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10/02/97 PEOPLE STATE ILLINOIS v. STEFAN A. MOORE

October 2, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
STEFAN A. MOORE, APPELLANT.



The Honorable Justice Harrison delivered the opinion of the court. Justice Heiple, dissenting. Justice Bilandic joins in this dissent.

The opinion of the court was delivered by: Harrison

The Honorable Justice HARRISON delivered the opinion of the court:

In this appeal, we are asked to determine whether our decision in People v. Kilpatrick, 167 Ill. 2d 439, 212 Ill. Dec. 660, 657 N.E.2d 1005 (1995), should be applied retroactively to the case at ban In Kilpatrick, this court held that section 5-8-1(c) of the Unified Code of Corrections prohibits a trial court from imposing a longer sentence on reconsideration, despite the fact that the aggregate period of imprisonment remains the same. In this case, defendant originally received consecutive sentences of 12 and 18 years' imprisonment for two counts of aggravated criminal sexual assault and was subsequently resentenced to concurrent terms of 30 years' imprisonment on each count. Defendant raised the issue regarding his sentence being improperly increased in his post-conviction petition and the trial court dismissed the petition finding that the increased sentence was permissible. The appellate court affirmed, reasoning that Kilpatrick should not be given retroactive application because it established a new rule of law. 282 Ill. App. 3d 602, 668 N.E.2d 1181, 218 Ill. Dec. 349. We granted defendant's petition for leave to appeal. 155 Ill. 2d R. 315. For the reasons which follow, we reverse and remand.

Defendant, Stefan Moore, was convicted of two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12-14(b)(1)), based on acts he committed against his niece while he was living with his brother's family. After a sentencing hearing, the trial court sentenced Moore to consecutive terms of 12 years' imprisonment for the charge stemming from the summer of 1990 and 18 years' imprisonment based on the incident which occurred on January 30, 1992. The court reasoned that the offenses were part of a single course of conduct and, therefore, consecutive sentences were mandatory under section 5-8-4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1991, ch. 38, par. 1005-8-4(a)). Moore appealed. The appellate court vacated his sentences and remanded to the trial court for resentencing on the grounds that the offenses could not be considered part of a single course of conduct due to the lapse of time between them. People v. Moore, 250 Ill. App. 3d 906, 918, 189 Ill. Dec. 615, 620 N.E.2d 583 (1993).

On April 1, 1994, the trial court resentenced Moore to concurrent terms of 30 years' imprisonment on each count of aggravated criminal sexual assault. On direct appeal from defendant's resentencing hearing, the sole issue he raised was that the sentencing order failed to reflect the true amount of time he served. On August 11, 1995, the appellate court vacated a portion of the sentence and remanded with directions to allow defendant the proper amount of credit for time already served. No. 4-94-0362 (unpublished order under Supreme Court Rule 23).

On June 24, 1994, while defendant's direct appeal from his resentencing hearing was pending, he filed a pro se petition for post-conviction relief alleging that the trial court erred in increasing his sentence to 30 years for each count. The trial court dismissed defendant's petition without a hearing on July 20, 1994. The trial court, relying on People v. Todd, 263 Ill. App. 3d 435, 200 Ill. Dec. 923, 636 N.E.2d 114 (1994), reasoned that increasing a defendant's sentence on remand is permissible as long as the total period of incarceration does not increase.

After the trial court dismissed Moore's post-conviction petition, on October 26, 1995, this court rejected the reasoning in Todd, in People v. Kilpatrick, 167 Ill. 2d 439, 212 Ill. Dec. 660, 657 N.E.2d 1005 (1995), and held that upon reconsideration, a trial court cannot impose a longer sentence, despite the fact that the aggregate period of imprisonment remains the same. The defendant in Kilpatrick was originally sentenced to consecutive terms of six years imprisonment for his home invasion conviction and a nine-year term for his attempted murder conviction. The trial court eventually granted defendant's motion to reconsider his sentences, vacated his consecutive sentences, and imposed a single sentence of 15 years' imprisonment. In Kilpatrick, this court reasoned that the fact that the total number of years imprisonment remained the same did not negate the fact that defendant's sentence was improperly increased in violation of section 5-8-1(c) of the Code of Corrections. Kilpatrick, 167 Ill. 2d at 446-47.

