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August 1, 1996


Appeal from Circuit Court of Champaign County. No. 92CF427. Honorable Jeffrey B. Ford, Judge Presiding.

Rehearing Denied August 29, 1996. Released for Publication August 26, 1996.

Justices: Honorable Rita B. Garman, J., Honorable Robert J. Steigmann, J., Honorable James A. Knecht, J., Concurring, Justice Garman delivered the opinion of the court: Steigmann and Knecht, JJ., concur.

The opinion of the court was delivered by: Garman

JUSTICE GARMAN delivered the opinion of the court:

Defendant Stefan Moore appeals an order of the circuit court of Champaign County dismissing his petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1994)) as frivolous and patently without merit. Defendant's petition made several allegations of denial of his constitutional rights. Pertinent to this appeal is the allegation that he was denied due process of law when the trial court impermissibly increased his sentence on remand after an appeal to this court. People v. Moore, 250 Ill. App. 3d 906, 620 N.E.2d 583, 189 Ill. Dec. 615 (1993). In September 1992, defendant was convicted of two counts of aggravated criminal sexual assault. Ill. Rev. Stat. 1991, ch. 38, par. 12-14 (b)(1). After a sentencing hearing, the trial court sentenced him to consecutive terms of 12 and 18 years' imprisonment, believing that consecutive sentences were mandatory under section 5-8-4(a) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 1005-8-4(a)). On appeal to this court, it was determined that consecutive sentences were not mandated and the cause was remanded for resentencing. Moore, 250 Ill. App. 3d at 918, 620 N.E.2d at 592. By order entered on April 1, 1994, the trial court resentenced defendant to concurrent terms of 30 years' imprisonment on each count. On appeal from this order, the sole issue was that the sentencing order failed to reflect the true amount of credit for time served by defendant, which the record showed the trial court intended to grant. This court vacated that portion of the sentence and remanded with directions to allow defendant the proper amount of credit. People v. Moore, No. 4-94-0362 (August 11, 1995) (unpublished order under Supreme Court Rule 23).

On June 24, 1994, while this latter appeal was pending, defendant filed his pro se petition for post-conviction relief. The petition alleged that, on remand, the trial court imposed "retaliatory" sentences of 30 years on each conviction. In the circuit court's order dismissing the petition entered on July 20, 1994, it relied upon this court's decision in People v. Todd, 263 Ill. App. 3d 435, 636 N.E.2d 114, 200 Ill. Dec. 923 (1994), in finding that the trial court's sentence imposed after remand was permissible. Thereafter, defendant filed his notice of appeal.

Section 5-5-4 of the Code (730 ILCS 5/5-5-4 (West 1994)) prohibits the imposition of a more severe sentence upon remand, where a conviction or sentence has been set aside on direct review or collateral attack, unless a more severe sentence is warranted based upon the defendant's conduct occurring after the original sentencing. Section 5-8-1(c) of the Code (730 ILCS 5/5-8-1(c) (West 1994)) provides that the trial court may reduce a sentence within 30 days of sentencing, but it may not increase a sentence once it is imposed.

Defendant argues the increase in his sentences was a violation of his constitutional right to due process of law. In this argument, he relies upon the recent decision of our supreme court in People v. Kilpatrick, 167 Ill. 2d 439, 657 N.E.2d 1005, 212 Ill. Dec. 660 (1995). In that case, the defendant was sentenced to consecutive terms of six years' imprisonment for home invasion and nine years' imprisonment for attempt (murder). On defendant's motion for reconsideration, the trial court vacated the sentences and imposed a single sentence of 15 years' incarceration. After the appellate court affirmed, the supreme court took the case. The supreme court held that section 5-8-1(c) of the Code prohibits a trial court from imposing a longer sentence on reconsideration, despite the fact that the aggregate period of imprisonment remains the same. For this purpose, the supreme court stated that consecutive sentences are not to be treated as a unitary disposition, noting that the increased term of imprisonment would delay the date on which the defendant could request parole, thus causing him prejudice. Kilpatrick, 167 Ill. 2d at 446-47, 657 N.E.2d at 1008.

Kilpatrick implicitly overruled this court's decision in Todd (263 Ill. App. 3d at 438, 636 N.E.2d at 116), in which the trial court resentenced defendant on remand to three concurrent 12-year sentences after defendant's three consecutive four-year sentences were vacated on review. This court affirmed, noting that defendant's total period of incarceration did not increase upon his resentencing. Although Todd involved section 5-5-4 of the Code, rather than section 5-8-1(c), Kilpatrick applied the same analysis to both sections.

The State argues that defendant has waived this argument, since it was not presented to this court in the direct appeal. In addition, the State argues that defendant may not claim the benefit of the Kilpatrick decision, because that case was not decided until after the decision in his direct appeal had been issued.

Kilpatrick noted that section 5-8-1(c) of the Code is consistent with the United States Supreme Court's decision in North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), in which the defendant had received a longer sentence on conviction after retrial than his original sentence. In holding, under the facts of the case, that the sentence was improperly imposed, the court said:

"Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge." Pearce, 395 U.S. at 725, 23 L. Ed. 2d at 669, 89 S. Ct. at 2080.

Citing Pearce, defendant argues it is a violation of due process for a trial judge to impose a more severe sentence after a defendant successfully attacks his or her first conviction. The above quotation, however, demonstrates the inaccuracy of defendant's argument. Under the due-process clause, there is no per se rule prohibiting longer sentences on retrial and conviction. It is only where an increased sentence is the product of judicial vindictiveness that due process is denied.

We conclude that the trial court's dismissal of defendant's post-conviction petition may be affirmed, despite its reliance on the now-discredited Todd decision. See O'Loughlin v. Servicemaster Co. Ltd. Partnership, 216 Ill. App. 3d 27, 39, 576 N.E.2d 196, 205, 159 Ill. Dec. 527 (1991) (a trial court judgment may be affirmed on any basis warranted by the record). The question on which we must rule is whether the supreme court's decision in Kilpatrick is to be applied retroactively to collateral proceedings. This, in turn, depends upon whether Kilpatrick announced a new constitutional rule of criminal procedure. If so, then ...

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