This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in November, 2004
Part one of this topic published earlier this year addressed the jurisdictional questions and the procedural requirements pertaining to post-sentencing motions. In addition, I discussed the advisability of filing a second notice of appeal in the same litigation in certain circumstances. This second part deals with the substantive requirements for preparation and presentation of the written post-sentencing motion.1
II. CHALLENGE THE CORRECTNESS OF THE SENTENCE AND DISPUTED ASPECTS OF THE SENTENCING HEARING
Section 5-8-1(c) of the Unified Code of Corrections2 refers to two distinct categories of sentencing relief on appeal, namely (a) challenges to the correctness of the sentence and (b) challenges to any aspect of the sentencing hearing. While at first blush these two categories might seem duplicative, their repetition in the statute and in related Supreme Court Rule 605 indicates a clear intention to distinguish two types of sentencing challenges. As explained below, the appellate lawyer will be restricted in the arguments available on appeal unless the trial attorney diligently investigates all potential avenues of sentencing relief and includes the issues in a post-sentencing motion. Therefore, the claims of error in a post-sentencing motion are equivalent to those in a post-trial motion, differing only in the stage of the case at issue.
(a) Correctness of the sentence
This category encompasses a wide variety of potential challenges to the sentence (a/k/a final judgment). One typical argument on appeal in less serious felony cases is that the trial court failed to follow the statutory presumption in favor of probation when imposing a prison sentence.3 Another common (and typically unsuccessful) complaint on appeal attacks the court's abuse of discretion when imposing sentence, even though the sentence is imposed within the proper sentencing range.
However, other substantive challenges may be available, depending on the facts of the case. For example, an extended term sentence may have been imposed improperly because of the failure to adhere to Apprendi guidelines4 or because the sentence was not imposed on the most serious offense of which the defendant was convicted.5 The correctness of concurrent versus consecutive terms of imprisonment is a fertile area of sentencing litigation on appeal.6
I will not attempt to provide a comprehensive list or analysis of all the substantive sentencing law in an article of this length. Suffice it to say that the correctness of the sentence requires trial counsel to review all applicable statutory and case law requirements for sentencing the particular crime charged in the client's prosecution. You should be careful to review the statute defining the crime, which sometimes contains particular sentencing requirements or enhanced classifications not found in the Unified Code of Corrections.7 Perhaps the most important sentencing statute is section 5-5-3 of the Unified Code of Corrections,8 which contains many of the appellate sentencing guidelines under Illinois law.
(b) Disputed aspects of the sentencing hearing
For purposes of preserving appellate arguments, a sentencing hearing does not differ from a trial. Current case law requires that the motion itemize each sentencing objection to avoid the rule of waiver.9 Without trying to provide an exhaustive list of potential objections, the defense may challenge improper introduction or exclusion of testimony and exhibits. These "aspects" of the sentencing hearing concern the method by which the court arrived at its sentence, as distinguished from the ultimate sentencing decision. While this second category of objections does not directly challenge the "correctness" of the sentence, one or more significant errors in the conduct of the hearing might result in relief from the sentencing decision.
III. SPECIFICITY OF THE POST-SENTENCING MOTION
In a previous article, I noted that allegations of error must be specific to preserve claims for appeal. For example, alleging that the prosecutor's closing arguments were "inflammatory" or "prejudicial", without referring to the specific language in the argument, will not preserve the claimed error on appeal.10 In addition, alleging that "the post-sentencing motion has been prepared without the benefit of a transcript of the trial proceedings" and that the defendant incorporates all other allegations of error not specifically noted in the motion will not preserve appellate issues for the same reason.
Here are examples of claims of error presented in a post-sentencing motion that will and will not preserve claims of error at the trial court level:
1. "The court erred in admitting the testimony of Witness A that he believed the defendant needed to be sentenced to prison."
(But not, "The court erred in admitting objectionable and inflammatory testimony of Witness A.")
2. "The court erred in admitting State's Exhibit #14."
(But not, "The court erred in admitting prosecution evidence.")
3. "The court erred by entering a finding that the crime was committed in an exceptionally brutal and heinous manner."
(But not, "The court erred in the sentence imposed on the defendant.")
