Appeal from Circuit Court of McLean County No. 90CF647 Honorable G. Michael Prall, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
In July 1991, a jury convicted defendant, William Duncan Land, of three counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12-14(b)(1)), and the trial court subsequently sentenced him to 20 years in prison on each conviction, with those sentences to run consecutively. In March 1993, this court affirmed defendant's convictions. See People v. Land, 241 Ill. App. 3d 1066, 609 N.E.2d 1010 (1993), appeal denied, 152 Ill. 2d 570, 622 N.E.2d 1218 (1993). In April 1994, defendant filed a pro se petition for post-conviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1992)). In July 1994, the trial court dis-missed defendant's petition as frivolous and patently without merit, pursuant to section 122-2.1 of the Act (725 ILCS 5/122-2.1 (West 1994)), and in March 1996, this court affirmed the dismissal (People v. Land, 278 Ill. App. 3d 1157, 699 N.E.2d 617 (1996) (unpublished order under Supreme Court Rule 23)).
In February 1998, defendant filed a second pro se petition for post-conviction relief, alleging that the trial court erroneously sentenced him to mandatory consecutive sentences pursuant to section 5-8-4(a) of the Unified Code of Corrections (Corrections Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-4(a) (now 730 ILCS 5/5-8-4(a) (West 1996))). The trial court subsequently found that defendant had forfeited his claim for relief by failing to raise it either on direct appeal or in his initial post-conviction petition, and the court dismissed the petition as frivolous and patently without merit, pursuant to section 122-2.1 of the Act (725 ILCS 5/122-2.1 (West 1996)). Defendant appeals, and we affirm.
In October 1990, the State charged defendant by indictment with three counts of aggravated criminal sexual assault for incidents involving his daughter, C.L., who was then seven years old. All three indictments alleged that the offenses occurred between January 1990 and August 3, 1990, but none included specific dates. The trial testimony showed that C.L. had lived at two residences during January 1990 through August 3, 1990, and C.L. had told investigators that the assaults had occurred at both residences. At the sentencing hearing, the trial court stated that it would not impose extended prison terms on each conviction "because of the severity of the statutory mandate for consecutive sentences" under section 5-8-4(a) of the Corrections Code (Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-4(a) (now 730 ILCS 5/5-8-4(a) (West 1996))). The court also stated, "These were indeed separate offenses that occurred at separate times, and I believe the legislature is appropriate in mandating this result." The court then sentenced defendant to three consecutive 20-year prison terms.
II. DEFENDANT'S CLAIM THAT THE TRIAL COURT ERRONEOUSLY SENTENCED HIM TO MANDATORY CONSECUTIVE SENTENCES
A. Defendant's Claim That He Did Not Forfeit the Claim for Relief Set Forth in the Second Petition
Defendant first argues that the trial court erred by dismissing his second post-conviction petition because "defendant has not had one complete opportunity to show a substantial denial of his constitutional rights." Specifically, he contends that fundamental fairness requires that the trial court conduct an evidentiary hearing on the petition because defendant has a severe learning disability, is unable to read or write, and "has been required to rely on other persons to read and write for him." We disagree.
A post-conviction proceeding is not an appeal of a defendant's underlying judgment, but rather a collateral proceeding enabling the defendant to challenge a conviction or sentence for a substantial denial of constitutional rights. Determinations of a reviewing court on direct appeal are res judicata as to issues actually decided, and issues that could have been raised in the earlier proceeding, but were not, are deemed forfeited. People v. Johnson, 183 Ill. 2d 176, 186, 700 N.E.2d 996, 1001 (1998). In People v. Erickson, 183 Ill. 2d 213, 222-23, 700 N.E.2d 1027, 1032 (1998), the supreme court addressed the issue of successive post-conviction petitions and wrote the following: The [Act] contemplates the filing of only one postconviction petition, although successive petitions may be allowed where the proceedings on the initial petition were deficient in some fundamental way. [Citation.] The Act provides that any claim of a substantial denial of constitutional rights not raised in the original or an amended petition is waived. [Citations.] Moreover, a ruling on a postconviction petition has res judicata effect with respect to all claims that were raised or could have been raised in the initial petition. [Citations.]
However, an exception to these procedural bars applies for claims of ineffective assistance of counsel on direct appeal. This court has held that a defendant's failure to raise a claim of ineffective assistance of appellate counsel in his initial post-conviction petition will not operate as a waiver if the defendant was represented by the same attorney on direct appeal and in his initial postconviction proceeding. In such cases, the claim of ineffective assistance of appellate counsel may be raised for the first time in a second postconviction petition." (Emphasis added.) In addition, the trial court's ruling on a post-conviction petition will not be disturbed unless manifestly erroneous. Johnson, 183 Ill. 2d at 187, 700 N.E.2d at 1002.
In this case, defendant presented four claims of error on direct appeal before this court: (1) the trial court erred by admitting the child victim's hearsay statements; (2) the State failed to prove him guilty beyond a reasonable doubt of two of the three counts; (3) the court erred by not allowing defendant to introduce evidence that other persons had sexually abused C.L.; and (4) the court committed plain error by failing to instruct the jury on an essential element of the offense charged. After this court affirmed his convictions, defendant filed his initial pro se petition for post-conviction relief, alleging that he was denied effective assistance of trial and appellate counsel because (1) the record failed to establish that the grand jury returned an indictment; (2) appellate counsel refused to raise the issue of trial counsel's ineffectiveness in failing to investigate the allegedly deficient indictment; (3) trial counsel refused to allow defendant to testify at trial; and (4) appellate counsel failed to raise the issue of trial counsel's ineffectiveness in preventing defendant from testifying.
Defendant does not claim that the proceedings on his initial post-conviction petition were deficient in some fundamental way--or in any way, for that matter. Nor does this case come within the exception set forth in Erickson. Even accepting defendant's contention that his second petition states the gist of a meritorious claim that his appellate counsel provided ineffective assistance of counsel, defendant was not represented by the same attorney both on direct appeal and in his initial post-conviction proceeding. Thus, defendant was not somehow prevented from raising a claim of ineffective assistance of appellate counsel in his initial post-conviction petition. Indeed, defendant's initial petition did contain such allegations.
Moreover, although defendant alleged in his second petition that he is unable to read or write and he only learned of the sentencing error through a law clerk at the Centralia Correctional Center, he does not show (or even claim) that he could not have learned of the sentencing error prior to filing his initial post-conviction petition in April 1994. (The decision of the supreme court upon which defendant primarily relied to support his claim for relief in the second petition, People v. Bole, 155 Ill. 2d 188, 6 ...