FIRST DISTRICT FIRST DIVISION December 24, 2018

No. 1-15-3323

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 12 CR 18777 ) COURTNEY WOODS, ) Honorable ) Catherine Marie Haberkorn, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion. Justice Walker concurred in the judgment and opinion. Justice Pierce specially concurred, with opinion.

OPINION

¶1 Courtney Woods was found guilty after a bench trial of two counts of armed robbery

(720 ILCS 5/18-2(a)(2), (3) (West 2012)) and sentenced to concurrent terms of 34 years’

imprisonment. On appeal, he argues his fifth amendment right against self-incrimination was

violated at sentencing, when the trial court ordered him to participate in a presentence

investigation (PSI) by speaking with the investigator, and information that he told the

investigator was then used against him to increase his sentence. He also argues that one

conviction must be vacated in light of the one-act, one-crime doctrine and that some of his fines

and fees should be vacated. We vacate Mr. Woods’s sentence and remand for resentencing, with

directions. No. 1-15-3323

¶2 I. BACKGROUND

¶3 Mr. Woods was charged in a 20-count information with attempted first degree murder,

armed robbery, armed habitual criminal, aggravated discharge of a firearm, vehicular invasion,

aggravated unlawful use of a weapon (AUUW), unlawful use of a weapon by a felon, aggravated

battery, and aggravated unlawful restraint.

¶4 The testimony at trial was that, on September 15, 2012, Tiffany House and her husband

Anton Brown drove to a restaurant in Chicago and parked in the back area. Before Mr. Brown

went inside to place an order, he gave Ms. House $1850 in cash, the money Ms. House had given

him earlier that day when they were shopping for a car. Ms. House was in the car counting the

money when Mr. Woods came out of the back of the restaurant carrying a white bag and walked

past the car into an alley. Less than five minutes later, Mr. Woods returned and came up to the

passenger side of the car with a revolver. Ms. House’s window was down, and Mr. Woods put

the gun to Ms. House’s head and demanded the money.

¶5 Ms. House screamed for her husband and pushed the car door towards Mr. Woods. She

threw the money and ran from the car towards the back door of the restaurant. Mr. Woods

followed her and pushed her against the wall of the restaurant, but Ms. House was able to get

past him and run inside. Mr. Brown came out and saw Mr. Woods picking up the money before

running away and he chased after Mr. Woods into an alley. Mr. Woods fired his gun at Mr.

Brown and missed, then continued running.

¶6 Either the same night or the following night, Ms. House began to investigate a website

containing thousands of mugshots of people recently arrested in Cook County. Ms. House was

able to find a photograph of the person that she thought had robbed her. She then spoke with a

police detective and showed him the picture she printed from the website.

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¶7 Mr. Woods was arrested one week later. On September 26, 2012, both Ms. House and

Mr. Brown viewed a physical lineup at the police station and both separately identified Mr.

Woods as the person who robbed Ms. House and shot at Mr. Brown.

¶8 The trial court found Mr. Woods guilty of all charges. In response to Mr. Woods’s

motion for a new trial, the trial court reconsidered its ruling and found Mr. Woods not guilty of

the three counts of attempted murder. Mr. Woods was sentenced on two counts of armed

robbery, one premised on Mr. Woods’s possession of a firearm and the other on his personal

discharge of a firearm. The trial court then ordered a PSI report.

¶9 The initial PSI report contained no information beyond a recitation of Mr. Woods’s

criminal history and the official version of the offense. The “Summary” section stated that Mr.

Woods “respectfully declined to answer any questions pertaining to his investigation.” At a

hearing after the return of the PSI report, the following exchange occurred:

“THE COURT: We received information that [Mr. Woods] did not talk to

probation for the PSI; is that correct?

[DEFENSE ATTORNEY]: Yes, your Honor.

THE COURT: You need to speak with them. I’ve ordered you to speak with

them. You need to speak with them. Understood?

[MR. WOODS]: (No verbal response.)

THE COURT: We need to continue to get the presentence investigative report.”

