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06/28/89 the People of the State of v. Calvin Butler

June 28, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

CALVIN BUTLER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

541 N.E.2d 171, 186 Ill. App. 3d 510, 133 Ill. Dec. 334 1989.IL.1019

Appeal from the Circuit Court of Lake County; the Hon. Jack Hoogasian, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court. DUNN and McLAREN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

The defendant, Calvin Butler, appeals the dismissal of his amended post-conviction petition, contending he was deprived of the effective assistance of his appointed post-conviction counsel. We affirm in part, and vacate and remand in part.

The defendant entered negotiated pleas of guilty to the offenses of felony theft (Ill. Rev. Stat. 1983, ch. 38, par. 16-1(a)(1)) and burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19-1). He was not admonished as to the possibility of a consecutive sentence. (107 Ill. 2d R. 402(a)(2).) Following a hearing in aggravation and mitigation and review of the defendant's presentence report, on May 18, 1984, the court imposed concurrent 30-month terms of probation for each offense, with the condition he perform 100 hours of public service on the theft and 150 hours of public service or full-time employment on the burglary. The defendant was admonished he must withdraw his guilty plea within 30 days if he wished to appeal the judgment and sentence. 107 Ill. 2d R. 605(b).

Upon the defendant's failure to comply with these conditions of probation, probation for both offenses was revoked on June 29, and he was sentenced immediately to two- and four-year concurrent terms of imprisonment in the Department of Corrections, respectively, for the offenses of theft and burglary. He filed notices of appeal that same day which later were allowed to be withdrawn. On July 2, he filed a motion to reconsider the revocation, alleging inter alia that he was entitled to a presentence investigation and sentencing hearing. After a hearing that day, the trial court ruled the revocation of the theft probation would stand, but the sentence would be vacated and a hearing held. As to the burglary offense, the court vacated the defendant's sentence, credited him with 150 hours of public service and reinstated his probation.

After a hearing in aggravation and mitigation on the theft offense, at which the defendant was provided an opportunity to amend or supplement the previously prepared presentence report, the court sentenced the defendant on July 13 to a four-year term in the Department of Corrections. Nothing in the record supports the defendant's statement that he also was ordered to pay restitution. Defendant filed a notice of appeal.

Also on July 13, the court granted the State leave to file a petition for revocation of the defendant's burglary probation alleging four misdemeanor offenses then pending against him. Following a hearing on July 20, the defendant was found in violation of his burglary probation, and it was revoked. On July 27, he was sentenced to a seven-year term in the Department of Corrections to be served consecutively to his four-year sentence for theft, and he appealed.

The burglary and theft appeals were consolidated, and both revocations of probation and sentences were affirmed by this court. (People v. Butler (1985), 137 Ill. App. 3d 704.) In his theft appeal, the defendant raised three issues: (1) whether the terms and conditions of his probation were too vague and ambiguous to inform him of his obligations; (2) whether the trial Judge improperly assumed the role of prosecutor by questioning witnesses at the sentencing hearing; and (3) whether he was deprived of the effective assistance of counsel in that counsel presented witnesses at the sentencing hearing whose testimony undermined representations made in his prior motion to reconsider and by failing to move for a substitution of Judge. In his burglary appeal he raised two issues: (1) whether he was deprived of the effective assistance of counsel for failing to seek a substitution of Judges for cause at the second revocation hearing and (2) whether the seven-year sentence was excessive.

In 1986, the defendant filed a pro se petition for post-conviction relief from both his convictions. His appointed post-conviction counsel filed an amended petition alleging, inter alia, that the defendant was denied the effective assistance of trial counsel in that (1) counsel neither advised nor consulted with him about the withdrawal of the notices of appeal and substitution of the motions to reconsider; (2) counsel did not inform him of the risks associated with a motion to reconsider; (3) counsel did not inform him that violation of his concurrent probationary sentences could result in consecutive sentences of imprisonment; and (4) counsel did not bring to the sentencing court's attention the fact its sentences were in the nature of resentencings subject to the provisions of 5-5-4 of the Unified Code of Corrections (the Code) (Ill. Rev. Stat. 1983, ch. 38, par. 1005-5-4), which prohibit the imposition of a more severe sentence than that originally imposed when a conviction or sentence has been set aside on direct review or on collateral attack.

On January 20, 1987, the court granted the State leave to file its motion to dismiss the amended post-conviction petition. In its order dismissing the defendant's amended post-conviction petition, the court noted the issue of competency of trial counsel was addressed by this court in the defendant's direct appeal from the revocations and concluded that the defendant had failed to show his trial counsel's performance was so deficient and so serious an error as to deprive him of the counsel guaranteed by the sixth amendment or that he was prejudiced. The defendant then brought the instant appeals, which we consolidated for review.

NO. 2--87--0247

THEF ...


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