People v. Seidler

• Citation: 18 Ill.App.3d 705,310 N.E.2d 421
• Decision Date: 09 April 1974
• Docket Number: No. 73--319,73--319
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth E. SEIDLER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 421

310 N.E.2d 421 18 Ill.App.3d 705 PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Kenneth E. SEIDLER, Defendant-Appellant. No. 73--319. Appellate Court of Illinois, Fifth District. April 9, 1974.

[18 Ill.App.3d 706]

Page 422

Robert E. Farrell, Deputy Defender, Mount Vernon, for defendant-appellant.

W. C. Spomer, State's Atty., Cairo, Ralph J. Mendelsohn, Asst. State's Atty., Darrel L. Conley, Legal Researcher, Cairo, for plaintiff-appellee.

CREBS, Justice:

The defendant, who was represented by the public defender, pled guilty to the offenses of burglary, theft and possession of burglary tools. He was sentenced to serve three concurrent terms in the penitentiary, three to five years for the offenses of burglary and theft and one year to one year and one day for possession of burglary tools.

On January 5, 1973 the defendant notified the Circuit Court of Alexander County of his intention to file a post-conviction petition and requested that an attorney be appointed to represent him. The same public defender who had represented the defendant throughout the proceedings was appointed again, and a post-conviction petition was filed. The State filed a motion to dismiss the petition, a hearing was held and the motion to dismiss was granted pursuant to a finding that the petition did not present an issue of constitutional magnitude.

The defendant appeals the dismissal of the post-conviction petition and alleges that: 1) the sentences imposed for theft and burglary do not comply with the Unified

Page 423

Code of Corrections, 2) those sentences are excessive and in violation of Article 1, Section 11 of the Illinois Constitution, S.H.A., and 3) the defendant was not adequately represented by counsel in the post-conviction proceeding.

The sentences of three to five years for theft and burglary are inconsistent with certain provisions of the Unified Code of Corrections. Ill.Rev.Stat. ch. 38, sec. 1005--8--1(c)(3) and (4). Relief under the Post-Conviction Hearing Act, however, is limited to errors of a constitutional magnitude, (Ill.Rev.Stat. ch. 38, sec. 122--1; People v. Fuca, 43 Ill.2d 182, 251 N.E.2d 239) and sentencing inconsistencies with the Code do not present issues of that nature.

[18 Ill.App.3d 707] The defendant maintains that the Code should be applied to cases in a post-conviction proceeding. He relies upon Supreme Court decisions holding that the Code shall be applied to cases which have not reached 'final adjudication.' (People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269; People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1) The defendant asserts that, until post-conviction relief has been denied and reviewed, a case has not reached 'final adjudication.' There is no merit to that proposition as it would result in the absurd conclusion that, in all cases in which post-conviction relief is not sought, a conviction would not reach 'final adjudication' until twenty years after the conviction. We therefore hold that the Unified Code of Corrections is not applicable in a post-conviction proceeding if the...