NO. 5-08-0221
NOTICE
Decision filed 02/17/11. The text of
IN THE
this decision may be changed or
corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
Peti tion for Rehearing or th e
disposition of the same.
FIFTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 85-CF-181
)
THOMAS G. INM AN, ) Honorable
) Brian Babka,
Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
Justices Goldenhersh and Stewart concurred in the judgment and opinion.
OPINION
The defendant, Thomas G. Inman, appeals the first-stage dismissal of his
postconviction petition. The defendant was originally convicted in 1985 of one count each
of murder and attempted murder. He was sentenced to natural life in prison for the murder
and 30 years for the attempted murder, to be served concurrently. The defendant
subsequently filed a postconviction petition challenging the natural-life sentence on Apprendi
grounds (Apprendi v. New Jersey, 530 U.S. 466 (2000)). The circuit court vacated that
sentence and resentenced the defendant. The defendant's current petition challenges the
sentences imposed after the resentencing, on the basis of double jeopardy. The circuit court
dismissed the petition because the defendant did not obtain leave of the court to file a
successive petition. On appeal, the defendant argues that his petition was not a successive
petition because it was the first petition directed at the order imposing a new sentence in
2006. We reverse.
In 1985, the defendant was charged with murder, attempted murder, and armed
1
violence. The charges stemmed from a fight that occurred after the defendant and two of his
friends were involved in an argument at a bar. The defendant and his friends left the bar and
waited outside in their vehicle for the victim and his friend to leave. They then followed the
victim and his friend and forced their car off the road. In the ensuing fight, the victim was
stabbed multiple times and died of his injuries. His friend sustained serious injuries but
survived.
The defendant was convicted on all three charges, and the court sentenced him to
natural life in prison for the murder and 30 years for the attempted murder, to be served
concurrently. The court did not impose a sentence for the armed violence charge, finding
that it merged with the murder conviction, but the court did not vacate the conviction on that
charge. On direct appeal, this court vacated the armed violence conviction but affirmed the
convictions on the remaining two charges. People v. Inman, No. 5-85-0632 (Sept. 25, 1987)
(unpublished order under Supreme Court Rule 23 (eff. Apr. 1, 1982)).
In 1988, the defendant filed his first petition under the Post-Conviction Hearing Act
(Ill. Rev. Stat. 1987, ch. 38, par. 122-1 et seq. (now 725 ILCS 5/122-1 et seq. (West 2008))).
In it, he alleged that he received ineffective assistance of counsel, his conviction resulted
from perjured testimony, and newly discovered exculpatory evidence required that he be
given a new trial. The court denied the petition after a hearing. The defendant appealed, and
this court affirmed that ruling. People v. Inman, No. 5-89-0863 (Mar. 12, 1992)
(unpublished order under Supreme Court Rule 23 (eff. Jan. 1, 1989)).
In 1992, the defendant filed a second postconviction petition, challenging only his
original sentence. This petition was dismissed on the grounds that it was a successive
petition filed without leave of the court. The defendant appealed, and this court affirmed the
court's order dismissing the petition. People v. Inman, No. 5-92-0877 (Apr. 20, 1994)
(unpublished order under Supreme Court Rule 23 (eff. Jan. 1, 1989)).
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In August 2000, the defendant filed a petition for relief from judgment pursuant to
section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1998)), which the
court treated as a postconviction petition. This time, the defendant challenged his natural-life
sentence on the basis of the United States Supreme Court's ruling in Apprendi v. New Jersey,
530 U.S. 466 (2000), which had recently been decided.
On June 21, 2001, the circuit court entered an order finding that the sentence violated
the rule of Apprendi. The sentence was based on the trial judge's finding that the murder had
been committed in a heinous and brutal manner, a finding which, under Apprendi, could
support an extended-term sentence only if it was made by a finder of fact beyond a
reasonable doubt. The circuit court vacated the defendant's sentences and noted that there
were two options: the State could retry the defendant and again seek an extended-term
sentence of natural life in prison if the jury made the requisite finding beyond a reasonable
doubt, or the court could instead simply hold a new sentencing hearing. The court directed
the State to notify the court and the defendant of which option it intended to pursue. The
court also noted that if the State chose the option to seek only a new sentencing hearing, the
court would need to determine whether the sentencing laws in effect in 1985 gave the court
the discretion to impose consecutive sentences.
