People v. Logan, 13134

Citation350 N.E.2d 40,39 Ill.App.3d 656
Decision Date24 June 1976
Docket NumberNo. 13134,13134
PartiesPEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lavon LOGAN, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Richard J. Wilson, Deputy State App. Defender, Richard E. Cunningham, Asst. State App. Defender, Springfield, for defendant-appellant.

Robert J. Bier, State's Atty., Adams County, Quincy, for plaintiff-appellee; G. Michael Prall, Principal Atty., Statewide App. Assistance Service, Illinois State's Attys. Assn., Robert C. Perry, Staff Atty., Springfield, of counsel.

GREEN, Justice:

Defendant Lavon Logan was convicted of the offense of armed robbery in the Circuit Court of Adams County. On November 21, 1972, a hearing in aggravation and mitigation was held and defendant was sentenced to 15 to 30 years imprisonment. On direct appeal, the conviction and sentence were affirmed by this court on December 17, 1974. (People v. Logan, 24 Ill.App.3d 678, 320 N.E.2d 490 (abstract).) On August 29, 1974, while the direct appeal was pending defendant filed a post-conviction petition in the trial court. After hearing, the trial court, on November 1, 1974, granted the State's motion to dismiss the post-conviction petition. On December 9, 1974, defendant filed notice of the appeal we now consider.

The post-conviction petition alleged, and the record before the judge hearing the petition showed, that in imposing sentence the trial judge considered prior convictions of the defendant for the offenses of armed robbery and intimidation. At the time of sentencing in the instant case, the cases in which the prior convictions had been obtained were on appeal to this court. Subsequently the convictions for armed robbery (People v. Logan, 16 Ill.App.3d 870, 307 N.E.2d 200) and intimidation (People v. Logan, 17 Ill.App.3d 1025, 309 N.E.2d 251) were reversed. Defendant contends that in imposing a sentence of the severity of 15 to 30 years imprisonment after considering defendant's prior convictions, later reversed, the sentencing court violated defendant's right to due process of law. Accordingly defendant maintains that the post-conviction petition set forth a ground by which defendant was entitled to be resentenced and that the trial court was in error in dismissing the petition.

Relief under the Post-Conviction Hearing Act (Ill.Rev.Stat.1973, ch. 38, par. 122--1, Et seq.) is granted only when substantial constitutional error occurred in the proceedings resulting in the petitioning defendant's conviction. The courts of review of this state have held that no such error has occurred in sentencing hearings when a trial court imposed sentence without sufficient information (People v. Wilbourn, 48 Ill.2d 187, 268 N.E.2d 418), upon misinformation (People v. Lee, 5 Ill.App.3d 421, 283 N.E.2d 740), without considering sentences received by codefendants (People v. Blewett, 11 Ill.App.3d 1051, 298 N.E.2d 366), with disparity between codefendants (People v. Thigpen, 12 Ill.App.3d 210, 298 N.E.2d 193), or with excess severity (People v. Holman, 12 Ill.App.3d 307, 297 N.E.2d 752).

Defendant maintains, however, that the instant situation is analogous to that in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592. There a defendant had received a felony sentence in a Federal District Court after a hearing at which the judge gave 'explicit attention' to 3 prior felony convictions against the defendant. (404 U.S. at 444, 92 S.Ct. at 590, 30 L.Ed.2d at 594.) These convictions were subsequently set aside because they had been obtained in proceedings where the defendant had been denied his Sixth Amendment right of counsel. The defendant then collaterally attacked the sentence in question in a habeas corpus proceeding under 28 U.S.C. § 2255. The United States Supreme Court ultimately upheld defendant's contention that he was entitled to resentencing. Prior to Tucker, the Court had ruled in Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, that a defendant in a proceeding under a recidivist statute was deprived of due process by the introduction into evidence of a record of a prior conviction which record indicated that defendant had been deprived of his Sixth Amendment right to counsel. At the same term that the Court decided Tucker, it also decided Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374. That case held that the use of prior convictions to impeach a defendant was a due process deprivation when the prior convictions had been obtained in violation of that defendant's Sixth Amendment rights. The thrust of these 3 decisions is that a conviction obtained in violation of Sixth Amendment rights is void and that to use the conviction to impeach that defendant in a subsequent trial or to give it 'explicit attention' in sentencing him causes him to 'suffer anew' (Burgett, 389 U.S. at 115, 88 S.Ct. at 262, 19 L.Ed.2d at 325) his constitutional deprivation. The error in the subsequent use of the conviction is of constitutional magnitude because the error in the original conviction was of such proportions.

