People v. Butler, s. 2-87-0247

• Court: Appellate Court of Illinois
• Writing for the Court: UNVERZAGT
• Citation: People v. Butler, 186 Ill.App.3d 510, 541 N.E.2d 171, 133 Ill.Dec. 334 (Ill. App. 1989)
• Decision Date: 28 June 1989
• Docket Number: 2-87-0248,Nos. 2-87-0247,s. 2-87-0247
• Parties: , 133 Ill.Dec. 334 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Calvin BUTLER, Defendant-Appellant.

Page 171

541 N.E.2d 171

186 Ill.App.3d 510, 133 Ill.Dec. 334

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Calvin BUTLER, Defendant-Appellant.

Nos. 2-87-0247, 2-87-0248.

Appellate Court of Illinois Second District.

June 28, 1989.

G. Joseph Weller, Michael J. Pelletier, Deputy Defenders, Barbara Kamm, Office of the State Appellate Defender, Chicago, Joan L. Pantsios, Waukegan, for Calvin Butler.

Fred L. Foreman, Lake County State's Atty., Waukegan, William L. Browers, Deputy Director, Virginia M. Ashley, State's Attys. Appellate Prosecutor, Elgin, for the People.

Presiding Justice UNVERZAGT delivered the opinion of the court:

The defendant, Calvin Butler, appeals the dismissal of his amended post-conviction petition, contending he was deprived of the effective assistance of his appointed post-conviction counsel. We affirm in part, and vacate and remand in part.

The defendant entered negotiated pleas of guilty to the offenses of felony theft (Ill.Rev.Stat.1983, ch. 38, par. 16-1(a)(1)) and burglary (Ill.Rev.Stat.1983, ch. 38, par. 19-1). He was not admonished as to the possibility of a consecutive sentence. (107 Ill.2d R. 402(a)(2).) Following a hearing in aggravation and mitigation and review of the defendant's presentence report, on May 18, 1984, the court imposed concurrent 30-month terms of probation for each offense, with the condition he perform 100 hours of public service on the theft and 150 hours of public service or full-time employment on the burglary. The defendant was admonished he must withdraw his guilty plea within 30 days if he wished to appeal the judgment and sentence. 107 Ill.2d R. 605(b).

Upon the defendant's failure to comply with these conditions of probation, probation for both offenses was revoked on June 29, and he was sentenced immediately to two- and four-year concurrent terms of imprisonment in the Department of Corrections, respectively, for the offenses of theft and burglary. He filed notices of appeal that same day which later were allowed to be withdrawn. On July 2, he filed a motion to reconsider the revocation, alleging inter alia that he was entitled to a presentence investigation and sentencing hearing. After a hearing that day, the trial court ruled the revocation of the theft probation would stand, but the sentence would be vacated and a hearing held. As to the burglary offense, the court vacated the defendant's sentence, credited him with 150 hours of public service and reinstated his probation.

After a hearing in aggravation and mitigation on the theft offense, at which the defendant was provided an opportunity to amend or supplement the previously prepared presentence report, the court sentenced the defendant on July 13 to a four-year term in the Department of Corrections. Nothing in the record supports the defendant's statement that he also was ordered to pay restitution. Defendant filed a notice of appeal.

Also on July 13, the court granted the State leave to file a petition for revocation of the defendant's burglary probation alleging four misdemeanor offenses then pending against him. Following a hearing on July 20, the defendant was found in violation of his burglary probation, and it was revoked. On July 27, he was sentenced to a seven-year term in the Department of Corrections to be served consecutively to his four-year sentence for theft, and he appealed.

The burglary and theft appeals were consolidated, and both revocations of probation and sentences were affirmed by this court. (People v. Butler (1985), 137 Ill.App.3d 704, 92 Ill.Dec. 190, 484 N.E.2d 921.) In his theft appeal, the defendant raised three issues: (1) whether the terms and conditions of his probation were too vague and ambiguous to inform him of his obligations; (2) whether the trial judge improperly assumed the role of prosecutor by questioning witnesses at the sentencing hearing; and (3) whether he was deprived of the effective assistance of counsel in that counsel presented witnesses at the sentencing hearing whose testimony undermined representations made in his prior motion to reconsider and by failing to move for a substitution of judge. In his burglary appeal he raised two issues: (1) whether he was deprived of the effective assistance of counsel for failing to seek a substitution of judges for cause at the second revocation hearing and (2) whether the seven-year sentence was excessive.