¶ 10 Mr. Woods then completed an interview for a PSI, and a new PSI report was filed with

the trial court. This revised PSI report included Mr. Woods’s statements regarding his social and

educational background. The investigator reported that Mr. Woods “admitted” he was a former

member of the Mafia Insane Vice Lords street gang. Mr. Woods told the investigator he joined

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the gang at age 13 but left at age 24 because he wanted to be a positive role model for his

younger half-brothers. Mr. Woods told the investigator he had a good childhood and that his

“ ‘whole world literally collapsed’ ” when his mother, who was his “best friend,” died of breast

cancer in 2006. Mr. Woods started “ ‘running the streets’ ” and getting into trouble after his

mother died. Mr. Woods reported completing eighth grade but then dropping out because “ ‘his

heart wasn’t in it.’ ” In the section of the report titled “Defendant’s Version of the Offense,” the

investigator noted that “[Mr. Woods] did not wish to comment on the facts of this case upon the

advice of his attorney.” The report set forth his criminal history, including that he received

probation for a 2006 AUUW conviction, which was terminated unsatisfactorily, and consecutive

three-year terms of imprisonment in 2007 for robbery and AUUW.

¶ 11 At Mr. Woods’s sentencing hearing, the State emphasized his criminal background and

his previous affiliation with the Mafia Insane Vice Lords gang. Based on Mr. Woods’s prior gun

and robbery convictions, and because Mr. Woods was now found guilty of armed robbery with

personal discharge of a firearm, the State asked for a substantial amount of prison time.

¶ 12 In mitigation, defense counsel pointed to the facts in the PSI report that Mr. Woods was

raised by his mother without his father’s involvement and that his stepfather was killed during a

robbery when Mr. Woods was 10 years old. The defense stressed that Mr. Woods’s mother tried

to keep Mr. Woods and his two younger brothers safe by frequently moving them around to

different places and that, as a result, Mr. Woods did not progress in school and never completed

high school. Counsel informed the trial court that Mr. Woods first entered the Illinois

Department of Corrections in 2006, which was the same year his mother died from breast cancer.

Counsel concluded by pointing out to the trial court that, despite his problems, Mr. Woods made

sure his younger half-brothers finished high school, obtained good jobs, and had good lives.

-4­ No. 1-15-3323

¶ 13 The trial court considered the aggravating and mitigating factors, noting the seriousness

of the offense, which created a terrifying situation for the victim when Mr. Woods fired his

weapon. The trial court also lamented the “sad state of affairs” in the city where people had to

worry about their own lives when they go out to eat in the neighborhood. The court recounted

Mr. Woods’s prior criminal history where Mr. Woods was given opportunities with supervision

and probation but noted “weapons do keep tending to reappear in [Mr. Woods’s] life.”

¶ 14 The trial court stated that “[t]here’s only so much the court system can do if you’re not

willing to accept the help and to try to change your ways.” It noted that Mr. Woods had a great

mother and there was no evidence of any abuse or neglect in Mr. Woods’s childhood, but he still

“continued to be involved in gangs and guns.” With respect to school, the trial court noted:

“You said your heart wasn’t into it. What does that mean? You’re supposed to go

to school. You need the school to be a better person, to get a job, to be able to support

yourself and your family, instead of going to the games [sic] and sticking up people and

taking their money and taking what they’ve worked hard for.”

¶ 15 The trial court went on to note, from the PSI report, that Mr. Woods had “more than other

students do, and you just drop[ped] out,” that he “could have had the, you know, help of the ***

teammates and the basketball team and your coach, *** but instead, you go to the streets and

hang out with the gang members.” It reiterated that “gangs and guns” was his repeated choice.

¶ 16 The trial court then made a finding that there had been no great bodily harm to either of

the victims, which made Mr. Woods eligible for day for day good time. The court sentenced Mr.

Woods to 34 years’ imprisonment “on the armed robbery with a gun” and stated “[t]he other

counts will merge.” This sentence was eight years more than the minimum sentence of 26 years.

