Quick Take on Illinois Supreme Court Opinion Issued Thursday, August 20, 2020
The Illinois Supreme Court handed down one opinion on Thursday, August 20. In People v. Sophanavong, the court considered whether a circuit court’s failure to strictly comply with the requirements to proceed without a presentence investigation report requires remand for a new sentencing hearing or whether a defendant can waive the issue by pleading guilty as well as forfeit the claim by failing to raise it in a postplea motion.
By Jay Wiegman, Office of the State Appellate Defender
Section 5‑3‑1 of the Unified Code of Corrections (Code) (730 ILCS 5/5‑3‑1) requires a circuit court to consider a presentence investigation (PSI) report prior to sentencing a defendant for a felony offense, but allows the circuit court to forgo a PSI “where both parties agree to the imposition of a specific sentence, provided there is a finding made for the record as to the defendant’s history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment.” In People v. Sophanavong, 2020 IL 124337, a sharply divided Court considered whether a circuit court’s failure to strictly comply with the requirements to proceed without a PSI report requires remand for a new sentencing hearing or whether a defendant can waive the issue by pleading guilty as well as forfeit the claim by failing to raise it in a postplea motion.
In this instance, the defendant was charged with aggravated kidnapping, violation of an order of protection, and three counts of murder following the death of his wife. The defendant entered a fully negotiated guilty plea; in exchange for pleading guilty to one charge of first degree murder, the defendant would be sentenced to a 55-year term (which included the 25-year firearms add-on), and the remaining charges would be dismissed. Before accepting the plea and imposing sentence, the state advised the court that the then-45-year-old defendant had a nearly ten-year-old conviction for delivery of cannabis and minor traffic infractions. The court was not advised of the disposition of the prior offenses. The parties indicated that they were waiving the PSI.
The defendant filed a timely motion to withdraw his guilty plea. He did not raise a claim that the court failed to comply with Section 5-3-1. The defendant appealed after the motion to withdraw his guilty plea was denied. On appeal, the defendant argued, for the first time, that his
sentence should be vacated and the cause remanded for a new sentencing hearing because the court failed to strictly comply with section 5‑3‑1 of the Code when it accepted the parties’ plea agreement without ordering a PSI report or being informed of the dispositions of defendant’s prior criminal offenses. The Appellate Court, Third District, with one justice dissenting, agreed with defendant, vacated his sentence, and remanded for a new sentencing hearing in strict compliance with section 5‑3‑1. The Appellate Court found the PSI requirement of section 5‑3‑1 is a mandatory legislative requirement that cannot be waived by the defendant. On appeal to the Illinois Supreme Court, the state abandoned the argument it had made in the Appellate Court and instead argued that the defendant had forfeited his challenge to the PSI requirement by failing to raise it in his post-plea motions.
A sharply divided Supreme Court reversed the Appellate Court and affirmed the circuit court. Writing for the majority, Justice Garman first noted that the terms forfeiture and waiver have, at times, been used interchangeably, and often incorrectly, in criminal cases. Forfeiture is defined “as the failure to make the timely assertion of [a] right,” while waiver “is an intentional relinquishment or abandonment of a known right or privilege.” The majority also noted that the state had not argued forfeiture in the Appellate Court and thus had forfeited its own ability to raise its argument now on appeal. Because forfeiture is a limitation on the parties and not the court, however, the Court considered the state’s argument.
The majority noted that Supreme Court Rule 604(2) states that any issue not raised by the defendant in a motion to reconsider the sentence or withdraw the plea of guilty and vacate the judgment shall be deemed waived. The primary reason is to allow the circuit court a chance to correct any errors. The rule also allows for fact-finding to occur and creates a record while memories are fresh. Now, however, six years had passed. The majority also expressed concern that allowing appellate counsel to add issues not raised in post-plea motions would render appeals “open-ended.” The majority held that defendant long ago forfeited any claim of noncompliance with section 5‑3‑1 by failing to raise the issue in any of his three motions to withdraw the guilty plea, an issue an issue that could have readily been raised and addressed in May of 2014. Justices Kilbride, Theis, and Michael J. Burke concurred in the judgment and opinion.
Chief Justice Anne M. Burke specially concurred. The Chief Justice noted that during hearings on an amendment to Section 5-3-1 in 1977, it was explained that the intent of the legislation was to prevent defendants from hiding their record so that judges would better know an offender’s criminal history and likelihood for rehabilitation. Thus, the Chief Justice found it error to forego a PSI without presenting the defendant’s history of criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment. However, even though the trial court erred, the Chief Justice determined that the defendant is not entitled to a new sentencing hearing because the circuit court’s failure to strictly comply with section 5‑3‑1 of the Code was harmless error under the circumstances of this case.
Justice Karmeier dissented. Noting that the legislature’s primary objective was not to protect defendants but to protect society from the lenient treatment of defendants who lack rehabilitative potential, Justice Karmeier stated that section 5-3-1 imposes a mandatory obligation on the trial court, under the mandatory/directory dichotomy, that cannot be waived. Justice Karmeier also found it “incongruous to apply forfeiture when a defendant cannot waive the requirement.”
Justice Neville agreed with Justice Karmeier that defendant is entitled to a new sentencing hearing because the circuit court failed to comply with the mandatory statutory requirements set forth in section 5‑3‑1 of the Code of Corrections, but wrote separately to emphasize his concerns about the majority’s use of the forfeiture doctrine to decide the issue in this appeal. Justice Neville did not believe that the legislature intended that a criminal defendant is precluded from knowingly and deliberately waiving the mandatory requirement of a PSI report without satisfying the statutory exception but could do so inadvertently through forfeiture. In Justice Neville’s view, “the majority nullifies the mandatory nature of the PSI report requirement and renders it merely aspirational and a matter of discretion for the sentencing judge.” Justice Neville was also greatly troubled by the “fact that the majority excuses the State’s forfeiture but then resolves this appeal against defendant solely on the ground that he forfeited his section 5‑3‑1 claim.”