People v. Medina ( 2006 )

Docket No. 100437.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
PONCHO MEDINA, Appellant.
Opinion filed June 2, 2006.
JUSTICE KARMEIER delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices Freeman, McMorrow,
Fitzgerald, Kilbride and Garman concurred in the judgment and
opinion.
OPINION
The defendant, Poncho Medina, was charged in the circuit
court of Cook County with the offense of possession with intent
to deliver more than 400 grams, but less than 900 grams, of a
controlled substance (cocaine), in violation of section 401 of
the Illinois Controlled Substances Act (Act) (720 ILCS 570/401
(West 2002)). Following a jury trial, the defendant was found
guilty and was subsequently sentenced to 13 years=
incarceration in the Illinois Department of Corrections.
Defendant appealed, arguing, inter alia, that (1) his conviction
should be reversed because the record failed to demonstrate
that he, personally, made the decision not to tender a lesser-
included offense instruction; (2) the trial court failed to properly
admonish him pursuant to Supreme Court Rule 605(a) (eff.
October 1, 2001); and (3) his 13-year sentence of
imprisonmentBone year over the mandatory minimum
authorized sentenceBwas excessive. The appellate court
rejected those contentions and affirmed defendant=s conviction
and sentence. No. 1B03B1704 (unpublished order under
Supreme Court Rule 23). We granted the plaintiff=s petition for
leave to appeal (177 Ill. 2d R. 315), and now affirm the
judgment of the appellate court.
On appeal, defendant contends that (1) his conviction must
be reversed because the record fails to disclose that he,
personally, made the ultimate decision not to tender a lesser-
included offense instruction, and (2) this cause should be
remanded to the circuit court for proper admonishments
pursuant to Supreme Court Rule 605(a), because inadequate
admonishments deprived him of his right to file a motion to
reconsider his sentence. The following facts are pertinent to
our disposition.
BACKGROUND
At defendant=s jury trial, Chicago Police Officer Chris Moyer
testified that he and his partner, Officer Jim Kubic, were on
routine patrol at approximately 10 p.m. on July 29, 2002, when
they observed defendant stop his car and hand a case of
Corona beer to Akids@ in an alley. Shortly thereafter, the officers
effected a traffic stop. Although defendant had not been asked
to do so, he immediately exited his car and walked back toward
-2-
the officers, meeting them about two feet behind his car.
Officer Moyer asked defendant if he had a driver=s license, and
defendant admitted he did not. He was placed under arrest,
and subsequently admitted that he did not have insurance
either. Officer Kubic spoke with the kids at the scene and
determined that some were old enough to drink, while others
were not.
After Officer Moyer placed defendant in Officer Kubic=s
custody, Moyer returned to defendant=s vehicle to secure it for
towing. While he was standing at the passenger-side window of
the car, Moyer observed a Abig brick object wrapped in tape.@
The object was in plain view on the front passenger-side
floorboard of the vehicle. Moyer described the package as
Aabout 12 inches long, about eight inches wide, *** about two
inches thick, *** wrapped with a brown shipping tape.@ Based
on his experience as a police officer, Moyer believed the
package contained narcotics. He removed the package, cut it
open, and discovered that it contained a compressed white
powder, which he believed to be cocaine.
Moyer showed the package to his partner and then
proceeded to the driver=s side of defendant=s vehicle. Upon
opening the driver=s door, Moyer discovered a beer bottle
jammed between the driver=s seat and the center console of
the car. Under the driver=s seat, he found a Abig wad of
money.@ Moyer stated: AIt was all small bills, and it was as if
somebody would take a handful of money and shove it under,
grab more money, shove it under, it wasn=t there in any order.@
The money under defendant=s seat totaled $6,261.
Arthur Weathers, a forensic scientist employed by the
Illinois State Police Crime Lab, testified that he received the
package inventoried by Officer Moyer for analysis. After
testing, he determined that the package and its contents
weighed 557.9 grams, and the white substance therein was
40% pure cocaine.
