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People v. Tooley

March 14, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
SCOTT A. TOOLEY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois No. 95-CF-258 Honorable Joe R. Vespa, Judge, Presiding

The opinion of the court was delivered by: Justice Homer

Released for publication March 20, 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
SCOTT A. TOOLEY, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois No. 95-CF-258 Honorable Joe R. Vespa, Judge, Presiding

The opinion of the court was delivered by: Justice Homer

PUBLISHED

 Following a bench trial, the defendant, Scott Tooley, was found guilty of three counts of theft by deception. 720 ILCS 5/16--1(a)(2)(A) (West 1996). He was sentenced to two concurrent extended term prison sentences of 10 years each to be served consecutively to one 10-year extended term of imprisonment. 720 ILCS 5/16--1(b)(4); 730 ILCS 5/5--8--2(a)(5), 5--8--4 (West 1996). He filed a pro se post-conviction petition, which was dismissed at the second stage on the grounds of untimeliness and waiver. 725 ILCS 5/122--1 et seq. (West 2000). On appeal, he argues that (1) he was not culpably negligent for the untimely filing of his petition, (2) the arguments in his petition were not waived, and (3) his extended term sentences are void because they violate the proportionality provisions of the Illinois Constitution. We reduce his sentences from 10-year extended terms to 5-year nonextended terms, but otherwise affirm.

BACKGROUND

The facts that led to the defendant's indictment are fully discussed in the defendant's direct appeal to this court in People v. Tooley, No. 3--96--0416 (1997) (unpublished order under Supreme Court Rule 23). Only those facts which are necessary to an understanding of the instant appeal will be set forth here.

The defendant was indicted on four counts of theft by deception, but the State dismissed count III. According to the evidence adduced at trial, the defendant convinced three elderly victims to write checks to him for future home nursing and health care from a nonexistent company. These elderly victims wrote him checks of $3,398, $4,402, and $1,329, respectively. He was convicted of three counts of theft by deception of property exceeding $300, but not exceeding $10,000. 720 ILCS 5/16--1(b)(4) (West 1996). He was sentenced to extended terms on the basis that his victims were 60 years of age or older.

On May 3, 1996, the defendant was sentenced and transferred to Iowa to serve a sentence previously imposed in that state. On May 8, 1996, he filed his notice of direct appeal. In that appeal, we affirmed his conviction and sentence.

His petition for leave to appeal to the Illinois Supreme Court was denied on April 1, 1998. People v. Tooley, 177 Ill. 2d 584, 698 N.E.2d 548 (1998). On September 20, 1999, the defendant filed a pro se post-conviction petition. In his petition, he argued that his due process rights were violated because (1) the State failed to prove one of the elements of the crime beyond a reasonable doubt, (2) the court erred by imposing a consecutive sentence because the offenses were committed as part of a single course of conduct, (3) his extended term sentences were void under a theory of disproportionality, (4) his extended term sentences subjected him to double jeopardy because the same aggravating factor was used both to enhance and to extend the term of his sentence, (5) his trial counsel was ineffective, and (6) his appellate counsel was ineffective for failing to allege ineffectiveness of trial counsel.

The trial court appointed counsel and docketed the petition for further proceedings. The State moved to dismiss the petition as untimely and on waiver grounds. Through his counsel, the defendant filed a supplemental affidavit in support of the petition. In this affidavit, the defendant alleged that he was not culpably negligent for filing his petition late because (1) he was incarcerated in Iowa from the date he was sentenced, May 3, 1996, until January 28, 1999, when he was transferred from Iowa to Illinois, and he had no access to a law library that contained Illinois law during that time; (2) after he was transferred from Iowa to Illinois, he did not have access to any law library from January 28 to February 19, 1999; and (3) he did not have access to a law library during several lock-downs in the Illinois prison thereafter. He asserted that he filed his petition as soon as he reasonably could have become aware that he was eligible for post-conviction relief in Illinois.

On November 17, 2000, the trial court granted the State's motion to dismiss "based on the statute of limitation theory and the waiver theory." The ...


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