Two Illinois cases have been called to our attention where a sentence has been overturned because the sentencing judge considered the defendant's prior convictions which had subsequently been overturned. In People v. Barney, 89 Ill.App.2d 180, 232 N.E.2d 481, a defendant was given an enhanced sentence under a statute calling for an enhanced sentence for a subsequent offense. Pending appeal, the prior conviction, which was the basis for the enhanced penalty, was reversed. The sentence for the subsequent offense was then reversed. The court noted that the application of the statute for enhanced sentences on subsequent convictions to an invalid conviction was 'patently unfair.' (89 Ill.App.2d at 184, 232 N.E.2d at 483.) The court did not say that any constitutional right was violated. Since Barney was on direct appeal the review was not, as here, limited to constitutional questions. It should also be noted that there the use of the invalid conviction brought into effect a statutory sentencing range which was more severe. In People v. Chellew, 20 Ill.App.3d 963, 313 N.E.2d 284, post-conviction attack on a sentence was permitted when, in imposing sentence, the judge had considered a prior conviction later reversed because the prosecution had commented upon the defendant's failure to testify thus violating his constitutional rights. No case has been called to our attention holding that the consideration, at sentencing, of a prior conviction was a violation of constitutional rights because that conviction was later set aside, unless it was set aside for constitutional error.

In the instant case, the robbery and intimidation convictions which were considered by the sentencing judge were later reversed Pro forma because the appellee, the State, had filed no brief. This court stated the convictions would be reversed without consideration of the case on the merits because otherwise the court would be placed in the position of acting as advocate for the party not submitting a brief. The Supreme Court has recently held in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 345 N.E.2d 493, 1976, that Pro forma reversal merely upon the...

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  • Sanchez v. State
    • United States
    • Wyoming Supreme Court
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    ...57 Ill.Dec. 795, 429 N.E.2d 912 (1981); People v. Placek, 43 Ill.App.3d 818, 2 Ill.Dec. 493, 357 N.E.2d 660 (1976); People v. Logan, 39 Ill.App.3d 656, 350 N.E.2d 40, cert. denied 430 U.S. 956, 97 S.Ct. 1603, 51 L.Ed.2d 807 (1976); People v. Chellew, 20 Ill.App.3d 963, 313 N.E.2d 284 (1974)......
  • People v. Krankel, 4-84-0577
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    • United States Appellate Court of Illinois
    • March 29, 1985
    ...to a new sentencing hearing. (See Merneigh.) The trial court correctly denied post-conviction relief on this basis. People v. Logan (1976), 39 Ill.App.3d 656, 350 N.E.2d 40. Defendant next argues that his sentence was disproportionate to the nature and seriousness of the offense, his senten......
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    • United States Appellate Court of Illinois
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    ... ... Since the claim that the indictment is defective does not rise to constitutional proportions it is not cognizable under the Post Conviction Act. People v. Logan, 39 Ill.App.3d 656, 659, 350 N.E.2d 40 (1976); People v. Riley, 40 Ill.App.3d 679, 683, 353 N.E.2d 40 (1976) ...         We conclude, however, that to the extent defendant's petition is based upon the claims that his sentence was influenced by consideration of void convictions the rule of ... ...
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