                                     2014 IL App (1st) 122868


                                                                                  FIRST DIVISION
                                                                                   October 20, 2014



No. 1-12-2868

THE PEOPLE OF THE STATE OF ILLINOIS,                  )       Appeal from the
                                                      )       Circuit Court of
                       Plaintiff-Appellee,            )       Cook County.
                                                      )
v.                                                    )       No. 10 CR 7457
                                                      )
THOMAS HALL,                                          )       Honorable
                                                      )       Carol A. Kipperman,
                       Defendant-Appellant.           )       Judge Presiding.

       JUSTICE HARRIS delivered the judgment of the court, with opinion.
       Presiding Justice Delort and Justice Connors concurred in the judgment and opinion.


                                             OPINION

¶1     Defendant Thomas Hall appeals from the summary dismissal of his pro se petition for

relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). On

appeal, defendant contends that he was subject to an improper double enhancement at sentencing

because a prior conviction was used both as an element of the instant offense and to find him

eligible for a Class X sentence. Defendant acknowledges that he did not include this issue in his

pro se postconviction petition, but argues that his sentence is void, thus, this issue may be raised

at any time. We agree with defendant, and remand for a new sentencing hearing.

¶2     In 2010, defendant was charged by indictment with violating section 6 of the Sex

Offender Registration Act (Act) (730 ILCS 150/6 (West 2008)), in that he, having been

previously convicted of an aggravated criminal sexual assault and having previously been
No. 1-12-2868


convicted of a violation of the Act, knowingly failed to report and register in person to the

appropriate law enforcement agency with whom he had last registered no later than 90 days after

his last registration and every 90 days thereafter. Defendant was charged with a Class 2 felony

because he had previously been convicted of a violation of the Act in case number 05 CR 13203.

Following a bench trial, defendant was found guilty. At sentencing, the State asked that

defendant be sentenced as a Class X offender based upon prior Class 2 convictions for

aggravated criminal sexual assault in case number 92 CR 27522 and driving under the influence

of alcohol in case number 05 CR 013203. Ultimately, defendant was sentenced, because of his

background, to a Class X sentence of seven years in prison.

¶3     On direct appeal, this judgment was affirmed, and defendant's mittimus was corrected.

See People v. Hall, 2012 IL App (1st) 102908-U. In August 2012, defendant filed the instant pro

se postconviction petition. The circuit court summarily dismissed the petition as frivolous and

patently without merit. It is from this judgment that defendant appeals.

¶4     On appeal, defendant contends for the first time that the trial court erred when it

sentenced him as a Class X offender because his prior conviction for aggravated criminal sexual

assault in case 92 CR 27522 was used both as an element of the instant offense and as the basis

to find him eligible for a Class X sentence.

¶5     Initially, the State responds that even if defendant was subject to an improper double

enhancement, the issue is moot because defendant has completed his term of imprisonment and

is currently serving a term of mandatory supervised release (MSR). We disagree.

¶6     This court has held that a challenge to the length of a prison term is not moot if it is

brought before the defendant has completed his term of MSR (People v. Lieberman, 332 Ill.

App. 3d 193, 196 (2002)), because a defendant's term of MSR is considered to be part of his


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No. 1-12-2868


sentence (People v. Whitney, 368 Ill. App. 3d 678, 681 (2006)). See also People v. Saleh, 2013

IL App (1st) 121195, ¶ 10 (a challenge to the validity of an imposed sentence becomes moot

once the entire sentence has been served). In the case at bar, defendant is currently serving a

three-year term of MSR in the custody of the Department of Corrections. Upon resentencing for

the Class 2 felony of failure to register, defendant would be subject to a two-year term of MSR

rather than the three-year term applicable to a Class X sentence. See 730 ILCS 5/5-8-1(d)(2)

(West 2008). Therefore, under these circumstances, relief, that is a shorter term of MSR, could

be granted upon resentencing, and consequently, defendant's claim is not moot. See People v.

McNulty, 383 Ill. App. 3d 553, 558 (2008).

¶7      Before turning to the merits of defendant's contention, this court notes that on appeal

defendant abandons the issues he raised in his pro se postconviction petition, and therefore, those

issues are forfeited. People v. McKown, 236 Ill. 2d 278, 310 (2010) (the failure to raise an issue

on appeal results in forfeiture of that issue).

¶8      Here, defendant contends that he was subjected to a double enhancement in that his

conviction for aggravated criminal sexual assault is an element of the instant offense, but was

also used as one of the two prior felonies relied upon to make him eligible for Class X

sentencing. Although defendant did not argue that he was subject to a double enhancement

before the circuit court, void judgments and orders can be challenged on collateral review for the

first time on appeal. People v. Thompson, 209 Ill. 2d 19, 25 (2004); see also People v. Arna, 168

Ill. 2d 107, 113 (1995) (a sentence which does not conform to a statutory requirement is void).

Whether a judgment is void is a legal question that we review de novo. People v. Henderson,

2011 IL App (1st) 090923, ¶ 41




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No. 1-12-2868


¶9     The State argues that defendant's sentence is voidable, rather than void, because the trial

court had the jurisdiction to sentence defendant to a Class 2 sentence of seven years in prison and

merely made a mistake of law when it sentenced defendant to a Class X sentence of seven years

in prison. Because the voidness of a sentencing order is dependent on whether the court exceeded

its statutory authority in imposing it, we begin by examining whether defendant's Class X

sentence was authorized by section 5-5-3(c)(8) of the Unified Code of Corrections (the Code)

(see 730 ILCS 5/5-5-3(c)(8) (West 2008), now 730 ILCS 5/5-4.5-95(b) (West 2010)).

¶ 10    Any portion of a defendant's sentence that is not statutorily authorized is void. People v.