On August 30, 2001, the State filed a motion to reconsider that ruling, which the court
denied. The State then appealed; however, its appeal was dismissed for a lack of jurisdiction
on the basis that it was not timely filed. People v. Inman, No. 5-01-0741 (Sept. 8, 2003)
(unpublished order under Supreme Court Rule 23 (eff. July 1, 1994)).
Shortly after its appeal was dismissed, the State filed a notice of its intent to seek only
a new sentencing hearing. In May 2004, the parties submitted memoranda addressing the
issue of the court's discretion to impose consecutive sentences. The State's arguments
focused on statutory authority; however, the defendant's pro se memorandum argued that
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imposing a consecutive sentence would violate principles of double jeopardy and ex post
facto. On May 28, 2004, the court held a hearing in the matter and entered an order ruling
that it did have discretion to impose consecutive sentences. At the hearing, the defendant,
through counsel, announced that he intended to file a motion to dismiss the charge of
attempted murder on the grounds that the sentence had been fully served, taking into account
credit for good behavior that was available under the 1985 sentencing laws. The parties
agreed to continue the sentencing hearing to allow the defendant to file the motion and the
State to respond.
On June 4, 2004, the defendant filed the motion to dismiss. On June 18, 2004, the
State filed a response. The State pointed out that the circuit court's ruling vacated only the
natural-life sentence for murder and did not address the 30-year sentence for attempted
murder. The State thus argued that the defendant's real argument was that principles of
double jeopardy would be violated by imposing a consecutive sentence on the murder charge
in light of the time the defendant had already served in prison. The court held a hearing on
the matter on June 25, 2004.
On July 16, 2004, the court entered an order finding that imposing consecutive
sentences would not violate double jeopardy protections. The defendant filed two appeals
from this ruling, each of which was dismissed for a lack of jurisdiction on the basis of
untimeliness. People v. Inman, No. 5-04-0641 (Jan. 10, 2005) (unpublished order); People
v. Inman, No. 5-05-0650 (Jan. 30, 2006) (unpublished order). (We note that it is not clear
why the second appeal was filed, and the defendant stated in the petition underlying this
appeal that it was filed by counsel without his knowledge.)
The resentencing hearing took place on July 24, 2006. At this point, the defendant
had already served 21 years in prison. The court sentenced the defendant to 35 years'
imprisonment on the murder conviction, to be served consecutively to the attempted-murder
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sentence. The court ordered the defendant to be given credit for time already served.
The defendant filed a direct appeal, challenging the consecutive sentences as an abuse
of the court's discretion. He did not raise the double jeopardy issue. This court affirmed the
sentences on August 28, 2007. People v. Inman, No. 5-06-0422 (Aug. 28, 2007)
(unpublished Rule 23 order).
On January 16, 2008, the defendant filed the pro se postconviction petition that forms
the basis of this appeal. In his petition, the defendant raised two issues. First, he argued that
appellate counsel was ineffective for failing to raise the issue of double jeopardy on direct
appeal. In contending that the consecutive sentences violated double jeopardy principles, he
argued that because the original sentences were concurrent, the 21 years he served in prison
prior to the resentencing hearing should have been credited against both sentences. He
further argued that under the sentencing laws in effect in 1985, he would have been entitled
to credit for good behavior in prison. Thus, he reasoned, both sentences would have been
fully served before 2006.
In addition, the defendant argued that appellate counsel was ineffective for failing to
argue that the trial testimony of the murder victim's friend and a statement of one of the
jurors indicated that the jury never intended to convict him of the attempted murder. We
note that he does not continue to press this claim on appeal.
On February 7, 2008, the court entered an order finding that the petition had been
"filed on January 16, 2008," and assigning it to Judge Babka for further proceedings. On
March 26, 2008, Judge Babka dismissed the defendant's petition, finding that it was a
successive petition filed without obtaining leave of the court. This appeal followed.
The defendant argues that the instant case does not involve a successive petition. In
essence, he contends that the July 2006 order imposing a 35-year sentence for his murder
conviction, to be served consecutively to his previously imposed sentence for attempted
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murder, was a final judgment distinct from the final judgment in 1985 that imposed the
original sentences in this case. In support of his position, he cites People v. Woods, 193 Ill.
2d 483, 739 N.E.2d 493 (2000). That case involved the timeliness of a single petition for
postconviction relief filed after the entry of a single order sentencing the defendant. At issue
was the statutory requirement that the petition be filed within three years of the date of the
conviction. Woods, 193 Ill. 2d at 486, 739 N.E.2d at 494-95 (relying on 725 ILCS 5/122-
1(c) (West Supp. 1997)).
