Appeal from the Circuit Court of McHenry County Nos. 89--CF--916 90--CF--451 Honorable Ward S. Arnold and Susan Fayette Hutchinson, Judges, Presiding.
The opinion of the court was delivered by: Justice McLAREN
Defendant, Robert M. Pinkonsly, appeals from the trial court's order denying his petition to reduce sentence. We affirm in part and vacate in part.
In August 1991, defendant was convicted of two counts of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)) and one count of narcotics racketeering (Ill. Rev. Stat. 1989, ch. 56½, par. 1654(a)) and was sentenced to three concurrent terms of 30 years' imprisonment in the Department of Corrections. This court affirmed defendant's conviction in People v. Pinkonsly, No. 2--91--1093 (1993) (unpublished order under Supreme Court Rule 23). In December 1997, defendant filed a pro se petition for relief from judgment pursuant to section 2--1401 of the Civil Practice Law (735 ILCS 5/2--1401 (West 1998)). Appointed counsel filed an amended petition to reduce sentence in August 1999. The trial court denied the amended petition on September 9, 1999. This appeal followed.
Section 2--1401 provides a method of obtaining relief from a judgment after more than 30 days have elapsed. People v. Madej, 193 Ill. 2d 395, 399-400 (2000). A petition brought under section 2--1401 must be filed "not later than 2 years after the entry of the order or judgment." 735 ILCS 5/2--1401 (West 1998). Relief sought more than two years after the entry of the judgment will not normally be considered absent a clear showing that the petitioner was under a legal disability or duress or that the grounds for relief were fraudulently concealed. People v. Harvey, 196 Ill. 2d 444, 447 (2001). However, this two-year limitations period may be waived by the opposing party. Harvey, 196 Ill. 2d at 447.
Here, the initial petition was filed more than six years after defendant was sentenced and almost five years after the mandate of this court issued in the direct appeal. The State argues that the petition should be considered untimely and the trial court's denial of the petition should be upheld on that basis. However, the State never raised the limitations period below. Therefore, we conclude that the State has waived the issue of timeliness, and we will not consider that argument on appeal.
Defendant first contends that he received the ineffective assistance from counsel at the sentencing, appeal, and petition stages of this case because none of the attorneys raised certain sentencing issues. However, the ineffectiveness of counsel is not appropriate for review in a proceeding under section 2--1401. People v. Smith, 176 Ill. App. 3d 132, 136 (1988); People v. Anderson, 31 Ill. 2d 262, 264 (1964). Thus, any arguments regarding the effectiveness of counsel at the sentencing and appeal stages were not appropriately raised in the section 2--1401 petition and will not be considered here.
However, we must address defendant's contention that counsel appointed to assist him with his section 2--1401 petition was ineffective. To successfully allege the ineffective assistance of counsel, a defendant must demonstrate that (1) counsel's performance was deficient in that counsel made such serious errors that counsel was not operating as the counsel guaranteed by the sixth amendment to the United States Constitution (U.S. Const., amend. VI), and (2) counsel's deficient performance substantially prejudiced the defendant in that it is reasonably probable that the result of the proceeding would have been different but for counsel's unprofessional errors. People v. Flores, 153 Ill. 2d 264, 283 (1992). Where the ineffectiveness claim can be disposed of on the ground that the defendant did not suffer sufficient prejudice, a court need not determine if counsel provided less than reasonably effective assistance. Flores, 153 Ill. 2d at 283-84. Defendant contends that he received the ineffective assistance because counsel did not raise in the petition the argument that the charges of unlawful delivery of a controlled substance were lesser- included offenses of narcotics racketeering and, that, therefore, the convictions of those charges should have been vacated.
Multiple convictions and concurrent sentences cannot stand where a defendant commits multiple acts and is convicted of multiple offenses, some of which are, by definition, lesser- included offenses. See People v. King, 66 Ill. 2d 551, 566 (1977). In such an instance, sentence should be imposed on the more serious offense, and conviction on the less serious offense should be vacated. People v. Milton, 309 Ill. App. 3d 863, 868 (1999). Whether an offense encompasses a lesser-included offense is a matter of law to be reviewed de novo. People v. Landwer, 166 Ill. 2d 475, 486 (1995).
Section 2--9 of the Criminal Code of 1961 defines an included offense, in pertinent part, as an offense that "[i]s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged." Ill. Rev. Stat. 1989, ch. 38, par. 2--9(a) (now 720 ILCS 5/2--9 (West 1998)). Our supreme court has adopted the "charging instrument" approach to determine whether an offense is a lesser-included offense. See People v. McLaurin, 184 Ill. 2d 58, 104 (1998). The charging instrument approach looks to the facts alleged in the charging instrument in identifying a lesser-included offense. Under this approach, an offense is deemed to be a lesser-included offense if the instrument charging the greater offense sets out the main outline of the included offense. McLaurin, 184 Ill. 2d at 104-05.
The indictment for narcotics racketeering charges:
"That between the dates of December 4, 1989 and December 12, 1989, in McHenry County, State of Illinois, [defendant] committed the offense of Narcotics Racketeering, in that the said defendant received income knowing that such income was derived directly from a pattern of narcotics activity in which he participated, in violation of Ch. 56 ½, Section 1654(a) of the Illinois Revised Statutes [now 725 ILCS 175/4(a) (West 1998)]."
Under the Narcotics Profit Forfeiture Act (the Act), "Pattern of narcotics activity" is defined as "2 or more acts of narcotics activity of which at least 2 such acts were committed within 5 years of each other. At least one of those acts of narcotics activity must have been committed after the effective date of this Act and at least one of such acts [of narcotics activity] shall be or shall have been punishable as a Class X, Class 1 or Class 2 felony." Ill. Rev. Stat. 1989, ch. 56½, par. 1653(a)(2) (now 725 ILCS 175/3(b) (West 1998)). "Narcotics activity" is defined as "conduct punishable as a felony under the Cannabis Control Act or Illinois Controlled Substances Act." Ill. Rev. Stat. 1989, ch. 56½, par. 1653(a)(1) (now 725 ILCS 175/3(a) (West 1998)). Count I of the indictment charged "[t]hat on or about December 4, 1989, in McHenry County, State of Illinois, [defendant] committed the offense of unlawful delivery of controlled substance, in that said defendant knowingly and unlawfully delivered *** cocaine" in violation of section 401(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56, par. 1401(a)(2) (now 720 ILCS 570/401(a)(2)(A) (West 1998)) (between 15 and 100 grams of cocaine). Count II contained the same allegations as count I except that the date was December 12, 1989.
The narcotics racketeering count contained an allegation that defendant participated in a pattern of narcotics activity. That allegation necessarily implied that defendant committed two Class 2, 1, or X felonies under the Cannabis Control Act (Ill. Rev. Stat. 1989, ch. 56½, par. 701 et seq. (now 720 ILCS 550/1 et seq. (West 1998))) or the Illinois Controlled Substances Act. Counts I and II alleged that defendant committed two Class X felonies under the Illinois Controlled Substances Act. Accordingly, the statutory elements of narcotics racketeering were implicitly contained in the unlawful-delivery-of-cocaine counts, a fact that renders the unlawful-delivery-of-cocaine counts lesser-included ...