Relying on Kilpatrick, Moore argued on appeal from the dismissal of his post-conviction petition that he was denied due process of law when the trial court impermissibly increased his sentence on remand. The appellate court recognized that under Kilpatrick, Moore's increased sentence was improper. However, the court held that Kilpatrick should not be applied retroactively to the case at bar because it announces a new rule of law. 282 Ill. App. 3d at 607. The appellate court refused to apply the reasoning from Kilpatrick to the present case and affirmed the trial court's dismissal of Moore's post-conviction petition on August 1, 1996.

Before this court, Moore contends that our decision in Kilpatrick should be given retroactive application because it does not create a new rule of law, but merely applies existing statutory and case law to the facts of the case. The State responds that Kilpatrick announced a new rule of law which should not be applied retroactively to a case on collateral review. Furthermore, the State contends that we need not even address the issue of Kilpatrick's retroactivity, and argues that this claim is waived because defendant never raised it on direct appeal. The State notes that in defendant's direct appeal from the resentencing hearing, the only issue he raised concerned the incorrect calculation of time served to be credited to defendant. According to the State, Moore's failure to challenge his increased sentence on direct appeal, when he allegedly had the opportunity to do so, should result in the waiver of that claim on post-conviction review. We will first address the State's contention that Moore waived this sentencing issue by not raising it on direct appeal.

The Post-Conviction Hearing Act provides a remedy to criminal defendants when they claim that substantial violations of their constitutional rights occurred in their trials. People v. Owens, 129 Ill. 2d 303, 307, 135 Ill. Dec. 780, 544 N.E.2d 276 (1989). A post-conviction proceeding is a collateral attack upon a final judgment and "the scope of post-conviction review is limited to issues which have not been, and could not have been, previously adjudicated." Owens, 129 Ill. 2d at 307-08. In a post-conviction proceeding, the determinations of the reviewing court on the prior 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. Whitehead, 169 Ill. 2d 355, 371, 215 Ill. Dec. 164, 662 N.E.2d 1304 (1996). This court has noted, however, that the application of the waiver rule is not a jurisdictional or absolute bar to review of procedurally defaulted claims, but rather is a rule of administrative convenience. Whitehead, 169 Ill. 2d at 371. Therefore, the strict application of res judicata and the waiver rule will be relaxed in post-conviction proceedings where "fundamental fairness" so requires. Whitehead, 169 Ill. 2d at 371.

Page 428

Moreover, "where the alleged waiver stems from incompetency of appointed counsel on appeal, the doctrine is also relaxed." Whitehead, 169 Ill. 2d at 371.

Moore asserts that the issue, regarding his sentences being unconstitutionally increased, was not raised on direct appeal due to ineffective assistance of appellate counsel. It is well established that "the doctrine of waiver does not bar review of an issue when the waiver arises from ineffective assistance of appellate counsel." People v. Foster, 168 Ill. 2d 465, 474, 214 Ill. Dec. 244, 660 N.E.2d 951 (1995). To prove his claim of ineffective assistance of counsel, defendant must show that (1) counsel's performance fell below an objective standard of reasonableness, and that (2) counsel's deficient performance resulted in prejudice to defendant. Strickland v. Washington, 466 U.S. 668, 688-92, 80 L. Ed. 2d 674, 693-96, 104 S. Ct. 2052, 2064-67 (1984). We address the merits of defendant's claim, that his sentences were improperly increased, to determine whether appellate counsel's failure to raise this issue on direct appeal amounted to ineffective assistance. If defendant's claim of improper resentencing is meritorious, then clearly, counsel's failure to raise this issue on direct appeal resulted in prejudice to defendant.

As stated, relying on Kilpatrick, Moore contends that the trial court improperly increased his sentences on remand. Moore points out that under Kilpatrick, his sentences could not be increased even if the total period of incarceration remained the same. In both Kilpatrick and the case at bar, the defendants were originally sentenced to two terms of imprisonment which were to be served consecutively. Subsequently, both defendants were resentenced to either ...


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