                             No. 3--06--0508

Filed October 2, 2008 CORRECTED OPINION
                               IN THE

                    APPELLATE COURT OF ILLINOIS

                             THIRD DISTRICT

                                 A.D., 2008


THE PEOPLE OF THE STATE OF       ) Appeal from the Circuit Court
ILLINOIS,                          )    of the 21st Judicial Circuit,
                                   )    Kankakee County, Illinois
     Plaintiff-Appellee,           )
                                   )
          v.                       )    No. 00--CF--70
                                   )
SHAWN PETRENKO,              )
                                   )    Honorable Clark E. Erickson,
     Defendant-Appellant. )        Judge, Presiding.


     JUSTICE SCHMIDT delivered the opinion of the court:



     The defendant, Shawn Petrenko, was found guilty following a

jury trial of first degree murder and residential burglary, in

violation of sections 9--1 and 19--3 of the Criminal Code of 1961

(the Code) (720 ILCS 5/9--1, 19--3 (West 2000)).     He was sentenced

to one term of natural life for murder and a consecutive term of 10

years for residential burglary.     This appeal arises from the

dismissal of defendant's postconviction petition that the circuit

court of Kankakee County found to be frivolous and without merit.

Defendant argues that the circuit court erred in finding that he
failed to allege the gist of a constitutional claim in his

petition.   Defendant also alleges that it was error to sentence him

to a 10-year term of imprisonment that runs consecutively to his

term of natural life.

                                BACKGROUND

       On March 3, 2000, defendant was indicted on four counts of

first degree murder, one count of armed robbery, and one count of

residential burglary.     Following a jury trial, defendant was found

guilty of one count of first degree murder and one count of

residential burglary.     Defendant appealed, claiming that he was

denied a fair trial because the prosecutor misstated the evidence

during closing argument and that the trial court erred in admitting

a hammer into evidence.     Finding harmless error, this court

affirmed in an unpublished order (People v. Petrenko, No. 3--07--

0507 (April 25, 2005) (unpublished order under Supreme Court Rule

23).   The supreme court denied defendant's petition for leave to

appeal.   People v. Petrenko, 216 Ill. 2d 720, 839 N.E.2d 1033

(2005). Subsequently, on March 16, 2006, defendant filed a

postconviction petition, claiming ineffective assistance of counsel

at both the trial and appellate proceedings.     The circuit court of

Kankakee County found defendant's petition to be frivolous and

without merit and dismissed it in the first stage of the

postconviction proceedings.     This appeal followed.

       Defendant's postconviction petition alleged that his trial

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counsel was constitutionally ineffective for failing to file a

motion for a Franks hearing contesting the validity of a search

warrant.    Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S.

Ct. 2674 (1978).    In support of this allegation, he claims that the

officer who applied for the warrant presented facts to the court

with a reckless disregard for the truth.    He further alleged that

his appellate counsel was ineffective on direct appeal for failure

to file an ineffective assistance of counsel claim against trial

counsel.    For the first time in this appeal, defendant also alleges

that his sentence is void and should be modified, claiming no

sentence is permitted to run consecutive to a natural life

sentence.

     A review of the record indicates that on January 30, 2000, the

victim, Rubin Rivas, was found dead in his home, having been hit in

the head with a hammer or similar object nine times.    The evidence

used to tie the defendant to the crime, as enumerated in the

affidavit and complaint for search warrant, included: a left-handed

white glove with red, blue, and white paint on it found in the

victim's house; a right-handed white glove with red, blue, and

white paint on it found in defendant's garbage; mail addressed to

the victim found in defendant's garbage; a metal object broken off

in the lock of the victim's back door; a broken key with the tip

missing found in defendant's garbage; and defendant's fingerprint

found on the victim's empty jar that normally contained the

                                   3
victim's rent money: $450 in cash.

     Based on this evidence, the circuit court issued a warrant,

and additional evidence was found in the defendant's home,

including the victim's brown change purse.     Defendant was arrested,

tried by jury, found guilty, and sentenced to consecutive terms of

natural life and 10 years.

