Appeal from the Circuit Court of Lake County. No. 96--CF--953 Honorable Raymond J. McKoski, Judge, Presiding.
The opinion of the court was delivered by: Justice Bowman
Defendant, George Hindson, appeals from the order of the circuit court of Lake County dismissing his petition for post-conviction relief as frivolous and patently without merit.
On May 1, 1996, defendant was charged by indictment with 43 counts of predatory criminal sexual assault of a child (720 ILCS 5/12--14.1 (West Supp. 1995)), 2 counts of aggravated criminal sexual abuse (720 ILCS 5/12--16(c)(1)(i) (West 1994)), and 1 count of aggravated battery (720 ILCS 5/12--4(c) (West 1994)). The indictment pertained to conduct that occurred between July 25, 1995, and September 15, 1995. Prior to trial, the State moved to amend the counts pertaining to predatory criminal sexual assault of a child to aggravated criminal sexual assault because the statute enacting the offense of predatory criminal sexual assault of a child had not become effective until December 13, 1995, after the offenses charged had allegedly occurred. The State pointed out to the court that both predatory criminal sexual assault of a child and aggravated criminal sexual assault were Class X felonies and carried the same penalties. Over defense counsel's objection, the trial court granted the State's motion to amend.
Defendant was tried by a jury in October 1996. At the conclusion of the trial the jury found defendant guilty of 10 counts of aggravated criminal sexual assault, 9 of which were counts that had been amended, and 1 count of aggravated criminal sexual abuse. One of the aggravated criminal sexual assault convictions pertained to defendant's act of placing his minor son's finger in defendant's anus.
Defendant filed a motion for a new trial, which the trial court denied. Following a sentencing hearing, the court determined that consecutive sentences were appropriate and sentenced defendant to a total of 72 years' imprisonment.
On direct appeal, this court affirmed the judgment and sentence but redacted that portion of the court's sentencing order holding that the truth-in-sentencing provision applied to count LI of the indictment. People v. Hindson, 301 Ill. App. 3d 466, 481 (1998). We held that defendant was entitled to receive whatever good-conduct credit he would have been eligible to receive prior to the enactment of the truth-in- sentencing provision and modified the judgment to reflect our holding. Hindson, 301 Ill. App. 3d at 480-81.
While his case was on direct appeal, defendant filed a motion under section 2--1401 of the Code of Civil Procedure for relief from the trial court's judgment (735 ILCS 5/2--1401 (West 1996)) based on newly discovered evidence that a witness had committed perjury and that the State had failed to reveal to the defense all the terms of a plea agreement with that witness. Following an evidentiary hearing, the trial court denied the motion. This court affirmed the trial court's ruling in People v. Hindson, No. 2--98--0429 (2000) (unpublished order under Supreme Court Rule 23).
On September 16, 1999, defendant filed a pro se post-conviction petition. Among the constitutional violations alleged by defendant was his claim that he was denied due process when he "was indicted on wrong charges which were changed by the State's Attorney" and when he was convicted on a count, count XXV, for which no evidence was presented to support the conviction. Defendant also alleged that he had requested his appellate counsel to raise these violations along with all the others stated in his petition but that counsel had not done so.
The trial court dismissed defendant's post-conviction petition without an evidentiary hearing, concluding that defendant's petition was frivolous and patently without merit. In its order the court found that evidence presented at trial supported the jury's verdict on count XXV. The court's order did not address defendant's issue pertaining to the State's amendment of charges in the indictment. This appeal ensued.
To be entitled to post-conviction relief, a defendant must establish that a substantial violation of his constitutional rights occurred at the proceeding that produced the judgment. People v. Fern, 240 Ill. App. 3d 1031, 1037 (1993). Under section 122--2.1 of the Post- Conviction Hearing Act, the trial court may summarily dismiss a post-conviction petition without the appointment of counsel or an evidentiary hearing if it deems the petition "frivolous" or "patently without merit." 725 ILCS 5/122--2.1 (West 1996). The court's decision will not be reversed absent an abuse of discretion. Fern, 240 Ill. App. 3d at 1037.
Two of the claims defendant raised in his post-conviction petition are before us on appeal. Defendant contends that he was denied due process of law when (1) the trial court allowed the State to amend the counts of the indictment charging predatory criminal sexual assault of a child to aggravated criminal sexual assault, and (2) the jury convicted him on count XXV, a conviction that was unsupported by the evidence. Additionally, in a supplemental brief, defendant raises another issue never addressed in the trial court. Defendant contends that, based on the finding in Apprendi v. New Jersey, 530 U.S. ____, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), the trial court's imposition of consecutive sentences violated his right to due process of law.
Defendant first argues that the trial court erred in allowing the State to amend the charges in the indictment pertaining to predatory sexual assault of a child to aggravated criminal sexual assault because the law does not allow substantive changes to an indictment and because a void indictment cannot be amended. The State responds that the amendment was proper because the only change to the charges was the name of the offense and because all the elements and penalties related to the two offenses were identical.
Amendments to indictments are allowed where the defect in the charge is a formal one. People v. Griggs, 152 Ill. 2d 1, 32 (1992). A formal defect is one that does not alter the nature and elements of the charged offense. People v. Patterson, 267 Ill. App. 3d 933, 938 (1993). A charging instrument that contains a formal defect is not void. People v. Williams, 161 Ill. App. 3d 613, 619 (1987).
Section 111--5 of the Code of Criminal Procedure of 1963 (725 ILCS 5/111--5 (West 1994)) lists certain formal defects. That section provides in relevant part:
"An indictment, information or complaint which charges the commission of an offense *** may be amended on motion by the State's Attorney or defendant at any time because of formal defects, including:
(a) Any miswriting, misspelling or ...