
April 15, 1999	NO. 4-98-0281



IN THE APPELLATE COURT 



OF ILLINOIS



FOURTH DISTRICT



THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

Plaintiff-Appellee,			)	Circuit Court of 

v.						)	McLean County

WILLIAM DUNCAN LAND,				)	No. 90CF647

Defendant-Appellant.		)

)	Honorable

)	G. Michael Prall,

)	Judge Presiding.

_________________________________________________________________





JUSTICE STEIGMANN delivered the opinion of the court:



In July 1991, a jury convicted defendant, William Duncan Land, of three counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12-14(b)(1)), and the trial court subsequently sentenced him to 20 years in prison on each conviction, with those sentences to run consecutively.  In March 1993, this court affirmed defendant's convictions.  See 
People v. Land
, 241 Ill. App. 3d 1066, 609 N.E.2d 1010 (1993), 
appeal
 
denied
, 152 Ill. 2d 570, 622 N.E.2d 1218 (1993).  In April 1994, defendant filed a 
pro
 
se
 petition for postconviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 
et
 
seq
. (West 1992)).  In July 1994, the trial court dis­missed defendant's petition as frivolous and patently without merit, pursuant to section 122-2.1 of the Act (725 ILCS 5/122-2.1 (West 1994)), and in March 1996, this court affirmed the dismiss­al (
People v. Land
, 278 Ill. App. 3d 1157, 699 N.E.2d 617 (1996) (unpub­lished order under Supreme Court Rule 23)). 

In February 1998, defendant filed a second 
pro
 
se
 petition for postconviction relief, alleging that the trial court erroneously sentenced him to mandatory consecutive sentenc­es pursuant to section 5-8-4(a) of the Unified Code of Correc­tions (Corrections Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-

4(a) (now 730 ILCS 5/5-8-4(a) (West 1996))).  The trial court subsequently found that defendant had forfeited his claim for relief by failing to raise it either on direct appeal or in his initial postconviction petition, and the court dismissed the peti­tion as frivo­lous and patent­ly without merit, pursuant to section 122-2.1 of the Act (725 ILCS 5/122-2.1 (West 1996)).  Defendant appeals, and we affirm.

I.  BACKGROUND

In October 1990, the State charged defendant by indict­

ment with three counts of aggravated criminal sexual assault for incidents involving his daughter, C.L., who was then seven years old.   All three indict­ments alleged that the offenses occurred between January 1990 and August 3, 1990, but none included specific dates.  The trial testimony showed that C.L. had lived at two residences during January 1990 through August 3, 1990, and C.L. had told investiga­tors that the assaults had occurred at both residences.  At the sen­tenc­ing hear­ing, the trial court stated that it would not impose extended prison terms on each conviction "be­cause of the severity of the statuto­ry mandate for consecutive sentences" under section 5-8-4(a) of the Corrections Code (Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-4(a) (now 730 ILCS 5/5-8-4(a) (West 1996))).  The court also stated, "These were indeed sepa­rate offenses that occurred at separate times, and I believe the legislature is appropriate in mandating this result."  The court then sentenced defendant to three consecutive 20-year prison terms. 

II.  DEFENDANT'S CLAIM THAT THE TRIAL COURT ERRONEOUSLY 

SENTENCED HIM TO MANDATORY CONSECUTIVE SENTENCES

A.  Defendant's Claim That He Did Not Forfeit 

the Claim for Relief Set Forth in the Second Petition

Defendant first argues that the trial court erred by dismissing his second postconviction petition because "defendant has not had one complete opportunity to show a substantial denial of his constitutional rights."  Specifically, he contends that fundamental fairness requires that the trial court conduct an eviden­tiary hearing on the petition because defendant has a severe learning disability, is unable to read or write, and "has been re­quired to rely on other persons to read and write for him."  We dis­agree.

