The opinion of the court was delivered by: Justice Fitzgerald
Docket No. 94644-Agenda 5-May 2003.
The State and the defendant, Robert Pinkonsly, both appeal a decision of the appellate court affirming in part and vacating in part a McHenry County circuit court order dismissing the defendant's amended petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2002)). Because the appellate court erred in vacating the defendant's unlawful delivery of a controlled substance convictions and sentences and in not vacating the extended-term sentence on his narcotics racketeering conviction, we reverse.
On December 4, 1989, the defendant sold 27.2 grams of cocaine to an undercover police officer. Again, on December 6, 1989, the defendant sold 53.3 grams of cocaine to the officer. Finally, on December 12, 1989, the defendant sold 124.1 grams of cocaine to the officer. The defendant was arrested during this last sale. He was later indicted on one count of delivery of between 15 and 100 grams of a controlled substance (see Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)(A), currently codified as 720 ILCS 570/401(a)(2)(A) (West 2002)), one count of delivery of between 100 and 400 grams of a controlled substance (see Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)(B), currently codified as 720 ILCS 570/401(a)(2)(B) (West 2002)), and one count of narcotics racketeering (see Ill. Rev. Stat. 1989, ch. 56½, par. 1654(a), currently codified at 725 ILCS 175/4(a) (West 2002)). The unlawful delivery offenses were Class X felonies; the narcotics racketeering offense was a Class 1 felony.
On August 23, 1991, the defendant was convicted on all three counts. At sentencing, the State asked the trial court to sentence the defendant to two concurrent 60-year, extended-term sentences on the delivery convictions and a consecutive 15-year sentence on the narcotics racketeering conviction. Defense counsel objected that "[t]here have been no necessary findings or evidence to indicate extended terms." The court sentenced the defendant to two concurrent 30-year sentences on the delivery convictions and another concurrent 30-year, extended-term sentence on the narcotics racketeering conviction. The defendant appealed, raising the sole issue of a purported speedy-trial violation. The appellate court affirmed. See People v. Pinkonsly, No. 2-91-1093 (1993) (unpublished order under Supreme Court Rule 23).
More than six years after his conviction, on December 17, 1997, the defendant filed a pro se "Petition for Relief from Judgment" under section 2-1401 of the Code of Civil Procedure. The defendant asserted that his trial attorney was ineffective for failing to file a motion to reduce the defendant's sentence for narcotics racketeering and a motion to vacate the defendant's unlawful delivery convictions as lesser-included offenses of narcotics racketeering. The trial court appointed an attorney for the defendant, and this new attorney filed an "AMENDED PETITION TO REDUCE SENTENCE," arguing only that the length of the defendant's sentence was excessive in light of his age. The State did not respond to this petition, and the trial court dismissed it.
The defendant appealed, and the appellate court appointed another attorney for the defendant. On appeal, the defendant contended that all of his prior attorneys, including his court-appointed attorney on his section 2-1401 petition, were constitutionally ineffective because they failed to challenge his extended-term sentence for narcotics racketeering, and they failed to attack his unlawful delivery convictions as lesser-included offenses of narcotics racketeering. The appellate court ordered supplemental briefing on two issues: (1) whether narcotics racketeering and unlawful delivery are based on the same physical act; and (2) whether People v. Callaway, 185 Ill. App. 3d 136 (1989), which held that Class 1, 2, and 3 felony unlawful delivery convictions were lesser-included offenses of narcotics racketeering, a Class 1 felony, applied here.
