Appeal from Circuit Court of Logan County Nos. 93CF66, 93CF69. Honorable Gerald G. Dehner, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Knecht
the opinion of the court:
On June 21, 1993, defendant, Paul Lee Stencil, pleaded guilty to burglary, a Class 2 felony, and to possession of burglary tools, violations of sections 19-1(a) and 19-2 of the Criminal Code of 1961 (Criminal Code). 720 ILCS 5/19-1(a), 19-2 (West 1992). The trial court sentenced him to 22 years' imprisonment for the burglary offense and a concurrent 3-year term for possession of burglary tools. On September 24, 1993, defendant pleaded guilty to escape, a Class 2 felony, and to aggravated battery in violation of sections 31-6(a) and 12-4(a) of the Criminal Code. 720 ILCS 5/31-6(a), 12-4(a) (West 1992). Defendant was sentenced to concurrent terms of 23 years' imprisonment for escape and 10 years (later reduced to 5) for aggravated battery, to be served consecutively to the prior sentences. This court affirmed his convictions and sentences. People v. Stencil, Nos. 4-95-0590, 4-95-0591 cons. (March 21, 1997) (unpublished order under Supreme Court Rule 23). The only issue on direct appeal was the excessive length of the sentences.
On July 14, 1997, defendant filed a pro se post-conviction petition under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 et seq. (West 1996). Defendant alleged he received ineffective assistance of appellate counsel on direct appeal when counsel failed to argue (1) the Judge erred in permitting the indictment to be amended, which allowed defendant to be sentenced as a Class X offender; (2) a defect in an indictment; and (3) the trial court's inadequate admonition at defendant's pleas of guilty.
In an order dated July 18, 1997, the trial court dismissed the petition as frivolous or patently without merit under section 122- 2.1(a)(2) of the Act (725 ILCS 5/122-2.1(a)(2) (West 1996)), specifically stating the doctrine of waiver applied to defendant's claims of ineffective assistance of appellate counsel and defendant's claims failed to meet the test set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), for claims of ineffective assistance of counsel.
On July 25, 1997, defendant filed a motion to reconsider the trial court's dismissal of his post-conviction petition. In this motion, defendant raised the issues upon which he appeals here: he was denied effective assistance of appellate counsel because counsel failed to raise on direct appeal the issue that defendant's aggregate sentence of 45 years exceeded the maximum allowable aggregated sentence under section 5-8-4(c) of the Unified Code of Corrections (Code). 730 ILCS 5/5-8-4(c) (West 1996). On July 25, the trial court denied defendant's motion to reconsider by docket entry without specifying any reason for the denial. Timely notice of appeal was filed August 7.
Defendant contends his claim the sentences exceeded the allowable aggregate was sufficient to state the "gist of a claim for relief which is meritorious" under the Act (People v. Dredge, 148 Ill. App. 3d 911, 913, 500 N.E.2d 445, 446 (1986)), and his petition should not have been dismissed. We disagree.
First, we note defendant's claims are not waived. Where an alleged waiver stems from ineffectiveness of appellate counsel, the strict application of the doctrine of waiver will be relaxed. People v. Barnard, 104 Ill. 2d 218, 229, 470 N.E.2d 1005, 1008 (1984).
The standard of review of whether a post-conviction petition is frivolous is whether the allegations, construed liberally in favor of the pro se petitioner, together with supporting documents, court records, and transcripts, contain the gist of a meritorious claim. People v. Porter, 122 Ill. 2d 64, 74, 521 N.E.2d 1158, 1161 (1988); People v. Lemons, 242 Ill. App. 3d 941, 944-46, 613 N.E.2d 1234, 1236-37 (1993).
To sustain a claim for ineffective assistance of counsel, the two- part test enunciated in Strickland is used in reviewing the performance of both trial and appellate counsel. People v. Hayes, 279 Ill. App. 3d 575, 580-81, 665 N.E.2d 419, 423 (1996). To establish ineffective assistance of appellate counsel, defendant must show the failure to raise an issue was objectively unreasonable and, but for this failure, his sentence or conviction would have been reversed. People v. Flores, 153 Ill. 2d 264, 283, 606 N.E.2d 1078, 1087 (1992). In this case, defendant argues he received ineffective assistance of counsel because his aggregate sentences exceeded the maximum allowed by statute and counsel failed to raise this issue on appeal. To prevail in this argument, defendant needs to show it was unreasonable for counsel not to raise this issue and his sentence would have been reduced if the issue had been raised.
In support of his argument that he received ineffective assistance of appellate counsel, defendant cites section 5-8-4(c)(2) of the Code, which provides in relevant part:
"[T]he aggregate of consecutive sentences shall not exceed the sum of the maximum terms authorized under Section 5-8-2 [(730 ILCS 5/5-8-2 (West 1992))] for the 2 most serious felonies involved." 730 ILCS 5/5- 8-4(c)(2) (West 1992).
Section 5-8-2(a)(4) of the Code provides that an extended term for Class 2 felonies is 14 years' imprisonment. 730 ILCS 5/5-8-2(a)(4) (West 1992).
Both burglary and escape are Class 2 felonies. Therefore, defendant contends his combined sentences cannot exceed 28 years. Accordingly, he argues the 22-year burglary sentence should stand, but the sentence of 23 years for escape should be vacated and ...