
1 July 1999

NO. 4-97-0686

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,    )   Appeal from

Plaintiff-Appellee,           )   Circuit Court of

v.                            )   Logan County

PAUL LEE STENCIL,                       )   Nos. 93CF66

Defendant-Appellant.          )        93CF69

                                        )

                                        )   Honorable

                                        )   Gerald G. Dehner,

                                        )   Judge Presiding.

_________________________________________________________________





PRESIDING JUSTICE KNECHT delivered the opinion of the court:

On June 21, 1993, defendant, Paul Lee Stencil, plead­ed guilty to bur­glary, a Class 2 felony, and to possession of bur­

glary tools, vio­la­tions of sections 19-1(a) and 19-2 of the Crim­

i­nal Code of 1961 (Criminal Code).  720 ILCS 5/19-1(a), 19-2 (West 1992).  The trial court sentenced him to 22 years' impris­

on­ment for the bur­glary of­fense and a concurrent 3-year term for posses­sion of bur­glary tools.  On Sep­tem­ber 24, 1993, de­fen­dant plead­ed guilty to es­cape, a Class 2 felony, and to aggra­vated battery in viola­tion of sec­tions 31-6(a) and 12-4(a) of the Crim­

inal Code.  720 ILCS 5/31-6(a), 12-4(a) (West 1992).  De­fen­dant was sen­tenced to concur­rent terms of 23 years' impris­onment for es­cape and 10 years (lat­er reduced to 5) for aggravat­ed bat­tery, to be served con­secu­tively to the prior sentences.  This court affirmed his convic­tions and sentenc­es.  
People v. Stencil
, Nos. 4-95-0590, 4-95-0591 cons. (March 21, 1997) (unpublished order 

under Supreme Court Rule 23).  The only issue on di­rect ap­peal was the ex­ces­sive length of the sen­tences.  

On July 14, 1997, defendant filed a 
pro
 
se
 postconvic­

tion petition under the Post-Conviction Hearing Act (Act).  725 ILCS 5/122-1 
et
 
seq
. (West 1996).  Defendant alleged he re­ceived ineffective assistance of appellate counsel on direct appeal when counsel failed to argue (1) the judge erred in per­mit­ting the in­

dict­ment to be amended, which allowed defendant to be sen­tenced as a Class X offender; (2) a defect in an in­dictment; and (3) the trial court's inade­quate admonition at defendant's pleas of guilty.

In an order dated July 18, 1997, the trial court dis­

missed the petition as frivolous or patently without merit under section 122-2.1(a)(2) of the Act (725 ILCS 5/122-2.1(a)(2) (West 1996)), spe­cifically stating the doctrine of waiver applied to defendant's claims of ineffective assistance of appellate counsel and de­fen­dant's claims failed to meet the test set forth in 
Strickland v. Washington
, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), for claims of ineffective assistance of counsel.

On July 25, 1997, defendant filed a motion to reconsid­

er the trial court's dismissal of his postconviction petition.  In this motion, defendant raised the issues upon which he appeals here:  he was denied effective assistance of appellate counsel because counsel failed to raise on direct appeal the issue that defendant's aggregate sentence of 45 years exceeded the maximum allowable aggregated sentence under section 5-8-4(c) of the Uni­

fied Code of Corrections (Code).  730 ILCS 5/5-8-4(c) (West 1996).  On July 25, the trial court denied defendant's motion to reconsider by docket entry without specifying any reason for the denial.  Timely notice of appeal was filed August 7.

Defendant contends his claim the sentences exceeded the allowable aggregate was suf­fi­cient to state the "gist of a claim for relief which is meritorious" under the Act (
People v. Dredge
, 148 Ill. App. 3d 911, 913, 500 N.E.2d 445, 446 (1986)), and his petition should not have been dismissed.  We disagree.

