People v. Harris

NO. 4-02-1063 Filed 8/9/06

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
ROGER D. HARRIS, ) No. 98CF1779
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE TURNER delivered the opinion of the court:

Defendant, Roger D. Harris, appeals (1) his sentence following remand

and (2) the trial court's dismissal of his pro se postconviction petition. We affirm in part,

vacate in part, and remand with directions.

I. BACKGROUND

On June 16, 1999, a jury found defendant guilty of two counts of criminal

sexual assault (720 ILCS 5/12-13(a)(1) (West 1998)) and one count of unlawful restraint

(720 ILCS 5/10-3(a) (West 1998)). Criminal sexual assault is a Class 1 felony,

punishable by 4 to 15 years' imprisonment. 730 ILCS 5/5-8-1(a)(4) (West 1998).

Unlawful restraint is a Class 4 felony, punishable by one to three years' imprisonment.

730 ILCS 5/5-8-1(a)(7) (West 1998). In August 1999, Judge Thomas Difanis held a

sentencing hearing, at which he heard the parties' arguments as neither the State nor

defendant presented any evidence. The court sentenced defendant to the maximum

term on each count with the sentences to run concurrently. The court chose not to
impose what it believed was discretionary consecutive sentences, saying, "I don't

believe consecutive sentences would be necessary and/or appropriate in this case."

On appeal, this court concluded one of the criminal-sexual-assault

convictions must be vacated under the one-act, one-crime rule and remanded for that

purpose. People v. Harris, No. 4-99-0806, slip order at 20 (September 21, 2001)

(unpublished order under Supreme Court Rule 23). We also determined that

consecutive sentences were mandated by the Unified Code of Corrections (Unified

Code) (730 ILCS 5/5-8-4(a), (b) (West 1998)). Harris, slip order at 19. Accordingly, we

found (1) the original sentences were void because of the improper concurrent terms

and (2) a new sentencing hearing was warranted, at which the trial court had the

discretion to determine the length of the individual sentences but did not have the

discretion to make them concurrent. Harris, slip order at 19-20. In the order's conclu-

sion, we only vacated the unlawful-restraint sentence but did remand "for further

proceedings consistent with the views expressed herein." Harris, slip order at 20.

In a March 7, 2002, docket entry, the trial court noted that pursuant to this

court's mandate, it vacated defendant's conviction on count II (criminal sexual assault)

and stated defendant's 3-year sentence for unlawful restraint was to run consecutive to

his 15-year sentence on count I (criminal sexual assault). The court entered an

amended sentencing judgment reflecting the changes. In an April 3, 2002, letter to the

court, defendant complained he was not present when the new sentencing decision was

made. In response, the court appointed defendant counsel and set a hearing date.

In July 2002, defendant filed a pro se postconviction petition, asserting he

was denied effective assistance of trial and appellate counsel. Specifically, he argued

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trial counsel was ineffective for (1) failing to properly respond when defendant notified

him of a juror sleeping, (2) failing to challenge two jurors who had a family member or a

loved one who had been sexually assaulted, and (3) failing to inform defendant he could

have asked for a continuance until his "regular" judge could hear the case. Defendant

contended his appellate counsel was ineffective for failing to raise on appeal issues of

trial counsel's ineffectiveness, namely trial counsel's failure to challenge potentially

biased jurors and failure to call Damion Monroe as a witness. On August 15, 2002, the

trial court summarily dismissed defendant's postconviction petition as frivolous and

patently without merit.

On August 5, 2002, Judge Difanis conducted the sentencing hearing

wherein the trial court noted defendant's presence and explained the appellate court

had remanded the cause for resentencing on the unlawful-restraint conviction because

it was a mandatory consecutive sentence. Neither defendant nor his attorney spoke at

the hearing, and neither party presented any evidence. The court admonished

defendant in accordance with Supreme Court Rule 605(a) (Official Reports Advance

Sheet No. 21 (October 17, 2001), R. 605(a), eff. October 1, 2001).

