Court of Appeals of Illinois, First District, First Division
Appeal from the Circuit Court of Cook County. No. 10 CR 7457. Honorable Carol A. Kipperman, Judge Presiding.
The summary dismissal of defendant's pro se postconviction petition as frivolous and patently without merit was affirmed bye the appellate court, but based on the argument properly raised by defendant for the first time in his appeal from the dismissal of his postconviction petition that he was subjected to an improper double enhancement of his sentence, his sentence was vacated and the cause was remanded for resentencing, since the argument that his sentence was void could be raised at any time, and in defendant's case, his prior conviction for aggravated criminal sexual assault was improperly used as an element of the charged offense of violating the Sex Offender Registration Act and as one of his two prior felony convictions that made him eligible for Class X sentencing; furthermore, the issue was not rendered moot on the ground that defendant had completed his imprisonment and was serving a term of mandatory supervised release, because that term is considered a part of his sentence, and under the circumstances, defendant would be subject to a two-year term rather than the three-year term applicable to a Class X sentence.
Michael J. Pelletier, State Appellate Defender, Office of the State Appellate Defender, Chicago, IL, (Alan D. Goldberg and Lauren A. Bauser, of counsel), for APPELLANT.
Anita Alvarez, State's Attorney, County of Cook, Richard J. Daley Center, Chicago, IL, (Alan J. Spellberg, Jeffrey Allen and Heather Fahrenkrog, of counsel), for APPELLEE.
JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Connors concurred in the judgment and opinion.
[¶1] Defendant Thomas Hall appeals from the summary dismissal of his pro se
petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). On appeal, defendant contends that he was subject to an improper double enhancement at sentencing because a prior conviction was used both as an element of the instant offense and to find him eligible for a Class X sentence. Defendant acknowledges that he did not include this issue in his pro se postconviction petition, but argues that his sentence is void, thus, this issue may be raised at any time. We agree with defendant, and remand for a new sentencing hearing.
[¶2] In 2010, defendant was charged by indictment with violating section 6 of the Sex Offender Registration Act (Act) (730 ILCS 150/6 (West 2008)), in that he, having been previously convicted of an aggravated criminal sexual assault and having previously been convicted of a violation of the Act, knowingly failed to report and register in person to the appropriate law enforcement agency with whom he had last registered no later than 90 days after his last registration and every 90 days thereafter. Defendant was charged with a Class 2 felony because he had previously been convicted of a violation of the Act in case number 05 CR 13203. Following a bench trial, defendant was found guilty. At sentencing, the State asked that defendant be sentenced as a Class X offender based upon prior Class 2 convictions for aggravated criminal sexual assault in case number 92 CR 27522 and driving under the influence of alcohol in case number 05 CR 013203. Ultimately, defendant was sentenced, because of his background, to a Class X sentence of seven years in prison.
[¶3] On direct appeal, this judgment was affirmed, and defendant's mittimus was corrected. See People v. Hall, 2012 IL App. (1st) 102908-U. In August 2012, defendant filed the instant pro se postconviction petition. The circuit court summarily dismissed the petition as frivolous and patently without merit. It is from this judgment that defendant appeals.
[¶4] On appeal, defendant contends for the first time that the trial court erred when it sentenced him as a Class X offender because his prior conviction for aggravated criminal sexual assault in case 92 CR 27522 was used both as an element of the instant offense and ...