People v. Arna

JUSTICE NICKELS, dissenting:

The appellate court had no authority to impose consecutive sentences in this case. In order to impose consecutive sentences, the trial court must first make a factual determination that the offenses were part of the same course of conduct during which there was no substantial change in criminal objective. (730 ILCS 5/5—8—4(a) (West 1992).) Once that factual determination is made, our rules do not allow the State to appeal the issue. 134 Ill. 2d R. 604(a).

The majority finds that the sentencing order was "void” and may therefore be corrected on appeal. In this way, the majority is able to review that which is not reviewable. I agree that a trial court has no authority to impose a sentence that is contrary to the parameters outlined by the legislature. However, this particular sentencing decision did not produce a void judgment. This court has defined void judgments in the following manner:

"A void judgment is one entered by a court without jurisdiction of the parties or the subject matter or that lacks 'the inherent power to make or enter the particular order involved.’ ” (People v. Wade (1987), 116 Ill. 2d 1, 5 , quoting R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 309 .)

There can be no dispute that the trial court had both personal jurisdiction over the defendant and subject matter jurisdiction regarding criminal matters. Furthermore, the trial court had the statutory power to impose concurrent sentences if it determined either that the offenses were not committed as part of a single course of conduct or that there was a substantial change in criminal objective. (730 ILCS 5/5—8—4(a) (West 1992).) Thus, the trial court did not lack "the inherent power to make or enter the particular order involved” and the sentencing order was not "void.”

In the instant case, the sentencing order is only contrary to the statute if a court reviews the facts of the crime and comes to a different conclusion regarding whether the acts are part of the same course of conduct or whether there was a substantial change in criminal objective. This is exactly what the majority does. The majority states:

"[TJhere was no substantial change in defendant’s criminal objective from one shooting to the next. His clear intent from the start was to shoot and kill both victims. The fact that more than one victim was involved does not preclude a finding that defendant did not change his criminal objective. This was not a case where defendant intended to commit one crime, and in the course of that crime developed a new objective and committed another.” (Emphasis added.) (168 Ill. 2d at 113.)

The trial court is presumed to know the law and act accordingly. (People v. Sally (1980), 84 Ill. App. 3d 167, 171 .) In imposing concurrent sentences, it must be presumed that the trial court found that each shooting was motivated by a separate criminal objective. Although a different factual finding may not be "precluded” by the facts of this case, this factual determination was made in favor of the defendant and is not subject to appeal by the State.

Until now, the State could not appeal sentencing issues. (134 Ill. 2d R 604(a).) In addition, our rules prohibited the appellate court from increasing the sentence of a defendant who exercised his right to appeal. (134 Ill. 2d R. 615(b).) Under the reasoning presented in the majority opinion, the State cannot appeal a sentencing issue unless it is wrong. Now, the State can argue that it is not appealing a factual conclusion reached by the trial court, it is instead appealing a "void” order that is contrary to the statute. In addition, a defendant must now carefully consider the decision to appeal because of a new risk of having his sentence increased. I find the imposition of consecutive sentences on appeal to be an abuse of our rules. Therefore, I respectfully dissent.

JUSTICE McMORROW joins in this dissent.