In 1986, the defendant filed a pro se petition for post-conviction relief from both his convictions. His appointed post-conviction counsel filed an amended petition alleging, inter alia, that the defendant was denied the effective assistance of trial counsel in that (1) counsel neither advised nor consulted with him about the withdrawal of the notices of appeal and substitution of the motions to reconsider; (2) counsel did not inform him of the risks associated with a motion to reconsider; (3) counsel did not inform him that violation of his concurrent probationary sentences could result in consecutive sentences of imprisonment; and (4) counsel did not bring to the sentencing court's attention the fact its sentences were in the nature of resentencings subject to the provisions of 5-5-4 of the Unified Code of Corrections (the Code) (Ill.Rev.Stat.1983, ch. 38, par. 1005-5-4), which prohibits the imposition of a more severe sentence than that originally imposed when a conviction or sentence has been set aside on direct review or on collateral attack.

On January 20, 1987, the court granted the State leave to file its motion to dismiss the amended post-conviction petition. In its order dismissing the defendant's amended post-conviction petition, the court noted the issue of competency of trial counsel was addressed by this court in the defendant's direct appeal from the revocations and concluded that the defendant had failed to show his trial counsel's performance was so deficient and so serious an error as to deprive him of the counsel guaranteed by the sixth amendment or that he was prejudiced. The defendant then brought the instant appeals, which we consolidated for review.

No. 2-87-0247

Theft

The defendant asserts he was deprived of the effective assistance of post-conviction counsel. He points out the meritorious issue of his improperly increased sentence for theft from two years to four years upon his motion for reconsideration was not raised by appointed appellate counsel on direct appeal, nor was the ineffectiveness of appellate counsel due to this failure raised by his appointed post-conviction counsel. Defendant relies on section 5-8-1(c) of the Code, which allows a reduction or modification of a sentence within 30 days of its entry, but expressly prohibits an increase in the sentence. Ill.Rev.Stat.1983, ch. 38, par. 1005-8-1(c).

The State argues against the meritoriousness of the issue. It contends the court's original two-year sentence was a nullity since a formal sentencing hearing pursuant to section 5-4-1 of the Code had not been held following revocation of probation as required by section 5-6-4 of the Code. (Ill.Rev.Stat.1983, ch. 38, pars. 1005-4-1, 1005-6-4(h).) Accordingly, it contends the court had the authority to set aside a sentence which was beyond its authority to enter (People v. Wade (1985), 137 Ill.App.3d 878, 92 Ill.Dec. 581, 485 N.E.2d 392, aff'd (1987), 116 Ill.2d 1, 107 Ill.Dec. 63, 506 N.E.2d 954) and to impose the four-year sentence following the required sentencing hearing at which the court found the defendant's testimony at the prior revocation hearing concerning his employment status was intentionally misleading. The State posits the instant cause is analogous to People v. Adams (1988), 169 Ill.App.3d 312, 119 Ill.Dec. 755, 523 N.E.2d 223. There, the court held that imposing a 12-year sentence after the defendant withdrew his guilty plea, for which he had received a 10-year sentence, did not violate the fourteenth amendment or the sentencing statute codifying the defendant's right to be free from vindictiveness in resentencing inasmuch as the increased sentence was based on identifiable conduct justifying it. As such, the State argues appellate counsel's failure to challenge the increased sentence cannot be considered to be patently wrong, and the issue is barred under principles of res judicata. It follows then, the State argues, that post-conviction counsel was not ineffective for failing to assert an issue barred by res judicata, and, moreover, the issue of appellate counsel's ineffectiveness was not raised in the defendant's amended post-conviction petition, thus waiving the issue.

The defendant replies that Wade is inapplicable here because the two-year sentence originally imposed for theft was within the statutory sentencing range unlike the probation imposed in Wade for which the defendant there was statutorily ineligible. Further, the Adams case relied on by the State did not deal with the sentence reconsideration statute at issue here (Ill.Rev.Stat.1983, ch. 38, par. 1005-8-1(c)), nor, in fact, was the resentencing statute (Ill.Rev.Stat.1983, ch. 38, par. 1005-5-4) found applicable in that case where the defendant's conviction was neither set aside on direct review nor collateral attack but, rather, was set aside as a result of the defendant's withdrawal of his guilty plea. As to the State's res judicata and waiver arguments, defendant points out those principles are inapplicable here where the ineffectiveness of appellate and post-conviction counsel are the ultimate issues presented. People v. Barnard (1984), 104 Ill.2d 218, 83 Ill.Dec. 585, 470 N.E.2d 1005.

We agree the issue of the increased sentence is not barred under principles of res judicata where the failure to raise the issue may have been due to the ineffectiveness of appellate counsel and where the failure to raise the issue of the ineffectiveness of appellate counsel is alleged to stem from the incompetency of post-conviction counsel. People v. Barnard (1...