People v. Tomasello

• Decision Date: 19 April 2002
• Docket Number: No. 1-00-4065.,1-00-4065.
• Citation: 769 N.E.2d 79,263 Ill.Dec. 877,329 Ill. App.3d 1053
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony TOMASELLO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

769 N.E.2d 79

329 Ill. App.3d 1053

263 Ill.Dec. 877

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony TOMASELLO, Defendant-Appellant.

No. 1-00-4065.

Appellate Court of Illinois, First District, Fifth Division.

April 19, 2002.

Rita A. Fry, Public Defender of Cook County, of Chicago (Assistant Public Defender Robert D. Glick, of counsel), for Appellant.

Richard A. Devine, State's Attorney of Cook County (Assistant State's Attorneys Renee Goldfarb, Alan J. Spellberg, Susan M. Caraher, of counsel), for Appellee.

Justice QUINN, delivered the opinion of the court:

Following a bench trial, defendant Anthony Tomasello was convicted of three counts of aggravated criminal sexual assault and was sentenced to three consecutive 15-year prison terms. His convictions and sentence were affirmed on direct appeal. People v. Tomasello, No. 1-98-4211, 309 Ill.App.3d 1082, 261 Ill.Dec. 989, 764 N.E.2d 604 (2000) (unpublished summary order under Supreme Court Rule 23). Defendant subsequently filed a pro se petition for relief under the Post-Conviction Hearing Act (Post-Conviction Act) (725 ILCS 5/122-1 et seq. (West 2000)), which was summarily dismissed by the trial court. Defendant appeals, contending that his pro se petition set forth the gist of a meritorious claim based upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). For the reasons set forth below, we affirm the judgment of the trial court.

BACKGROUND

Defendant was convicted of three counts of aggravated criminal sexual assault under section 12-14(b) (ii) of the Illinois Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-14(b)(ii) (West 1996)). Defendant had sexually assaulted the victim, a 10-year-old boy, while the child was in his backyard. In our January 14, 2000, summary order affirming defendant's conviction and sentence, we rejected his claim that his sentence was excessive given his age, background and the circumstances surrounding commission of the crimes.

On August 8, 2000, defendant's pro se petition for post-conviction relief was filed with the circuit court. In his petition, defendant stated that he was sentenced to consecutive sentences on his aggravated criminal sexual assault convictions based upon the sentencing court's finding that the crimes were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective. He likened his consecutive sentences to an enhanced sentence and claimed that section 5-8-4(a) of the Illinois Unified Code of Corrections (Code of Corrections) (730 ILCS 5/5-8-4(a) (West 1996)), the section under which he was sentenced, was unconstitutional based upon the Supreme Court's Apprendi decision.

Quoting some select phrases from his sentencing hearing, defendant further alleged that although he did not receive an extended-term sentence, the sentencing court found that he was eligible for a 120-year term based upon the victim's age.¹ Again relying on Apprendi, defendant asserted that the sentencing court was without authority to impose an enhanced sentence based upon a determination as to the victim's age, where that basis was not pleaded in the indictment, submitted to the jury or proved beyond a reasonable doubt at trial.

His third basis for relief in his petition was that his due process rights were violated when Joe Pence, a fellow detainee at the Audy Home, was allowed to testify at defendant's sentencing hearing. According to defendant's petition, Pence testified that he had heard defendant proposition a resident at the Audy Home for sex and that defendant had attempted to sexually assault Pence. Attached to defendant's petition was the affidavit of Steven Hunter, defendant's attorney at trial, who averred that he had inadequate information relating to the alleged sexual assault on Pence to enable him to subpoena police reports relating to the incident. Hunter further averred that he was surprised by Pence's testimony and that, because Pence was himself a detainee-at the Audy Home, Hunter was unable to interview him.

In a written order, the trial court summarily dismissed defendant's petition. As relevant to this appeal, the trial court held that the Apprendi decision was not applicable in a post-conviction proceeding. The trial court also held that pursuant to section 5-5-3.2(c) of the Code of Corrections (730 ILCS 5/5-5-3.2(c) (West 1996)), defendant was indeed eligible for an extended-term sentence premised upon the victim's age. The trial court then held that defendant's claim that the judge "was mistaken when he stated that [defendant] was eligible for an extended term sentence" was waived. Citing People v. French, 210 Ill.App.3d 681, 688-89, 155 Ill.Dec. 457, 569 N.E.2d 934 (1991), the trial court stated that the propriety of defendant's sentence was premised upon the record at the sentencing hearing and, thus, defendant's failure to raise the issue on direct appeal precluded consideration of it in a post-conviction petition. Defendant now appeals.