A postconviction proceeding is not an appeal of a defendant's underlying judgment, but rather a collateral proceed­

ing enabling the defendant to challenge a conviction or sentence for a substantial denial of constitutional rights.  Determina­tions of a reviewing court on direct appeal are 
res
 
judicata
 as to issues actually decided, and issues that could have been raised in the earlier proceeding, but were not, are deemed forfeited.  
People v. Johnson
, 183 Ill. 2d 176, 186, 700 N.E.2d 996, 1001 (1998).  In 
People v. Erickson
, 183 Ill. 2d 213, 222-

23, 700 N.E.2d 1027, 1032 (1998), the supreme court addressed the issue of successive postconviction petitions and wrote the following:

The [Act] contemplates the filing of only one post[]conviction petition, although 
succes­

sive
 
petitions
 
may
 
be
 
allowed
 
where
 
the
 
pro­

ceedings
 
on
 
the
 
initial
 
petition
 
were
 
defi­

cient
 
in
 
some
 
fundamental
 
way
. [Cita­tion.]  The Act provides that any claim of a substan­

tial denial of constitutional rights not raised in the original or an amended petition is waived.  [Citations.]  Moreover, a ruling on a post[]conviction petition has 
res
 
judi­

cata
 effect with respect to all claims that were raised or could have been raised in the initial petition.  [Citations.]

However, an exception to these procedur­

al bars applies for claims of ineffective assistance of counsel on direct appeal.  This court has held that a 
defendant's
 
failure
 
to
 
raise
 
a
 
claim
 
of
 
ineffective
 
assistance
 
of
 
appellate
 
counsel
 
in
 
his
 
initial
 
post-

convic­tion
 
petition
 
will
 
not
 
operate
 
as
 
a
 
waiver
 
if
 
the
 
defendant
 
was
 
represented
 
by
 
the
 
same
 
attorney
 
on
 
direct
 
appeal
 
and
 
in
 
his
 
initial
 
post[]conviction
 
pro­ceeding
.  In such cases, the claim of ineffective assistance of appel­late counsel may be raised for the first time in a second post[]conviction petition."  (Em­phasis added.)

In addition, the trial court's ruling on a postconviction peti­

tion will not be disturbed unless manifestly erroneous.  
Johnson
, 183 Ill. 2d at 187, 700 N.E.2d at 1002.  

In this case, defendant presented four claims of error on direct appeal before this court:  (1) the trial court erred by admitting the child victim's hearsay statements; (2) the State failed to prove him guilty beyond a reason­able doubt of two of the three counts; (3) the court erred by not allowing defendant to introduce evidence that other persons had sexually abused C.L.; and (4) the court committed plain error by failing to instruct the jury on an essential element of the offense charged.  After this court affirmed his convictions, defendant filed his initial 
pro
 
se
 petition for postconviction relief, alleg­ing that he was denied effective assistance of trial and appel­late counsel because (1) the record failed to establish that the grand jury returned an indictment; (2) appellate counsel refused to raise the issue of trial counsel's ineffectiveness in failing to investigate the allegedly deficient indictment; (3) trial counsel refused to allow defendant to testify at trial; and (4) appellate counsel failed to raise the issue of trial counsel's ineffective­

ness in preventing defendant from testify­ing.  

Defendant does not claim that 
the proceedings on his initial postconviction petition were deficient in some fundamen­

tal way--or in 
any
 way, for that matter.  Nor does this case come within the exception set forth in 
Erickson
.  Even accepting defendant's contention that his second petition states the gist of a merito­rious claim that his appellate counsel provid­ed ineffective assistance of counsel, defendant was not 
repre­sented by the same attorney both on direct appeal and in his initial postconviction proceeding.  Thus, defendant was not somehow prevented from raising a claim of ineffective assistance of appellate counsel in his initial postconviction petition.  Indeed, defendant's initial peti­tion did contain such allega­

tions.  

