Appeal from the Circuit Court of Winnebago County. No. 97-CF-0125 Honorable K. Craig Peterson, Judge, Presiding.
The opinion of the court was delivered by: Justice Bowman
After a jury trial, defendant, Terry T. Roberts, was found guilty of burglary (720 ILCS 5/19--1(a) (West 1996)) and sentenced as a Class X offender to 20 years' imprisonment. He was tried and sentenced in absentia. Defendant sought a new sentencing hearing pursuant to section 115--4.1(e) of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure) (725 ILCS 5/115--4.1(e) (West 2000)), and the trial court denied the motion. On appeal, defendant argues that the statute the trial court relied upon to sentence him as a Class X offender, section 5--5--3(c)(8) of the Unified Code of Corrections (Code) (730 ILCS 5/5--5--3(c)(8) (West 1996)), violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11). We affirm.
Although defendant was not present during the sentencing proceedings, he was represented. The State relied on the presentence report and certified copies of some of defendant's prior convictions to establish his eligibility for a Class X sentence. These documents revealed convictions, among others, of a burglary committed in 1980 (Ill. Rev. Stat. 1979, ch. 38, par. 19--1(a) (now 720 ILCS 5/19--1(a) (West 2000))), a residential burglary committed in 1982 (Ill. Rev. Stat. 1981, ch. 38, par. 19--3(a) (now 720 ILCS 5/19--3(a) (West 2000))), and a residential burglary committed in 1984 (Ill. Rev. Stat. 1983, ch. 38, par. 19--3(a) (now 720 ILCS 5/19--3(a) (West 2000))).
On February 13, 1998, the trial court found that defendant was eligible to receive a Class X sentence and accordingly sentenced him to 20 years' imprisonment. Defense counsel appealed on defendant's behalf. This court granted the Appellate Defender's motion to withdraw as defendant's counsel on appeal and affirmed defendant's conviction and sentence. People v. Roberts, No. 2--98--0317 (1999) (unpublished order under Supreme Court Rule 23).
On August 6, 1999, defendant filed a pro se motion for a new sentencing hearing pursuant to section 115--4.1(e) of the Code of Criminal Procedure. Defendant offered several explanations for his absence from the sentencing proceedings including that he was (1) incarcerated in Indiana, (2) incapacitated due to severe drug and alcohol addiction, and (3) terminally ill and under excessive psychological stress.
The trial court conducted a hearing during which defendant and his mother testified about why defendant was absent from the sentencing proceedings and defendant's efforts during that time to contact his trial counsel. Finding that defendant failed to establish that his absence was not his fault and due to circumstances beyond his control, the trial court denied the request for a new sentencing hearing. Defendant timely appealed.
In this appeal, defendant raises for the first time his claim that section 5--5--3(c)(8) of the Code is unconstitutional. He does not challenge the trial court's rejection of his excuses for not appearing during the sentencing proceedings. Although the State does not argue that defendant's claim is procedurally defaulted, we will address the principles governing review after the denial of a motion under section 115--4.1(e) of the Code of Criminal Procedure.
Section 115--4.1 provides for the trial of a person who is absent at the time of the trial. Section 115--4.1(e) allows a defendant convicted or sentenced in absentia to obtain a new trial or sentencing hearing if he "can establish that his failure to appear in court was both without his fault and due to circumstances beyond his control." 725 ILCS 5/115--4.1(e) (West 2000). Section 115--4.1(g) provides that a defendant whose section 115--4.1(e) motion is denied may appeal. The notice of appeal "may also include a request for review of the judgment and sentence not vacated by the trial court." 725 ILCS 5/115--4.1(g) (West 2000).
Our supreme court has characterized section 115--4.1(e) as a collateral remedy that under the appropriate circumstances may be used to secure a review of the conviction. Thus, it is analogous to a petition under section 2--1401 of the Code of Civil Procedure (735 ILCS 5/2--1401 (West 2000)) or under the Post-Conviction Hearing Act (725 ILCS 5/122--1 et seq. (West 2000)) and will support an appeal separate from a direct appeal of the underlying judgment. People v. Partee, 125 Ill. 2d 24, 35 (1988); see also People v. Williams, 274 Ill. App. 3d 793, 797-98 (1995).
This court has held that the defendant must request in his notice of appeal a review of the underlying judgment. Otherwise, "the notice of appeal would necessarily pertain only to issues relating to the order denying his section 115--4.1(e) motion ***, i.e., whether his absence from court was without his fault and due to circumstances beyond his control." People v. Pontillo, 267 Ill. App. 3d 27, 33 (1994).
In Pontillo, the defendant argued on appeal that he was denied a fair trial because, during the closing arguments, the prosecutor misstated the law. The defendant failed to include in his notice of appeal a request for review of the underlying conviction and sentence, however. Relying on the general rule that an appellate court has jurisdiction over only those matters raised in the notice of appeal, this court held that it was vested with jurisdiction over only the issues arising from the denial of the defendant's section 115--4.1(e) motion. Pontillo, 267 Ill. App. 3d at 33-34.
Defendant's notice of appeal did not include a request for review of the conviction or sentence. Pontillo does not mandate a dismissal here, however. Unlike the defendant in Pontillo, who raised only a claim of trial error, defendant here is challenging the constitutionality of the statute used to sentence him as a Class X offender. Generally, a challenge to the constitutionality of a criminal statute may be raised at any time, including for the first time on appeal. People v. Wright, 194 Ill. 2d 1, 23 (2000); People v. Wooters, 188 Ill. 2d 500, 510 (1999).
We recognize that defendant's claim could have been raised during the direct appeal. As noted above, however, an appeal from the denial of a section 115--4.1(e) motion is akin to a petition under section 2--1401 of the Code of Civil Procedure. Section 2--1401 grants criminal defendants a means to challenge void judgments. People v. Harvey, 196 Ill. 2d 444, 448 (2001). Defendant's claim is that, because section 5--5--3(c)(8) of the Code is unconstitutional, the trial court lacked the authority to sentence him as a Class X offender. If a trial court imposes a sentence greater than that permitted by statute, the excess portion of the sentence is void and may be attacked at any time, either directly or collaterally. Harvey, 196 Ill. 2d at 447-48; People v. Tooley, 328 Ill. App. 3d 418, 421-22 (2002); People v. Rankin, 297 Ill. App. 3d 818, 821 (1998). If, as defendant argues, section 5--5--3(c)(8) of the Code is unconstitutional, it would be fundamentally unfair to uphold his sentence. Wright, 194 Ill. 2d at 24. For these reasons, we decline to apply either Pontillo or waiver principles here and will address defendant's contention on appeal.
The proportionate penalties clause states in relevant part that "[a]ll penalties shall be determined *** according to the seriousness of the offense." Ill. Const. 1970, art. I, §11. At the time of the offense, ...