                                  Illinois Official Reports

                                          Appellate Court



                             People v. Bishop, 2014 IL App (1st) 113335




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


District & No.               First District, Third Division
                             Docket No. 1-11-3335


Filed                        May 14, 2014
Rehearing denied             June 10, 2014


Held                         Where defendant was convicted of three charges of murder, including
(Note: This syllabus         intentional murder and felony murder, and a charge of attempted
constitutes no part of the   armed robbery and the mittimus stated that defendant was convicted
opinion of the court but     and sentenced for intentional murder and attempted armed robbery,
has been prepared by the     but the report of proceedings showed that the trial judge incorrectly
Reporter of Decisions        identified felony murder as the murder charge on which defendant was
for the convenience of       sentenced and into which the other murder charges merged, the law on
the reader.)                 multiple murder convictions was applied and defendant was deemed
                             to have been convicted and sentenced of the most serious murder
                             charge, intentional murder, and based on that ruling, defendant’s
                             claim in his petition under section 2-1401 of the Code of Civil
                             Procedure that his sentence violated the rule against double jeopardy
                             and was void because attempted armed robbery was a lesser included
                             offense of felony murder and could not stand was rejected on the
                             ground that the felony murder charge merged into the intentional
                             murder charge and he was never sentenced for felony murder.

Decision Under               Appeal from the Circuit Court of Cook County, No. 84-CR-6448; the
Review                       Hon. Lawrence Edward Flood, Judge, presiding.

Judgment                     Affirmed.
     Counsel on               Michael J. Pelletier and Linda Olthoff, both of State Appellate
     Appeal                   Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Matthew Connors, and Sari London, Assistant State’s Attorneys, of
                              counsel), for the People.


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


                                               OPINION


¶1         Defendant, Robert Bishop, seeks to vacate his 1986 conviction and sentence for
       attempted armed robbery as void on the ground of double jeopardy. He contends that
       attempted armed robbery also served as the predicate offense for his felony murder
       conviction and thus cannot stand. His appeal arises from the circuit court’s dismissal of his
       pro se petition for relief from judgment under section 2-1401 of the Code of Civil Procedure
       (Code) (735 ILCS 5/2-1401 (West 2010)). We find that Bishop was not convicted of felony
       murder but, rather, intentional murder, and because attempted armed robbery is not a
       predicate offense, the trial court’s conviction and sentence on both charges did not constitute
       a double jeopardy violation. This being the case, the statute of limitations in section 2-1401
       had run, and his petition was untimely.

¶2                                           BACKGROUND
¶3          On March 20, 1985, Bishop pled guilty to murder and attempted armed robbery for the
       May 30, 1984 shooting death of Oralia Velasquez. Bishop was ordered to serve an
       extended-term sentence of 80 years’ imprisonment for murder and a consecutive sentence of
       15 years for attempted armed robbery. Bishop appealed, claiming ineffective assistance of
       trial counsel and trial court error in sentencing him to 95 years in prison. The appellate court
       affirmed both the conviction and the sentence. People v. Bishop, 179 Ill. App. 3d 99 (1989).
       On December 27, 1991, Bishop filed a pro se postconviction petition claiming ineffective
       assistance of counsel and an excessive sentence. The trial court dismissed the petition and the
       appellate court affirmed. People v. Bishop, No. 1-92-1534 (1994) (unpublished order under
       Supreme Court Rule 23). In December 2000, Bishop filed a successive postconviction
       petition alleging his sentences violated the rule of Apprendi v. New Jersey, 530 U.S. 466
       (2000). The circuit court dismissed the petition after second-stage arguments, and the

