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05/17/94 PEOPLE STATE ILLINOIS v. EDWARD SHRINER

May 17, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
EDWARD SHRINER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 86-CF-594. Honorable John J. Nelligan, Judge, Presiding.

Inglis, Bowman, Quetsch

The opinion of the court was delivered by: Inglis

PRESIDING JUSTICE INGLIS delivered the opinion of the court:

Defendant, Edward Shriner, appeals the order of the circuit court of Du Page County which granted the State's motion to dismiss his post-conviction petition. The issue on appeal is whether we should review, pursuant to the "fundamental fairness" exception to the res judicata doctrine, defendant's claim that he was improperly sentenced as an habitual offender. We affirm.

Defendant was convicted in 1988 of two counts each of home invasion (Ill. Rev. Stat. 1985, ch. 38, par. 12-11(a)(1) (now codified, as amended, at 720 ILCS 5/12-11(a)(1) (West 1992))), armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2(a) (now 720 ILCS 5/18-2(a) (West 1992))), and unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10-3(a) (now 720 ILCS 5/10-3(a) (West 1992))). The court determined that defendant was an habitual criminal and sentenced him to natural-life imprisonment on the home invasion and armed robbery convictions. See Ill. Rev. Stat. 1985, ch. 38, par. 33B-1 (now codified, as amended, at 720 ILCS 5/33B-1 (West 1992)).

In the direct appeal, this court vacated one of defendant's home invasion convictions, but affirmed the trial court's judgment in all other respects. ( People v. Shriner (1990), 198 Ill. App. 3d 748, 144 Ill. Dec. 738, 555 N.E.2d 1257.) There, defendant argued that he was improperly sentenced under the habitual criminal statute. He claimed that the State failed to prove that his conviction in 1975 of aiding and abetting an armed bank robbery (18 U.S.C.A. § 2113(d) (West 1984)) was for a completed armed robbery as opposed to anattempted armed robbery (see 18 U.S.C.A. §§ 2113(a), (b) (West 1984)). The distinction is significant for determining whether defendant was an habitual criminal, because in Illinois armed robbery is a Class X felony (720 ILCS 5/18-2(b) (West 1992)), while attempted armed robbery is a Class 1 felony (720 ILCS 5/8-4(c)(2) (West 1992)).

We held that because the certified record of conviction which was introduced at the sentencing hearing stated that defendant was convicted of "aiding and abetting in armed bank robbery," the State established that defendant was convicted of the completed offense of armed bank robbery. ( Shriner, 198 Ill. App. 3d at 757.) We also rejected defendant's claim that the Federal armed bank robbery statute did not contain essentially the same elements as Illinois' armed robbery statute. Shriner, 198 Ill. App. 3d at 757.

In November 1990, defendant filed a pro se petition seeking relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122-1 et seq. (now codified, as amended, at 725 ILCS 5/122-1 et seq. (West 1992))). The trial court appointed counsel for defendant in January 1991. Defendant filed several amended petitions. Among the allegations contained in these petitions was that defendant's due process rights were violated because the 1975 conviction that was used to sentence him as an habitual criminal did not meet the statutory criteria for consideration as a Class X felony.

The trial court granted the State's motion to dismiss the petition. It found that many of the issues raised in the petition were waived, because defendant could have raised them in the direct appeal, but did not. The court further found that several other claims, including the claim that defendant was improperly sentenced as an habitual criminal, were barred by the res judicata doctrine, because this court had adjudicated them in the direct appeal. It also found that defendant's claim that he was denied the effective assistance of trial counsel lacked merit. Finally, the court dismissed the remaining claims because they were not of constitutional magnitude. This timely appeal followed.

Defendant's sole contention is that he was denied his due process right to have his sentence based on accurate information, where an inapplicable prior conviction was used to sentence him as an habitual criminal. He argues that review of this claim is not barred by res judicata, because the application of that doctrine here would be fundamentally unfair.

An action for post-conviction relief is not an appeal from an underlying conviction and sentence, but is instead a collateral attack on a judgment. ( People v. Caballero (1989), 126 Ill. 2d 248, 258, 128 Ill. Dec. 1, 533 N.E.2d 1089.) Accordingly, determinations of the reviewing court on the direct appeal are res judicata as to issues actually decided, and issues that could have been presented on direct appeal but were not are deemed waived. People v. Collins (1992), 153 Ill. 2d 130, 135, 180 Ill. Dec. 60, 606 N.E.2d 1137; People v. Franzen (1993), 251 Ill. App. 3d 813, 819, 190 Ill. Dec. 847, 622 N.E.2d 877.

It has been recognized, however, that "in a proper case, where fundamental fairness so requires, strict application of the doctrine of res judicata may be relaxed." ( People v. Neal (1990), 142 Ill. 2d 140, 146, 154 Ill. Dec. 587, 568 N.E.2d 808.) This "fundamental fairness" exception has been applied most typically where the right relied upon in the post-conviction proceedings has been recognized for the first time after the direct appeal. (See People v. Ikerd (1970), 47 Ill. 2d 211, 212, 265 N.E.2d 120; People v. Mitchell (1991), 221 Ill. App. 3d 979, 985-86, 164 Ill. Dec. 249, 582 N.E.2d 1193; People v. Cowherd (1983), 114 Ill. App. 3d 894, 898, 70 Ill. Dec. 460, 449 N.E.2d 589.) Defendant claims, however, that this exception to the res judicata doctrine also applies when the post-conviction petitioner demonstrates that the reviewing court misapplied the law when it made its rulings in the direct appeal.

Defendant cites People v. Strader (1967), 38 Ill. 2d 93, 230 N.E.2d 569, in support of his contention. In Strader, the defendant's post-conviction petition alleged that his constitutional rights were violated at trial in two respects. First, he asserted that the court refused to conduct a hearing to determine whether his confession was voluntary. Second, he was convicted on the basis of a coerced confession. The trial court granted the State's motion to dismiss the petition, because our supreme court had rejected that same contention in the direct appeal.

Defendant correctly notes that the Strader court found that it had incorrectly held on the direct appeal that the defendant was not prejudiced by the admission of the confession on the ground that the other evidence of guilt was independently sufficient to prove guilt beyond a reasonable doubt. (See Strader, 38 Ill. 2d at 97.) Regardless, Strader does not stand for the proposition that a post-conviction petitioner may sidestep the application ...


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