Court of Appeals of Illinois, First District, Third Division
The summary dismissal of defendant’s postconviction petition was reversed and his sentence for aggravated criminal sexual assault, including a 15-year add-on for being armed with a firearm, was vacated and the cause was remanded for resentencing, since the 15-year add-on did not apply to defendant’s case.
Appeal from the Circuit Court of Cook County, No. 06-CR-8798; the Hon. James M. Obbish, Judge, presiding.
Michael J. Pelletier and Caroline Bourland, both of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Mary P. Needham, Assistant State's Attorney, of counsel), for the People.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.
¶ 1 Defendant Lathern Lampkins appeals from the judgment of the circuit court that summarily dismissed his pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). For the reasons that follow, we find that a portion of defendant's sentence is void, as asserted by defendant for the first time in a petition for rehearing, and remand for resentencing.
¶ 2 The record shows that on March 19, 2006, 17-year-old defendant and codefendant Robert Falls, who is not a party to this appeal, saw Kevin Porter exit his front door at 2544 East 81st Street and walk toward a vehicle parked on the street. Defendant and codefendant approached Porter, pointed guns at his head, and demanded his wallet. Porter indicated that he did not have his wallet, and holding him at gunpoint, they searched Porter's vehicle and then took him back into the house. After Porter opened the door to his residence, defendants stole several items, including bank cards and jewelry. While in the house, defendant pointed a gun at Porter's girlfriend Katherine Benson and sexually assaulted her. At gunpoint, defendants then took Porter to a bank and forced him to withdraw money from a cash station. Porter complied and gave defendant the cash. While defendants took Porter to the cash station, Benson called the police. Defendants dropped off Porter in an alley and were arrested shortly thereafter. Defendant and codefendant were charged on April 20, 2006, with numerous counts in connection with this incident, including aggravated criminal sexual assault (ACSA), home invasion, armed robbery, vehicular hijacking, kidnaping, and unlawful restraint.
¶ 3 Following a 2008 bench trial, defendant was convicted of ACSA with a firearm, two counts of home invasion, armed robbery, and vehicular hijacking. He was then sentenced to 27 years' imprisonment for ACSA, which included a 15-year add-on for being armed with a firearm, to run consecutively to the four concurrent terms of 8 years' imprisonment imposed on his remaining convictions. This court affirmed that judgment on direct appeal after allowing direct-appeal counsel's motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). People v. Lampkins, No. 1-08-2535 (2010) (unpublished order under Supreme Court Rule 23).
¶ 4 On June 13, 2012, defendant filed a pro se postconviction petition, alleging, in pertinent part, that direct-appeal counsel was ineffective for failing to raise any issues on his behalf. In particular, defendant maintained that counsel did not raise any issue on appeal "before-during-and or after reviewing the petitioner transcripts, " was in "dis-attude" when counsel stated that there were no issues of arguable merit and filed a motion to withdraw, and was ineffective for "not filing ineffective assistance on the trial counsel for not preserving issues by objecting so that the defendant could [have] had meritorious issues to raise in his appeal." According to defendant, direct-appeal counsel's performance fell below an objective standard of reasonableness and prejudiced him.
¶ 5 As evidence of direct-appeal counsel's ineffectiveness, defendant attached to his petition an October 15, 2009, letter written by his counsel advising him to dismiss his appeal because the sentencing issues she could argue had a very low chance of success and raising them would bring to light a sentencing error that was in his favor. In particular, direct-appeal counsel stated that because he was convicted of armed robbery with a firearm, he should have received "15 years on top of the 8 years [he] received." Therefore, counsel indicated that the court should have imposed a 23-year sentence for his armed robbery with a firearm conviction, making his total sentence for all crimes 50 years instead of 35 years. Counsel concluded the letter by advising defendant to dismiss his appeal to avoid the risk of exposing the purported sentencing error, which would result in him receiving a higher sentence. Defendant also attached direct-appeal counsel's motion to withdraw as counsel pursuant to Anders.
¶ 6 On August 3, 2012, the circuit court dismissed defendant's petition as frivolous and patently without merit. In doing so, the court found, in relevant part, that because defendant's underlying claims of ineffective assistance of trial counsel were without merit, the ineffective assistance of direct-appeal counsel claim based on counsel's failure to argue ineffective assistance of trial counsel was likewise without merit. This appeal followed.
¶ 7 In defendant's brief on appeal, postconviction appellate counsel raised the issue of whether direct-appeal counsel was ineffective for failing to challenge the 15-year add-on penalty to his sentence on ACSA for possessing a firearm at the time he committed the offense. In a Rule 23 order issued on June 25, 2014, we found that this issue could not be raised for the first time on appeal because it was not included in defendant's postconviction petition, even under liberal construction. People v. Lampkins, 2014 IL App (1st) 123519-U; Ill. S.Ct. R. 23 (eff. July 1, 2011). We noted that defendant was free to pursue any defaulted claims he ...