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     appellate court again affirmed. People v. Bishop, No. 1-03-2255 (2005) (unpublished order
     under Supreme Court Rule 23).
¶4       On July 11, 2011, Bishop filed a pro se petition for relief from judgment under section
     2-1401 of the Code (735 ILCS 5/2-1401 (West 2010)). As grounds for relief, Bishop alleged:
     (i) his extended-term sentences are unconstitutional; (ii) his convictions violate the one-act,
     one-crime rule and subject him to double jeopardy; and (iii) the trial court lacks subject
     matter jurisdiction. The circuit court dismissed the petition in a written order on October 13,
     2011. The court found Bishop did not rely on any newly discovered evidence or other
     material outside the record that would form the basis of a section 2-1401 petition. The court
     also found that (i) res judicata barred Bishop’s claims regarding his extended-term sentence
     since they were raised in an earlier postconviction petition and (ii) waiver barred his other
     claims because they were not raised on direct appeal. The trial court determined that
     Bishop’s convictions for murder and attempted robbery were separate acts and therefore did
     not implicate the one-act, one-crime rule or subject him to double jeopardy. Lastly, the court
     dismissed Bishop’s petition as untimely, having been filed well beyond the limitations period
     prescribed by section 2-1401 and making no claim of legal duress or fraud that would have
     tolled the statute of limitations. Bishop now challenges the dismissal of his section 2-1401
     petition.

¶5                                           ANALYSIS
¶6        Section 2-1401 provides a comprehensive, statutory procedure that allows for vacating a
     final judgment older than 30 days. People v. Vincent, 226 Ill. 2d 1, 7 (2007). A petition must
     be filed within two years of that order or judgment, unless it alleges a claim of voidness,
     which can be raised at any time. See Sarkissian v. Chicago Board of Education, 201 Ill. 2d
     95, 104 (2002). Relief under section 2-1401 depends on proof, by a preponderance of
     evidence, of a defense or claim that would have precluded entry of the judgment in the
     original action and diligence in both discovering the defense or claim and presenting the
     petition. Vincent, 226 Ill. 2d at 8. We review the dismissal of a section 2-1401 petition on the
     pleadings de novo. Id. at 18.
¶7        Bishop maintains that his conviction and sentence are void (rather than voidable) and
     thus not subject to the two-year statute of limitations for a section 2-1401 petition. According
     to Bishop, he was convicted for felony murder and the predicate offense of attempted armed
     robbery violated the one-act, one-crime and double jeopardy rules. See People v. Coady, 156
     Ill. 2d 531, 537 (1993) (“armed robbery was the offense underlying the felony murder charge
     and, as an included offense, will not support a separate conviction and sentence”). The State
     agrees the well-established rule is that multiple convictions are improper if based on
     lesser-included offenses. People v. King, 66 Ill. 2d 551, 564 (1977). But, contends the State,
     Bishop’s conviction was for intentional murder, not felony murder, and armed robbery is not
     a predicate offense to intentional murder, and thus the one-act, one-crime or double jeopardy
     issue does not arise. Alternatively, the State asserts that one-act, one-crime errors are
     voidable and not subject to an untimely collateral attack.