Chicago Police Officer Romanda Ramirez was qualified and
testified as a street drug expert. Ramirez stated that a typical
user of cocaine would purchase approximately 0.2 grams, at a
cost of $20. Cocaine sold on the street at the time of
defendant=s arrest was Aanywhere between 15 and 25 percent
-3-
pure.@ In his opinion, because of the large amount involved,
and the high level of purity, the cocaine in this case was not for
personal use. Ramirez testified that the cocaine in question
had a street value of $139,475, and would have supplied
between 5,579 and 11,000 persons, depending upon the
extent to which the substance was further diluted prior to sale.
Following Ramirez=s testimony, and a stipulation as to chain
of custody, the State rested. Defendant=s motion for a directed
verdict was denied. Defense counsel informed the court that
counsel would not call defendant as a witness. The court then
admonished defendant regarding his right to testify. Defendant
indicated that he understood he had the right to testify, and he
stated he did not wish to do so. The defense rested without
presenting any evidence.
During the instruction conference, defense counsel was
adamant that he did not want a lesser-included offense
instruction submitted to the jury, and none was given. The
record does not indicate whether defendant was present during
the instruction conference.
In his closing argument to the jury, defense counsel
revisited the theme he had pursued in his opening statement,
arguing that the evidence did not show defendant knowingly
possessed the drugs. The jury found defendant guilty of
possession of a controlled substance with intent to deliver.
At defendant=s sentencing hearing, the trial court first
denied defendant=s motion for a new trial. Proceeding to
sentencing, the parties agreed that the that the mandatory
minimum sentence was 12 years= incarceration in the
Department of Corrections. In aggravation, the State pointed
out that defendant, an illegal alien, had on two occasions
violated statutory provisions prohibiting the operation of a
motor vehicle while under the influence of drugs or alcohol. In
mitigation, defense counsel suggested that defendant came to
this country Ato find a better life.@ Conceding that defendant
was Ain the country illegally,@ defense counsel speculated that
defendant would Abe deported to Mexico@ as soon as he
finished his sentence. Counsel asked for the minimum
sentence. As noted, the trial court sentenced defendant to 13
years= imprisonment. After sentencing the defendant, the court
-4-
advised the defendant that he had the right to appeal, and to
do so, he had to file notice of appeal within 30 days. Defendant
was not apprised of the necessity of filing a motion to
reconsider sentence.
On appeal, defendant argued, inter alia, that his conviction
should be reversed because (1) the record failed to
demonstrate that he, personally, made the decision not to
tender a lesser-included offense instruction; (2) the trial court
failed to properly admonish him pursuant to Supreme Court
Rule 605(a); and (3) his sentence was excessive. The
appellate court considered defendant=s first issue, though the
court believed it had not been properly preserved for review,
and concluded that Athe circuit court is not required to advise a
defendant of the right to tender a lesser-included-offense
instruction, to inquire whether the defendant knowingly and
intelligently waived that decision, or to ensure that the
defendant=s decision on the matter is in the record.@ No.
1B03B1704 (unpublished order under Supreme Court Rule 23).
Next, the appellate court rejected defendant=s contention that
his case should be remanded for proper Rule 605(a)
admonishments. The court implicitly held that defendant was
not prejudiced by inadequate admonishments because the
court determined that it would consider defendant=s excessive-
sentence argument, notwithstanding defendant=s failure to
properly preserve the issue by filing a motion to reconsider
sentence in the circuit court. The appellate court considered
defendant=s excessive-sentence issue, and found it to be
without merit. No. 1B03B1704 (unpublished order under
Supreme Court Rule 23).
ANALYSIS
We first consider defendant=s contention that the record
must disclose that he, personally, made the ultimate decision
not to tender a lesser-included offense instruction. Initially, we
note that defendant failed to raise this issue in a posttrial
motion, and thus it is at least arguable that the defendant has
forfeited the issue for purposes of appeal. See People v.
Patterson, 217 Ill. 2d 407, 443 (2005) (failure to include an
issue in a posttrial motion results in forfeiture). Assuming,
-5-
arguendo, that principles of procedural default apply in this
context, this court has stated, on numerous occasions, that
A[w]aiver is a limitation on the parties and not on the jurisdiction
of this court.@ Central Illinois Light Co. v. Home Insurance Co.,
213 Ill. 2d 141, 152 (2004), citing People v. Hamilton, 179 Ill.
2d 319, 323 (1997) (addressing defendant=s argument that the
circuit court erroneously refused his instruction on a lesser-
included offense, notwithstanding arguable forfeiture of the
issue). Thus, even when a party has failed to properly preserve
an issue for review, we may nonetheless choose to address it
in the interest of maintaining a sound and uniform body of
precedent. Central Illinois Light Co., 213 Ill. 2d at 152;
Hamilton, 179 Ill. 2d at 323. We choose to do so here.