ANALYSIS

Defendant's sole contention on appeal is that the trial court erred when it summarily dismissed his post-conviction petition wherein he alleged the gist of a meritorious claim based upon the sentencing court's finding that he was subject to an extended-term sentence due to the victim's age. Because this claim is premised upon Apprendi, defendant argues that the trial court erred when it found the issue could have been brought on direct appeal. This is because this court decided his appeal some six months before the Supreme Court rendered its decision in Apprendi

The Post-Conviction Act provides a remedy for a criminal defendant who can establish a substantial deprivation of his constitutional rights at trial. People v. Brisbon, 164 Ill.2d 236, 242, 207 Ill.Dec. 442, 647 N.E.2d 935 (1995). A court may summarily dismiss the petition without appointing counsel if it determines that the petition is frivolous or patently without merit. 725 ILCS 5/122-2.1 (West 2000). In determining whether the summary dismissal was correct, we review the allegations in the petition de novo. People v. Coleman, 183 Ill.2d 366, 388-89, 233 Ill. Dec. 789, 701 N.E.2d 1063 (1998).

On appeal, defense counsel concedes that our supreme court has held that the holding in Apprendi is not violated by the imposition of consecutive sentences, where each separate sentence is within the applicable statutory limit for the particular offense. See People v. Wagener, 196 Ill.2d 269, 287-88, 256 Ill.Dec. 550, 752 N.E.2d 430 (2001). Defense counsel also concedes that defendant's 15-year sentence on each count of aggravated criminal sexual assault is within the applicable statutory limit for that offense.

Defense counsel bases his appeal on several cases where this court has held that a defendant must be resentenced where the record shows that the trial court erroneously thought the defendant was eligible for an extended term sentence, even in those instances where the trial court did not impose an extended term sentence. People v. Ruiz, 312 Ill.App.3d 49, 58, 244 Ill.Dec. 729, 726 N.E.2d 704 (2000); People v. Hausman, 287 Ill.App.3d 1069, 1072, 223 Ill.Dec. 416, 679 N.E.2d 867 (1997); People v. Sims, 265 Ill.App.3d 352, 365-66, 202 Ill.Dec. 577, 638 N.E.2d 223 (1994).

We first note that the sentencing court's alleged statement that defendant could be sentenced to up to 120 years' imprisonment was correct. Aggravated criminal sexual assault is a Class X felony (720 ILCS 5/12-14(d) (West 1996)), which allows for a prison term of not less than 6 years and not more than 30 years (730 ILCS 5/5-8-1(a)(3) (West 1996)). Based upon the victim's age, an extended term for defendant's Class X felony convictions is not less than 30 years and not more than 60 years (730 ILCS 5/5-8-2(a)(2) (West 1996)). Having determined defendant's three offenses were committed as part of a single course of conduct, consecutive sentences on the three counts were mandatory pursuant to section 5-8-4(a) (730 ILCS 5/5-8-4(a) (West 1996)). See People v. Curry, 178 Ill.2d 509, 538, 227 Ill.Dec. 395, 687 N.E.2d 877 (1997). Defendant's consecutive sentences implicated section 5-8-4(c)(2) of the Code of Corrections, which provides:

"[T]he aggregate of consecutive sentences shall not exceed the sum of the maximum terms authorized under Section 5-8-2 for the 2 most serious felonies involved." 730 ILCS 5/5-8-4(c)(2) (West 1996).

Thus, as defendant could be sentenced to consecutive 60 year prison terms for two of the convictions, defendant could have been sentenced to up to 120 years in prison. See People v. Pullen, 192 Ill.2d 36, 42, 248 Ill.Dec. 237, 733 N.E.2d 1235 (2000).

We note that all of the cases cited by the defense involved instances where the trial court's admonishments were erroneous. Here, the admonishments were correct. Further, all of defendant's cases predate the holding in Apprendi and our supreme court's holding in Wagener. Consequently, we find defendant's cases to be inapplicable. Our supreme court has also rejected challenges to consecutive sentences based on Apprendi in People v. Carney, 196 Ill.2d 518, 256 Ill.Dec. 895, 752 N.E.2d 1137 (2001), and People v. Rogers, 197 Ill.2d. 216, 258 Ill.Dec. 557, 756 N.E.2d 831 (2001). In Rogers, the court affirmed consecutive sentences upon convictions of criminal sexual assault. In Carney, the court affirmed consecutive sentences under section 5-8-4(a) of the Code of Corrections, the same statutory subsection relied upon by the trial court in this case.

We reject defendant's argument that the assertion in his post-conviction petition that the sentencing court's admonishment that he was eligible for an extended term of up to 120 years under section 5-8-4(c)(2) constitutes a separate basis upon which we may grant relief. As our supreme court has held that the holding in Apprendi is not violated by the imposition of consecutive sentences where each separate...