In defendant's August 9, 2002, motion to reconsider his sentence, he

argued (1) the trial court failed to properly consider the statutory and other (a) mitigating

factors and (b) aggravating factors, and (2) the court's original intention was to sentence

defendant to a total of 15 years' imprisonment and thus he should receive no more than

12 years' imprisonment on the criminal-sexual-assault conviction.

In December 2002, the trial court held a hearing on defendant's motion to

reconsider his sentence. At the hearing, defendant argued the trial court had the

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authority to resentence him on the criminal-sexual-assault conviction and it should

decrease the sentence to conform with its original intent. After hearing the parties'

arguments, the court denied defendant's motion. This appeal followed.

II. ANALYSIS

A. Sentencing Hearing on Remand

Defendant raises two separate issues as to the sentencing hearing

conducted by the trial court after this court's remand. First, he asserts the court's

sentencing hearing was insufficient in general since he was not given an opportunity to

argue for lesser sentences. Second, he alleges the court did not resentence him on the

two convictions but, rather, simply ordered the original sentences to run consecutively.

1. Sufficiency of the Hearing

We find defendant has forfeited this issue by failing to raise it in his motion

to reconsider his sentence. See People v. Reed, 177 Ill. 2d 389, 393, 686 N.E.2d 584,

586 (1997); see also Official Reports Advance Sheet No. 21 (October 17, 2001), R.

605(a)(3)(C), eff. October 1, 2001 ("any issue or claim of error regarding the sentence

imposed or any aspect of the sentencing hearing not raised in the written motion [to

reconsider the sentence] shall be deemed waived"). Defendant's motion to reconsider

did not allege the August 2002 hearing was insufficient because he was deprived of the

opportunity to make arguments.

While defendant has forfeited this issue and no further inquiry is

warranted, we nevertheless note the trial court's sentencing hearing on remand was

sufficient. Defendant and his counsel were present at the hearing and never indicated

they had any evidence or arguments to present to the trial judge, who was the same

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judge that presided at the original sentencing hearing.

2. Resentencing

In our prior order, we concluded defendant's remaining sentences were

void because they had to run consecutively and remanded the cause for a new

sentencing hearing. See Harris, slip order at 19-20. Therefore, at the sentencing

hearing on remand, the trial court should have resentenced defendant on both the

unlawful-restraint conviction and the remaining criminal-sexual-assault conviction and

made the sentences consecutive. Defendant contends the trial court did not resentence

him on the two convictions but, rather, simply ordered the original sentences to run

consecutively.

Regarding the unlawful-restraint conviction, the record clearly indicates

the trial court resentenced defendant to three years' imprisonment. At the sentencing

hearing, the court noted the cause had been "remanded for resentencing on the

unlawful restraint" and indicated it was imposing a sentence of three years'

imprisonment on that conviction. At the hearing on the motion to reconsider, the court

stated it "felt that a [three-]

year sentence on the unlawful restraint was appropriate."

With regard to the criminal-sexual-assault conviction, the record suggests

the trial court did not resentence defendant on that conviction. At the August 2002

sentencing hearing, when the court stated the cause was "remanded for resentencing

on the unlawful restraint," it did not mention the criminal-sexual-assault conviction. The

court later explained "what we are doing is actually resentencing him on the unlawful

restraint." Again, the court did not mention the criminal-sexual-assault conviction. At

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the motion-to-reconsider hearing, the court noted the motion was timely as to "[t]he

three[-]year sentence that was imposed consecutively *** after the [a]ppellate [c]ourt

decision."

We understand the trial court's failure to resentence defendant on the

criminal-sexual-assault conviction. In the analysis section of our prior order, we found

the remaining sentences were void and informed the trial court it "has discretion to

determine the length of the individual sentences, but does not have the discretion to

make them concurrent." Harris, slip order at 20. However, in our conclusion, we only

expressly vacated the unlawful-restraint sentence but did not mention the remaining

criminal-sexual-assault sentence. See Harris, slip order at 20. While the conclusion did

state the cause was remanded "for further proceedings consistent with the views

expressed herein" (Harris, slip order at 20), our failure to expressly vacate the criminal-

sexual-assault sentence as we had done with the unlawful-restraint sentence was

confusing.