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¶8          We first address the State’s contention that Bishop was convicted of intentional murder
       rather than felony murder, which would preclude Bishop from raising a one-act, one-crime
       violation and from filing an untimely petition. After his arrest, Bishop was charged with three
       counts of murder, one count of armed violence, and one count of attempted armed robbery.
       The indictment listed those charges as follows: count I, murder, intentional and knowing;
       count II, murder knowing that shooting with a gun created a strong probability of death;
       count III, armed violence, in that he committed a felony, i.e., murder, knowing that the
       shooting created a strong probability of death; count IV, felony murder; and count V,
       attempted armed robbery. After accepting Bishop’s guilty plea and holding a sentencing
       hearing, the trial court entered a mittimus order sentencing Bishop to “a term of Eighty (80)
       years on the charge of count I murder and Fifteen (15) years on the charge of count V attempt
       armed robbery.” The State contends the mittimus shows Bishop was convicted of intentional
       murder and attempted armed robbery, counts I and V of the indictment, respectively, and
       because the former is not a predicate offense to the latter, Bishop has failed to state a
       meritorious claim of double jeopardy.
¶9          Bishop, however, points to the report of proceedings and says it shows he was convicted
       of felony murder. Specifically, Bishop notes that after accepting his guilty plea, the trial
       judge stated, “I will accept your plea of guilty based upon the evidence that I have heard up
       to this point in the trial, and I will enter a finding of guilty on count one, charging you with
       murder, finding of guilty. Count two charges you with murder, finding of guilty. Count three
       charges you with murder, finding of guilty. Count four charges you with attempted armed
       robbery, and I will make the judgment of conviction on the attempted armed robbery, and
       make a judgment of conviction on the murder count, which is count 4, I guess. Yes, count
       four. The other counts will merge into that count.” According to Bishop, this statement by the
       trial judge shows he was convicted on count IV, felony murder, and that the other murder
       charges merged into that charge.
¶ 10        Generally, where the sentence reflected in the common law record conflicts with the
       sentence imposed by the trial judge, as reflected by the report of proceedings, the report of
       proceedings will control. People v. Peeples, 155 Ill. 2d 422, 496 (1993). Here, the issue is
       less one of a conflict between the common law record and the report of proceedings than a
       lack of clarity. As noted, the mittimus plainly stated Bishop was convicted of counts I and V,
       intentional murder and attempted armed robbery. In the report of proceedings, the trial judge
       noted that Bishop was guilty on all three of the murder charges, as well as the attempted
       armed robbery charge, but incorrectly identified that charge as count IV. He then identified
       count IV as a murder charge and stated that the other murder charges would merge into that
       charge.
¶ 11        Given this ambiguity as to what the trial judge intended, we turn to the law on multiple
       murder convictions outlined by our supreme court in People v. Cardona, 158 Ill. 2d 403
       (1994). The court held in Cardona that a single murder victim supports only one conviction
       of murder, which is on the most serious offense. Id. at 411-12. Among charges of intentional,
       knowing, and felony murder, intentional murder constitutes the most serious offense. Id. “A
       killing that occurs when acts are performed with the intent to kill or to do great bodily harm
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       involves a more culpable mental state than does either a killing that occurs when acts are
       performed with the knowledge that they create a strong probability of death or great bodily
       harm or a killing that occurs in the course of a felony.” Id. See also People v. Mack, 105 Ill.
       2d 103, 137 (1984) (“When multiple convictions are had for offenses arising out of a single
       act, the rule is that the sentence is imposed on the most serious offense.” (citing People v.
       Donaldson, 91 Ill. 2d 164, 170 (1982))).
¶ 12        As noted, Bishop faced three murder charges, the most serious being intentional murder,
       which carried a potential sentence of life imprisonment. Indeed, the State asked that Bishop
       be sentenced to natural life, asserting that the evidence showing Bishop shot the victim in the
       right side of the head while holding a gun in his right hand suggested he was pointing the gun
       at her head and that the gun had not gone off accidentally. As the State explains, “this was an
       execution and it was not an accident.” During the sentencing hearing, the trial judge noted he
       could grant the State’s request for a natural life sentence (which would have been permitted
       for intentional murder but not felony murder) but decided instead to impose an 80-year
       sentence for murder and a consecutive 15 years for attempted armed robbery.
¶ 13        Although the trial judge never expressly stated Bishop was being sentenced for
       intentional murder, the trial court is presumed to know the law and to follow it unless the
       record affirmatively indicates the contrary. In re Jonathon C.B., 2011 IL 107750, ¶ 72. We
       presume the sentencing judge knew and followed the law and, in particular, that he was
       aware intentional murder was the most serious of the charges against Bishop and that when
       Bishop was found guilty of that offense, the other murder counts, including felony murder,
       merged into count I. Further, as noted, the record of proceedings is ambiguous and, therefore,
       fails to “affirmatively indicate” the trial judge did not follow the law. Given the unambiguous
       reference in the sentencing order and the mittimus to count I, as well as the evidence in the
       record supporting a finding of guilty on the charge of intentional murder, we conclude the
       trial judge misspoke when referring to the other counts of murder merging into count IV, the
       felony murder count, rather than count I.
¶ 14        Because Bishop was convicted of both intentional murder and armed robbery and
       because armed robbery is not a predicate offense for intentional murder, Bishop has failed to
       raise a meritorious claim of double jeopardy violation. As a result, we need not address
       Bishop’s claimed error that his conviction and sentence are void rather than voidable and,
       thus, not subject to the two-year statute of limitations for a section 2-1401 petition.
¶ 15        The circuit court did not err in dismissing Bishop’s section 2-1401 petition after the
       two-year statutory period (735 ILCS 5/2-1401(c) (West 2010)). We affirm the dismissal of
       Bishop’s petition.

¶ 16      Affirmed.




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