It is important, at the outset, to specify the nature of
defendant=s claim, as defendant submits that both the State
and the appellate court have misapprehended his argument.
First, it is the defendant=s right to decide whether to tender a
lesser-included offense instruction that defendant asserts here,
which is an entirely different matter than a right to actually have
the jury instructed on a lesser-included offense. Whether a jury
will actually receive a lesser-included offense instruction
depends upon the evidence adduced at trial. See People v.
Garcia, 188 Ill. 2d 265, 278-82 (1999). Second, defendant
contends the record must disclose that heBrather than defense
counselBmade the ultimate decision not to tender a lesser-
included offense instruction. He does not claim that he was
ignorant of, or opposed to, the position taken by defense
counsel during the instruction conference. Third, defendant
states he is not arguing that admonishments are required of
the trial court. Rather, defendant states, A[w]hile an
admonishment by the trial court is one means of ensuring this
right, it is not the only means available to the trial courts, nor
the only means requested by the defendant; trial counsel can
advise the court that he has consulted with his client, or the
trial court can inquire of counsel in defendant=s presence.@ We
begin our discussion of this issue with an examination of the
decisions this court has held ultimately belong to a criminal
defendant, and in particular, of the origin and attributes of the
right defendant now asserts.
-6-
In People v. Ramey, 152 Ill. 2d 41, 54 (1992), this court
held that there are four decisions that ultimately belong to the
defendant in a criminal case after consultation with his
attorney: (1) what plea to enter; (2) whether to waive a jury
trial; (3) whether to testify in his own behalf; and (4) whether to
appeal. This court then stated:
ABeyond these four decisions, however, trial counsel
has the right to make the ultimate decision with respect
to matters of tactics and strategy after consulting with
his client. *** Such matters *** include the defense to be
presented at trial.@ Ramey, 152 Ill. 2d at 54.
In Ramey, this court concluded that the defendant=s
constitutional right to due process was not violated when his
trial counsel presented a defense against defendant=s wishes,
because the defense theory to be presented is not one of the
matters that a defendant has the ultimate right to decide.
Ramey, 152 Ill. 2d at 54.
In People v. Brocksmith, 162 Ill. 2d 224 (1994), this court
added another right to those enumerated in Ramey. In
Brocksmith, the court held that a defendant also had the
exclusive right to decide whether to submit an instruction on a
lesser-included offense at the conclusion of the evidence.
Brocksmith, 162 Ill. 2d at 229. This court found the decision to
tender a lesser-included offense instruction Aanalogous to the
decision of what plea to enter,@ and determined that Athe two
decisions should be treated the same.@ Brocksmith, 162 Ill. 2d
at 229. Because defense counsel, rather than defendant, had
made the ultimate decision to tender the lesser-included
offense instruction, defendant=s conviction on the
lesser-included offense was reversed. Brocksmith, 162 Ill. 2d at
230.
Subsequently, in People v. Segoviano, 189 Ill. 2d 228, 240
(2000), People v. Campbell, 208 Ill. 2d 203, 210 (2003), and
People v. Phillips, 217 Ill. 2d 270, 281 (2005), this court
reaffirmed that there are five decisions that ultimately belong to
a defendant, after consultation with counsel, and reiterated that
those decisions involve Arights that only a defendant himself
may waive.@ See Campbell, 208 Ill. 2d at 217. In Campbell, a
case that dealt with evidentiary stipulations, this court
-7-
concluded, A[w]here [a] stipulation includes a statement that the
evidence is sufficient to convict the defendant ***, we find that
a defendant must be personally admonished about the
stipulation and must personally agree to the stipulation.@
Campbell, 208 Ill. 2d at 221. In Campbell, this court cited
approvingly to that portion of the appellate court=s opinion
which suggested that admonishments in compliance with
Supreme Court Rule 402 (177 Ill. 2d R. 402) would be required
in such an instance. Campbell, 208 Ill. 2d at 218, citing People
v. Campbell, 332 Ill. App. 3d 808, 814 (2002).