Armed robbery was a Class X felony with a sentencing range of 6 to 30 years and there was a

-5­ No. 1-15-3323

mandatory 20-year sentencing enhancement based on the finding that Mr. Woods discharged a

firearm. 720 ILCS 5/18-2(b) (West 2012).

¶ 17 In addition to the prison sentence, Mr. Woods was also assessed fines and fees in the

amount of $924. The mittimus reflects convictions under count IV, armed robbery with a

firearm, and count V, armed robbery with personal discharge of a firearm, with concurrent

sentences of 34 years’ imprisonment for each. Mr. Woods filed a motion to reconsider sentence,

which the trial court denied.

¶ 18 II. JURISDICTION

¶ 19 Mr. Woods was sentenced on September 18, 2015, and timely filed his notice of appeal

that same day. This court has jurisdiction pursuant to article VI, section 6, of the Illinois

Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 603 and 606,

governing appeals from final judgments of conviction in criminal cases (Ill. S. Ct. Rs. 603, 606

(eff. Feb. 6, 2013)).

¶ 20 III. ANALYSIS

¶ 21 A. Fifth Amendment

¶ 22 Mr. Woods argues his fifth amendment right against self-incrimination was violated

when the trial court ordered him to participate in a PSI and then used the information that he

provided about his prior gang affiliation and educational background against him in aggravation

at sentencing.

¶ 23 The fifth amendment commands that “[n]o person *** shall be compelled in any criminal

case to be a witness against himself.” U.S. Const., amend. V. The fifth amendment applies to the

states by virtue of the fourteenth amendment (People v. Hunt,

; U.S. Const.,

amend. XIV), and its protection against self-incrimination applies to sentencing proceedings

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(Mitchell v. United States,

(1999); People v. Maggio,

).

¶ 24 To preserve a sentencing issue for appeal, a defendant must generally raise the issue in

the trial court, including through a written motion to reconsider sentence. People v. Sharp,

. Here, Mr. Woods filed a motion to reconsider sentence but did not

argue his fifth amendment rights were violated at sentencing. He argues however, that we may

review the forfeited issue on any of the following bases: (1) the trial court’s insistence that he

supply information in the PSI investigation, along with its use of that information, was plain

error, (2) application of the forfeiture rule should be less rigid where the basis of the objection is

the trial court’s own conduct, as our supreme court recognized in People v. Sprinkle,

(1963), or (3) his trial counsel was ineffective for failing to preserve the issue.

¶ 25 Plain error analysis can be a proper basis to review unpreserved trial court errors in

sentencing. See People v. Nitz,

(2006). Under this rule, a defendant must

show first that a clear or obvious error occurred (People v. Piatkowski,

(2007)) and second that either the evidence at the sentencing hearing was closely balanced or the

error was so egregious as to deprive the defendant of a fair sentencing hearing (People v. Hall,

(2000)).

¶ 26 Not every error in sentencing affects a fundamental right to liberty (People v. Rathbone,

(2003)), but where “the error was sufficiently grave” as to call into

question the integrity of the sentencing hearing, we may review it under the second prong of

plain error analysis (id. (citing People v. Fuller,

(2002))). Mr. Woods argues that

compelling a criminal defendant to participate in a PSI and then using the information gathered

in aggravation raises a grave question about the fairness and integrity of the sentencing hearing

-7­ No. 1-15-3323

and thus comes within second prong plain error. See Fuller,

(finding the

trial court’s failure to give a correct jury instruction at the death-penalty eligibility phase of a

capital sentencing proceeding was plain error).

¶ 27 The State makes no argument on the merits of Mr. Woods’s claim of a fifth amendment

violation but argues only that his failure to raise this issue with the trial court results in a

forfeiture that precludes our review of his claim. The State relies on our supreme court’s

decisions in People v. Hampton,

(1992), and People v. Hillier,

(2010). In both Hampton and Hillier, the court held that a defendant forfeited claims that the trial

court violated his fifth amendment right by relying on statements that the defendant made in a

PSI interview and sex offender evaluation when it sentenced the defendant.