Day, 2011 IL App (2d) 091358, ¶ 48. In other words, when a trial court exceeds its sentencing

authority by entering an order that a statute does not allow, that order will be deemed void, and a

defendant may challenge that order on appeal even if he did not properly preserve that claim. Id.

¶¶ 48-49; see also People v. Raczkowski, 359 Ill. App. 3d 494, 496-97 (2005) (if the circuit court

lacked jurisdiction over the parties or the subject matter or exceeded its statutory power to act,

the judgment is void and may be attacked at any time). However, if the order is improper

because of a mistake of law or fact, it is voidable, not void, and may be forfeited. Day, 2011 IL

App (2d) 091358, ¶ 48.

¶ 11    Here, defendant was charged with violating section 6 of the Act in that having previously

been convicted of aggravated criminal assault in case number 92 CR 27522 and a prior violation

of the Act, he failed to register with law enforcement every 90 days. 730 ILCS 150/6 (West

2008). Because of his prior conviction for failing to register in case number 05 CR 13203,

defendant was charged as a Class 2 offender. See 730 ILCS 150/10(a) (West 2008) (anyone

"convicted for a violation of this Act for a second or subsequent time is guilty of a Class 2

felony"). Defendant was then found eligible for Class X sentencing pursuant to section 5-5-


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No. 1-12-2868


3(c)(8) of the Code, which provides that a defendant convicted of a Class 2 felony shall be

sentenced as a Class X offender if he was previously convicted of two separately committed and

tried offenses of Class 2 felony or greater. 730 ILCS 5/5-5-3(c)(8) (West 2008), now 730 ILCS

5/5-4.5-95(b) (West 2010).

¶ 12      An improper double enhancement takes place when either a single factor is used both as

an element of an offense and as a basis for imposing a harsher sentence than might otherwise

have been imposed, or the same factor is used twice to elevate the severity of the offense itself.

People v. Guevara, 216 Ill. 2d 533, 545 (2005). A double enhancement is not necessarily

improper, as it may reflect legislative intent. People v. Thomas, 171 Ill. 2d 207, 224 (1996). This

court has previously determined that "nothing" in the statutory language of section 5-5-3(c)(8) of

the Code (see 730 ILCS 5/5-5-3(c)(8) (West 2004)), "expressly" indicated that the legislature

intended such a double enhancement to be permissible in Class X sentencing. People v. Owens,

377 Ill. App. 3d 302, 304-05 (2007); see also People v. Chaney, 379 Ill. App. 3d 524, 531-32

(2008).

¶ 13      Accordingly, because the record reveals that defendant only had two prior Class 2 or

higher felony convictions—one for driving under the influence of alcohol and one for aggravated

criminal sexual assault—the use of the same conviction as an element of the offense and as a

basis for imposing a Class X sentence amounted to an impermissible double enhancement

(Guevara, 216 Ill. 2d at 545). Therefore, the trial court erred when it determined that defendant

was eligible for a Class X sentence (Owens, 377 Ill. App. 3d at 304-05), and, consequently,

defendant's Class X sentence is void because the court was not authorized under section 5-5-

3(c)(8) of the Code to impose a such a sentence upon defendant. See Raczkowski, 359 Ill. App.

3d at 496-97 (2005) (if the trial court exceeded its statutory power to act, the judgment is void).


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No. 1-12-2868


¶ 14   In so concluding, we reject the State's argument that defendant's prior conviction for

aggravated criminal sexual assault was not used to "enhance" both the charge in the instant case

and the sentence. Here, defendant was subject to the Act's reporting requirements and Class X

sentencing based his prior conviction for aggravated criminal sexual assault, i.e., the same

conviction was improperly used both as an element of the offense and to make him eligible for a

more severe sentence. See Guevara, 216 Ill. 2d at 545.

¶ 15   Defendant was convicted of the failure to register in violation of section 6 of the Act (730

ILCS 150/6 (West 2008)), a Class 2 felony (see 730 ILCS 150/10(a) (West 2008)). The

sentencing range for a Class 2 felony is between three and seven years in prison. See 730 ILCS

5/5-8-1(a)(5) (West 2008). Although defendant's seven-year sentence fell within the permissible

sentencing range for a Class 2 felony the cause must still be remanded for resentencing as the

trial court relied upon the wrong sentencing range in imposing sentence. See Owens, 377 Ill.

App. 3d at 305-06 (even when a sentence imposed under an incorrect sentencing range fits

within the correct range, the original sentence must be vacated because the trial court relied on

the wrong sentencing range when imposing sentence).

¶ 16   Accordingly, we affirm the summary dismissal of defendant's pro se postconviction

petition, vacate defendant's Class X sentence of seven years in prison, and remand to the trial

court for resentencing.

¶ 17   Affirmed in part; vacated in part; remanded for resentencing.




                                               -6-
         REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT



THE PEOPLE OF THE STATE OF ILLINOIS,

                              Plaintiff-Appellee,

               v.

THOMAS HALL,

                              Defendant-Appellant.


                                          No. 1-12-2868

                                   Appellate Court of Illinois
                                   First District, First Division

                                        October 20, 2014


JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Delort and Justice Connors concurred in the judgment and opinion.


                         Appeal from the Circuit Court of Cook County.

                     The Honorable Carol A. Kipperman, Judge Presiding.


Michael J. Pelletier, State Appellate Defender, Office of the State Appellate Defender,
203 North LaSalle Street, 24th Floor, Chicago, IL 60601, (Alan D. Goldberg and
Lauren A. Bauser, of counsel), for APPELLANT.

Anita Alvarez, State’s Attorney, County of Cook, Room 309, Richard J. Daley Center,
Chicago, IL 60602, (Alan J. Spellberg, Jeffrey Allen and Heather Fahrenkrog, of counsel),
for APPELLEE.