Moreover, although defendant alleged in his second peti­tion that he is unable to read or write and he only learned of the sentenc­ing error through a law clerk at the Centralia Correc­tion­al Center, he does not show (or even claim) that he could not have learned of the sentencing error prior to filing his initial postconviction petition in April 1994.  (The deci­sion of the supreme court upon which defendant primarily relied to support his claim for relief in the second petition, 
People v. Bole
, 155 Ill. 2d 188, 613 N.E.2d 740 (1993), was issued on April 15, 1993, a full year prior to defendant's filing his initial postconvic­tion petition.)  

In our judgment, defendant had "`one complete opportu­

ni­ty to show a substantial denial of his constitutional rights'" during the proceedings on his initial postconviction petition.  See 
People v. Free
, 122 Ill. 2d 367, 376, 522 N.E.2d 1184, 1188 (1988), quoting 
People v. Logan
, 72 Ill. 2d 358, 370, 381 N.E.2d 264, 270 (1978).  Thus, we conclude that defendant has forfeited his claim for relief based upon the trial court's erroneous imposition of mandatory consecutive sentences.  

B.  Defendant's Claim That the Sentences Imposed

by the Trial Court Are Void

Defendant nonetheless argues that because the trial court erroneously imposed consec­u­tive sen­tenc­es under the be­lief that it was required to do so under section 5-8-4(a) of the Correc­tions Code (Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-4(a) (now 730 ILCS 5/5-8-4(a) (West 1996))), those sentenc­es are void.  Defendant thus contends that the claim for relief based upon the court's erroneous imposition of manda­tory consec­u­tive sen­tences is not subject to forfei­ture.  We dis­agree.

"A void judgment is one entered by a court without jurisdic­tion of the parties or the subject matter or that lacks `the inher­ent power to make or enter the particular order in­

volved.'"  
People v. Wade
, 116 Ill. 2d 1, 5, 506 N.E.2d 954, 955 (1987), quoting 
R.W. Sawant & Co. v. Allied Programs Corp.
, 111 Ill. 2d 304, 309, 489 N.E.2d 1360, 1363 (1986).  In this case, the trial court had jurisdiction over both the parties and subject matter regarding criminal matters.  In addition, the trial court, within its discretion, 
could
 
have
 
imposed
 consecu­

tive sentences pursuant to section 5-8-4(b) of the Corrections Code had it believed such sentences were necessary to protect the public.  See Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-4(b) (now 730 ILCS 5/5-8-4(b) (West 1996)).  Thus, regard­less of whether the court errone­ous­ly imposed manda­tory consecu­tive sentences, it did not lack "the inherent power to make or enter the particular order in­volved," and the sen­tenc­ing order here was not void.  

Accordingly, because defendant has forfeited his claim for relief by failing to raise it either on direct appeal or in his initial postconviction petition, we hold that the trial court did not err by dismissing defendant's second postconviction petition.

III.  CONCLUSION

For the reasons stated, we affirm the trial court's judgment.

Affirmed.

GARMAN, J., concurs.

COOK, J., dissents.

JUSTICE COOK, dissenting:

I respectfully dissent.  I would reverse and remand for resentencing.

A sentence which does not conform to a statutory requirement is void and may be corrected at any time.  
People v. Arna
, 168 Ill. 2d 107, 113, 658 N.E.2d 445, 448 (1995).  The supreme court and this court have not hesitated to reverse and remand cases where the trial court has erroneously sentenced a defendant to 
concur­rent
 sen­tences, where the statute mandates
 consecutive 
sentences.  
Arna
, 168 Ill. 2d at 113, 658 N.E.2d at 448; 
People v. Childs
, 278 Ill. App. 3d 65, 78, 662 N.E.2d 161, 169 (1996).  That is done despite rules that limit the State's right to appeal and prohibit the appel­late court from in­creas­ing a defendant's sentence on review.  
Arna
, 168 Ill. 2d at 113, 658 N.E.2d at 448.  The majority now holds that these rulings only work in one direction, and that where a trial court has errone­

ously sentenced a defen­dant to mandatory 
consecutive
 sentences, which are in fact not mandated by the statute, defen­dant forfeits his claim if he does not raise it on direct appeal or in his initial postconviction petition.  

