Appeal from Circuit Court of Macon County No. 94CF70 Honorable John K. Greanias, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
Defendant, Albert L. Harper, is serving consecutive terms of imprisonment for two separate offenses of burglary (720 ILCS 5/19-1(a) (West 1992)), one term imposed in this case (Harper I) and the other imposed in another Macon County case, People v. Harper, No. 94-CF-326 (Harper II). In the present case, Harper I, he filed a motion to vacate the sentence on the ground that the aggregate of the consecutive sentences for burglary in this case and Harper II was greater than section 5-8-4(c)(2) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-8-4(c)(2) (West 1992)) allowed. The trial court denied the motion, as well as a motion to reconsider, and defendant appeals.
Construing defendant's motion to vacate as a post-conviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through 122-8 (West 2000)), the State argues the trial court was correct in dismissing it because (1) the so-called "petition" alleges no constitutional violation, (2) res- 1 -judicata and the doctrine of waiver bar it, and (3) the legislature implicitly repealed section 5-8-4(c)(2) by enacting section 5-8-4(h) of the Unified Code (730 ILCS 5/ 5-8-4(h) (West 1992)).
Because a party can challenge a void sentence at any time, either directly or collaterally, we disagree with the State's first and second contentions. We do not reach the State's third contention. We find section 5-8-4(c)(2) to be patently inapplicable to the present case, Harper I, for the simple reason that the trial court imposed no consecutive sentence--and therefore could not have violated section 5-8-4(c)(2)--in the present case; it imposed the consecutive sentence in Harper II. Therefore, we affirm.
On April 27, 1994, in Harper I, a jury found defendant guilty of burglary (720 ILCS 5/19-1(a) (West 1992)), possession of burglary tools (720 ILCS 5/19-2(a) (West 1992)), and possession of a controlled substance (720 ILCS 570/402(c) (West 1992)). For those offenses, the trial court sentenced him to concurrent prison terms of 20 years, 2 years, and 2 years, respectively.
On June 16, 1994, in Harper II, defendant pleaded guilty to burglary, and the trial court sentenced him to 10 years' imprisonment, ordering that the 10-year term run consecutively to the prison terms in Harper I.
Although burglary was a Class 2 felony, the court sentenced him as a Class X offender in both cases, pursuant to section 5-5-3(c)(8) of the Unified Code (730 ILCS 5/5-5-3(c)(8) (West 1992) ("When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender")).
On January 25, 1996, in a consolidated appeal, we upheld the convictions and sentences in Harpers I and II. People v. Harper, Nos. 4-94-0563, 4-94-1040 cons. (January 25, 1996) (unpublished order pursuant to Supreme Court Rule 23).
On November 6, 1996, defendant filed, pro se, a petition for post-conviction relief from the judgments in Harpers I and II. The trial court summarily dismissed the petition as frivolous and patently without merit, and defendant appealed. In his appeal from the dismissal of his post-conviction petition, he argued, inter alia, that the 30-year aggregate maximum of the consecutive sentences in Harpers I and II exceeded the 28-year aggregate maximum allowable under section 5-8-4(c)(2) of the Unified Code (730 ILCS 5/5-8-4(c)(2) (West 1992)). We affirmed, holding that defendant had forfeited that argument by failing to raise it in his post-conviction petition. People v. Harper, No. 4-96-1008 (February 2, 1998) (unpublished order pursuant to Supreme Court Rule 23).
On April 17, 2001, defendant filed, pro se, a document entitled "Motion to Vacate [a] Void Sentence and for Resentencing," in which he requested, on the authority of People v. Pullen, 192 Ill. 2d 36, 733 N.E.2d 1235 (2000), that the trial court vacate the sentences in Harpers I and II and hold a new sentencing hearing, arguing, again, that the aggregate maximum of the consecutive sentences in those cases exceeded that permissible under section 5-8-4(c)(2) of the Unified Code. He acknowledged that in Harper, No. 4-96-1008, we held he had forfeited that issue by failing to raise it in his post-conviction petition. Nevertheless, he argued that "[b]ecause the sentences are void, they must be vacated. Void sentences can be attacked at any time. People v. Arna, 168 Ill. 2d 107, 658 N.E.2d 445 (1995); People v. Zeisler, 125 Ill. 2d 42, 531 N.E.2d 24 (1988)."
On October 15, 2001, construing defendant's motion as a post-conviction petition, the State filed a motion to dismiss it on the following grounds: (1) instead of alleging a substantial denial of a constitutional right, he alleged only a violation of a state statute; (2) the present petition was untimely (see 725 ILCS 5/122-1(c) (West 2000)); (3) our decision in Harper, Nos. 4-94-0563, 4-94-1040 cons., was res judicata; and (4) he had forfeited the issue he now raised by failing to raise it in his first petition for post-conviction relief (see 725 ILCS 5/122-3 (West 2000)).
On January 15, 2002, in Harper I, the trial court entered an order entitled "Judgment Dismissing [the] Request for [Post-conviction] Sentencing Relief." In that order, the court noted that the 20-year term of imprisonment it had imposed in Harper I was "within the statutory [range] for Class X sentencing pursuant to the recidivist provisions of [section 5-5-3(c)(8) of the Unified Code]." The court had imposed the sentence on May 20, 1994, while defendant was awaiting trial in Harper II. On June 16, 1994, defendant pleaded guilty in Harper II, after the court imposed the sentence in Harper I. On July 11, 1994, the court imposed the 10-year term of imprisonment in Harper II, after defendant appealed the 20-year term of imprisonment in Harper I. The court reasoned that because the 20-year term of imprisonment in Harper I "was lawful when imposed," defendant's "claim of [a] void sentence [had] validity only in [Harper II]." Therefore, the court denied defendant's motion to vacate the sentence in Harper I.
On January 16, 2002, in Harper II, the trial court entered an order entitled "Order Denying [the] State's Motion to Dismiss." In that order, the ...