Naturally, the assurance that these arguments will preserve error on appeal rests on the assumption that the grounds raised during the course of the sentencing hearing were specific. Thus, in example 2 above, an objection to the foundation for introducing the exhibit would only preserve that ground for appeal, but would not preserve a claim of error based on lack of relevance. Thus, as at trial, arguments can be waived for appeal if they are not properly focused.
At the sentencing hearing, counsel is not required to argue all issues noted in the post-sentencing motion. The allegation of error is preserved as long as the specific objection was raised during the hearing and the equally specific objection was repeated in the written motion. Simply be sure not to withdraw an objection that you want argued in the appellate brief.
IV. EXCEPTIONS TO THE WAIVER RULE
As noted above, the general waiver rule precludes raising sentencing arguments on appeal if the motion is not filed or its contents are not sufficiently specific. One means of avoiding the waiver rule arises where the trial judge fails to properly admonish the defendant of the necessity of filing a post-sentencing motion at the hearing. Supreme Court Rule 605 contains the required admonitions that are the consequence of the principles discussed above. Subsection (a)(3)(B) of the Rule reiterates the requirement of filing a written motion within 30 days of the imposition of sentence containing all challenges to the correctness of the sentence or any aspect of the sentencing hearing. The consequence of the failure to give these admonishments is the remandment of the case to the circuit court to provide the advisements and an opportunity to file a post-sentencing motion.11
Another possible safety net on appeal is the rule that sentencing issues affect the defendant's substantial rights and are thereby excepted from the waiver rule.12 This last-ditch argument did not work in the Roberts case (see footnote 9) because its application depends upon the precise claim to be salvaged. Moreover, subsection (a)(3)(C) of Supreme Court Rule 605 specifically reinforces the waiver rule by requiring the judge to admonish the defendant that any issue or claim of error regarding the sentence or any aspect of the hearing not raised in a written motion is considered waived. In the future, this portion of the Rule may be invoked to defeat end-runs around waiver.
Finally, do not worry that the filing of the post-sentencing motion will result in a more severe sentence for your client. Both the sentencing statute and principles of federal constitutional law prohibit a vindictive increase in a sentence after its imposition.13
Larry Wechter is the primary of the Law Offices of Larry Wechter, 1770 S. Randall Road, Suite A, #212, Geneva, Illinois 60134, phone: 630/232-4354, e-mail: email@example.com. Larry served as a felony prosecutor in Kane County for 5 years and has been in private practice since 1987.
1. The statute at issue requires the filing of a written motion (730 ILCS 5/5-8-1(c) (West 2002)). Although case law permits preservation of trial error via an oral motion if the State does not object to the lacking of a writing (for example, see People v. Enoch, 122 Ill.2d 176, 188 (1988)), I would never risk appellate relief on an oral motion.
2. 730 ILCS 5/5-8-1(c) (West 2002)
3. Please note that this presumption only applies when prison is not a mandatory sentence. The presumption can be overcome if the court makes certain findings. See 730 ILCS 5/5-6-1(a) (West 2002)
4. Apprendi v. New Jersey, 530 U.S. 466 (2000)
5. See 730 ILCS 5/5-8-2(a) (West 2002)
6. See 730 ILCS 5/5-8-4 (West 2002)
7. For just two of many examples, see the robbery statute (720 ILCS 5/18-1 (West 2002)) and the aggravated vehicular hijacking statute (720 ILCS 5/18-4 (West 2002)). Although some effort has been made to revise the Criminal Code and the Unified Code of Corrections, in the meantime sentencing requirements inserted in the substantive definitions of criminal offenses have continued to multiply.
8. See 730 ILCS 5/5-5-3 (West 2002). Unfortunately, the lengthy and complicated provisions of this statute prevent easy mastery of this area of law. For felony practitioners, the most important portions of this law are contained in subsection (c), detailing the crimes requiring mandatory prison terms.
9. People v. Roberts, 338 Ill.App.3d 245, 250 (2nd Dist., 2003)
10. People v. Ayala, 208 Ill.App.3d 586, 594 (1st Dist., 1990)
11. People v. Glenn, 345 Ill.App.3d 974, 982 (2nd Dist., 2004)
12. People v. Baaree, 315 Ill.App.3d 1049, 1050 (2000)
13. 730 ILCS 5/5-8-1(c) (West 2002); North Carolina v. Pearce, 395 U.S. 711 (1969) Of course, if the sentence was void in some respect, the State may challenge those aspects of the sentence on appeal.