First, we note defendant's claims are not waived.    Where an alleged waiver stems from ineffectiveness of appellate counsel, the strict ap­plication of the doc­trine of waiver will be re­laxed.  
People v. Barnard
, 104 Ill. 2d 218, 229, 470 N.E.2d 1005, 1008 (1984).  

The standard of review of whether a postconviction petition is frivolous is whether the allegations, construed lib­

erally in favor of the 
pro
 
se
 petitioner, together with support­

ing documents, court records, and transcripts, contain the gist of a meritorious claim.  
People v. Porter
, 122 Ill. 2d 64, 74, 521 N.E.2d 1158, 1161 (1988); 
People v. Lemons
, 242 Ill. App. 3d 941, 944-46, 613 N.E.2d 1234, 1236-37 (1993).

To sustain a claim for ineffective assistance of coun­

sel, the two-part test enunciated in 
Strickland
 is used in re­

viewing the performance of both trial and appel­late counsel.  
People v. Hayes
, 279 Ill. App. 3d 575, 580-81, 665 N.E.2d 419, 423 (1996).  To establish ineffective assistance of appel­late coun­sel, de­fen­dant must show the failure to raise an issue was ob­jec­tively unreasonable and, but for this failure, his sen­tence or con­vic­tion would have been reversed.  
People v. Flores
, 153 Ill. 2d 264, 283, 606 N.E.2d 1078, 1087 (1992).  In this case, de­fen­dant ar­gues he received ineffective assistance of counsel because his aggregate sentences exceeded the maximum allowed by statute and counsel failed to raise this issue on appeal.  To pre­vail in this argument, defendant needs to show it was unrea­

son­able for counsel not to raise this issue and his sentence would have been reduced if the issue had been raised.         

In support of his argument that he received ineffective assistance of appellate counsel, defendant cites section 5-8-

4(c)(2) of the Code, which pro­vides in relevant part:

"[T]he aggregate of consecutive sentences shall not ex­ceed the sum of the maximum terms authorized under Section 5-8-2 [(730 ILCS 5/5-8-2 (West 1992))] for the 2 most serious felo­nies in­volved."  730 ILCS 5/5-8-4(c)(2) (West 1992).

Section 5-8-2(a)(4) of the Code provides that an extended term for Class 2 felonies is 14 years' imprisonment.  730 ILCS 5/5-8-

2(a)(4) (West 1992). 

Both burglary and escape are Class 2 felo­nies.  There­

fore, defen­dant contends his combined sentences cannot exceed 28 years.  Accordingly, he argues the 22-year burglary sentence should stand, but the sentence of 23 years for escape should be va­cated and the case remanded for sentencing within the 28-year combined limit.  

Defendant received sentences exceeding the 14-year ex­

tended-sentence limits for Class 2 felonies because he had pre­

vious convictions for Class 2 or greater felonies.  Under section 5-5-3(c)(8) of the Code, any defendant over the age of 21 who:

"is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illi­

nois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sen­tenced as a Class X offender."  730 ILCS 5/5-5-3(c)(8) (West 1992).

The Class X sentencing provisions of section 5-5-3(c)(8) are man­

da­to­ry for those eligible.  
People v. Thomas
, 171 Ill. 2d 207, 221-22, 664 N.E.2d 76, 84 (1996).  Sentences for Class X of­fend­

ers are to be not less than 6 years and not more than 30 years.  730 ILCS 5/5-8-1(a)(3) (West 1992).  

The State argues defendant is using an inappropriate figure, 14 years plus 14 years maximum, in computing the aggre­

gate sen­tenc­es al­lowed.  The State contends defendant was cor­

rectly sen­tenced as a Class X offender under section 5-5-3(c)(8), which is manda­tory where a defendant has two or more previous Class 2 or higher convictions, so an aggregate of 30 years plus 30 years maximum is the applicable figure.  Under this rea­son­ing defendant's aggregate sentence of 45 years is allowable.

