Appeal from the Circuit Court of Cook County. The Honorable John J. Moran, Judge Presiding.
As Modified On Denial of Rehearing March 22, 1996.
The Honorable Justice Egan delivered the opinion of the court: McNAMARA, J., and Rakowski, J., concur.
The opinion of the court was delivered by: Egan
MODIFIED ON DENIAL OF REHEARING
The Honorable Justice EGAN delivered the opinion of the court:
In 1966, the police arrested the defendant, Clarence Walker, in connection with the robbery and assault of L.G. In 1968, after a bench trial, Judge Reginald Holzer found him guilty of rape, armed robbery and attempted murder. The judge sentenced him to consecutive terms of 100-150 years' imprisonment for the rape, 100-150 years' imprisonment for the armed robbery and 19-20 years' imprisonment for the attempted murder.
This court affirmed his convictions pursuant to his direct appeal and his post-conviction petition. People v. Walker, 2 Ill. App. 3d 1026, 279 N.E.2d 23 (1971)(direct appeal); People v. Walker, 6 Ill. App. 3d 909, 286 N.E.2d 812 (1972)(post-conviction). The Illinois Supreme Court denied his petitions for leave to appeal from these decisions ( People v. Walker, 49 Ill. 2d 579 (1972)), and, in 1973, the United States Supreme Court denied certiorari ( Walker v. Illinois, 410 U.S. 941, 35 L. Ed. 2d 608, 93 S. Ct. 1377 (1973)).
Several years later, our courts denied his writ of mandamus (see Walker v. Lane, 165 Ill. App. 3d 1165, 536 N.E.2d 1021, 129 Ill. Dec. 971 (1987), appeal denied, 121 Ill. 2d 587, 526 N.E.2d 840 (1988)), and the defendant filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. The district court held that the defendant was entitled to resentencing under the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001-1-1 et seq.). The court reasoned that the defendant's case had been pending on appeal on January 1, 1973, when the Code became effective. The defendant was, therefore, entitled to be resentenced under the Code, pursuant to section 8-2-4 of the Code, which provided that "if the offense being prosecuted has not reached the sentencing stage or a final adjudication, then for purposes of sentencing the sentences under this Act apply if they are less than under the prior law upon which the prosecution was commenced" (Ill. Rev. Stat. 1973, ch. 38, Par. 1008-2-4). United States ex rel. Walker v. O'Leary, 727 F. Supp. 444 (N.D. Ill. 1989). The United States Court of Appeals for the Seventh Circuit affirmed the district court on this issue and remanded the case to the Circuit Court of Cook County for the defendant to be resentenced. United States ex rel. Walker v. O'Leary, 973 F.2d 521 (7th Cir. 1992).
Pursuant to the order of the seventh circuit, the defendant was resentenced on November 10, 1992. Following a hearing in which Judge John J. Moran heard evidence in aggravation and mitigation, the judge resentenced the defendant to concurrent indeterminate prison terms of 100-300 years for the rape conviction, 100-300 years for the armed robbery conviction and 100-300 years for the attempted murder conviction. In the appeal before us, the defendant challenges these sentences.
The defendant first argues that these sentences violated section 5-5-4 of the Code, which provides:
"Where a conviction or sentence has been set aside on direct review or on collateral attack, the court shall not impose a new sentence for the same offense or for a different offense based on the same conduct which is more severe than the prior sentence less the portion of the prior sentence previously satisfied unless the more severe sentence is based upon conduct on the part of the defendant occurring after the original sentencing." Ill. Rev. Stat. 1973, ch. 38, par. 1005-5-4.
The defendant contends that his 1992 sentences violated this provision because they are more severe than his 1968 sentences. Under his 1968 consecutive sentences, which were 100-150 years for rape, 100-150 years for armed robbery and 19-20 years for attempted murder, the defendant would have served a minimum of 219 years and a maximum of 320 years. Under his 1992 concurrent sentences, which are 100-300 years for each of the individual convictions, the defendant would serve a minimum of 100 years and a maximum of 300 years. Although, under the 1992 sentences, the total number of years the defendant must serve is less than under his 1968 sentences, the defendant argues that the 1992 sentences are more severe because the number of years he must serve for each individual conviction is greater than under his 1968 sentences. For this reason, the defendant contends that Judge Moran violated section 5-5-4 in imposing the 1992 sentences.
We believe that the supreme court's recent decision in People v. Kilpatrick, 167 Ill. 2d 439, 657 N.E.2d 1005, 212 Ill. Dec. 660 (1995), governs this issue. In Kilpatrick, the court held that a judge had improperly increased a defendant's sentence by imposing greater sentences for the defendant's individual convictions, notwithstanding the fact that the new sentences did not change the total number of years the defendant was required to serve.
The judge in Kilpatrick had originally sentenced the defendant to two consecutive sentences, one six-year term for his home invasion conviction and one nine-year term for his attempted murder conviction. Pursuant to the defendant's motion for reconsideration of his sentences under section 5-8-1(c) of the Code (730 ILCS 5/5-8-1(c) (West 1992)), the judge resentenced the ...