                              Illinois Official Reports

                                      Appellate Court



                         People v. Lampkins, 2015 IL App (1st) 123519



Appellate Court          THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                  LATHERN LAMPKINS, Defendant-Appellant.



District & No.           First District, Third Division
                         Docket No. 1-12-3519



Filed                    January 28, 2015



Held                       The summary dismissal of defendant’s postconviction petition was
(Note: This syllabus reversed and his sentence for aggravated criminal sexual assault,
constitutes no part of the including a 15-year add-on for being armed with a firearm, was
opinion of the court but vacated and the cause was remanded for resentencing, since the
has been prepared by the 15-year add-on did not apply to defendant’s case.
Reporter of Decisions
for the convenience of
the reader.)




Decision Under           Appeal from the Circuit Court of Cook County, No. 06-CR-8798; the
Review                   Hon. James M. Obbish, Judge, presiding.




Judgment                 Reversed and remanded for resentencing.
     Counsel on               Michael J. Pelletier and Caroline Bourland, both of State Appellate
     Appeal                   Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Mary P. Needham,
                              Assistant State’s Attorney, of counsel), for the People.



     Panel                    JUSTICE HYMAN delivered the judgment of the court, with opinion.
                              Presiding Justice Pucinski and Justice Mason concurred in the
                              judgment and opinion.


                                               OPINION

¶1         Defendant Lathern Lampkins appeals from the judgment of the circuit court that
       summarily dismissed his pro se petition for relief under the Post-Conviction Hearing Act
       (Act) (725 ILCS 5/122-1 et seq. (West 2012)). For the reasons that follow, we find that a
       portion of defendant’s sentence is void, as asserted by defendant for the first time in a
       petition for rehearing, and remand for resentencing.
¶2         The record shows that on March 19, 2006, 17-year-old defendant and codefendant Robert
       Falls, who is not a party to this appeal, saw Kevin Porter exit his front door at 2544 East 81st
       Street and walk toward a vehicle parked on the street. Defendant and codefendant
       approached Porter, pointed guns at his head, and demanded his wallet. Porter indicated that
       he did not have his wallet, and holding him at gunpoint, they searched Porter’s vehicle and
       then took him back into the house. After Porter opened the door to his residence, defendants
       stole several items, including bank cards and jewelry. While in the house, defendant pointed
       a gun at Porter’s girlfriend Katherine Benson and sexually assaulted her. At gunpoint,
       defendants then took Porter to a bank and forced him to withdraw money from a cash station.
       Porter complied and gave defendant the cash. While defendants took Porter to the cash
       station, Benson called the police. Defendants dropped off Porter in an alley and were arrested
       shortly thereafter. Defendant and codefendant were charged on April 20, 2006, with
       numerous counts in connection with this incident, including aggravated criminal sexual
       assault (ACSA), home invasion, armed robbery, vehicular hijacking, kidnaping, and unlawful
       restraint.
¶3         Following a 2008 bench trial, defendant was convicted of ACSA with a firearm, two
       counts of home invasion, armed robbery, and vehicular hijacking. He was then sentenced to
       27 years’ imprisonment for ACSA, which included a 15-year add-on for being armed with a
       firearm, to run consecutively to the four concurrent terms of 8 years’ imprisonment imposed
       on his remaining convictions. This court affirmed that judgment on direct appeal after
       allowing direct-appeal counsel’s motion to withdraw pursuant to Anders v. California, 386
       U.S. 738 (1967). People v. Lampkins, No. 1-08-2535 (2010) (unpublished order under
       Supreme Court Rule 23).