¶ 28 But in both Hampton and Hillier the defendant’s primary argument was that he was

entitled to Miranda warnings (Miranda v. Arizona,

(1966)) prior to participating in

a PSI. Hampton,

; Hillier,

. In neither of those cases was there a

record of the defendant’s refusal to participate or of the trial court’s ordering the defendant to

participate.

¶ 29 In Hampton, our supreme court ruled that it should not decide whether a defendant was

entitled to Miranda warnings prior to talking to an investigator because there the defendant did

not object to speaking to the investigator and did not move to suppress the statements that he

made to the investigator. Hampton,

. As the court noted, it could not even tell on

the record before it whether the defendant was actually given Miranda warnings.

.

In Hampton, the court specifically noted that “no contention is made by defendant that his

statements were in any way compelled, coerced or otherwise rendered involuntary so as to have

violated defendant’s privilege under the fifth amendment against compelled self-incrimination.”

-8­ No. 1-15-3323

.

¶ 30 The Hillier court followed Hampton because, again, there was no objection and no

showing that the defendant did not actually receive Miranda warnings. Hillier, 237 Ill. 2d at 548­

49. In addition, in Hillier, the defendant did not even argue for plain-error review. Id. at 549.

¶ 31 We acknowledge that in Hampton, our supreme court rejected second-prong plain error

review on the basis that, even if there had been a failure to give Miranda warnings, this was not a

fifth amendment violation. Hampton,

. The court also noted that it had declined

to apply the plain error exception in cases with allegations that a defendant’s constitutional rights

were violated, including cases involving improper comments by a prosecutor on a defendant’s

post-arrest silence (People v. Herrett,

(1990)), comments about a

defendant’s failure to testify (People v. Whitehead,

(1987)), allegations

that a defendant’s confession was involuntary (People v. Byrd,

(1986)),

and claims that a confession was “not the product of a rational mind or a free will” (People v.

Gacy,

(1984)). Hampton,

.

¶ 32 However, in each of those cases, and in Hampton as well, the reviewing court conducted

a fact-specific inquiry to determine if the error in question merely implicated a constitutional

right but the prejudicial effect was minimized in the course of the proceedings, or whether the

error was so serious that it rendered the trial unfair and made plain error review “necessary to

preserve the integrity and reputation of the judicial process.” (Internal quotation marks omitted.)

; see, e.g., Whitehead,

(finding prosecutor’s improper, isolated

reference that the defendant was a “ ‘sex pervert’ ” was not “ ‘so seriously prejudicial’ ” that it

affected the fairness of the trial where it “might have been a fair reflection of the evidence” and

was a response to the defendant’s claim that he had no motive to kidnap the victim).

-9­ No. 1-15-3323

¶ 33 The issue in Hampton and Hillier was whether the court should consider a claim that a

defendant was not given Miranda warnings, where no objection had been made and the record

was unclear as to whether the defendant had, in fact, been given Miranda warnings. As the court

noted in Hampton, the United States Supreme Court has made it clear that “the Miranda holding

sweeps more broadly than the fifth amendment, and that the prophylactic Miranda warnings ***

are not themselves rights protected by the Constitution.” (Internal quotation marks omitted.)

. In contrast to those cases, this case represents a direct assault on Mr. Woods’s

fifth amendment rights, rather than a possible failure to invoke a “prophylactic” warning.

¶ 34 The error here was made more difficult to correct because of the direct role played by the

trial court. Mr. Woods correctly cites the holding of our supreme court in Sprinkle,

, that “a less rigid application of the rule [of forfeiture] *** should prevail where the basis for

the objection is the conduct of the trial judge.” Mr. Woods was specifically told by the judge that

he had to talk to pretrial services and then the judge used that information to increase Mr.

Woods’s sentence. In our view, this error should be reviewed both because it is a direct

infringement of a constitutional right, and because that infringement came from the court.