Thus, we will now expressly vacate both the unlawful-restraint and

criminal-sexual-assault sentences and remand the cause for a new sentencing hearing.

We again remind the trial court it "has discretion to determine the length of the individ-

ual sentences, but does not have the discretion to make them concurrent." Harris, slip

order at 20.

Additionally, we note our disagreement with Justice Cook's special

concurrence, in which he finds that on remand, the trial court may not increase

defendant's total sentence from 15 to 18 years. Although consecutive,

defendant's two sentences must be viewed individually in

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determining whether a sentence has been increased in violation of

section 5-5-4 of the Unified Code (730 ILCS 5/5-5-4 (West 1998)).

As our supreme court has stated "[e]ach conviction results in a

discrete sentence that must be treated individually." People v.

Carney, 196 Ill. 2d 518, 530, 752 N.E.2d 1137, 1144 (2001).

Indeed, the supreme court "has long held that consecutive

sentences constitute separate sentences for each crime of which a

defendant has been convicted." Carney, 196 Ill. 2d at 529, 752

N.E.2d at 1143. "Our jurisprudence, therefore, makes it clear

that consecutive sentences do not constitute a single sentence

and cannot be combined as though they were one sentence for one

offense." Carney, 196 Ill. 2d at 530, 752 N.E.2d at 1144. Thus,

regardless of the aggregate, the trial court's new sentences will

not violate section 5-5-4 as long as they do not exceed their

original, individual sentences, i.e., 15 years' imprisonment for

criminal sexual assault and 3 years' imprisonment for unlawful

restraint. Accordingly, an aggregate sentence of 18 years may be

proper.

Our conclusion is consistent with the precedent of our

sister First District Appellate Court. In People v. Sanders, 356

Ill. App. 3d 998, 827 N.E.2d 17 (2005), the court was faced with

the precise issue presented here. There, after two remands, the

trial court imposed three consecutive 10-year sentences.

Sanders, 356 Ill. App. 3d at 1002, 827 N.E.2d at 20. Defendant

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argued the sentences imposed violated section 5-5-4 of the

Unified Code (730 ILCS 5/5-5-4 (West 2002)) because he had

previously been sentenced (on the first remand) to three concur-

rent 25-year terms. Defendant argued the trial court's sentence

required him to serve five years longer than the sentence imposed

upon his first resentencing. Sanders, 356 Ill. App. 3d at 1003,

827 N.E.2d at 20-21. The court concluded as follows:

"Here, defendant's individual sentence

for each specific conviction was not

increased. Upon his first resentencing,

defendant was sentenced to 25 years for each

individual conviction. Upon his second

resentencing, he was given 10 years for each

individual conviction. Clearly, 10 is not

greater than 25. The fact that defendant may

now be in prison for 30 years (rather than 25

***) is of no consequence *** since the three

sentences cannot be added together to form

one sentence.

Accordingly, we find that the trial

court did not increase defendant's sentences

upon his second resentencing." Sanders, 356

Ill. App. 3d at 1005, 827 N.E.2d at 22-23.

We further note this court has previously cited Sanders with

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approval. See People v. Moore, 359 Ill. App. 3d 1090, 1092, 835

N.E.2d 980, 982 (2005).

B. Postconviction Petition

Defendant also alleges the trial court erred by dismissing his

postconviction petition at the initial stage.

The Post-Conviction Hearing Act (Postconviction Act)

(725 ILCS 5/122-1 through 122-8 (West 2002)) provides a defendant

with a collateral means to challenge his or her conviction or

sentence for violations of federal or state constitutional

rights. People v. Jones, 211 Ill. 2d 140, 143, 809 N.E.2d 1233,

1236 (2004). Once the defendant files a petition under the

Postconviction Act, the trial court must first, independently and

without considering any argument by the State, decide whether the

defendant's petition is "frivolous or is patently without merit."