The decision whether to tender a lesser-included offense
instruction bears significant similarity to the decision of what
plea to enter, as this court has already recognized (Brocksmith,
162 Ill. 2d at 229), as well as the decision whether to stipulate
that the evidence adduced at trial is sufficient to convict. In
order to appreciate that similarity, one need only consider the
prerequisite for entitlement to a lesser-included offense
instruction and the attendant consequences which might flow
from a defendant=s decision.
A defendant is entitled to a lesser-included offense
instruction only if the evidence at trial is such that a jury could
rationally find the defendant guilty of the lesser offense, yet
acquit him of the greater. Schmuck v. United States, 489 U.S.
705, 716 n.8, 103 L. Ed. 2d 734, 746 n.8, 109 S. Ct. 1443,
1451 n.8 (1989); Keeble v. United States, 412 U.S. 205, 208,
36 L. Ed. 2d 844, 847, 93 S. Ct. 1993, 1995 (1973); People v.
Kolton, No. 99221, slip op. at 4 (March 23, 2006); People v.
Baldwin, 199 Ill. 2d 1, 13-14 (2002); Garcia, 188 Ill. 2d at 284;
Hamilton, 179 Ill. 2d at 324; People v. Novak, 163 Ill. 2d 93,
107-08 (1994). That evidentiary prerequisite must be met
before a right to have the jury instructed on a lesser-included
offense arises. Baldwin, 199 Ill. 2d at 13. Therefore, if the
defendant chooses to submit a lesser-included offense
instruction, he is acknowledging, indeed arguing, that the
evidence is such that a rational jury could convict him of the
lesser-included offense, and he is exposing himself to potential
criminal liability, which he otherwise might avoid if neither the
trial judge nor the prosecutor seeks the pertinent instruction.
See People v. Knaff, 196 Ill. 2d 460, 473 (2001) (lesser-
-8-
included offense instruction may also be given at the instance
of the State, or by the trial judge sua sponte, even over
defendant=s objection). If, on the other hand, the defendant
chooses to forgo the opportunity to tender a lesser-included
offense instruction, the defendant might be passing up A >an
important third option to a jury which, believing that the
defendant is guilty of something but uncertain whether the
charged offense has been proved, might otherwise convict
rather than acquit the defendant of the greater offense.= @
Hamilton, 179 Ill. 2d at 323-24, quoting People v. Bryant, 113
Ill. 2d 497, 502 (1986), citing Keeble, 412 U.S. at 212-13, 36 L.
Ed. 2d at 850, 93 S. Ct. at 1997-98. In order to make an
intelligent and informed decision in that regard, the defendant
obviously requires the advice of counsel to aid the defendant in
evaluating the evidence and to apprise the defendant of any
potential conflicts with the defense strategy pursued to that
point in the trial, functions that a trial judge cannot perform for
the defendant. As members of this court have observed, the
decision whether to tender a lesser-included offense instruction
partakes of, and is unavoidably intertwined with, strategic trial
calculations, matters within the sphere of trial counsel. See
Brocksmith, 162 Ill. 2d at 230-34 (Freeman, J., concurring,
joined by Bilandic, C.J.).
With those observations in mind, we now revisit the five
decisions that ultimately belong to a defendant. We note that
certain procedural requisites have been codified, either by
statute or supreme court rule, with respect to three of those five
decisions. For example, a defendant who waives his right to a
jury trial must do so Aunderstandingly@ and in Aopen court.@ 725
ILCS 5/103B6 (West 2002). However, interpreting the
requirements of that provision, this court has held that the
circuit court need impart no set admonishment or advice in that
regard, and a jury waiver is generally valid if it is made by
defense counsel, in defendant=s presence, in open court.