¶ 35 We are sympathetic to the trial court’s premise that, generally speaking, it is helpful to a

defendant, as well as to the court, to have some understanding of the defendant’s background at

the time of sentencing. This context can often help mitigate the trial court’s view of the criminal

conduct for which the defendant has been convicted. Unfortunately in this case, the trial court

appears to have viewed as only negative, some of the information that could have been used as

mitigation. For example, Mr. Woods reported that he was a former gang member who had quit

because he “wanted to be a positive role model for his younger half-brothers.” The trial court did

not mention this, but instead referred repeatedly to his membership in “gangs.”

- 10 ­ No. 1-15-3323

¶ 36 The State does not dispute that Mr. Woods had a fifth amendment right not to be

compelled to provide information that was used against him at sentencing. Nor does the State

dispute that the information Mr. Woods provided was, in fact, used against him. Mr. Woods’s

first PSI report said nothing about gang involvement or when Mr. Woods stopped attending

school. There was also no testimony at trial about the offense being gang-related. The PSI report

that was provided to the trial court after Mr. Woods was required to participate reflects that Mr.

Woods told the PSI investigator that he had been affiliated with the Mafia Insane Vice Lords and

that he dropped out of school after the 10th grade. The State emphasized these facts and the trial

court made multiple references to his gang involvement, concluding that Mr. Woods kept

returning to “gangs and guns” throughout his life. The trial court also chastised Mr. Woods for

dropping out of school. The sentence imposed was eight years longer than the lengthy minimum

sentence that this conviction required.

¶ 37 We find that the trial court plainly erred by insisting that Mr. Woods cooperate with the

PSI and then using this information against him as reflected in the repeated reference to Mr.

Woods’s past gang participation and educational history. This error deprived Mr. Woods of a fair

sentencing hearing and therefore requires us to vacate Mr. Woods’s sentence.

¶ 38 In a special concurrence, our colleague agrees that we must remand for resentencing, but

only because the trial court relied on an aggravating factor that was not supported by the record,

specifically gang membership, when Mr. Woods had quit the gang when he was 24. Our

colleague concludes that the record “is patently insufficient to establish that defendant was

compelled to provide information during the PSI in violation of his fifth amendment rights,”

arguing that a postconviction proceeding based on an affidavit articulating Mr. Woods’s reasons

for later participating in the PSI would fill this gap in the record. However, we fail to see how

- 11 ­ No. 1-15-3323

such an affidavit or factfinding, addressing whether Mr. Woods participated strategically or

compulsively, is necessary to our finding that Mr. Woods’s right to remain silent was violated

here. There is no dispute that the record shows that Mr. Woods initially refused to participate in

the PSI, then was ordered to do so by the trial court, and then provided information that was used

against him at sentencing. The fact that Mr. Woods may have been advised by counsel that he

did not have to provide information about the specifics of the charged crime or that a probation

officer may have “Mirandized” him, in no way diminishes the fact that Mr. Woods was ordered

by the trial court to surrender his fifth amendment rights.

¶ 39 We agree with Mr. Woods that the remedy here is to remand for resentencing to the

presiding judge of the criminal division so that Mr. Woods can be resentenced before a new

judge with a new PSI. While, as noted above, we understand why the trial court acted as it did, as

our supreme court has recognized, the best way to “remove any suggestion of unfairness” is to

have the case assigned to a new judge on remand, where, as here, improper considerations have

come into the sentencing process. People v. Heider, 231 Ill 2d 1, 25 (2008).

¶ 40 B. One Act, One Crime

¶ 41 We will address Mr. Woods’s argument that his conviction for armed robbery with

possession of a firearm (count IV) must be vacated because it is predicated on the same physical

act as his conviction for armed robbery with personal discharge of a firearm (count V), since this

same situation will exist on remand. The State concedes that Count 4count IV should be vacated

and we anticipate that the State will continue to make this concession to the trial court. Although

Mr. Woods did not raise this claim in the trial court, “forfeited one-act, one-crime arguments are

properly reviewed under the second prong of the plain-error rule because they implicate the

integrity of the judicial process.” People v. Nunez,

(2010).

