Appeal from the Circuit Court of Lee County. No. 92-CF-120 Honorable John E. Payne, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Hutchinson
Following a jury trial, defendant, Shaka Ali Fikara, a/k/a Eddie Robinson, was found guilty of two counts of aggravated criminal sexual assault (720 ILCS 5/12--14(b)(1) (West 1992)) and sentenced to consecutive extended terms of 40 years' imprisonment on each count. On direct appeal, this court affirmed defendant's convictions and sentence. See People v. Fikara, No. 2--95--1463 (1997) (unpublished order under Supreme Court Rule 23). On March 20, 1998, defendant filed a pro se petition seeking relief pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122--1 et seq. (West 1998)). Defendant's post-conviction petition survived the trial court's initial review, and the trial court appointed counsel to represent defendant. On October 12, 2000, defendant filed a supplemental petition arguing that his extended-term sentences violated the principles articulated in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
On July 27, 2001, the trial court granted the State's motion to dismiss all issues raised in the post-conviction petition with the exception of the Apprendi issue. The trial court found that defendant's Apprendi issue had merit, vacated defendant's sentence, and scheduled a new sentencing hearing. On October 25, 2001, after a new sentencing hearing, the trial court resentenced defendant to consecutive extended terms of 40 years' imprisonment on each count. Defendant then filed the instant appeal pro se, seeking review of the propriety of the sentencing order entered after the trial court granted the post-conviction petition in part. The defendant also appeals the trial court's order disposing of his post-conviction petition, arguing that the trial court erred in dismissing his non-Apprendi claims. We affirm.
This court's earlier order on the direct appeal adequately summarized the factual background of this case, and we will set forth only those facts relevant to the contentions raised in this appeal. At defendant's trial, the victim, an 11-year-old girl, testified that defendant had committed acts of a sexual nature against her on at least two different occasions. The victim's babysitter, Kerry Bibens, testified that, on June 15, 1992, she observed the victim, wearing only a T-shirt, lying on her back on her bed with her knees up and spread apart. Bibens also observed defendant standing next to the bed, facing the victim, with his pants down to his knees. The victim's sister, E.B., testified that, on another occasion, she witnessed defendant lying on top of the victim on a couch and that his "bottom" was moving. E.B. testified that neither defendant nor the victim was wearing pants. A jury convicted defendant of two counts of aggravated criminal sexual assault. 720 ILCS 5/12--14(b)(1) (West 1992).
In his post-conviction petition, defendant alleged, inter alia, four different constitutional violations. First, defendant alleged that he was deprived of a fair trial when the trial court permitted the victim and E.B. to testify without first conducting a competency hearing. Defendant alleged that both the victim and E.B. suffered from mental impairments and were taking psychotropic medication at the time of their trial testimony. Second, defendant alleged that both his trial and appellate counsel were ineffective because they failed to raise the issue of the victim's and E.B.'s competency to testify. Third, defendant alleged that his trial counsel was ineffective for failing to introduce evidence that allegedly indicated that defendant did not suffer from the sexually transmitted disease known as chlamydia.
Because the victim did suffer from chlamydia, defendant alleged that the evidence would have supported his claim of innocence. Fourth, defendant alleged that his right to a fair trial was violated when the State was permitted to introduce evidence of other, uncharged acts of sexual contact between defendant and the victim. In his supplemental petition, defendant alleged that his extended-term sentences violated Apprendi because they were predicated upon the trial court's conclusion that defendant's conduct resulted in serious harm to the victim and that extended terms were necessary to protect the public and deter others from committing similar conduct. Defendant argued that, under Apprendi, this enhancing factor had to be proved to a jury beyond a reasonable doubt.
On July 27, 2001, the trial court entered a written order disposing entirely of defendant's post-conviction petition. First, the trial court dismissed the four non-Apprendi allegations contained in defendant's petition. The trial court found that the mere ingestion of psychotropic medication, in and of itself, did not render a witness incompetent to testify. The trial court explained that the issue of the competency of a witness did not present the gist of a meritorious constitutional claim that could form the basis for post-conviction relief. The trial court further found that trial and appellate counsel were not ineffective for failing to raise the competency issue because the report of proceedings from the victim's and E.B.'s testimony did not create a bona fide doubt as to their competency. Regarding the issues surrounding defendant's medical records and chlamydia, the trial court noted that this court had previously held on direct appeal that defendant had not proved that he was prejudiced by his trial counsel's failure to introduce evidence that defendant allegedly did not have chlamydia. See Fikara, slip op. at 19. Similarly, the trial court noted that this court had also found no abuse of discretion in the admission of the other-crimes evidence. Fikara, slip op. at 8.
