People v. Harper
| Citation | 280 Ill.Dec. 437,345 Ill. App.3d 276,802 N.E.2d 362 |
| Decision Date | 29 December 2003 |
| Docket Number | No. 4-02-0155.,4-02-0155. |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Albert L. HARPER, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Daniel D. Yuhas, Deputy Defender, Susan M. Wilham, Assistant Defender, Office of the State Appellate Defender, Springfield, for Albert L. Harper.
Scott Rueter, State's Attorney, Decatur, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, Charles F. Mansfield, Staff Attorney, State's Attorneys Appellate Prosecutor, Springfield, for the People.
Defendant, Albert L. Harper, is serving consecutive terms of imprisonment for two separate offenses of burglary (720 ILCS 5/19-1(a) (West 1992)), one term imposed in this case (Harper I) and the other imposed in another Macon County case, People v. Harper, No. 94-CF-326 (Harper II). In the present case, Harper I, he filed a motion to vacate the sentence on the ground that the aggregate of the consecutive sentences for burglary in this case and Harper II was greater than section 5-8-4(c)(2) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-8(c)(2) (West 1992)) allowed. The trial court denied the motion, as well as a motion to reconsider, and defendant appeals.
Construing defendant's motion to vacate as a postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through 122-8 (West 2000)), the State argues the trial court was correct in dismissing it because (1) the so called "petition" alleges no constitutional violation, (2) res judicata and the doctrine of waiver bar it, and (3) the legislature implicitly repealed section' 5-8-4(c)(2) by enacting section 5-8-4(h) of the Unified Code (730 ILCS 5/5-8-4(h) (West 1992)).
Because a party can challenge a void sentence at any time, either directly or collaterally, we disagree with the State's first and second contentions. We do not reach the State's third contention. We find section 5-8-4(c)(2) to be patently inapplicable to the present case, Harper I, for the simple reason that the trial court imposed no consecutive sentence—and therefore could not have violated section 5-8-4(c)(2)—in the present case; it imposed the consecutive sentence in Harper II. Therefore, we affirm.
On April 27, 1994, in Harper I, a jury found defendant guilty of burglary (720 ILCS 5/19-1(a) (West 1992)), possession of burglary tools (720 ILCS 5/19-2(a) (West 1992)), and possession of a controlled substance (720 ILCS 570/402(c) (West 1992)). For those offenses, the trial court sentenced him to concurrent prison terms of 20 years, 2 years, and 2 years, respectively.
On June 16, 1994, in Harper II, defendant pleaded guilty to burglary, and the trial court sentenced him to 10 years' imprisonment, ordering that the 10-year term run consecutively to the prison terms In Harper I.
Although burglary was a Class 2 felony, the court sentenced him as a Class X offender in both cases, pursuant to section 5-5-3(c)(8) of the Unified Code (730 ILCS 5/5-5-3(c)(8) (West 1992) ()).
On January 25, 1996, in a consolidated appeal, we upheld the convictions and sentences in Harpers I and II. People v. Harper, Nos. 4-94-0563, 4-94-1040 cons., 277 Ill.App.3d 1127, 232 Ill.Dec. 638, 698 N.E.2d 729 (January 25, 1996) ().
On November 6, 1996, defendant filed, pro se, a petition for post-conviction relief from the judgments in Harpers I and II. The trial court summarily dismissed the petition as frivolous and patently without merit, and defendant appealed. In his appeal from the dismissal of his post-conviction petition, he argued, inter alia, that the 30-year aggregate maximum of the consecutive sentences in Harpers I and II exceeded the 28-year aggregate maximum allowable under section 5-8-4(c)(2) of the Unified Code (730 ILCS 5/5-8-4(c)(2) (West 1992)). We affirmed, holding that defendant had forfeited that argument by failing to raise it in his post-conviction petition. People v. Harper, No. 4-96-1008, 293 Ill.App.3d 1155, 241 Ill.Dec. 243, 718 N.E.2d 1097 (February 2, 1998) ().