- 12 ­ No. 1-15-3323

¶ 42 Pursuant to the one-act, one-crime doctrine, “a defendant may not be convicted of

multiple offenses that are based upon precisely the same single physical act.” People v. Johnson,

(2010). If only one physical act was undertaken, then multiple convictions are

improper. People v. Artis,

(2009). We agree with the parties that Mr.

Woods’s two armed robbery convictions were predicated on the same physical act.

¶ 43 When there is a violation of the one-act, one-crime doctrine, the reviewing court should

impose a sentence on the more serious offense.

. Here, armed robbery with a firearm

(count IV) and armed robbery with personal discharge of a firearm (count V) are both Class X

felonies. Compare 720 ILCS 5/18-2(a)(2), (b) (West 2012), with 720 ILCS 5/18-2(a)(3), (b)

(West 2012). However, armed robbery with personal discharge of a firearm requires a mandatory

sentence enhancement of 20 years’ imprisonment, while armed robbery with a firearm requires a

mandatory sentence enhancement of 15 years’ imprisonment. See 720 ILCS 5/18-2(b) (West

2012). Therefore, armed robbery with a firearm (count IV) is the less serious offense. See Artis,

(“In determining which offense is the more serious, a reviewing court

compares the relative punishments prescribed by the legislature for each offense,” as greater

punishment is mandated for the more serious offense). Accordingly, on remand, the trial court

should merge the finding of guilt on the armed robbery with a firearm count into the armed

robbery with personal discharge of a firearm count and resentence Mr. Woods only on the latter.

¶ 44 C. Fines and Fees

¶ 45 Mr. Woods next argues that four monetary charges were improperly assessed and should

be vacated, one fee is actually a fine subject to presentence incarceration credit, and he should

receive credit for the 1097 days he spent in presentence custody to offset the imposed fines. We

will address these issues because they may arise again on remand.

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¶ 46 Even though Mr. Woods did not challenge these assessments before the trial court, they

are reviewable both under the plain error doctrine and pursuant to section 110-14(a) of the Code

of Criminal Procedure of 1963 (725 ILCS 5/110-14(a) (West 2010)). People v. Mullen,

, ¶¶ 38-39. The State agrees that the fines, fees, and costs order contains errors

and, again, we urge the State to make these concessions at the trial level.

¶ 47 Mr. Woods first asserts, and the State correctly concedes, that the $250 DNA fee (730

ILCS 5/5-4-3(j) (West 2012)), the $5 electronic citation fee (705 ILCS 105/27.3e (West 2012)),

the $100 trauma fund fine (730 ILCS 5/5-9-1.10 (West 2012)), and the $5 court systems fee (55

ILCS 5/5-1101(a) (2012)) were improperly assessed and should be vacated. We agree. See

People v. Smith,

(finding where a defendant’s prior felony

conviction occurs after 1998, we presume his DNA is already in the database, the DNA fee was

previously assessed, and electronic citation fee does not apply to felony convictions); People v.

Bryant,

(finding $100 trauma fund fine only applies to

specified firearm offenses); People v. Harris,

(finding court

systems fee only applies to violations of the Illinois Vehicle Code (625 ILCS 5/1-100 et seq.

(West 2012))). Accordingly, upon remand, these improperly-assessed fees should not reappear

on the new fines and fees order.

¶ 48 Mr. Woods next requests a $5 per diem credit for the 1097 days he spent in presentence

incarceration to offset the imposed fines. A defendant incarcerated on a bailable offense who

does not post bail and against whom a fine is imposed is allowed a $5 credit for each day spent in

presentence custody. 725 ILCS 5/110-14(a) (West 2012). Mr. Woods spent 1097 days in

presentence custody and is thus entitled to up to a $5485 credit to offset certain imposed fines.

¶ 49 Mr. Woods asserts, and the State agrees, that his credit should be applied to the following

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fines: the $10 mental health court fine (55 ILCS 5/5-1101(d-5) (West 2012)), the $5 youth

diversion/peer court charge (id. § 5-1101(e)), the $5 drug court fine (id. § 5-1101(f)), and the $30

children’s advocacy center assessment (id. § 55 ILCS 5/5-1101(f-5) (West 2012)). The fines and

fees order already reflects that these fines should be offset by the credit. However, Mr. Woods’s

order does not reflect whether he actually received this credit for the 1097 days spent in

presentence incarceration. Thus, on remand, we direct the trial court to ensure the offset is

reflected on the new fines and fees order.