725 ILCS 5/122-2.1(a)(2) (West 2002). To survive dismissal at

this initial stage, the postconviction petition "need only

present the gist of a constitutional claim," which is "a low

threshold" that requires the petition to contain only a limited

amount of detail. People v. Gaultney, 174 Ill. 2d 410, 418, 675

N.E.2d 102, 106 (1996). Moreover, a defendant's failure to

either (1) attach "the necessary 'affidavits, records, or other

evidence'" supporting the petitions allegations or (2) explain

their absence will itself justify the petition's summary dis-

missal. People v. Collins, 202 Ill. 2d 59, 66, 782 N.E.2d 195,

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198 (2002), quoting 725 ILCS 5/122-2 (West 2000). This court

reviews de novo the trial court's dismissal of a postconviction

petition without an evidentiary hearing. People v. Simms, 192

Ill. 2d 348, 360, 736 N.E.2d 1092, 1105-06 (2000).

Defendant alleges the trial court erred by summarily dismissing his

postconviction petition because (1) his trial counsel was ineffective for (a) failing to

remove two jurors that were biased because they had family members who had been

sexually assaulted and (b) not promptly bringing to the court's attention a sleeping juror,

and (2) his appellate counsel was ineffective for failing to order a transcript of voir dire

for which to base an ineffective-assistance-of-trial claim regarding the "biased" jurors.

This court reviews ineffective-assistance-of-counsel

claims under the standard set forth in Strickland v. Washington,

466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People

v. Evans, 186 Ill. 2d 83, 93, 708 N.E.2d 1158, 1163 (1999). To

obtain reversal under Strickland, a defendant must prove (1) his

counsel's performance failed to meet an objective standard of

competence and (2) counsel's deficient performance resulted in

prejudice to the defendant. Evans, 186 Ill. 2d at 93, 708 N.E.2d

at 1163-64. As to the first prong, the defendant must overcome a strong

presumption the counsel's challenged actions were the product of sound trial strategy.

People v. Metcalfe, 202 Ill. 2d 544, 561, 782 N.E.2d 263, 274 (2002).

Here, the trial court properly dismissed defendant's postconviction petition

at the first stage. First, defendant failed to comply with section 122-2 of the

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Postconviction Act's requirement that a defendant attach "affidavits, records, or other

evidence" in support of the petition's allegations or offer an explanation for the absence

of such documentation. 725 ILCS 5/122-2 (West 2002). That failure itself justifies the

summary dismissal of defendant's postconviction petition. Collins, 202 Ill. 2d at 66, 782

N.E.2d at 198.

Second, the ineffective-assistance-of-trial-counsel allegations that

defendant raises are matters of trial strategy, which will not support an ineffective-

assistance-of-counsel claim unless counsel failed to conduct any meaningful adversarial

testing (People v. Patterson, 217 Ill. 2d 407, 441, 841 N.E.2d 889, 909 (2005)). In his

direct appeal, defendant himself suggested the time in which to raise the issue of a

sleeping juror was a matter of trial strategy. See People v. Johnson, 334 Ill.

App. 3d 666, 680, 778 N.E.2d 772, 784 (2002) (noting a defendant

forfeits his or her right to complain of an error where to do so

is inconsistent with the position taken by the defendant in an

earlier court proceeding). As to defense counsel's acceptance of the two

jurors, a counsel's conduct during jury voir dire also involves matters of trial strategy.

Metcalfe, 202 Ill. 2d at 562, 782 N.E.2d at 274.

Third, defendant has not alleged prejudice as to all three allegations.

Since we have found defendant was not denied effective assistance of trial counsel,

defendant cannot prove he was prejudiced by appellate counsel's failure to raise the

ineffective-assistance-of-trial-counsel allegations. As to the sleeping juror, the trial court

noted for the record it had observed the "sleeping juror," and had found him to appear

"as attentive as most of the other jurors." Regarding the other two jurors, defendant

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alleged no facts that showed the jurors were in fact biased.

III. CONCLUSION

For the foregoing reasons, we affirm the trial court's dismissal of

defendant's postconviction petition, vacate defendant's unlawful-restraint and criminal-

sexual-assault sentences, and remand for a new sentencing hearing consistent with this

opinion.

Affirmed in part and vacated in part; cause remanded with directions.

MYERSCOUGH J., concurs.

COOK, J., specially concurs.

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 JUSTICE COOK, specially concurring:

I concur in the decision to vacate and remand for a new sentencing

hearing. I suggest, however, that the trial court, in the circumstances of this case, may

not increase defendant's total sentence from 15 to 18 years.