                                ANALYSIS

     The first issue that defendant raises on appeal is whether it

was proper to summarily dismiss his postconviction petition as

frivolous and patently without merit.

     We review the summary dismissal of a postconviction petition

de novo.    People v. Coleman, 183 Ill. 2d 366, 388-89, 701 N.E.2d

1063, 1075 (1998).    The Post-Conviction Hearing Act (the Act) (725

ILCS 5/122--1 et seq. (West 2006)) provides the opportunity for

criminal defendants to file a petition seeking relief if

substantial violations of their federal or constitutional rights

occurred.    The Act sets forth a three-stage process.    At the first

stage, a trial court may summarily dismiss a petition if it is

frivolous and patently without merit.      725 ILCS 5/122--2.1(a)(2)

(West 2006).

     In order to avoid such a dismissal, a postconviction petition

must state the gist of a constitutional claim.     People v. Edwards,

197 Ill. 2d 239, 757 N.E.2d 442 (2001).      In evaluating a petition,

the trial court must construe all facts as true, unless

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contradicted by the record.     People v. Edwards, 197 Ill. 2d at 244.

A petition contradicted by the record is frivolous and patently

without merit.     People v. Rogers, 197 Ill. 2d 216, 222, 756 N.E.2d

831, 834 (2001).

     Here, defendant argues that his postconviction petition

alleged the gist of a constitutional claim: ineffective assistance

of counsel at both the trial and appellate levels.

     In order to properly plead the gist of a constitutional claim

for ineffective assistance of counsel, a petition must allege facts

sufficient to meet both prongs of the Strickland test: first, that

counsel's performance fell below an objective standard of

reasonableness, and second, that the deficient performance resulted

in substantial prejudice to the defendant.      People v. Gale, 376

Ill. App. 3d 344, 351, 876 N.E.2d 171 (2007).     The same two-prong

Strickland test applies to both trial and appellate counsel alike.

People v. Richardson, 189 Ill. 2d 401, 412, 727 N.E.2d 362, 369

(2000).   To show prejudice at either level, defendant must show to

a reasonable probability that his counsel's deficient performance

resulted in an unreliable result or a fundamentally unfair

proceeding.   Richardson, 189 Ill. 2d at 411.    Prejudice is not

shown merely by enumerating issues that appellate counsel did not

brief on appeal, especially nonmeritorious ones, as appellate

counsel need not brief every possible issue on appeal.     People v.

Coleman, 168 Ill. 2d 509, 523, 660 N.E.2d 919, 927 (1996).

                                    5
     Although defendant brought a number of claims against both his

trial and appellate counsel in his petition for postconviction

relief, he raises only two on appeal.       Defendant alleges that trial

counsel should have filed a motion contesting the validity of the

search warrant and that appellate counsel should have raised this

issue on direct appeal.   Notably, if defendant's ineffective

assistance of counsel claim against trial counsel is

nonmeritorious, then clearly appellate counsel was not deficient

for refraining from addressing it.      Coleman, 168 Ill. 2d at 523.

Therefore, we first examine defendant's claim against his trial

counsel.

     Defendant's postconviction petition alleges that his trial

counsel should have challenged the search warrant because the

statements made by the police to procure the warrant showed a

reckless disregard for the truth.       Specifically, the probable cause

affidavit stated that defendant's fingerprint was on the victim's

empty money jar and failed to state that defendant was often in the

victim's duplex.   Defendant's petition alleges that had the officer

informed the court of the latter, the court would have given

minimal weight to the fingerprint and thus would not have found

probable cause to issue the warrant.       On appeal, defendant also

claims that this reckless disregard for the truth was further

evinced by failure of the police to mention to the trial court that

the victim's mail found in defendant's garbage was at least six

                                    6
months old.

     For a judge to issue a warrant, a petitioning officer need

only show facts sufficient to demonstrate probable cause that the

premises to be searched contains evidence of a crime.   People v.