There, the defendant pled guilty to murder, and the court entered an order accepting
his guilty plea on July 26, 1994. The court sentenced the defendant on February 7, 1995.
Woods, 193 Ill. 2d at 485, 739 N.E.2d at 494. Thus, if the date of the guilty pleas was the
date of the conviction, the deadline for filing a timely postconviction petition would have
been July 26, 1997. If, on the other hand, the date of the conviction was the date the
sentence was imposed, the deadline would have been February 7, 1998. Woods, 193 Ill. 2d
at 486, 739 N.E.2d at 495. The defendant filed his postconviction petition between these two
dates, on August 7, 1997. Woods, 193 Ill. 2d at 485, 739 N.E.2d at 494.
The State argued that the date of the conviction was the date on which the court
accepted the defendant's guilty plea, which made the petition untimely. The defendant, by
contrast, argued that the date of the conviction was the date on which the court imposed the
sentence, thus making his petition timely. Woods, 193 Ill. 2d at 486, 739 N.E.2d at 495. In
resolving these arguments, the supreme court first noted that either interpretation was
reasonable. Woods, 193 Ill. 2d at 487, 739 N.E.2d at 495. The court then explained that the
term "conviction" had been construed to mean each of these dates in different contexts.
Woods, 193 Ill. 2d at 487-88, 739 N.E.2d at 495. Ultimately, the court found that, in the
context of the Post-Conviction Hearing Act, the date of the conviction should be construed
to mean the date of the sentence. Woods, 193 Ill. 2d at 488-89, 739 N.E.2d at 496.
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We do not find that Woods answers the precise question before us. Here, the parties
agree that the date of the conviction is the date on which the sentence was imposed; the
question is whether the sentence imposed in 2006 constitutes a separate order of conviction.
If so, no previous petition has been filed attacking the order of conviction the defendant's
current petition challenges. We are aware of no case that squarely addresses this question.
We find guidance, however, in the case of People v. Hager, 202 Ill. 2d 143, 780 N.E.2d 1094
(2002).
Hager, like Woods, involved the timeliness of a single petition for postconviction
relief. That question, however, arose in a procedural context that makes its analysis far more
relevant to the question before us. There, a defendant filed a direct appeal challenging both
his convictions and his sentences. The appellate court affirmed his convictions but vacated
his sentences and remanded to the trial court for resentencing. Hager, 202 Ill. 2d at 145, 780
N.E.2d at 1095. After the trial court sentenced him on remand, the defendant again
appealed. This time, the appellate court affirmed the new sentences. Hager, 202 Ill. 2d at
145-46, 780 N.E.2d at 1095. The defendant then filed a petition for postconviction relief.
Hager, 202 Ill. 2d at 146, 780 N.E.2d at 1095. Thus, Hager, like the instant case, involved
two different sentencing orders, one entered after the other had been vacated.
As previously mentioned, the issue there was the timeliness of the defendant's
postconviction petition. The Post-Conviction Hearing Act provides three different
limitations periods. A petition must be filed by the date on which the earliest limitations
period runs. 725 ILCS 5/122-1(c) (W est 2008). In Hager, the applicable limitations period
was six months after the date the defendant filed a petition for leave to appeal or the date for
filing that petition if none was filed. The question before the court was whether that period
began to run after his first appeal or his second appeal. Hager, 202 Ill. 2d at 149, 780
N.E.2d at 1096-97. Although this is not the same issue we face in this case, we find the
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rationale underlying the Hager court's decision to be applicable.
The supreme court noted that when the appellate court issued its decision in the
defendant's first appeal, it vacated his sentence. "Therefore," the court explained, "on that
date, [the] defendant did not stand 'convicted' for purposes of the Post-Conviction Hearing
Act." Hager, 202 Ill. 2d at 149, 780 N.E.2d at 1097. The court further explained as follows:
"As its name suggests, the Post-Conviction Hearing Act provides a remedy only for
those defendants who stand convicted. The relief afforded by the Act is limited to a
'person imprisoned in the penitentiary who asserts that in the proceedings which
resulted in his or her conviction there was a substantial denial of his or her rights
under the Constitution of the United States or of the State of Illinois or both.'
(Emphasis added.) 725 ILCS 5/122-1(a) (West 2000). In other words, a defendant
who is not 'convicted' cannot file a post-conviction petition. Thus, even had [the]
defendant wished to file a post-conviction petition following the first appeal, he could
not have done so; he simply had no 'conviction' to challenge." Hager, 202 Ill. 2d at
149, 780 N.E.2d at 1097.