People v. Bracey, 213 Ill. 2d 265, 270 (2004). Section 113B4 of
the Code of Criminal Procedure (Code) (725 ILCS 5/113B4
(West 2002)) requires that a defendant=s plea of guilty Ashall
not be accepted until the court shall have fully explained to the
defendant the consequences of such plea and the maximum
-9-
penalty provided by law for the offense which may be imposed
by the court.@ Further, Supreme Court Rule 402(a) (177 Ill. 2d
R. 402(a)) provides in pertinent part:
AIn hearings on pleas of guilty, or in any case in
which the defense offers to stipulate that the evidence is
sufficient to convict, there must be substantial
compliance with the following:
(a) Admonitions to Defendant. The court shall not
accept a plea of guilty or a stipulation that the evidence
is sufficient to convict without first, by addressing the
defendant personally in open court, informing him of
and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence
prescribed by law, including, when applicable, the
penalty to which the defendant may be subjected
because of prior convictions or consecutive
sentences[.]@ 177 Ill. 2d Rs. 402(a)(1), (a)(2).
This court has held that Aevery defendant who enters a plea of
guilty has a due process right to be properly and fully
admonished@ pursuant to Rule 402, but Aan imperfect
admonishment is not reversible error unless real justice has
been denied or the defendant has been prejudiced by the
inadequate admonishment.@ People v. Whitfield, 217 Ill. 2d
177, 188, 195 (2005). Finally, Supreme Court Rule 605
requires that the circuit court admonish a defendant regarding
his right to appeal and advise him of the steps necessary to
perfect an appeal.
Although a criminal defendant has a constitutional right to
testify in his own defense, this court has held that no
procedures comparable to those in sections 103B6 and 113B4
(c) of the Code require that the trial court admonish a
defendant regarding his right to testify. People v. Smith, 176 Ill.
2d 217, 234-35 (1997). In so holding, this court cited,
approvingly, the reasoning of United States v. Martinez, 883
F.2d 750, 760 (9th Cir. 1989), vacated on other grounds, 928
F.2d 1470 (9th Cir. 1991). In support of this court=s conclusion
that Athe trial court is not required to advise a defendant of his
-10-
right to testify, to inquire whether he knowingly and intelligently
waived that right, or to set of record defendant=s decision on
this matter,@ this court quoted from Martinez, setting forth the
seven reasons given in Martinez en route to the same result.
Smith, 176 Ill. 2d at 235. As we find reasons three through
seven pertinent to our present disposition, we too quote that
portion of Martinez:
AThird, by advising the defendant of his right to testify,
the court could influence the defendant to waive his
right not to testify, >thus threatening the exercise of this
other, converse, constitutionally explicit and more fragile
right.= [Citation.] Fourth, a court so advising a defendant
might improperly intrude on the attorney-client relation,
protected by the Sixth Amendment. [Citation.] Fifth,
there is danger that the judge=s admonition would
introduce error into the trial. [Citation.] Sixth, it is hard to
say when the judge should appropriately advise the
defendantBthe judge does not know the defendant is not
testifying until the defense rests, not an opportune
moment to conduct a colloquy. [Citation.] Seventh, the
judge should not interfere with defense strategy.
[Citation.]@ (Emphasis in original.) Martinez, 883 F.2d at
760.
As this court observed in Brocksmith, the decision to tender
a lesser-included offense instruction is Aanalogous to the
decision of what plea to enter,@ and Athe two decisions should
be treated the same.@ Brocksmith, 162 Ill. 2d at 229. That
statement from Brocksmith suggests that procedures such as
those addressing pleas would be appropriate in this context.
Such a view is bolstered by this court=s conclusion in Campbell,
wherein this court stated, AWhere [a] stipulation includes a
statement that the evidence is sufficient to convict the
defendant ***, we find that a defendant must be personally
admonished about the stipulation and must personally agree to
the stipulation.@ Campbell, 208 Ill. 2d at 221. If a defendant
tenders a lesser-included offense instruction, the defendant is
arguing, in essence stipulating, that the evidence is such that a
jury could rationally convict him of the lesser-included offense,
-11-
and he is exposing himself to potential criminal liability, which
he otherwise might avoid.
On the other hand, we would be unrealistic if we failed to
recognize that the decision to tender a lesser-included offense
instruction may have a serious and adverse impact on the
strategy defense counsel has pursued to that point in the trial.
Thus, the concerns this court found so compelling in Smith
apply here as well. By advising the defendant of his right to
tender a lesser-included offense instruction, the trial court
could influence the defendant to tender an instruction he
otherwise would have chosen to forgo. Such an admonishment
runs the risk of improperly intruding on the attorney-client
relation and interfering with the defense strategy counsel has
pursued, a strategy perhaps long in the making, but quickly
undone by generalized admonishments.