McCarty 223 Ill. 2d 109, 153, 858 N.E.2d 15 (2006).   Upon

defendant's substantial showing that the petitioning officer,

knowingly and with intentional disregard for the truth,      made a

false statement necessary to such a finding of probable cause, the

trial court will grant a hearing on the validity of the warrant.

Franks v. Delaware, 438 U.S. 154, 155, 57 L. Ed. 2d 667, 672, 98 S.

Ct. 2674, 2676 (1978).   In order to prevail at such a hearing,

commonly called a Franks hearing, the defendant must establish

perjury or reckless disregard for the truth by a preponderance of

the evidence and must show that without the false statements there

was insufficient evidence to demonstrate probable cause for a

search warrant.   Franks v. Delaware, 438 U.S. at 156, 57 L. Ed. 2d

at 672, 98 S. Ct. at 2676.

     Defendant alleges that the officer knew defendant had been

lawfully inside the victim's house only a few days prior to the

murder and that the officer purposely left out that information

when drafting his affidavit.   Defendant contends that his lawful

presence explains his fingerprint, removing any implications that

would otherwise be afforded the fingerprint evidence.   The State

maintains that defendant's lawful presence does not explain his

                                  7
fingerprint on the money jar because a casual visitor would not

have handled it and, out of all of the victim's visitors, only

defendant's fingerprint was found on the money jar. The State

argues that, previous lawful entry or otherwise, defendant's

fingerprint on the money jar suggests that defendant might have

been involved and that evidence of the crime would be found in

defendant's home.   We agree.

     Defendant's lawful presence in the victim's house does not

negate probable cause to issue the search warrant.    By the time the

search warrant was issued, the police had found matching gloves

with paint on them, one of which was found in the victim's

residence and the other in the defendant's garbage, and a metal

object found in the victim's lock, as well as a broken key found in

defendant's garbage.   Even without defendant's fingerprint, the

above evidence, discussed in the affidavit, would be sufficient to

show probable cause that further evidence would be found within

defendant's residence.   Therefore, even taking defendant's

suggestion as true, that the police officer was less than

forthcoming regarding defendant's presence in the house, we cannot

say that defendant would have been granted, let alone prevailed at,

a Franks hearing.   The trial court could not have found by a

preponderance of the evidence that the officer showed a reckless

disregard for the truth based on the facts alleged.

     Therefore, we find that defendant's petition fails to allege

                                  8
sufficient facts to show that his trial counsel's representation

fell below an objective standard of reasonableness, the first prong

of Strickland.    Nor has he shown prejudice as required by the

second prong of Strickland.    We find the trial court properly found

that defendant's allegations of ineffective assistance of trial

counsel were frivolous and patently without merit.    That is, the

allegations are rebutted by the record.    See People v. Rogers, 197

Ill. 2d 216, 756 N.E.2d 831 (2001).    Having found that defendant's

petition failed to allege facts sufficient to state the gist of a

constitutional claim for ineffective assistance of counsel against

his trial counsel, we need not address defendant's contention that

appellate counsel was also deficient for failing to address the

same issue.

     Defendant's final claim on appeal concerns his consecutive

sentence terms.    Defendant claims that, as a matter of law, they

are void and, as such, should be modified to run concurrently.

While defendant raises this issue for the first time on the appeal

of the dismissal of his postconviction petition, we will address it

as a void sentence can be attacked at any time.    People v. Brown,

225 Ill. 2d 188, 199, 866 N.E.2d 1163, 1169 (2007).

     Defendant, sentenced to one term of natural life and a

consecutive term of 10 years, bases his claim on People v. Palmer,

218 Ill. 2d 148, 843 N.E.2d 292 (2006), in which the Illinois

Supreme Court modified a sentence of multiple terms of natural life

                                   9
from running consecutively to running concurrently.    The Palmer

court held that imposing consecutive terms of natural life strays

from the legislative intent of section 5--8--4 of the Unified Code

of Corrections (750 ILCS 5/5--8--4 (West 2000)) and violates the

laws of nature as defendants have but one life to give.    Palmer,

218 Ill. 2d at 163-64.

       The First District Appellate Court interpreted Palmer very

broadly and expanded it further by holding that no sentence term of

any length can run consecutively to a term of natural life (People

v. Dixon, 366 Ill. App. 3d 848, 853 N.E.2d 1235 (2006)) and that

any sentence imposing a term of incarceration consecutive to a

natural life term is void.     People v. Spears, 371 Ill. App. 3d

1000, 864 N.E.2d 758 (2007).