¶ 50 Mr. Woods also argues, and the State correctly concedes, that the $15 state police

operations charge (705 ILCS 105/27.3a(1.5) (West 2012)) is also a fine subject to presentence

incarceration credit. See People v. Brown,

(finding the $15 state

police operations charge to be a fine subject to offset by the credit). This credit should also be

reflected on any fines and fees order on remand.

¶ 51 IV. CONCLUSION

¶ 52 For the reasons set forth above, we vacate Mr. Woods’s sentence and remand this case to

the presiding judge of the criminal division for resentencing before a different judge with a new

PSI. We direct the trial court to merge the finding of guilt of count IV into count V and to

sentence Mr. Woods only on count V. Any fines and fees imposed on remand should not include

the $250 DNA fee, $5 electronic citation fee, $100 trauma fund fee, or $5 court system fee, since

these do not apply to Mr. Woods’s case. If it is imposed, the $15 state police operations fee

should be treated as a fine, and any fines imposed should be offset by presentence incarceration

credit on the fines and fees order.

¶ 53 Sentence vacated; remanded with directions.

- 15 ­ No. 1-15-3323

¶ 54 JUSTICE PIERCE, specially concurring:

¶ 55 Although I agree with the majority that this case should be remanded for resentencing,

because there is an insufficient record establishing a violation of defendant’s constitutional

rights, I do not agree with the majority’s reasoning in ordering a new sentencing hearing. In my

view, resentencing is required because the record shows that the trial court’s reasoning in

imposing its sentence is not supported by the record or the presentence investigation report and

the defendant was prejudiced as a result.

¶ 56 The majority mistakenly conflates two issues in finding that “the trial court plainly erred

by insisting that Mr. Woods cooperate with the PSI and then using this information against him

as reflected in the repeated reference to Mr. Wood’s past gang participation and educational

history.” There are two distinct issues of import here: (1) the effect of the trial court ordering

defendant to participate in the PSI and (2) the use of the information obtained during the PSI in

sentencing.

¶ 57 There is no dispute in this case that the trial court “ordered” defendant to speak with the

probation department with respect to the PSI after the court was informed that defendant “did not

talk to probation for the PSI” the first time. I believe it is likely that this lack of cooperation was

viewed by the trial court as conduct that was not helpful to the defendant and that he would

probably be better off if he cooperated so that the court would potentially have mitigating

evidence to consider. There is similarly no dispute that defendant had a fifth amendment right

not to be compelled to provide information during the PSI that could be used against him at

sentencing. People v. Ashford,

(1988). However, notwithstanding the trial

court’s order to cooperate, I find the record here is patently insufficient to establish that

defendant was compelled to provide information during the PSI in violation of his fifth

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amendment rights and that this claim should be brought in a postconviction proceeding where a

complete record can be established and considered by the circuit court and later, if necessary, by

the appellate court.

¶ 58 There is simply no indication here of what happened after the court “ordered” defendant

to speak with the probation department. It is undisputed that defendant intentionally refused to

answer questions regarding the offense, even though he answered questions dealing with his

background. By refusing to answer questions about the offense, the defendant did not succumb to

the court’s order to cooperate. This refusal indicates he made a choice of which questions to

answer and which questions to refuse to answer. It is entirely possible that defendant’s counsel

could have counseled defendant on the potential value of cooperating with the probation

department so that his background could be used as persuasive mitigation evidence. Also,

defendant may have seen the wisdom of this advice and better understood the circuit court’s

attempt to learn more about his non-criminal background before sentencing him based only on

the nature of the offense and his criminal history. Further, defendant could have been (and likely

was) Mirandized before his PSI interview, and he could have knowingly and voluntarily waived

his fifth amendment rights. In short, we simply do not have an adequate record from which to

decide whether a constitutional violation resulted from the order of the trial court to cooperate

with the PSI.