Consistent with this reasoning, we conclude that the order entered in 2006 sentencing the
defendant to consecutive terms on remand constituted a separate "conviction" for purposes
of the Post-Conviction Hearing Act. The defendant here did not challenge–and could not
have challenged–the proceedings that resulted in the 2006 order until the court entered that
order because they had yet to occur. This is true even though the defendant could
challenge–and did challenge–the proceedings leading to the 1985 judgment prior to the
circuit court's order vacating that judgment in 2001.
The State argues that Hager is distinguishable because the court there "simply held
that the defendant's conviction did not become final until both the conviction and sentence
became final by conclusion of direct review." (Emphasis in original.) We disagree. The
8
court's reasoning focused heavily on the fact that the first order of conviction had been
vacated. Absent that fact, even a direct appeal would not have tolled the time period for
filing a postconviction petition. See People v. Harris, 224 Ill. 2d 115, 127, 862 N.E.2d 960,
968 (2007) (quoting People v. Partee, 125 Ill. 2d 24, 35, 530 N.E.2d 460, 465 (1988)). We
conclude that the petition at issue is the first petition filed by the defendant challenging the
2006 order of conviction including the sentence. Thus, the defendant did not require leave
of the court to file it.
The defendant raises one additional argument regarding the procedure to be followed
on remand. He correctly points out that a court is required to review a petition within 90
days to determine whether it is frivolous and patently without merit. If the court does not
dismiss the petition pursuant to this provision within that time frame, the court must docket
the petition for further proceedings. 725 ILCS 5/122-2.1(a)(2) (West 2006). The defendant
contends that these provisions are applicable here. Thus, he contends, because the court did
not dismiss the petition within 90 days of its filing, the court must appoint counsel and
docket the matter for further proceedings. See Harris, 224 Ill. 2d at 129, 862 N.E.2d at 969;
People v. Carter, 383 Ill. App. 3d 795, 798, 892 N.E.2d 1082, 1085 (2008). We agree.
In Harris, the supreme court explained in dicta that a trial court must docket a
postconviction petition for second-stage proceedings if it fails to comply with the statutory
requirement that it examine the petition within 90 days to determine whether it is frivolous
or patently without merit. This is so even where the court's failure to timely make this
determination results from an erroneous conclusion that the postconviction petition may not
proceed at the same time as a direct appeal. Harris, 224 Ill. 2d at 129, 862 N.E.2d at 969.
In Carter, the trial court mistakenly treated a first postconviction petition as a successive
petition. The appeals court noted that the trial court was likely confused by the defendant's
simultaneously pending petition for collateral relief in a different case. That petition, styled
9
as a "motion for declaratory judgment," was aimed at a prior conviction in a different case,
but it involved the same defendant and victim. Carter, 383 Ill. App. 3d at 798, 892 N.E.2d
at 1085. Here, the court did not determine the petition to be frivolous or patently without
merit within 90 days, because it concluded that the petition was successive. We see no
meaningful distinction between this error and the error described in Harris or the honest
mistake made by the trial court in Carter. We therefore conclude that, on remand, the
petition must be docketed for second-stage proceedings.
Accordingly, we reverse the trial court's order dismissing the defendant's petition and
remand for further proceedings consistent with this decision.
Reversed; cause remanded.
10
NO. 5-08-0221
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 85-CF-181
)
THOMAS G. INM AN, ) Honorable
) Brian Babka,
Defendant-Appellant. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: February 17, 2011
___________________________________________________________________________________
Justices: Honorable Melissa A. Chapman, P.J.
Honorable Richard P. Goldenhersh, J., and
Honorable Bruce D. Stewart, J.,
Concur
___________________________________________________________________________________
Attorneys Michael J. Pelletier, State Appellate Defender, Charles M. Schiedel, Deputy Defender,
for Duane E. Schuster, Assistant Defender, Office of the State Appellate Defender,
Appellant Supreme Court Unit, 400 West Monroe, Suite 303, P.O. Box 5240, Springfield, IL
62705-5240
__________________________________________________________________________________
Attorneys Hon. Robert Haida, State's Attorney, St. Clair County Courthouse, 10 Public Square,
for Belleville, IL 62220, Patrick Delfino, Director, Stephen E. Norris, Deputy Director,
Appellee Sharon Shanahan, Contract Attorney, Office of The State's Attorneys Appellate
Prosecutor, 730 East Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL
62864
___________________________________________________________________________________