The appellate court, with one justice dissenting, affirmed in part and vacated in part. 331 Ill. App. 3d 984. The court rejected the State's argument that the defendant's section 2-1401 petition was untimely, because the State did not present that argument to the trial court. 331 Ill. App. 3d at 986. The court then declined to consider the defendant's ineffective-assistance claims regarding his trial and appellate attorneys, reasoning that such claims are not cognizable in a section 2-1401 petition. 331 Ill. App. 3d at 986-87. The court, however, addressed the defendant's argument that his attorney on his section 2-1401 petition was ineffective for failing to raise the issue of whether unlawful delivery was a lesser-included offense of narcotics racketeering. 331 Ill. App. 3d at 987. The court recited the familiar, two-prong Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), standard for analyzing sixth amendment ineffective-assistance claims and reviewed Illinois law on lesser-included offenses. 331 Ill. App. 3d at 987-88. The court examined the charges against the defendant:
"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 [citation] 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 offenses. See People v. Callaway, 185 Ill. App. 3d 136 (1989)." 331 Ill. App. 3d at 988. *fn1
The court held that the defendant's section 2-1401 attorney was ineffective for failing to raise this issue and vacated the defendant's convictions and sentences on both delivery counts. 331 Ill. App. 3d at 989. The court further held that the defendant's section 2-1401 attorney was not ineffective for failing to challenge the defendant's extended-term sentence on his narcotics racketeering conviction. 331 Ill. App. 3d at 991. Though the trial court did not offer a basis for the extended-term sentence, the State mentioned at sentencing that the defendant had a prior Class 1 felony conviction for "possession with intent to deliver." 331 Ill. App. 3d at 991.
The dissent initially noted that the majority opinion did not address the central issue in this case: whether predicate offenses are lesser-included offenses. 331 Ill. App. 3d at 991 (O'Malley, J., dissenting). After reviewing Garrett v. United States, 471 U.S. 773, 85 L. Ed. 2d 764, 105 S. Ct. 2407 (1985), where the United States Supreme Court expressed "serious doubts" that importing marijuana was a lesser-included offense of engaging in a continuing criminal enterprise, the dissent characterized the defendant's conduct as "multilayered and not susceptible to the `classic relationship' of lesser-included and greater offenses." 331 Ill. App. 3d at 992. According to the dissent, the Class X delivery counts could not be lesser-included offenses of the Class 1 racketeering count:
"The General Assembly has chosen to make the delivery of between 15 and 100 grams of cocaine a Class X felony, while it has made the later-enacted narcotics racketeering a Class 1 felony. This scheme is indicative of the legislature's intent to make large-scale drug delivery a more serious offense than the receipt of income from multiple, smaller drug offenses, rather than a lesser-included offense." 331 Ill. App. 3d at 994.
We allowed the State's petition for leave to appeal. 177 Ill. 2d R. 315(a).
In its appeal, the State raises three issues: (1) whether the appellate court erred in granting relief on the defendant's section 2-1401 petition because it was untimely; (2) whether the appellate court erred in granting relief on the defendant's petition because ineffective assistance of counsel claims are not cognizable in section 2-1401 proceedings; and (3) whether the appellate court erred in granting relief on the defendant's petition because unlawful delivery of a controlled substance is not a lesser-included offense of narcotics racketeering. We review the trial court's dismissal of the defendant's section 2-1401 petition for an abuse of discretion. See People v. Haynes, 192 Ill. 2d 437, 461 (2000).
Section 2-1401 of the Code of Civil Procedure, formerly section 72 of the Civil Practice Act, provides a comprehensive statutory procedure by which final orders and judgments may be challenged more than 30 days after their entry. People v. Harvey, 196 Ill. 2d 444, 447 (2001) (stating that section 2-1401 provides a civil remedy, which also applies to criminal cases). A section 2-1401 petition filed more than two years after the challenged judgment cannot be considered absent a clear showing that the person seeking relief was under a legal disability or duress or the grounds for relief were fraudulently concealed. People v. Caballero, 179 Ill. 2d 205, 210-11 (1997); see 735 ILCS 5/2-1401(c) (West 2002). If the party opposing the section 2-1401 petition does not raise the limitations period as a defense, it may be waived. See Harvey, 196 Ill. 2d at 447.
The defendant was convicted on August 23, 1991, but he did not file his pro se section 2-1401 petition until October 17, 1997, well beyond the two-year limitations period. The State did not raise the timeliness issue before the trial court, though it did raise that issue in answering the defendant's appeal. The State refers us to the " ...