People ex rel. Harper v. Brantley

• Decision Date: 04 December 1975
• Docket Number: No. 73--88,73--88
• Citation: 341 N.E.2d 126,34 Ill.App.3d 807
• Parties: PEOPLE of the State of Illinois ex rel. William T. HARPER, Petitioner-Appellant, v. Elza BRANTLEY, Warden of Menard Penitentiary, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

Page 126

341 N.E.2d 126

34 Ill.App.3d 807

PEOPLE of the State of Illinois ex rel. William T. HARPER Petitioner-Appellant, v. Elza BRANTLEY, Warden of Menard Penitentiary, Respondent-Appellee.

No. 73--88.

Appellate Court of Illinois, Fifth District.

Dec. 4, 1975.

Rehearing Denied Jan. 14, 1976.

Stephen P. Hurley, Deputy State Appellate Defender, Fifth Judicial District, Michael J. Rosborough, Asst. State Appellate Defender, Mount Vernon, for petitioner-appellant.

Herbert J. Lantz, Jr., State's Atty., Chester, for respondent-appellee, Bruce D. Irish, Principal Attorney, Rolf E. Ehrmann, Staff Attorney, Statewide Appellate Assistance Service, Illinois State's Attorneys Assn., Mt. Vernon, of counsel.

CARTER, Justice:

The petitioner-appellant, William Harper, pleaded guilty on September 17, 1970, to three counts of kidnapping and one count of armed robbery. All four offenses occurred on November 16, 1963. Pursuant to a plea agreement, the Circuit Court of Christian County imposed concurrent sentences of 1 to 5 years for each of the kidnapping counts and 7 to 8 years for the armed robbery charge. The court allowed the petitioner credit for time previously served in the federal penitentiary from June 1, 1964, to December 15, 1969, a period of five years, six months and fourteen days. The court also allowed petitioner credit for time spent in the county jail awaiting trial, a period of 149 days from April 22, 1970 to September 18, 1970.

The petitioner filed a petition for a writ of Habeas corpus in the Circuit Court of Randolph County, the county in which he was incarcerated. The court denied the petition and voided that portion of the order entered by the Circuit Court of Christian County which granted credit for time served in the federal penitentiary. The petitioner appealed to our Supreme Court pursuant to what was in 1970, Supreme Court Rule 302(a)(3) (Ill.Rev.Stat.1969, ch. 110A, par. 302(a)). The Supreme Court released him on bond in December, 1970, pending the outcome of the appeal. On March 23, 1973, the Supreme Court transferred the cause to this court. Thus the petitioner has served only three months of his sentences after his guilty pleas were entered.

The transcript of the guilty plea proceedings in Christian County is not contained in the record and is unobtainable. Due to difficulties encountered by the petitioner in obtaining a record, it was not until July 1, 1974, that a record was filed in this court.

The petitioner contends that the Circuit Court of Randolph County erroneously voided that portion of the order entered by the Circuit Court of Christian County which credited the defendant for time served in the federal penitentiary prior to imposition of sentences for the instant offenses. We note that the resolution of this question necessarily depends upon whether the Circuit Court of Randolph County had the authority under the circumstances to void only a portion of the judgment entered by the Circuit Court of Christian County. Before reaching the question of Randolph County's authority, however, we address the issue whether the Randolph County Circuit Court properly dismissed the Habeas corpus petition.

It is well settled that habeas corpus is not an available remedy to review errors of a non-jurisdictional nature, but it has been employed where the original judgment was totally void or where there has been some occurrence subsequent to the conviction which entitles the defendant to immediate release. People ex rel. Lewis v. Frye, 42 Ill.2d 58, 245 N.E.2d 483; People ex rel. Kelley v. Frye, 41 Ill.2d 287, 242 N.E.2d 261; People v. Matthews, 17 Ill.App.3d 395, 308 N.E.2d 230. In the instant case the petitioner apparently alleges that the refusal of the Department of Corrections to give him credit for time served in the federal penitentiary as ordered by the trial court constitutes an act entitling him to release. Under this theory, however, the petitioner could not argue that his entire conviction or sentence was void, but only that his sentence beyond a certain period of time was void.

The defendant maintains that the Circuit Court of Christian County intended to impose a sentence of seven to eight years with credit for five years, six months and fourteen days for time spent in federal prison, in effect a sentence of from one year, five months and sixteen days to two years, five months and sixteen days. Assuming the defendant is correct in this contention, habeas corpus is still not an available remedy to reduce the sentence imposed. It is well settled that the...