Appeal from Circuit Court of Champaign County No. 98CF1779. Honorable Thomas J. Difanis, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Turner
Defendant, Roger D. Harris, appeals (1) his sentence following remand and (2) the trial court's dismissal of his pro se post-conviction petition. We affirm in part, vacate in part, and remand with directions.
On June 16, 1999, a jury found defendant guilty of two counts of criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 1998)) and one count of unlawful restraint (720 ILCS 5/10-3(a) (West 1998)). Criminal sexual assault is a Class 1 felony, punishable by 4 to 15 years' imprisonment. 730 ILCS 5/5-8-1(a)(4) (West 1998). Unlawful restraint is a Class 4 felony, punishable by one to three years' imprisonment. 730 ILCS 5/5-8-1(a)(7) (West 1998). In August 1999, Judge Thomas Difanis held a sentencing hearing, at which he heard the parties' arguments as neither the State nor defendant presented any evidence. The court sentenced defendant to the maximum term on each count with the sentences to run concurrently. The court chose not to impose what it believed was discretionary consecutive sentences, saying, "I don't believe consecutive sentences would be necessary and/or appropriate in this case."
On appeal, this court concluded one of the criminal-sexual- assault convictions must be vacated under the one-act, one-crime rule and remanded for that purpose. People v. Harris, No. 4-99-0806, slip order at 20 (September 21, 2001) (unpublished order under Supreme Court Rule 23). We also determined that consecutive sentences were mandated by the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-8-4(a), (b) (West 1998)). Harris, slip order at 19. Accordingly, we found (1) the original sentences were void because of the improper concurrent terms and (2) a new sentencing hearing was warranted, at which the trial court had the discretion to determine the length of the individual sentences but did not have the discretion to make them concurrent. Harris, slip order at 19-20. In the order's conclusion, we only vacated the unlawful-restraint sentence but did remand "for further proceedings consistent with the views expressed herein." Harris, slip order at 20.
In a March 7, 2002, docket entry, the trial court noted that pursuant to this court's mandate, it vacated defendant's conviction on count II (criminal sexual assault) and stated defendant's 3-year sentence for unlawful restraint was to run consecutive to his 15-year sentence on count I (criminal sexual assault). The court entered an amended sentencing judgment reflecting the changes. In an April 3, 2002, letter to the court, defendant complained he was not present when the new sentencing decision was made. In response, the court appointed defendant counsel and set a hearing date.
In July 2002, defendant filed a pro se post-conviction petition, asserting he was denied effective assistance of trial and appellate counsel. Specifically, he argued trial counsel was ineffective for (1) failing to properly respond when defendant notified him of a juror sleeping, (2) failing to challenge two jurors who had a family member or a loved one who had been sexually assaulted, and (3) failing to inform defendant he could have asked for a continuance until his "regular" judge could hear the case. Defendant contended his appellate counsel was ineffective for failing to raise on appeal issues of trial counsel's ineffectiveness, namely trial counsel's failure to challenge potentially biased jurors and failure to call Damion Monroe as a witness. On August 15, 2002, the trial court summarily dismissed defendant's post-conviction petition as frivolous and patently without merit.
On August 5, 2002, Judge Difanis conducted the sentencing hearing wherein the trial court noted defendant's presence and explained the appellate court had remanded the cause for resentencing on the unlawful-restraint conviction because it was a mandatory consecutive sentence. Neither defendant nor his attorney spoke at the hearing, and neither party presented any evidence. The court admonished defendant in accordance with Supreme Court Rule 605(a) (Official Reports Advance Sheet No. 21 (October 17, 2001), R. 605(a), eff. October 1, 2001).
In defendant's August 9, 2002, motion to reconsider his sentence, he argued (1) the trial court failed to properly consider the statutory and other (a) mitigating factors and (b) aggravating factors, and (2) the court's original intention was to sentence defendant to a total of 15 years' imprisonment and thus he should receive no more than 12 years' imprisonment on the criminal-sexual-assault conviction.
In December 2002, the trial court held a hearing on defendant's motion to reconsider his sentence. At the hearing, defendant argued the trial court had the authority to resentence him on the criminal-sexual-assault conviction and it should decrease the sentence to conform with its original intent. After hearing the parties' arguments, the court denied defendant's motion. This appeal followed.
A. Sentencing Hearing on Remand
Defendant raises two separate issues as to the sentencing hearing conducted by the trial court after this court's remand. First, he asserts the court's sentencing hearing was insufficient in general since he was not given an opportunity to argue for lesser sentences. Second, he alleges the court did not resentence him on the two ...