¶ 59 When a defendant asks a court of review to consider constitutional issues that rely on

matters outside of the record, those issues are best reserved for a timely postconviction petition.

People v. Page,

(2000). Our supreme court recently instructed that

consideration of an as-applied constitutional challenge on direct review requires a developed

record and a developed record is best presented in postconviction proceedings. People v. Harris,

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, ¶ 39. “The critical point is not whether the claim is raised on collateral review

or direct review, but whether the record has been developed sufficiently to address the

defendant’s constitutional claim.” Id. ¶ 41. Here, defendant made no effort to bring to the trial

court’s attention the constitutional claim now raised on direct appeal: his being compelled to

cooperate with his PSI. There is no record of what, if any, advice his counsel provided him.

There is no record of whether he was advised of his Miranda rights, whether he understood those

rights, and whether he knowingly and voluntarily waived them. There is no affidavit from the

defendant attesting to whether he was compelled to make a statement. The only basis for this

claim is the trial court’s order and the unsupported argument made on appeal that amounts to

nothing more than pure speculation on whether a constitutional violation occurred. This issue is

best reviewed, analyzed, and adjudicated at the postconviction stage. 725 ILCS 5/122-1 et seq.

(West 2016).

¶ 60 In summary, defendant raises an important issue based solely on the trial court’s

statement, but leaves a gaping hole in establishing a violation of a constitutional right because of

a totally deficient record that supports his argument. Defendant’s constitutional argument, at this

stage, is purely speculative and should not be decided unless that argument is supported by

evidence contained in the record. I cannot tell from the record before us why defendant candidly

provided some information and withheld other information for the second PSI. Defendant has not

submitted an affidavit or any other evidence that would allow us to ascertain if he willingly gave

up his rights or was truly compelled.

¶ 61 That stated, I agree with my colleagues that a new sentencing hearing is required because

the sentencing comments of the trial judge reasonably indicate that the court used some of the

information provided by the defendant, his prior gang affiliation, as an aggravating factor where

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it was offered as a mitigating factor of the PSI. However, I find that the use of this information

was in error because of the way in which the trial judge used the information contained in the

PSI to the defendant’s prejudice, not because the defendant was arguably compelled to give it.

¶ 62 A “defendant shall not be sentenced for a felony before a written presentence report of

investigation is presented to and considered by the court.” 730 ILCS 5/5-3-1 (West 2014). A PSI

must contain information regarding the defendant’s “history of delinquency or criminality,

physical and mental history and condition, family situation and background, economic status,

education, occupation and personal habits.” Id. § 5-3-2(a)(1). The trial court must consider the

PSI when imposing sentence. People v. Testa,

(1984).

¶ 63 The PSI prepared in this case shows that defendant admitted that he was a former

member of a street gang. Defendant also indicated that he joined the gang when he was 13 years

old but left when he was 24 years old because he wanted to be a positive role model for his

younger half-brother. Instead of considering the fact that defendant was a former gang member

and left the gang because he wanted to do positive things as mitigation, the court clearly used

this information in aggravation, repeatedly referring to his membership in “gangs” and stating

that the defendant returned to “gangs and guns” throughout his life. The court also indicated that

“robbery, guns and gangs seems to be a repeated thing here” and that “[defendant] choose[s] to

be involved with gangs and guns.” There was no evidence that the underlying robbery was gang

related in any way or that defendant was involved in a gang at the time of this offense. There was

no evidence that the defendant had a pattern of repeatedly returning to guns and gangs after he

quit the gang when he was 24 years old. There was also no evidence that defendant was involved

in a gang at the time of this offense. I therefore find that the court relied on aggravating factors in

imposing sentence that were not supported by the record or the PSI and that it is reasonable to

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conclude that the trial court’s reliance on these factors was prejudicial to the defendant. See

People v. Ross,

(1999); People v. Holloman,

(1999).

Accordingly, I would remand for resentencing on this basis alone.

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