Appeal from Circuit Court of McLean County Nos. 06CF1264 07CF13 06CF364, Honorable Scott Drazewski, Judge Presiding.
Justices Knecht and Holder White concurred in the judgment and opinion.
STEIGMANN, PRESIDING JUSTICE
¶ 1 In this consolidated appeal, we (1) accept the motion to withdraw of the office of the State Appellate Defender (OSAD) and affirm the trial court's judgment in McLean County case No. 06-CF-364 (this court's case No. 4-11-0787) and (2) affirm the trial court's denial of the defendant's petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)) in McLean County case Nos. 06-CF-1264 and 07-CF-13 (Nos. 4-11-0785 and 4-11-0786, respectively). Our affirmances are based upon our conclusion that section 5-8-4(h) of the Unified Code of Corrections (730 ILCS 5/5-8-4(h) (West 2006)) mandates only that when a person charged with a felony commits a separate felony while on pretrial release, the sentences imposed when he is convicted of that felony (or multiple felonies) must be served consecutively to the felony for which he was on pretrial release.
¶ 2 I. BACKGROUND
¶ 3 A. Defendant's Underlying Convictions
¶ 4 In April 2006, the State charged defendant, Elliott H. Davis, with three counts of aggravated battery (720 ILCS 5/12-4(a), (b)(8) (West 2006)) in McLean County case No. 06-CF-364 (this court's case No. 4-11-0787). The trial court later released defendant on bond. In December 2006—while defendant was still released on bond—the State charged defendant with armed robbery (720 ILCS 5/18-2(a) (West 2006)), home invasion (720 ILCS 5/12-11(a)(2) (West 2006)), and possession of a firearm by a felon (720 ILCS 5/24-1.1(a) (West 2006)) in McLean County case No. 06-CF-1264 (this court's case No. 4-11-0785) for conduct defendant allegedly engaged in on December 21, 2006. One month later, in January 2007—while defendant was in custody for the December 21, 2006, crimes he allegedly committed—the State charged defendant with three counts of unlawful delivery of cannabis (720 ILCS 550/5(d) (West 2006)) in McLean County case No. 07-CF-13 (this court's case No. 4-11-0786), for conduct defendant allegedly engaged in while on bond in case No. 06-CF-364.
¶ 5 In March 2007, a jury convicted defendant of two counts of aggravated battery in the original case (case No. 06-CF-364). In April 2007, the trial court sentenced defendant to seven years in prison on that conviction.
¶ 6 In November 2007, defendant pleaded guilty to three counts of unlawful delivery of cannabis in case No. 07-CF-13 in exchange for the State's offer to request a six-year sentence, which would run consecutively to his seven-year sentence for aggravated battery in case No. 06-CF-364. The trial court later sentenced defendant in accordance with his plea agreement.
¶ 7 One month later, in December 2007, defendant pleaded guilty to home invasion in case No. 06-CF-1264 in exchange for (1) the State's offer to dismiss the armed-robbery and possession-of-a-firearm-by-a-felon charges and (2) a 22 1/2-year sentencing cap, with that sentence to "run concurrent[ly] to any sentence imposed in case No. 07CF13 [(the unlawful-delivery-of-cannabis case)] but run consecutive[ly] to any sentence imposed in 06CF364 [(the original aggravated-battery case)]." In January 2008, the trial court sentenced defendant to 16 years in prison pursuant to that plea agreement.
¶ 8 In November 2008, this court affirmed defendant's conviction and sentence in case No. 06-CF-364 (People v. Davis, No. 4-07-0484 (Nov. 20, 2008) (unpublished order under Supreme Court Rule 23)). In July 2009, this court affirmed defendant's conviction and sentence in case No. 07-CF-1264 (People v. Davis, No. 4-08-0565 (July 9, 2009) (unpublished order under Supreme Court Rule 23)). Defendant did not appeal his conviction and sentence in case No. 06-CF-13.
¶ 9 B. Defendant's Section 2-1401 Petition
¶10 In April 2011, defendant pro se filed a petition for relief from judgment under section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2010)), indicating in the petition's heading that the petition was being filed in case Nos. 06-CF-364, 06-CF-1264, and 07-CF-13. Defendant asserted in the petition that (1) he committed the offenses in case Nos. 06-CF-1264 and 07-CF-13 while he was on bond in case No. 06-CF-364 and (2) the trial court failed to admonish him before he entered his guilty pleas in those two cases that he was subject to consecutive sentencing pursuant to section 5-8-4(h) of the Unified Code (730 ILCS 5/5-8-4(h) (West 2006)), as required by Illinois Supreme Court Rule 402(a) (eff. July 1, 1997). Defendant further asserted that as a result, his sentences in those cases were void and he should be permitted to withdraw his pleas.
¶11 In June 2011, the State filed a motion to dismiss defendant's section 2-1401 petition, contending that (1) the facts included in the petition were contradicted by the record, which showed that defendant was admonished that his sentences in the two subsequent cases would be consecutive to his sentence in case No. 06-CF-364, (2) defendant's claims were res judicata, and (3) defendant's petition was untimely. Defendant did not respond to the State's motion.
¶12 In August 2011, the trial court conducted a hearing on the State's motion to dismiss. Appearing pro se, defendant responded to the State's contentions, in pertinent part, as follows:
"THE DEFENDANT: The bottom line is, is in my opinion and by the law, 07-CF-13 and 06-CF-1264, by the cases, by the law, the cases that I caught and by me being out on bond, the plea agreement can't be made the way it was because all of my time, the way I was given my time, it just can't happen. The drug case shouldn't run concurrent with anything, ...