However, our supreme court has stated while sec­tion 5-

5-3(c)(8) increases a defendant's 
sentence
 because of his prior felo­ny convictions, the classification of the offense for which the defendant is then being sentenced remains the 
same
 as that originally charged.  
Thomas
, 171 Ill. 2d at 224, 664 N.E.2d at 85; 
People v. Jameson
, 162 Ill. 2d 282, 290, 642 N.E.2d 1207, 1211 (1994).  Thus, section 5-5-3(c)(8) does not operate to cre­

ate Class X felonies out of lesser offenses but only serves to en­hance the punishment for those crimes.

Recently, the First District Appellate Court in 
Peo­ple v. Ritchey
, 286 Ill. App. 3d 848, 677 N.E.2d 973 (1997), when faced with a simi­lar fac­tual situation to that here, cited 
Thomas
 and found the two Class 2 felonies involved in 
Ritchey
 (robbery and escape) re­tained their status despite Class X sentencing and, therefore, the two consec­utive Class X sentences under the aggre­

gate-sen­tence re­striction of section 5-8-4(c)(2) could not ex­ceed 14 years allo­cated to Class 2 felonies under section 5-8-2(a)(4).  
Ritchey
, 286 Ill. App. 3d at 851, 677 N.E.2d at 975.

The State contends 
Ritchey
 was wrongly de­cided, as the ag­gre­gate-sen­tence re­stric­tion imposed by sec­tion 5-8-4(c)(2) is not in­tended to apply in the case of man­dato­ry con­sec­utive sen­

tences such as that here.  It notes the limita­tions of sec­tion 5-8-4(c) immediately follow the dis­cre­tionary consecu­tive sen­tenc­

ing provisions of section 5-8-4(b), and it was such sen­tences the legislature was intending to limit.  Mandatory consec­utive sen­

tences are addressed in later subsec­tions of the stat­ute, specif­

ically sec­tions 5-8-4(f), (g), (h), and (i).

The State also notes our su­preme court's deci­sion in 
Peo­ple v. Tuck­er
, 167 Ill. 2d 431, 657 N.E.2d 1009 (1995), where the court held a defen­dant sentenced to consec­utive prison terms under section 5-8-4(b), providing for discre­tionary consec­utive terms to protect the public from further criminal con­duct by a defen­dant, may not be sen­tenced to con­sec­u­tive sen­tenc­es ex­ceed­

ing the sum of the maximum extended terms autho­rized for the two most serious of­fenses as provided by sec­tion 5-8-4(c)(2).  
Tuck­

er
, 167 Ill. 2d at 438-39, 657 N.E.2d at 1013.       

The State in 
Tucker
 asked the court to consider the impact of its ruling on other, mandatory consecutive sentence provisions, such as the one in this case, section 5-8-4(h), re­

lat­ing to felo­nies committed while on pretrial release or in pretri­al de­ten­tion.  The court stated: 

"Application of the consecutive sentencing limitation con­tained in section 5-8-4(c)(2) to the mandatory consecutive sentences that may be imposed under sections 5-8-4(f) through (i) raises a separate and distinct issue of statutory construction not raised by the facts of this case.  Therefore, we will not address this issue."  
Tucker
, 167 Ill. 2d at 438, 657 N.E.2d at 1013.

The State contends the court in 
Ritchey
 failed to con­

sider the ramifications of its decision on the mandatory consecu­

tive sentencing provisions of section 5-8-4.  Defendant, under the mandatory provisions of section 5-5-3(c)(8), was eligible for a sentence of up to 60 years' imprisonment.  See 730 ILCS 5/5-8-

2(a)(2) (West 1992).  If the trial court had sentenced defendant to 60 years on his first sentence for burglary, the 14-year plus 14-year aggre­gate re­quirements of section 5-8-4(c)(2) under the 
Ritchey
 deci­sion would have re­quired the court to actu­al­ly 
reduce
 his aggre­gate sentence to come in under the 28-year ag­gre­gate- sentence cap.  The result would then be not only an avoid­ance of punish­ment for escape but the reward of a reduction in sentence to fit under the aggre­gate-sentence restric­tion.

