APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
526 N.E.2d 899, 172 Ill. App. 3d 534, 122 Ill. Dec. 506 1988.IL.1101
Appeal from the Circuit Court of Champaign County; the Hon. Donald R. Parkinson, Judge, presiding.
PRESIDING JUSTICE GREEN delivered the opinion of the court. LUND and KNECHT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN
On May 8, 1984, following a jury trial in the circuit court of Champaign County, defendant Jon Stokes, a/k/a Willie Robinson, was convicted of two counts of armed robbery and one count of attempt (murder). He was subsequently sentenced to 30 years' imprisonment for the armed robbery conviction and 15 years' for the attempt (murder) conviction. The convictions were affirmed on direct appeal. People v. Coleman (1985), 135 Ill. App. 3d 1168 (order under Supreme Court Rule 23).
Defendant filed a pro se post-conviction petition on March 24, 1987, and following a hearing, the petition was denied. On appeal, defendant maintains the trial court erred in denying the petition, which was based on the impropriety of imposing consecutive sentences. We affirm.
The State correctly points out the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq.) concerns constitutional deprivation of the rights of an accused which have not already been adjudicated. (People v. French (1970), 46 Ill. 2d 104, 262 N.E.2d 901.) Defendant does not contend that an improper imposition of consecutive sentences constitutes a deprivation of a constitutional right. However, in his reply brief, defendant asserts that if the foregoing is correct, prior counsel was incompetent for not raising that issue before this court on the direct appeal from the conviction and in the instant post-conviction petition. Accordingly, in order to avoid unnecessary further proceedings, we take the constitutional issue of incompetence of prior counsel for not having raised the foregoing issues as being before us. We hold that no such incompetency has been shown, because the imposition of consecutive sentences was not error.
The evidence presented at trial indicated: (1) defendant and codefendant George Coleman robbed clerks at a grocery store in Champaign County; (2) five minutes later, William May saw two men acting suspiciously in the store parking lot and, thinking they were stealing a car, yelled at them to stop; (3) one of the men then fired a shot in May's direction; (4) the two men then ran away, dropping a bag they had been carrying; (5) May was unable to identify either defendant or Coleman; (6) defendant and Coleman were found a short time later, hiding in a nearby shed; and (7) a plastic bag containing cash drawers from the grocery store was found in the parking lot.
Prior to trial, defense counsel filed a motion to sever the attempt (murder) count, alleging the evidence set forth by the discovery indicated the attempt (murder) was distinct from the armed robbery. The trial court denied the motion, noting that the evidence was "sufficient to convince me that we are talking about charges, which are part of the same comprehensive transaction, both in time and in space, and there is no reason why . . . these counts should be severed."
Following defendant's conviction, the court addressed the argument that consecutive sentences should not be imposed. The court noted that there was no question but that at the time the attempt (murder) was committed the armed robbery of the store was completed, the defendants were away from the scene of the robbery, and that the gun was shot in the process of escaping from the premises.
Defendant concedes the court was correct in finding that the attempt (murder) and the armed robbery were part of the same transaction for purposes of denying the motion to sever. He argues, however, that the court erred in ruling that these offenses were distinct and separate in imposing consecutive sentences.
Section 5 -- 8 -- 4 of the Unified Code of Corrections provides:
"The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, in which event the ...