As to the Apprendi issue raised in defendant's supplemental petition, the trial court found that defendant's extended-term sentence was predicated in part upon factors, besides his criminal history, that were not determined by a jury beyond a reasonable doubt. Therefore, the trial court ruled that fundamental fairness required that defendant's petition be granted in part and that his sentence should be vacated and "a new sentencing hearing held in accordance with the standards of Apprendi addressing only non-Apprendi factors." As noted above, following a new sentencing hearing, the trial court resentenced defendant to two consecutive, extended-term sentences of 40 years. The extended-term sentences were predicated upon defendant's prior Class X felony conviction for armed robbery in 1979. Following the denial of defendant's post-sentencing motions, defendant filed a pro se notice of appeal challenging the trial court's new sentencing order and the trial court's previous order disposing of his post-conviction petition.
On appeal, defendant contends that (1) the trial court erred in denying his request for a new trial on the basis of "newly discovered chlamydia" evidence that completely exonerates him of the charged offenses; (2) the trial court erred in its determination that trial counsel was not ineffective; (3) the trial court erred in resentencing him to an extended term without first granting a new trial as mandated by section 5--5--4 of the Unified Code of Corrections (the Code) (730 ILCS 5/5--5--4 (West 2002)); and (4) the provisions of the Code under which the trial court imposed consecutive sentences and extended terms. (730 ILCS 5/5--5--3.2(b)(1), 5--8--4(a) (West 2000)) violate the state and federal constitutional guarantees against double jeopardy, ex post facto laws, and the separation of powers.
Prior to addressing the merits, we first consider the State's assertion that this court lacks jurisdiction to consider defendant's first two contentions. These two contentions address the propriety of the trial court's July 27, 2001, order dismissing all of the issues raised in defendant's post-conviction petition with the exception of the Apprendi issue. The State argues that, had defendant wished to appeal this dismissal order, he was required by Supreme Court Rule 606(b) (188 Ill. 2d R. 606(b)) to file a notice of appeal within 30 days after entry of the July 27, 2001, order or within 30 days after entry of an order disposing of a timely filed motion directed against the judgment.
Because defendant did not file his notice of appeal until February 27, 2002, which was the day the trial court entered its resentencing order, the State argues that this notice was not effective to preserve review of the July 27, 2001, order dismissing the non-Apprendi contentions in defendant's post-conviction petition.
Section 122--7 of the Act provides that any "final judgment" entered upon a post-conviction petition "shall be reviewed in a manner pursuant to the rules of the Supreme Court." 725 ILCS 5/122--7 (West 2000). Illinois courts have held that an order that disposes entirely of a post-conviction petition is immediately appealable, even if the order does not ultimately dispose of the criminal proceedings against the defendant. See People v. Scott, 194 Ill. 2d 268, 278-79 (2000) (noting that trial court's disposition of the defendant's post-conviction petition was immediately appealable even though trial court determined that the defendant should receive a new sentencing hearing); People v. Joyce, 1 Ill. 2d 225, 227 (1953) (holding that an order disposing of post-conviction petition was immediately appealable by either the State or the defendant even though the trial court determined that the defendant should receive a new trial). Such an order, while not necessarily disposing of the criminal proceeding, nonetheless is a final disposition of the petition under the Act. Joyce, 1 Ill. 2d at 227. As correctly noted by the State, to preserve review of an order entirely disposing of a post-conviction proceeding, Supreme Court Rules 651(d) and 606(b) require the party seeking review to file a notice of appeal within 30 days of the entry of the final order disposing of the petition or within 30 days of the entry of the order disposing of a timely filed motion attacking the judgment. 134 Ill. 2d R. 651(d); 188 Ill. 2d R. 606(b).
Here, the trial court's July 27, 2001, order disposed of defendant's post-conviction petition entirely. After finding that defendant's extended-term sentences violated Apprendi, the trial court granted the post-conviction petition in part, vacated defendant's sentence, and scheduled a new sentencing hearing. Pursuant to the State's motion, the trial court dismissed defendant's remaining allegations in the petition. The entry of this order resolved all issues raised in the post-conviction petition and was a final disposition of the petition under the Act. As such, the order was immediately appealable, and Rule 606(b) required that a notice of appeal be filed within 30 days by any party seeking review of the order or within 30 days of the disposition of a timely filed motion attacking the judgment. See Joyce, 1 Ill. 2d at 227. Defendant failed to file either a notice of appeal or a motion directed against the order within 30 days of the entry of the July 27, 2001, order. As noted above, defendant did not file a notice of appeal until February 27, 2002, and his notice of appeal made no mention of the post-conviction proceedings or the July 27, 2001, order. Defendant's failure to timely file a notice of appeal deprives this court of jurisdiction to consider those issues relating to the dismissed allegations of his post-conviction petition. ...