The State argues such an absurd result could not have been in­tend­ed by the legislature.  In interpreting a statute, the prima­ry rule of statutory construction is to ascertain and give effect to the legislature's intent.  
State Farm Fire & Casualty Co. v. Yapejian
, 152 Ill. 2d 533, 540-41, 605 N.E.2d 539, 542 (1992).  That inquiry begins with the plain meaning of the lan­

guage used by the legislature.  
Nottage v. Jeka
, 172 Ill. 2d 386, 392,  667 N.E.2d 91, 93 (1996).  In deter­min­ing legis­lative in­

tent, a court may con­sider the reason and ne­cessity for the law, the evils to be reme­died, and the ob­jects to be at­tained.  
Tuck­

er
, 167 Ill. 2d at 436, 657 N.E.2d at 1012.  In addition, in con­

stru­ing the lan­guage of a statute, the court will assume the legisla­ture did not intend to produce an absurd or unjust result.  
State Farm
, 152 Ill. 2d at 541, 605 N.E.2d at 542.    

The legislature obviously felt the end-run around the legal sys­tem attempted by a pretrial escapee merited the severe punishment of a mandatory consecutive sentence and, therefore, left no dis­cretion to the sentencing court.  See 730 ILCS 5/5-8-

4(h) (West 1992).  In addition, the legislature clearly intended to re­quire the enhancement of the punishment of certain repeat of­fend­ers as evi­denced by its use of the word "shall" when re­

quir­ing Class X sentencing under section 5-5-3(c)(8).  See 
Thom­

as
, 171 Ill. 2d at 222, 664 N.E.2d at 84.  

As for section 5-8-4(c)(2), the apparent purpose of the legis­la­ture was to limit the total length of consecutive sen­tenc­es imposed on a given defendant, while still fairly punishing him in relation to the severity of the crimes.  
Tucker
, 167 Ill. 2d at 436, 657 N.E.2d at 1012.  We agree with the reasoning of the court in 
Tuck­er
, which went on to say such a purpose is reason­

able in the con­text of punishing an offender for a series of crimes where the stack­ing of penalties can result in sentences of ex­traordi­nary harsh­ness.  
Tucker
, 167 Ill. 2d at 436, 657 N.E.2d at 1012.  

However, the in­ter­sec­tion of the pro­vi­sion for a man­da­

tory con­secutive sen­tence for the separate offense of escape found in sec­tion 5-8-4(h) and the ag­gre­gate-consecutive-sen­tence re­stric­tion found in section 5-8-4(c)(2), with the man­da­tory Class X sen­tenc­ing provi­sions re­quired for repeat of­fenders in section 5-5-3(c)(8) results in the scenario postulated by the State.  The absurd result of allowing a defendant who com­mits an es­cape not only to escape punishment for that offense but to gain a sentence reduction for his first-sentenced offense to re­main under the aggregate-sentencing restrictions was obviously not intended by the legislature.  In in­ter­pret­ing these statutes together, we will do so in a way that avoids an ab­surd result.  Therefore, we decline to follow the holding in 
Ritchey
 and find defendant's consecutive sentences in the Class X sen­tencing range are the punishments he deserves for committing bur­glary with his many prior convictions and es­cape while await­ing tri­al.   

In disagreeing with 
Ritchey
, we realize our decision arguably conflicts with the words of the statute.  We in­vite the leg­is­la­ture and our su­preme court to clarify the sen­tencing pro­

vi­sions that have conjoined in at least two cases to date.

Defendant would not have prevailed on the issue of his aggregate sentences exceeding the maximum allowed under sec­tion 5-8-4(c)(2); thus, he can­not satisfy the two-part 
Strickland
 test of show­ing (1) it was un­rea­son­able for coun­sel not to raise this issue and (2) his sentence would have been reduced if the issue had been raised.

The trial court did not err in dismissing his 
pro
 
se
 postconviction petition.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.

