motion to reconsider his sentence was still pending-he had the right to elect to be sentenced as a Class 1 offender subject to one year of MSR under the new sentencing scheme instead of as a Class X offender subject to three years of MSR.
¶ 31 Specifically, defendant contends that section 4 of the Statute on Statutes "provides a right to elect sentencing under a new favorable sentencing provision enacted before judgment is finalized in a pending case." (Emphasis added.) Defendant further asserts that "in the context of a guilty plea, the judgment is not final for purposes of appeal until the trial court has ruled on any timely post-plea motions," citing in support Illinois Supreme Court Rule 606(b) (eff. Mar. 12, 2021) and People v. Feldman, 409 Ill.App.3d 1124, 1127, 948 N.E.2d 1094, 1098 (2011).
¶ 32 Defendant also asks this court to follow the decision of the Second District Appellate Court in People v. Spears, 2022 IL App (2d) 210583, which is substantially similar to the facts of the present case, except that on remand for compliance with Rule 604(d), the defendant in Spears elected to file a new motion to reconsider his sentence, alleging that he was denied his right to elect sentencing under the new sentencing scheme. The Second District, likewise relying on Rule 606(b) and Feldman, reasoned that "the order denying [the] defendant's amended motion to reconsider *** acts as the final judgment in the underlying proceedings." Id. ¶ 29. Accordingly, the Second District concluded that because the defendant's case was "still pending before the trial court when the July 1, 2021, amendment to section 5-4.5-95(b) of the [Unified Code of Corrections] took effect," "[t]he amended version of that statute should have applied, and the trial court erred in denying defendant's amended motion to reconsider the sentence on that ground." Id.
¶ 33 Nonetheless, this court has recently rejected both (1) the precise argument defendant makes here and (2) the Spears decision itself in People v. Brown, 2023 IL App (4th) 220400, ¶¶ 45-51. In Brown, which is nearly factually identical to the present case, this court held that the supreme court's holdings in Hunter and Lisle established that "the operative time for determining whether a new law that mitigates a punishment can apply retroactively is the date of sentencing." (Emphasis added.) Id. ¶ 43. Accordingly, we rejected the defendant's argument-the same argument defendant makes here- that there was no final judgment in his case until his postplea motion to reconsider his sentence was denied. Id. ¶¶ 25, 44. In so holding, we observed the defendant's argument was premised on the proposition in Feldman that "for defendants who plead guilty, it is the order denying a postplea motion that is the final judgment in the case." Id. ¶ 44 (citing Feldman, 409 Ill.App.3d at 1127). However, the supreme court overruled Feldman as to that proposition of law in People v. Walls, 2022 IL 127965, ¶¶ 23-24.
¶ 34 Additionally, the defendant in Brown, like defendant in the present case, asked this court to follow Spears. We declined, explaining as follows:
"[T]he Spears court did not address the supreme court's statements in either Hunter
or Lisle that, under section 4 of the Statute on Statutes, a new sentencing law that mitigates punishment may only be applied in cases where the new law is effective before the date of the defendant's actual sentencing. [Citations.] Additionally, the Second District's analysis relied heavily on the proposition of law set forth in Feldman that the final judgment in the defendant's case was the denial of his motion to reconsider and not the imposition of the sentence. As discussed, that proposition of law was explicitly overruled by the supreme court in Walls." Brown, 2023 IL App (4th) 220400, ¶ 48.
¶ 35 Instead, in Brown, we agreed with and adopted the reasoning of the Third District in People v. Foster, 2022 IL App (3d) 210342-U, ¶¶ 10, 13-14, which relied on Lisle and Hunter to hold that a defendant who was sentenced before the July 2021 amendments to section 5-4.5-95(b) of the Unified Code of Corrections became effective" 'was not entitled to have the new statute applied to his sentence through his motion to reconsider.'" Brown, 2023 IL App (4th) 220400, ¶¶ 49-51.
¶ 36 Notably, the Third District, in People v. Stevenson, 2023 IL App (3d) 220055, ¶ 18, has recently (1) affirmed its decision in Foster, (2) reaffirmed its rejection of Spears, and (3) cited Brown approvingly.
¶ 37 Accordingly, applying the precedent of (1) the supreme court in Lisle and Hunter, (2) this court in Brown, and (3) the Third District in Foster and Stevenson, we conclude that defendant did not have the right to elect to be sentenced under the more favorable sentencing scheme because the judgment in his case was finalized on the date he was sentenced-namely, May 2020. As the Third District explained in Stevenson, "[T]he [defendant's pending motion to reconsider sentence does not change the fact that the judgment had been pronounced before the July 1, 2021, effective date. The purpose of a motion to reconsider is not to provide a new sentencing hearing but to determine whether the initial sentence was appropriate and correct." Id.
¶ 38 Because we conclude that defendant was not entitled to sentencing under the new, more favorable sentencing scheme, his claim of error fails whether analyzed as plain error or ineffective assistance of counsel.
¶ 39 III. CONCLUSION
¶ 40 For the reasons stated, we affirm the judgment of the trial court.
¶ 41 Affirmed.