Appeal from Circuit Court of Macon County. No. 08CF408. Honorable Scott B. Diamond, Judge Presiding.
Affirmed in part and vacated in part; cause remanded with directions.
The dismissal of defendant's petition under section 2-1401 of the Code of Civil Procedure for relief from judgment based on his claim that the trial court had no statutory authority to sentence him to concurrent terms for five counts of burglary was affirmed and the office of the State Appellate Defender was granted leave to withdraw, since such statutory authority existed in section 5-5-3(c)(8) of the Unified Code of Corrections, which required defendant to be sentenced as a Class X offender even though his burglaries were classified as Class 2 felonies, but the statutorily mandated fines improperly imposed by the circuit clerk were vacated and the cause was remanded with directions for the trial court to impose the specified fines, listing them in an amended sentencing order.
Michael J. Pelletier, of State Appellate Defender's Office, of Springfield, and Thomas A. Lilien and Kim M. DeWitt, both of State Appellate Defender's Office, of Elgin, for appellant.
Jay Scott, State's Attorney, of Decatur (Patrick Delfino, David J. Robinson, and Linda Susan McClain, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE APPLETON delivered the judgment of the court, with opinion. Justices Turner and Steigmann concurred in the judgment and opinion.
[¶1] Defendant, Derrick Jernigan, appeals from the dismissal of his petition for relief from judgment (735 ILCS 5/2-1401 (West 2012)). The office of the State Appellate Defender (OSAD) moves for permission to withdraw from representing him, because OSAD does not think any reasonable argument could be made in support of this appeal. See Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); People v. Lee, 251 Ill.App.3d 63, 621 N.E.2d 287, 190 Ill.Dec. 418 (1993). Defendant has filed additional points and authorities.
[¶2] In our de novo review ( Deutsche Bank National Trust Co. v. Hall-Pilate, 2011 IL App. (1st) 102632, ¶ 12, 957 N.E.2d 924, 354 Ill.Dec. 330), we grant OSAD's motion to withdraw, and we uphold the dismissal of the petition, because, contrary to the claim in the petition, the trial court had statutory authority to sentence defendant to concurrent terms of 25 years' imprisonment for 5 counts of burglary. The statutory authority was section 5-5-3(c)(8) of the Unified Code of Corrections (Code) (730 ILCS 5/5-5-3(c)(8) (West 2008)), which required the court to " sentence [defendant] as a Class X offender," even though his burglaries remained classified as Class 2 felonies.
[¶3] The State, however, directs our attention to some void fines imposed by the circuit clerk. We vacate these void fines, and while affirming the trial court's judgment, we remand this case with directions that the trial court, as distinct from the circuit clerk, impose the statutorily mandated fines, specifying them in an amended sentencing order.
[¶4] I. BACKGROUND
[¶5] In November 2008, a jury found defendant guilty of five counts of burglary (720 ILCS 5/19-1(a) (West 2008)).
[¶6] In January 2009, the trial court sentenced defendant to 5 terms of 25 years' imprisonment, ordering that the terms run concurrently.
[¶7] Burglary was a Class 2 felony. 720 ILCS 5/19-1(b) (West 2008). Normally, the maximum prison sentence for a Class 2 felony was 7 years (730 ILCS 5/5-8-1(a)(5) (West 2008)) or, if there were aggravating factors, the trial court could impose an extended-term sentence of up to 14 years (730 ILCS 5/5-8-2(a)(4) (West 2008)). Because of defendant's prior criminal record, however, the court " sentenced [him] as a Class X offender." 730 ILCS 5/5-5-3(c)(8) (West 2008). For a Class X felony, the nonextended range was not less than 6 years and not more than 30 years. 730 ILCS 5/5-8-1(a)(3) (West 2008). The court imposed a sentence of 25 years' imprisonment for each of the 5 counts of burglary and ordered that the 5 prison terms run concurrently.
[¶8] In December 2012, defendant filed his first petition for relief from judgment (735 ILCS 5/2-1401 (West 2012)). In this first petition, he alleged a violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); misconduct by the prosecutor during voir dire; trial errors; and a violation of the one-act, one-crime rule (see People v. Artis, 232 Ill.2d 156, 170, 902 N.E.2d 677, 327 Ill.Dec. 556 (2009)).
[¶9] The State moved to dismiss the first petition for essentially three reasons: (1) the two-year period of limitation in section 2-1401(c) (735 ILCS 5/2-1401(c) (West 2012)) had expired; (2) instead of presenting newly discovered facts, the petition made legal arguments that defendant already had made in previous proceedings before the trial court and the appellate court; and (3) the petition raised no claim of actual innocence.
[¶10] In February 2013, the trial court dismissed the first petition as untimely, and defendant appealed. That appeal already has been addressed. People v. Jernigan, No. 4-13-0144 (Oct. 8, 2014) (unpublished summary order under Supreme Court Rule 23(c)(2)).
[¶11] In April 2013, defendant filed his second petition for relief from judgment--the petition before us in this appeal. The second petition claimed that, under the supreme court's decision in People v. Pullen, 192 Ill.2d 36, 733 N.E.2d 1235, 248 Ill.Dec. 237 (2000), his concurrent 25-year prison sentences were void because they " exceeded the maximum aggregate sentence for a Class 2 felony."
[¶12] For two reasons, the State moved to dismiss the second petition for relief from judgment. First, the State noted that defendant already had appealed the dismissal of his first petition for relief from judgment and the appeal was still pending at that time. Citing People v. Dace, 184 Ill.App.3d 1082, 1085, 540 N.E.2d 926, 133 Ill.Dec. 60 (1989), the State pointed out that a timely notice of appeal divested the trial court of jurisdiction, except for jurisdiction to perform ministerial functions and to adjudicate matters independent of and collateral to the judgment that was appealed--exceptions which, according to the State, were inapplicable. ...