
October 9, 1998



	No. 3--97--0188



_________________________________________________________________



	IN THE



	APPELLATE COURT OF ILLINOIS



	THIRD DISTRICT



	A.D., 1998



THE PEOPLE OF THE STATE 			)	Appeal from the Circuit Court

OF ILLINOIS,					)	of the 12th Judicial Circuit,

	)	Will County, Illinois

Plaintiff-Appellee,			)	

	)

v.						)	No. 95--CF--5946

	)	

RICHMOND LEE BLANKS,            )	Honorable

                                )	Amy Bertani

Defendant-Appellant.		)	Judge, Presiding

_________________________________________________________________



JUSTICE HOLDRIDGE DELIVERED THE OPINION OF THE COURT:

_________________________________________________________________



The defendant, Richmond Lee Blanks, pleaded guilty to aggra­

vat­ed criminal sexual assault (720 ILCS 5/12--14 (West 1996)) in exchange for the dismissal of another charge of aggravated criminal sexual assault and a 12-year term of imprisonment.  He subsequently filed a post-conviction petition, which the trial court dismissed as frivolous and patently without merit.  On appeal, the defen­dant con­tends that his sen­tence must be modified because it was imposed pursu­ant to the truth-in-sen­tencing statute and that statute is unconstitu­tional.  For the following reasons, we find that the defendant has waived this issue on appeal and we there­fore affirm.

The record reflects that after imposing sentence, the trial court advised the defendant that the truth-in-sen­tenc­ing provi­

sions of the Unified Code of Corrections were applicable to the defendant's case.  Therefore, it noted that the defendant would be required to serve at least 85% of his sentence.  The defendant subsequently filed 
pro se
 motions to reduce his sentence and withdraw his guilty plea.  The trial court dismissed both motions as untimely.  On direct appeal, this court dismissed the defen

dant's appeal for failure to comply with Supreme Court Rule 604(d).  
People v. Blanks,
 No. 3--96--0778 (1996) (unpublished order under Supreme Court Rule 23). 

Before this court ruled on the defendant's direct appeal, he filed a post-convic­tion peti­tion.  In that peti­tion, he con­tended that he received inef­fec­tive assis­tance of trial counsel because counsel failed to:  (1) advise him about the truth-in-sen­tenc­ing guide­lines for his offense; (2) advise him of his right to appeal a guilty plea; and (3) perfect his appeal by filing a proper Rule 604(d) certif­i­cate.  The trial court dis­missed the defendant's petition as frivolous and patent­ly without merit.  The defendant appeals from the denial of his petition.	

On appeal, the defendant now argues that the truth-in-sen­

tenc­ing statute was passed as part of Public Act 89--404 and that act violated the single subject rule of the Illinois Constitu­

tion.  Pub. Act 89--404, eff. August 20, 1995 (amending 730 ILCS 5/3--6--3 (West 1994)).  Therefore, he requests that this court:  (1) vacate the portion of his sentencing order requiring him to serve 85% of the sentence imposed; and (2) clarify that he is entitled to receive the day-for-day credit that he would have been enti­tled to under the earlier version of the law.  See 730 ILCS 5/3--6--3 (West 1994).

In response, the State argues that the defendant has waived this issue on appeal because he did not raise it in any prior proceeding, including his post-conviction petition.  In reply, the defendant argues that the Illinois Supreme Court has held that a challenge to the constitutionality of a statute is not subject to waiver.  See 
People v. Bryant
, 128 Ill. 2d 448, 539 N.E.2d 1221 (1989).  

In 
People v. Bryant
, 128 Ill. 2d 448, 539 N.E.2d 1221 (1989), the supreme court stated that a consti­tu­tional issue may be raised at any time.  However, the appellate court distin­guished 
Bryant
 in 
People v. Starnes
, 273 Ill. App. 3d 911, 653 N.E.2d 4 (1995).  The 
Starnes
 court held that 
Bryant
 only "pro­

hibits waiver of a challenge to the constitutionality of the statute under which a defendant is convicted."  
Starnes
, 273 Ill. App. 3d at 913-14, 653 N.E.2d at 6.  There­fore, the doctrine of waiver may apply to a consti­tution­al attack on a statute which is collateral, 
i.e.
, a statute which does not directly affect the defendant's conviction.  
Starnes
, 273 Ill. App. 3d 911, 653 N.E.2d 4. 

We find that the truth-in-sentencing provisions of the Unified Code of Correc­tions are collateral to the statutes under which a defen­dant is convicted and sentenced.  In doing so, we note that the amount of time that a defen­dant must serve in prison is deter­mined by Illinois law and applied by the Illinois Depart­ment of Correc­tions and the Illi­nois Prisoner Review Board.  730 ILCS 5/5--4--1(c--2) (West 1996); 
People v. Pitts
, 
295 Ill. App. 3d 182, 192, 691 N.E.2d 1174, 1181 (1998) (McCullough, J., dis­sent­ing).  
Accord­ingly, an attack 
on the constitutionality of the truth-in-sen­tencing law would be subject to waiver.

In this case, the defendant appeals from the denial of a post-convic­tion peti­tion alleg­ing inef­fec­tive assis­tance of trial counsel.  The defendant did not argue that the truth-in-sentenc­ing law was unconstitu­tional in his post-convic­tion peti­tion.  Therefore, he has waived this issue and we shall not address it.

Accordingly, the judgment of the circuit court of Will County is af­firmed.

Affirmed.

SLATER, J., concurs;  LYTTON, J., dissents.



________________________________________________________________

JUSTICE LYTTON dissenting:



I respectfully dissent.  Adhering to the views expressed in my dissent in 
People v. Watford
, 294 Ill. App. 3d 462, 465-66, 690 N.E.2d 1009, 1012 (1997) (Lytton, J., dissenting), I believe that the interests of justice would be served by a prompt and conclusive determination of the constitutional issue presented in this case. 