                                                  -2-
¶4        On June 13, 2012, defendant filed a pro se postconviction petition, alleging, in pertinent
     part, that direct-appeal counsel was ineffective for failing to raise any issues on his behalf. In
     particular, defendant maintained that counsel did not raise any issue on appeal
     “before-during-and or after reviewing the petitioner transcripts,” was in “dis-attude” when
     counsel stated that there were no issues of arguable merit and filed a motion to withdraw, and
     was ineffective for “not filing ineffective assistance on the trial counsel for not preserving
     issues by objecting so that the defendant could [have] had meritorious issues to raise in his
     appeal.” According to defendant, direct-appeal counsel’s performance fell below an objective
     standard of reasonableness and prejudiced him.
¶5        As evidence of direct-appeal counsel’s ineffectiveness, defendant attached to his petition
     an October 15, 2009, letter written by his counsel advising him to dismiss his appeal because
     the sentencing issues she could argue had a very low chance of success and raising them
     would bring to light a sentencing error that was in his favor. In particular, direct-appeal
     counsel stated that because he was convicted of armed robbery with a firearm, he should
     have received “15 years on top of the 8 years [he] received.” Therefore, counsel indicated
     that the court should have imposed a 23-year sentence for his armed robbery with a firearm
     conviction, making his total sentence for all crimes 50 years instead of 35 years. Counsel
     concluded the letter by advising defendant to dismiss his appeal to avoid the risk of exposing
     the purported sentencing error, which would result in him receiving a higher sentence.
     Defendant also attached direct-appeal counsel’s motion to withdraw as counsel pursuant to
     Anders.
¶6        On August 3, 2012, the circuit court dismissed defendant’s petition as frivolous and
     patently without merit. In doing so, the court found, in relevant part, that because defendant’s
     underlying claims of ineffective assistance of trial counsel were without merit, the ineffective
     assistance of direct-appeal counsel claim based on counsel’s failure to argue ineffective
     assistance of trial counsel was likewise without merit. This appeal followed.
¶7        In defendant’s brief on appeal, postconviction appellate counsel raised the issue of
     whether direct-appeal counsel was ineffective for failing to challenge the 15-year add-on
     penalty to his sentence on ACSA for possessing a firearm at the time he committed the
     offense. In a Rule 23 order issued on June 25, 2014, we found that this issue could not be
     raised for the first time on appeal because it was not included in defendant’s postconviction
     petition, even under liberal construction. People v. Lampkins, 2014 IL App (1st) 123519-U;
     Ill. S. Ct. R. 23 (eff. July 1, 2011). We noted that defendant was free to pursue any defaulted
     claims he believed to be of merit by filing a successive postconviction petition. Accordingly,
     we affirmed the judgment of the circuit court summarily dismissing defendant’s petition.
¶8        In a petition for rehearing, new appellate counsel on rehearing contends for the first time
     that defendant’s sentence for ACSA with a firearm is void. Counsel on rehearing
     acknowledges that defendant’s former postconviction appellate counsel failed to raise the
     voidness issue. In turn, counsel on rehearing attributes the failure to raise the claim of
     voidness sooner on former postconviction appellate counsel’s unreasonable assistance.
     Counsel on rehearing further argues that judicial economy is best served by addressing this
     issue now rather than in a successive postconviction petition. Notably, in its answer to the
     rehearing petition, the State requests that we grant defendant’s petition for rehearing and
     concedes that the now-challenged sentencing add-on is void.


