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01/18/89 the People of the State of v. Ainter

January 18, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

VIRGIL BAINTER, APPELLANT. -- THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

MELVIN THOMAS, APPELLANT



SUPREME COURT OF ILLINOIS

533 N.E.2d 1066, 126 Ill. 2d 292, 127 Ill. Dec. 938 1989.IL.49

No. 65362. -- Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of St. Clair County, the Hon. William B. Starnes, Judge, presiding. No. 65953. -- Appeal from the Circuit Court of Knox County, the Hon. Daniel J. Roberts, Judge, presiding.

APPELLATE Judges:

JUSTICE MILLER delivered the opinion of the court. JUSTICE CALVO took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER

In these consolidated appeals we must determine whether sections 5-8-1(f) and 5-8-4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, pars. 1005-8-1(f), 1005-8-4(a)) are in violation of the separation of powers clause of the Illinois Constitution (Ill. Const. 1970, art. II, § 1) as an impermissible attempt by the legislature to revest the circuit courts with jurisdiction over final judgments in criminal cases.

In cause No. 65362 the defendant, Virgil Bainter, was charged in the circuit court of St. Clair County with armed robbery. On March 22, 1983, Bainter pleaded guilty to that offense and was sentenced to a term of 15 years' imprisonment. In June 1983 Bainter pleaded guilty in the United States District Court for the Southern District of Illinois to a charge of transferring a firearm in interstate commerce without paying a transfer tax. The Federal district Judge sentenced Bainter to a term of 10 years' imprisonment and ordered that the sentence run consecutively to the sentence for Bainter's earlier conviction in St. Clair County. On June 18, 1984, the United States Court of Appeals for the Seventh Circuit affirmed Bainter's conviction and sentence.

On July 16, 1984, Bainter filed a motion in the circuit court of St. Clair County for modification of sentence pursuant to section 5-8-4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-4(a)). In the motion Bainter requested that the sentence previously imposed for his conviction in St. Clair County be modified to run concurrently with his Federal sentence. Apparently no action was taken on the initial motion, and Bainter filed a second, similar, motion on June 3, 1985, again requesting that the State sentence be modified to run concurrently with the Federal sentence. At a hearing on October 21, 1985, the circuit Judge denied Bainter's motions for modification of sentence. The Judge stated, "It appears of record that the Federal Judge intended that the sentences should be consecutive. It would be inappropriate for this court not to extend comity to the Federal court order. Defendant's requested relief is denied."

Bainter appealed the circuit Judge's decision, arguing that the Judge had simply adopted the Federal district court's decision without exercising his own discretion. The State argued in support of the ruling but also contended that the motions were untimely under the statute because they had not been made within 30 days of the "finalization" of the Federal judgment. The appellate court did not reach either of those questions, however, choosing on its own motion to dispose of the case on a different ground. The appellate court ruled that the portion of section 5 -- 8 -- 4(a) permitting a defendant to seek modification of a sentence previously imposed by a court of this State was an unconstitutional attempt by the legislature to revest the circuit courts with jurisdiction over final judgments. (154 Ill. App. 3d 1026, 1033.) We allowed Bainter's petition for leave to appeal as a matter of right. See 107 Ill. 2d R. 317.

In cause No. 65953 the defendant, Melvin Thomas, was charged in the circuit court of Knox County with burglary and theft. Thomas pleaded guilty to the offenses on December 30, 1976, and on January 20, 1977, he was sentenced to a three-year term of probation. On June 6, 1977, Thomas' probation was revoked, and he was sentenced to an indeterminate term of two to six years' imprisonment. Thomas escaped from custody in March 1978, and upon his apprehension charges were brought against him in the United States District Court for the Central District of Illinois and in the circuit courts of Fulton and Peoria Counties.

Thomas subsequently pleaded guilty to Federal charges of kidnapping and transportation of a stolen vehicle. On August 17, 1978, the Federal district Judge sentenced Thomas to concurrent terms of 15 and 5 years' imprisonment. The sentences were to be served concurrently with any previously imposed State sentence. Also on August 17, 1978, the defendant pleaded guilty in the circuit court of Fulton County to a charge of rape and was sentenced to a term of 10 years' imprisonment, to be served concurrently with both the Federal sentences imposed that day and the previously imposed State sentences.

On October 25, 1978, Thomas pleaded guilty in the circuit court of Peoria County to charges of aggravated kidnapping and escape. On November 1, 1978, the circuit Judge sentenced Thomas to a term of 10 years' imprisonment on the kidnapping conviction, to be served concurrently with the Federal sentences, the sentence imposed in Fulton County, and any other sentence previously imposed in Illinois. The circuit Judge also sentenced Thomas to a term of six years' imprisonment, to be served concurrently with the Federal sentence and the Fulton County sentence, but consecutively to any other sentence previously imposed in Illinois. At the same time, the two Peoria County sentences were to be concurrent with each other.

On January 30, 1987, Thomas was released from Federal custody and was remitted to the custody of the Department of Corrections; there, he was to serve the time remaining on the sentences imposed in Knox County in 1977 for burglary and theft and the sentence imposed in Peoria County in 1978 for escape. Within 30 days of his release from Federal custody, Thomas filed a motion for appointment of counsel and an affidavit in forma pauperis, stating his intention to petition for credit against his Knox County sentences. The public defender was appointed to represent Thomas, and counsel later filed a request pursuant to section 5-8-1(f) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-1(f)) asking that the defendant's Knox County sentences be commuted to time served in Federal custody.

Following a hearing, the circuit Judge entered an order on September 29, 1987, denying Thomas' motion. The circuit Judge ruled that under the appellate court's decision in People v. Bainter, 154 Ill. App. 3d 1026, he had no authority to modify or commute the sentence previously imposed on Thomas on June 6, 1977, in Knox County. The Judge further ruled that section 5 -- 8 -- 1(f) was unconstitutional, again relying on the appellate court's opinion in Bainter. Because the statute had been found invalid, ...


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