A reviewing court does not have the power to increase the punishment

imposed by the trial court. See 134 Ill. 2d R. 615(b). A trial court may reduce a

sentence within 30 days after the sentence is imposed, but the court may not increase a

sentence once it is imposed. 730 ILCS 5/5-8-1(c) (West 2002). Where a conviction has

been set aside on direct appeal, the court shall not impose a new sentence that is more

severe than the prior sentence. 730 ILCS 5/5-5-4 (West 2002). Section 5-5-4 sets out

requirements of due process. See North Carolina v. Pearce, 395 U.S. 711, 725, 23 L.

Ed. 2d 656, 669, 89 S. Ct. 2072, 2080 (1969); People v. Kilpatrick, 167 Ill. 2d 439, 447,

657 N.E.2d 1005, 1008 (1995) (improper chilling effect on appeal). A harsher sentence

imposed after a successful appeal or motion to reconsider is only proper if it is based on

additional bad conduct performed by the defendant after the original sentencing.

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People v. Moore, 177 Ill. 2d 421, 433, 686 N.E.2d 587, 594 (1997).

However, where concurrent sentences are imposed in violation of section

5-8-4(a), requiring consecutive sentences, those sentences are void. People v. Arna,

168 Ill. 2d 107, 112-13, 658 N.E.2d 445, 448 (1995). The sentences to be imposed on

those counts on remand, therefore, will not be greater than, less than, or equal to

defendant's original sentences. People v. Garcia, 179 Ill. 2d 55, 73, 688 N.E.2d 57, 65

(1997). The due- process prophylactic rule of Pearce has been limited in its application

to circumstances in which there is a reasonable likelihood that an increase in sentence

is the product of actual judicial vindictiveness. However, "the correction of a void

sentence under Arna fails to present circumstances in which there is a reasonable

likelihood that a sentence imposed on remand will be the product of judicial

vindictiveness against a defendant." Garcia, 179 Ill. 2d at 75, 688 N.E.2d at 66.

Garcia did not consider the sentences that were actually imposed after

remand. Garcia was concerned only with the limited steps that must be taken to correct

a void sentence under Arna. An increase in the total sentence is appropriate if

necessary to comply with Arna, but it is not clear why a trial court would increase the

total sentence if it were not necessary to do so. We have affirmed several decisions,

noting that the total sentence was not increased. See, e.g., People v. Moore, 359 Ill.

App. 3d 1090, 1093-94, 835 N.E.2d 980, 983 (2005) ("As defendant's individual terms

were reduced and the aggregate remained unchanged, the trial court's resentence

complied with section 5-5-4(a) [(730 ILCS 5/5-5-4(a) (West 2002))] of the Unified Code

and did not constitute an improper increase of his sentence"). In the present case,

defendant's total sentence was increased after remand, from 15 years to 18 years.

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 The statute mandating consecutive sentences is concerned with the total

sentence a defendant will receive. The purpose of mandatory consecutive sentences is

to insure that the defendant receives, in total, at least the minimum sentence on each

count. Here, for example, the trial court could not have sentenced defendant to a total

imprisonment of less than five years. The mandatory-consecutive-sentences statute is

not a device for haphazardly increasing sentences on appeal that the trial court

originally deemed appropriate.

The majority cites People v. Carney, 196 Ill. 2d 518, 752 N.E.2d 1137

(2001) (holding that court's finding of "severe bodily injury" and imposition of mandatory

consecutive sentences did not violate Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed.

2d 435, 120 S. Ct. 2348 (2000)). However, that case did not involve any issue of

increased sentence on remand and did not discuss the judicial-vindictiveness concern

addressed in section 5-5-4. The majority also cites People v. Sanders, 356 Ill. App. 3d

998, 827 N.E.2d 17 (2005), but in that case, the defendant's original total sentence was

45 years, which was not exceeded on either of the subsequent remands. Cases

holding that an increase in an individual sentence violates section 5-5-4 are not author-

ity for the proposition that an increase in the total sentence can never violate section 5-

5-4.

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