                                                 -3-
¶9          Points not raised in the appellant’s brief shall not be raised in a petition for rehearing. Ill.
       S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). However, a defendant may argue that a criminal
       statute is unconstitutional and void at any time. See People v. Guevara, 216 Ill. 2d 533, 542
       (2005) (permitting the defendant to challenge for the first time on appeal the 15-year
       sentencing enhancement for home invasion with a firearm as a violation of the proportionate
       penalties clause when compared to the sentence for another offense); People v. Wright, 194
       Ill. 2d 1, 23 (2000) (permitting the defendant to challenge the constitutionality of a records
       keeping provision of the Illinois Vehicle Code for the first time on petition for rehearing). In
       light of the circumstances here, we choose to grant defendant’s petition for rehearing.
¶ 10        Defendant and the State correctly agree that the 15-year firearm enhancement imposed in
       addition to his 12-year sentence on his conviction for ACSA violated the proportionate
       penalties clause of the Illinois Constitution because it provided a harsher sentence for ACSA
       than for armed violence predicated on criminal sexual assault.
¶ 11        The proportionate penalties clause of the Illinois Constitution declares that “[a]ll
       penalties shall be determined *** according to the seriousness of the offense.” Ill. Const.
       1970, art. I, § 11. As relevant to this case, our supreme court held that a defendant may raise
       a proportionate penalties challenge where offenses with identical elements are given different
       sentences. People v. Sharpe, 216 Ill. 2d 481, 521 (2005).
¶ 12        In People v. Hauschild, 226 Ill. 2d 63, 86-87 (2007), our supreme court held that the
       “defendant’s sentence for armed robbery while armed with a firearm [citation] violates the
       proportionate penalties clause because the penalty for that offense is more severe than the
       penalty for the identical offense of armed violence predicated on robbery.” After the supreme
       court’s decision in Hauschild, the legislature enacted Public Act 95-688 (eff. Oct. 23, 2007),
       which amended the armed violence statute. Specifically, that public act amended the armed
       violence statute so that armed robbery and other crimes, including ACSA, cannot serve as a
       predicate offense for armed violence. Pub. Act 95-688, § 4 (eff. Oct. 23, 2007) (amending
       720 ILCS 5/33A-2 (West 2006)). As a result of this amendment, armed violence, armed
       robbery, ACSA, and certain other offenses, no longer have identical elements for purposes of
       proportionality review.
¶ 13        In People v. Blair, 2013 IL 114122, ¶¶ 30, 33-35, the supreme court held that Public Act
       95-688 revived the 15-year sentence enhancement for armed robbery, but noted that
       Hauschild continued to impose an impediment to the enforcement of the enhancement until
       the proportionate penalties violation was cured, i.e., the date Public Act 95-688 took effect.
       See also People v. Clemons, 2012 IL 107821, ¶ 19 (“Hauschild remains the law as to the
       meaning of the armed violence statute prior to its amendment by Public Act 95-688.”). The
       Blair court concluded that the defendant, who committed armed robbery in April 2009, was
       properly subject to the 15-year enhancement. Id. ¶¶ 4, 40.
¶ 14        In this case, defendant committed the crime in 2006 prior to the 2007 effective date of
       Public Act 95-688, and thus the amendment has no impact upon the outcome of this case, and
       Hauschild controls. The armed violence statute in effect at the time of defendant’s indictment
       excluded ACSA, but did not exclude criminal sexual assault. 720 ILCS 5/33A-2 (West
       2006). The aggravating factor in criminal sexual assault was the possession of a firearm (720
       ILCS 5/12-14(a)(8) (West 2006) (now 720 ILCS 5/11-1.30(a)(8) (West 2012))), which was
       identical to armed violence based on the commission of a criminal sexual assault. The
       sentence for ACSA with a firearm, 21 to 45 years (730 ILCS 5/5-8-1(a)(3) (West 2006) (now

                                                     -4-
       730 ILCS 5/5-4.5-25 (West 2012)); 720 ILCS 5/12-14(d)(1) (West 2006) (now 720 ILCS
       5/11-1.30(d)(1) (West 2012))), was disproportionate to the penalty for armed violence
       predicated on criminal sexual assault, 15 to 30 years (720 ILCS 5/33A-3(a) (West 2006)).
       Based on Hauschild, the 15-year enhancement for ACSA with a firearm has been found to be
       unconstitutional. See People v. Toy, 2013 IL App (1st) 120580, ¶¶ 28-29 (the 15-year add-on
       for ACSA with a firearm is unconstitutional); People v. McBride, 2012 IL App (1st) 100375,
       ¶ 33 n.4 (noting that since the amended armed violence statute took effect after the defendant
       was indicted, it had no impact on the outcome of the case); People v. Hampton, 406 Ill. App.
       3d 925, 942 (2010) (“the 15-year add-on for [ACSA] with a firearm is unconstitutional”).
¶ 15       For all the foregoing reasons, we grant defendant’s petition for rehearing on the voidness
       issue, reverse the summary dismissal of defendant’s postconviction petition, vacate
       defendant’s sentence for ACSA, and remand for resentencing. See Toy, 2013 IL App (1st)
       120580, ¶ 30.

¶ 16      Reversed and remanded for resentencing.




                                                  -5-
