Appeal from the Circuit Court of Randolph County. No. 02-CF-160 Honorable Brian Babka, Judge, presiding.
The opinion of the court was delivered by: Justice Wexstten
The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
JUSTICE WEXSTTEN delivered the judgment of the court, with opinion. Justices Spomer and Stewart concurred in the judgment and opinion.
¶ 1 In September 2010, the trial court entered a written order denying the defendant, Kelvin Little, leave to file a pro se petition for post-conviction relief. Contending that the trial court wrongly construed his petition as a "successive" petition, the defendant argues that we should vacate the court's judgment and remand his cause for further proceedings. For the reasons that follow, we agree.
¶ 3 In the fall of 2002, following separate jury trials, the defendant was found guilty of one count of attempted escape (720 ILCS 5/8-4(a), 31-6(a) (West 2002)) and one count of aggravated battery (720 ILCS 5/12-4(b)(6) (West 2002)). In December 2002, the trial court sentenced the defendant to two consecutive three-year terms on the convictions. Because the underlying offenses were committed while the defendant was in custody on separate felony charges unrelated to the present case, the court further ordered that the sentences be served consecutively to the sentences previously imposed on the convictions on the separate charges. 730 ILCS 5/5-8-4(h) (West 2002). In January 2003, the defendant filed a timely notice of appeal.
¶ 4 In August 2004, we affirmed the defendant's convictions on direct appeal, but because it was "not clear from the record what motivated the trial court to order that the sentences imposed on [the] defendant's aggravated battery and attempted escape convictions be served consecutively to each other," we remanded for resentencing. People v. Little, No. 5-03-0028, order at 2 (2004) (unpublished order under Supreme Court Rule 23). In October 2004, indicating that it was of the opinion that consecutive sentences were necessary to protect the public from further criminal conduct by the defendant (730 ILCS 5/5-8-4(b) (West 2002)), the trial court resentenced the defendant and again imposed consecutive three-year terms of imprisonment on his convictions. The court also advised the defendant that he had 30 days to appeal from the judgment.
¶ 5 In April 2007, the defendant sent a letter to the circuit clerk asking whether his trial attorney had ever filed a notice of appeal following his resentencing hearing. The defendant indicated that he had wanted to pursue an appeal, that he had asked his attorney to file a notice of appeal on his behalf, and that his attorney had agreed to do so. In June 2007, the defendant sent a letter to the State Appellate Defender also inquiring about the situation. In response, the State Appellate Defender advised the defendant that because the opportunity to pursue a direct appeal had "long since passed," filing a petition pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 to 122-8 (West 2006)) was his "only recourse."
¶ 6 In December 2007, claiming that he had been denied the effective assistance of counsel due to his trial attorney's failure to file a notice of appeal following his resentencing hearing, the defendant filed a pro se petition for post-conviction relief pursuant to the Act.
The defendant alleged that although he had advised his trial attorney that he had wanted to appeal from the trial court's resentencing order, his attorney had failed to file a timely notice, and as a result, "his time for filing an appeal had expired." The defendant thus asked that the trial court grant him leave to file a late notice of appeal.
¶ 7 In January 2008, the trial court summarily dismissed the defendant's 2007 petition as untimely filed. The defendant appealed, and citing People v. Boclair, 202 Ill. 2d 89, 99 (2002) (holding that the Act does not authorize the first-stage dismissal of a post-conviction petition on the basis of untimeliness), we reversed. People v. Little, No. 5-08-0061 (2008) (unpublished order under Supreme Court Rule 23). On remand, in its answer to the defendant's petition, the State advised that it had "no objection to the relief requested by the defendant."
¶ 8 In November 2008, the trial court granted the defendant's 2007 petition for post-conviction relief and gave him 30 days to file a notice of appeal from the court's October 2004 resentencing order. The defendant subsequently filed a timely notice, and on appeal, he argued that the trial court had abused its discretion when resentencing him "because there was not a sufficient basis upon which to impose consecutive sentences for the protection of the public." In September 2009, noting, inter alia, that the defendant had a lengthy criminal record dating back to 1986, we rejected the ...