The majority tells us this judgment was not void because the trial court had jurisdiction over both the parties and subject matter regarding criminal matters.  The trial court's general powers are irrelevant, however, where its specific powers have been limited by statute.  
In re T.E.
, 85 Ill. 2d 326, 333, 423 N.E.2d 910, 913 (1981).  The majority also tells us the trial court could have imposed discretionary consecutive sentences.  The trial court, however, did not do so, and the only question before us is whether these mandatory consecutive sentences can stand when the court did not have the statutory authority to impose mandatory consecutive sentences.  

It is not clear that the trial court would have sen­

tenced defendant to discre­tionary consecutive sentences.  The trial court never made a finding that consecutive sentences were necessary to protect the public from further criminal conduct by the defendant.  See Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-

4(b) (now 730 ILCS 5/5-8-4(b) (West 1996)).  The trial court stated it would not give defendant the maximum sentence on each count because of defendant's lack of education and severe learn­

ing disability.  

Where a defendant is convicted of multiple offenses, one of which is a violation of section 12-14, consecutive sen­

tences are mandatory only where they are "commit­ted as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective."  Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-4(a) (now 730 ILCS 5/5-8-4(a) (West 1996)); 
Bole
, 155 Ill. 2d at 194, 613 N.E.2d at 743.  The trial court clearly be­lieved these offenses were committed at separate times, and not as part of a single course of conduct.  The jury sent out a note asking why two of the indictments were identical; the trial court responded that was because the State had alleged the defendant committed the same criminal act on two separate occa­sions during the time period alleged.  During sentencing the trial court referred to "the statutory mandate for consecutive sentences," and noted "these were indeed separate offenses that occurred at separate times."  

We should not be critical of defendant (or of the trial court) for failing to appreciate the nuances of section 5-8-4(a), when we have had so much trouble with that section ourselves.  See 
People v. Ewald
, 210 Ill. App. 3d 7, 10, 568 N.E.2d 451, 453 (1991); 
People v. Carter
, 272 Ill. App. 3d 809, 651 N.E.2d 248 (1995).  Viewed charitably, the section is "something of an anoma­ly."  
Bole
, 155 Ill. 2d at 198, 613 N.E.2d at 745.  Speaking more directly, it is intolerable that the question whether defendant should serve 20 years or 60 years should depend on so uncertain an analysis.  

The three indictments in this case alleged the offenses occurred between January and August 3, 1990, but none included specific dates.  Given the importance of whether the three offenses were committed separately or as a part of a single course of conduct, the allegations and the proof should have made that clear.  Absent allegations and proof that defen­dant commit­ted the offenses as a part of a single course of conduct, manda­

tory consecutive sentences are impermissible.   

We should be concerned when a defendant is not sen­

tenced in accordance with the intent of the legislature, an occurrence with constitutional overtones.  We should endeavor to protect the integrity of the judicial system in this case and not be too ready to deprive defendant of his one chance to raise the issue.  See 
People v. Gard
, 
158 Ill. 2d 191, 204-05, 632 N.E.2d 1026, 1032-33 (1994) (plain error).  

The trial court may be limited in what it may do on remand.  See W. LaFave & J. Israel, Criminal Procedure §26.7(c) (2d ed. 1992); see also 
People v. Kilpatrick
, 167 Ill. 2d 439, 445, 657 N.E.2d 1005, 1008 (1995) (defendant's sentence may not be increased on remand even though total number of years remained unchanged); 
cf.
 
People v. Garcia
, 179 Ill. 2d 55, 688 N.E.2d 57 (1997).  Never­the­less, I would reverse and remand for resentencing.       









