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People v. Kizer

December 26, 2000

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE
V.
FREDERICK KIZER,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 94 CR 12774 The Honorable Michael P. Toomin, Judge Presiding.

The opinion of the court was delivered by: Justice Cohen

BACKGROUND

In 1995, a jury convicted the defendant of one count of first degree murder, three counts of attempted murder and two counts of aggravated battery. The trial court sentenced the defendant to consecutive terms of 50 years for first degree murder and terms of 25, 15 and 10 years for the attempted murder counts. We affirmed the convictions on direct appeal. People v. Kizer, No. 1-95-3562 (1997) (unpublished order under Supreme Court Rule 23).

The defendant then challenged his convictions under the Post- Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1998)). The court reviewed the defendant's petition and dismissed it as frivolous and patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 1998).

The defendant appealed from the dismissal of his post-conviction petition. In his appeal, the defendant for the first time challenged the propriety of his sentence, arguing that the trial court erred in making his sentences consecutive rather than concurrent.

This court initially disposed of the appeal in an unpublished order. The defendant filed a petition for rehearing. The order was withdrawn in order to allow consideration of this motion, which is taken with the case. We deny the petition for rehearing.

ANALYSIS

In his pro se post-conviction petition, the defendant challenged the sufficiency of the evidence and alleged that his counsel was ineffective, that the trial court demonstrated bias against him and that the prosecution engaged in improper closing argument. He also alleged that his appellate counsel was ineffective for failing to raise these issues on direct appeal. In this appeal, he contests the propriety of his 10-year and his 15-year consecutive sentences. He acknowledges that this issue was raised neither on direct appeal nor in his pro se petition, but argues that the sentences may nonetheless be attacked at any time because they did not conform to a statutory requirement and therefore are void. People v. Arna, 168 Ill. 2d 107, 113 (1995). In a supplemental brief, the defendant contends that the law under which he was sentenced has been rendered unconstitutional by the United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. __, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). As a result, he argues, his consecutive sentences are void and must be modified to run concurrently.

I.

The defendant shot at William and Kevin Richardson. He missed William Richardson, but hit Kevin Richardson in the shoulder. The bullet broke Kevin Richardson's arm. For these attempted murders the trial court imposed 10-year and 15-year consecutive sentences.

The imposition of concurrent and consecutive sentences is governed by section 5-8-4(a) of the Uniform Code of Corrections (Code) (730 ILCS 5/5-8-4(a) (West 1998)). That section provides in pertinent part:

"The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, *** in which event the court shall enter sentences to run consecutively." 730 ILCS 5/5-8-4(a) (West 1998).

In People v. Whitney, 188 Ill. 2d 91, 96 (1999), the Illinois Supreme Court construed this statutory provision to require consecutive sentencing where a defendant is convicted of either a Class X or a Class 1 felony and inflicted severe bodily injury to the victim of that felony.

The State concedes that William Richardson was not injured and, therefore, that the consecutive sentence for the defendant's attempt to murder him is void under Whitney. Accordingly, the State acknowledges that waiver does not bar the defendant's present claim (Arna, 168 Ill. 2d at 113) and that his 10-year sentence should run concurrently with the other sentences. We agree. The State does not concede, however, that the consecutive term for the attempted murder of Kevin Richardson was improper.

The attempted murder of Kevin Richardson was the triggering conviction for the imposition of the 15-year consecutive sentence under Whitney. Attempted murder is a Class X felony, which satisfies the first element of the consecutive sentencing statute. People v. Biggs, 294 Ill. App. 3d 1046, 1053 (1998). Kevin Richardson's fractured arm from the gunshot wound provided the second element: severe bodily injury. Biggs, 294 Ill. App. 3d at 1053. The defendant contends, however, that Kevin Richardson's injury was not sufficiently grave to qualify as "severe bodily injury" under the sentencing statute.

The State asserts that the defendant has waived this issue because he failed to file a motion to reconsider sentence or raise the issue either on direct appeal or in his pro se post-conviction petition.

A post-conviction proceeding is not an appeal of the underlying judgment but, rather, a collateral proceeding where the defendant may challenge a conviction or sentence for violations of constitutional rights. People v. Johnson, 183 Ill. 2d 176, 186 (1998). Any claim of substantial denial of constitutional rights that was not raised in the original or in an amended petition is waived. 725 ILCS 5/122-3 (West 1998). In addition, the court's ruling on a post-conviction petition has res judicata effect as to all claims raised in the petition as well as those that could have been raised. People v. Flores, 153 Ill. 2d 264, 274 (1992). The same principles apply to those issues that were or could have been raised on direct appeal. Johnson, 183 Ill. 2d at 186.

In this case, the facts relating to the sentence for the attempted murder of Kevin Richardson appear in the original appellate record and therefore could have been raised on direct appeal or in the defendant's post-conviction petition. Because the defendant wholly failed to raise the issue in the circuit court (see People v. Davis, 156 Ill. 2d 149, 163 (1993)), he has waived it for purposes of appellate review. Flores, 153 Ill. 2d at 274; see also People v. Martin, 289 Ill. App. 3d 367, 371 (1997). Moreover, plain error may not be invoked in post-conviction proceedings to save procedurally defaulted claims (Davis, 156 Ill. 2d at 159), and for the reasons that follow, we find that the 15-year sentence was not void so as to preclude application of the waiver rule to his present claim.

The trial court had jurisdiction of the parties and the subject matter, as well as the authority to sentence the defendant to consecutive terms. Thus, any error as to whether Kevin Richardson's injury was sufficient to satisfy the bodily injury requirement of the sentencing statute rendered the judgment voidable, rather than void, and therefore not subject to collateral attack. Davis, 156 Ill. 2d at 156- 58. We therefore conclude that the defendant may not avoid application of the waiver rule to this claim.

II.

In a supplemental brief, the defendant contends that Apprendi renders section 5-8-4(a) of the Code unconstitutional and that his consecutive sentences imposed under that statute are therefore void and must be modified to run concurrently. He maintains that this is so because severe bodily injury was a factor that increased ...


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