On April 17, 2001, defendant filed, pro se, a document entitled "Motion to Vacate [a] Void Sentence and for Resentencing," in which he requested, on the authority of People v. Pullen, 192 Ill.2d 36, 248 Ill.Dec. 237, 733 N.E.2d 1235 (2000), that the trial court vacate the sentences in Harpers I and II and hold a new sentencing hearing, arguing, again, that the aggregate maximum of the consecutive sentences in those cases exceeded that permissible under section 5-8-4(c)(2) of the Unified Code. He acknowledged that in Harper, No. 4-96-1008, we held he had forfeited that issue by failing to raise it in his post-conviction petition. Nevertheless, he argued that
On October 15, 2001, construing defendant's motion as a post-conviction petition, the State filed a motion to dismiss it on the following grounds: (1) instead of alleging a substantial denial of a constitutional right, he alleged only a violation of a state statute; (2) the present petition was untimely (see 725 ILCS 5/122-1(c) (West 2000)); (3) our decision in Harper, Nos. 4-94-0563, 4-94-1040 cons., was res judicata; and (4) he had forfeited the issue he now raised by failing to raise it in his first petition for post-conviction relief (see 725 ILCS 5/122-3 (West 2000)).
On January 15, 2002, in Harper I, the trial court entered an order entitled "Judgment Dismissing [the] Request for [Post-conviction] Sentencing Relief." In that order, the court noted that the 20year term of imprisonment it had imposed in Harper I was "within the statutory [range] for Class X sentencing pursuant to the recidivist provisions of [section 5-5-3(c)(8) of the Unified Code]." The court had imposed the sentence on May 20, 1994, while defendant was awaiting trial in Harper II. On June 16, 1994, defendant pleaded guilty in Harper II, after the court imposed the sentence in Harper I. On July 11, 1994, the court imposed the 10-year term of imprisonment in Harper II, after defendant appealed the 20-year term of imprisonment in Harper I. The court reasoned that because the 20-year term of imprisonment in Harper I "was lawful when imposed," defendant's "claim of [a] void sentence [had] validity only in [Harper II]." Therefore, the court denied defendant's motion to vacate the sentence in Harper I.
On January 16, 2002, in Harper II, the trial court entered an order entitled "Order Denying [the] State's Motion to Dismiss." In that order, the court determined its sentence was void:
Accordingly, the court denied the State's motion to dismiss in Harper II and set defendant's "Motion to Vacate [a] Void Sentence and for Resentencing" for hearing on February 8, 2002, "to determine the nature of the relief to be allowed."
On February 8, 2002, defendant filed a "Motion to Reconsider [the] Judgment Dismissing [His] Request for [Post-conviction] Sentencing Relief in Harper I. He pointed out that in Pullen, "each of the defendant's sentences [was] vacated, even though neither one of them, individually, exceeded the allowable aggregate sentence." (Emphasis in original.) (We note, however, that in Pullen, 192 Ill.2d at 39,248 Ill.Dec. 237,733 N.E.2d at 1236-37, the trial court imposed the consecutive sentences in the same criminal proceeding, in contrast to Harpers I and II.) Citing People v. Kilpatrick, 167 Ill.2d 439, 212 Ill.Dec. 660, 657 N.E.2d 1005 (1995), defendant argued that "the most [he could] now be sentenced to [was] 14 years in this case and 10 years in [Harper II], for a total of 24 years, as this court could not now increase the 10[-]year component of his sentence." On February 8, 2002, the same day defendant filed his motion to reconsider, the trial court held a hearing on that motion and denied it. It does not appear, from the record, that the parties argued, or the trial court considered, "the nature of the relief to be allowed" in Harper II, although, by the terms of the order entered on January 16, 2002, that issue was to be taken up on February 8.
On February 13, 2002, defendant filed a notice of appeal in Harper I and in that case alone. That is the appeal now before us.
The State construes defendant's "Motion to Vacate [a] Void Sentence and for Resentencing" as a petition for postconviction relief. The Act remedies only substantial deprivations of constitutional rights, not deprivations of statutory rights. 725 ILCS 5/122-1(a) (West 2000); People v. Stokes, 333 Ill.App.3d 655, 665, 267 Ill. Dec. 285, 776 N.E.2d 657, 665 (2002). The State argues that insomuch as the total of 30 years' imprisonment exceeded the "aggregate of consecutive sentences" section 5-8-4(c)(2) of the Unified Code allowed, the excess portion of the sentence violated only the Unified Code, not the state or federal constitution,...
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...automatically fail under the Act should be recharacterized as a section 2-1401 petition. Indeed, that is exactly what the court did in People v. Harper, when it found that the defendant presented a statutory, as opposed to a constitutional, claim, which was not cognizable under the Act. Peo......
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