In short, because the decision whether to tender a lesser-
included offense instruction partakes of, and is unavoidably
intertwined with, strategic trial calculations, matters within the
sphere of trial counsel, we believe that a trial court need not
interject itself into the decision, unless the considerations in
Campbell apply. Where a lesser-included offense instruction is
tendered, a defendant is exposing himself to potential criminal
liability, which he otherwise might avoid, and is in essence
stipulating that the evidence is such that a jury could rationally
convict him of the lesser-included offense. Consequently, when
a lesser-included offense instruction is tendered, we believe
the trial court should conduct an inquiry of defense counsel, in
defendant=s presence, to determine whether counsel has
advised defendant of the potential penalties associated with
the lesser-included offense, and the court should thereafter ask
defendant whether he agrees with the tender. That procedure
will strike the appropriate balance of inquiry and confirmation
without overreaching and undue intervention in the attorney-
client relationship. However, where, as here, no lesser-included
offense instruction is tendered, and a defendant is not exposed
to additional criminal liability, the considerations we
emphasized in Smith predominate, and it may be assumed that
the decision not to tender was defendant=s, after due
consultation with counsel. We note in passing that defendant
-12-
would not have been entitled to a lesser-included offense
instruction, even if he had tendered one. As we have
previously observed, in order for a defendant to be entitled to a
lesser-included offense instruction, the evidence must be such
that a jury could rationally find the defendant guilty of the lesser
offense, yet acquit him of the greater. Kolton, No. 99221, slip
op. at 4 (March 23, 2006); Baldwin, 199 Ill. 2d at 13-14. Based
on the evidence in this case, a rational jury could not have
found defendant guilty of simple possession, yet have
acquitted him of possession with intent to deliver. Once the jury
found that defendant knowingly possessed the cocaine, a guilty
verdict on the greater offense was clearly and inescapably
indicated.
The uncontroverted testimony showed that defendant
possessed 557.9 grams of 40% pure cocaine, a sufficient
amount of cocaine to supply between 5,579 and 11,000
persons, depending upon the extent to which the cocaine was
further diluted. The cocaine had a street value of $139,475.
That evidence, considered in conjunction with the $6,261.00 in
currency Arandomly shoved underneath the driver=s seat@ of the
vehicle, admits of only one conclusion: defendant was guilty of
possession with intent to deliver. Cf. United States v. Puckett,
405 F.3d 589, 600 (7th Cir. 2005) (evidence was insufficient to
support a lesser-included offense instruction where defendant
Afailed to present any direct evidence whatsoever at trial that
he was a cocaine user or possessed the drug because he had
any intention of consuming it himself, and also failed to offer
any explanation as to how such a large amount of cocaine (63
grams) could rationally be considered consistent with personal
use@). Because defendant was not entitled to a lesser-included
offense instruction, reversal is not indicated in any event.
We turn now to defendant=s second issue. Defendant
contends that this cause must be remanded to the circuit court
for proper admonishments pursuant to Supreme Court Rule
605(a) (eff. October 1, 2001). Defendant notes that the trial
court failed to advise him, as required by Rule 605(a), of the
right to file a motion to reconsider sentence, and of the
necessity of filing such a motion in order to preserve
sentencing issues for purposes of appeal. Defendant argues
-13-
that the circuit court=s incomplete admonishment resulted in the
loss of his right to have the trial court reconsider the sentence
imposed upon him. Defendant acknowledges that the appellate
court consideredBand rejectedBdefendant=s excessive-
sentence argument on appeal, despite defendant=s failure to
properly preserve the issue; however, he submits that Athe
[appellate court] below failed to consider that there may be
sentencing errors that are not apparent from the record, or that
additional information relevant to the court=s sentencing
decision might not have been brought to the court=s attention.@
He continues, AIf such errors or omissions occurred and the
defendant failed to file a postsentencing motion, he has lost his
only opportunity to expand the record so that his off-the-record
challenges can be raised on direct appeal, as direct appeals
are limited to facts that are included in the record.@ Defendant
fails to identify any Aadditional information@ that might have had
a bearing upon the sentence imposed in this case.