       The Spears court relied entirely on Palmer.   Spears, 371 Ill.

App. 3d at 1006-09.   We note that the Palmer court's analysis of

the consecutive terms of natural life did not address the issue of

whether the sentence was void.    Palmer, 218 Ill. 2d at 163-70.     The

Palmer court merely stated it was error for the trial court to

impose consecutive terms of natural life.    Palmer, 218 Ill. 2d at

169-70.    Furthermore, as noted in Palmer, upholding consecutive

terms of natural life creates no prejudice to the defendant because

he will not serve one day more or less.    Palmer, 218 Ill. 2d at

169.   Therefore, although the Spears court inferred that the

sentence was void, we do not.

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     Whether a sentence is void is a jurisdictional question.

People v. Davis, 156 Ill. 2d 149, 155, 619 N.E.2d 750, 754 (1993).

A sentence delivered by a court without both subject matter

jurisdiction and personal jurisdiction is void. Davis, 156 Ill. 2d

at 156.    A court with jurisdiction does not lose it merely for

making a mistake of law or fact.    Davis, 156 Ill. 2d at 156.     Thus,

a sentence given in error by a court with jurisdiction is not void.

People v. Ramirez, 361 Ill. App. 3d 450, 454, 837 N.E.2d 111

(2005).

     In the instant case, the trial court had subject matter

jurisdiction and personal jurisdiction and, thus, had the authority

to sentence the defendant within statutory limits.     The trial court

interpreted the correct statute, section 5--8--4, and imposed two

terms of imprisonment to run consecutively.     At worst, the trial

court made a mistake of law and the defendant's sentence is in

error.    Davis, 156 Ill. 2d at 156. Defendant's sentence is not

void. Defendant did not challenge the sentence in the trial court,

on direct appeal, or even before the trial court in his

postconviction petition. Defendant cannot challenge his sentence

for the first time on appeal of his postconviction petition.       We

find this issue to be procedurally defaulted.

                               CONCLUSION

     For the foregoing reasons, the judgment of the circuit court

of Kankakee County is affirmed.

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        Affirmed.

        WRIGHT, J., concurs.

        HOLDRIDGE, J., dissents.

People v. Shawn Petrenko, No. 3--06--0508                 Filed October 2, 2008 put w/corrected opinion

JUSTICE HOLDRIDGE, dissenting:

        I respectfully dissent. The majority concludes that the defendant failed to allege sufficient

facts to meet the Stickland test. I would agree with that conclusion, but I note that the conclusion is

irrelevant to the issue of whether the defendant’s post-conviction petition should have been

summarily dismissed. At the first stage of a Post-Conviction proceeding, the petitioner is not

required to allege sufficient facts to meet the Strickland test. He is merely required to state the "gist"

of a constitutional claim. People v. Edwards, 197 Ill. 2d 239, 245 (2001). Here, the petitioner stated

the "gist" of a claim by alleging at least one factual element, namely that his attorney failed to contest

the validity of the search warrant. That is a fact clearly established in the petition and supporting

affidavits. Why counsel failed to challenge the search warrant and, more importantly, what

prejudicial effect that failure had on the defendant’s case are not within the competence of a pro se

defendant to factually allege at the preliminary stage. Whether counsel’s performance was in fact

deficient, or whether the defendant was prejudiced can only be alleged after appointment of counsel .

Given the sufficient factual allegations made by the defendant at the first stage, summary dismissal

of the petition was premature. People v. Shevock, 353 Ill. App. 3d 361, 365 (2004).

        I would find that the defendant has presented the gist of a claim sufficient to survive

summary dismissal and would remand for appointment of counsel who would then have the task of

alleging sufficient facts to meet the Strickland test.


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