Our decision in People v. Henderson, 217 Ill. 2d 449
(2005), controls the outcome of this issue. The defendant in
Henderson raised essentially the same argument. Noting that
Aonly issues of record may be raised@ on direct appeal,
Henderson suggested, Ahad the trial court informed him that he
could challenge any aspect of his sentencing in a
postsentencing motion, he might have raised (in that motion)
sentencing issues that were dehors the record, and defendant
thereby would have made these issues potentially appealable
by placing them on the record.@ (Emphases in original.)
Henderson, 217 Ill. 2d at 467. The defendant in Henderson
raised no sentencing issues on appeal.
In rejecting Henderson=s argument, this court observed:
AThere are two difficulties with defendant=s
argument. First, in his briefs to this court and in oral
argument, defendant offers only hypothetical examples
of sentencing issues dehors the record that might have
been raised if he had been properly admonished.
Defendant presents no examples of actual sentencing
issues that he was precluded from raising because of
inadequate admonishments. Moreover, even if
defendant had directed our attention to any such actual
-14-
issues, we are aware of nothing that would have
precluded him from raising them on appeal below. If
defendant had included such issues in his appeal, for
example, and if the State had challenged the raising on
appeal of issues dehors the record, defendant could
have answered that he was precluded from placing
these issues on the record (in a motion to reconsider
sentence) by the trial court=s inadequate Rule 605(a)
admonishments. That, after all, was defendant=s main
argument on appeal below: that the circuit court gave
him inadequate admonishments regarding the
preservation of sentencing issues for appeal. If
defendant had presented actual sentencing challenges
in his appeal, the appellate court would at least have
been alerted to the existence of these issues. The court
then could have taken whatever actions it deemed
appropriate, including hearing the challenges itself or
remanding them to the trial court. As it is, neither the
appellate court nor this court was informed of any actual
sentencing issues.@ (Emphasis omitted.) Henderson,
217 Ill. 2d at 467-68.
As we indicated in Henderson, appellate courts may
consider sentencing issues that have not been properly
preserved because of inadequate Rule 605(a) admonishments.
The appellate court in this case did addressBand
rejectBdefendant=s sentencing argument that the circuit court
erred in imposing a sentence one year over the minimum
sentence allowed by law. Defendant does not attempt to revive
his excessive-sentence argument in this court. Rather, he
argues that he was denied his right to file a motion to
reconsider sentence, and suggests there might have been
Aadditional information@ that did not find its way into the record,
evidence which the trial court should have been given the
opportunity to consider. We find this line of argument
completely devoid of substance.
As appellate panels have aptly observed, the purpose of a
motion to reconsider sentence is not to conduct a new
sentencing hearing, but rather to bring to the circuit court=s
attention changes in the law, errors in the court=s previous
-15-
application of existing law, and newly discovered evidence that
was not available at the time of the hearing. See In re Gustavo
H., 362 Ill. App. 3d 802, 814 (2005), quoting In re Ashley F.,
265 Ill. App. 3d 419, 426 (1994); In re Jermaine J., 336 Ill. App.
3d 900, 902-03 (2003). In order to justify a rehearing on the
basis of newly discovered evidence, there must be a showing
of due diligence and a demonstration that justice has not been
done. See In re Gustavo H., 362 Ill. App. 3d at 814, quoting In
re Ashley F., 265 Ill. App. 3d at 426. Defendant does not point
to any basis for sentencing relief. He suggests there might
have been Aadditional information@ that did not find its way into
the record, but he does not identify the nature of any such
information or explain why it could not have been presented at
the time of sentencing. Unlike the defendant in Henderson, the
defendant in this case does not even offer Ahypothetical
examples of sentencing issues dehors the record that might
have been raised if he had been properly admonished.@ See
Henderson, 217 Ill. 2d at 467-68. Thus, applying the reasoning
of Henderson, we conclude that remand for proper Rule 605(a)
admonishments is not necessary because defendant was
neither prejudiced nor denied real justice as a result of the
incomplete admonishments he received. See Henderson, 217
Ill. 2d at 469.
For the foregoing reasons, the judgment of the appellate
court is affirmed.
Affirmed.
-16-