People v. Wuebbels

Filed 12/15/09 NO. 4-09-0461

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
STEVEN R. WUEBBELS, ) No. 96CF87
Defendant-Appellant. )
) Honorable
) Jennifer H. Bauknecht,
) Judge Presiding.
_________________________________________________________________

JUSTICE TURNER delivered the opinion of the court:

In October 2008, defendant, Steven R. Wuebbels, filed a

pro se motion for relief from judgment under section 2-1401 of

the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-1401

(West 2008)), asserting his 30- and 60-year prison terms had to

run concurrently, not consecutively, to his natural-life sentence

in another case (People v. Wuebbels, No. 92-CF-11 (Cir. Ct.

Clinton Co.) (hereinafter case 11)). In March 2009, the State

filed a motion to strike and dismiss defendant's petition. After

a June 2009 hearing, the trial court struck defendant's petition.

Defendant appeals, asserting the trial court erred by

striking his petition because the provision of his sentence

requiring his 30- and 60-year prison sentences to run consecu-

tively to his natural-life sentence is void. We reverse the

court's striking of defendant's petition and modify his sentence.

I. BACKGROUND

In June 1996, the State charged defendant with, inter

alia, attempt (first degree murder) (720 ILCS 5/8-4(a) (West
1996); 720 ILCS 5/9-1(a)(1) (West Supp. 1995)) and possession of

a weapon by a person in the custody of the Department of Correc-

tions (DOC) (720 ILCS 5/24-1.1(b) (West 1996)). The charges were

based on defendant's January 1996 stabbing of a DOC prison guard

in the stomach with a spear while serving a sentence of natural

life without the possibility of parole in case 11. After a

January 1997 trial, a jury found defendant guilty of the two

aforementioned charges. Based on his prior convictions, defen-

dant was eligible for an extended-term sentence of 30 to 60

years' imprisonment for the attempt (first degree murder) convic-

tion (730 ILCS 5/5-5-3.2(b)(1) (West Supp. 1995); 730 ILCS 5/5-8-

2(a)(2) (West 1996)) and subject to Class X sentencing (6 to 30

years' imprisonment) on the possession-of-a-weapon conviction

(730 ILCS 5/5-5-3(c)(8), 5-8-1(a)(3) (West Supp. 1995)). In

April 1997, the trial court sentenced defendant to maximum prison

terms of 60 years for attempt and 30 years for possession of a

weapon to run consecutively to each other and to the term of

natural life in case 11. Defendant appealed his sentences, and

this court dismissed the appeal in April 1999. People v.

Wuebbels, No. 4-97-0337 (April 2, 1999) (unpublished order under

Supreme Court Rule 23).

In March 2001, defendant filed a petition for

postconviction relief, challenging his extended-term sentence and

mandatory Class X sentence based on the United States Supreme

Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 147 L.

Ed. 2d 435, 120 S. Ct. 2348 (2000). The trial court summarily

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dismissed defendant's petition as frivolous and patently without

merit, and this court affirmed the dismissal in April 2002.

People v. Wuebbels, No. 4-01-0325 (April 18, 2002) (unpublished

order under Supreme Court Rule 23). In October 2002, the Supreme

Court of Illinois denied defendant's petition for leave to

appeal. People v. Wuebbels, 201 Ill. 2d 612, 786 N.E.2d 199

(2002).

In October 2008, defendant filed his pro se section 2-

1401 motion, challenging the portion of his sentencing order that

required his 30- and 60-year sentences to be served consecutively

to his natural-life sentence in case 11. Defendant based his

challenge on our supreme court's decision in People v. Palmer,

218 Ill. 2d 148, 843 N.E.2d 292 (2006). In March 2009, the State

filed a motion to strike and dismiss defendant's petition,

asserting defendant's petition was untimely. After a June 5,

2009, hearing, the trial court struck defendant's petition,

finding the petition was untimely and meritless. Ten days later,

defendant filed a pro se notice of appeal in compliance with

Supreme Court Rule 606 (210 Ill. 2d R. 606).

II. ANALYSIS

On appeal, defendant only argues the trial court erred

by striking his October 2008 section 2-1401 petition because the

May 1997 order requiring his sentences in this case to run

consecutively to his natural-life sentence in case 11 is void.

When a trial court enters a judgment on the pleadings or a

dismissal in a section 2-1401 proceeding, our review is de novo.

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People v. Vincent, 226 Ill. 2d 1, 18, 871 N.E.2d 17, 28 (2007).

Section 2-1401 of the Procedure Code (735 ILCS 5/2-1401

(West 2008)) establishes a comprehensive, statutory procedure

that permits the vacatur of a final judgment older than 30 days.

See Vincent, 226 Ill. 2d at 7, 871 N.E.2d at 22. The statute

requires petitions to be filed within two years of the judgment's

entry. 735 ILCS 5/2-1401(c) (West 2008). However, the two-year

limitations period does not apply to petitions brought on

voidness grounds. Sarkissian v. Chicago Board of Education, 201

Ill. 2d 95, 104, 776 N.E.2d 195, 202 (2002). Defendant contends

his section 2-1401 petition filed more than 11 years after the

final judgment falls under the voidness exception. The State

responds the consecutive-sentence order at issue is just void-

able.

A. Voidness

As stated, defendant's challenge to the consecutive-

sentence order at issue is based on the supreme court's decision

in Palmer, 218 Ill. 2d at 170, 843 N.E.2d at 305, where it

modified a sentence of five terms of natural life in prison from

running consecutively to running concurrently. The Palmer court

held the consecutive-sentencing provision of section 5-8-4(a) of

the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-8-

4(a) (West 2002)) was inapplicable, "based on the plain meaning

of the word 'consecutive.'" Palmer, 218 Ill. 2d at 165, 843

N.E.2d at 302.

In support of its argument, the State notes the Third

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District's decision in People v. Petrenko, 385 Ill. App. 3d 479,

485, 896 N.E.2d 873, 878 (2008), where the court concluded a

consecutive-sentencing order potentially improper under Palmer

did not present a voidness issue and declined to address the

argument's merits as the defendant had not previously raised the

issue. The Third District stated the Palmer court's analysis did

not address the issue of whether the sentence was void.

Petrenko, 385 Ill. App. 3d at 485, 896 N.E.2d at 878. However,

that statement overlooks Palmer's early analytical language.

The Palmer court began its analysis by noting the

defendant failed to present his sentencing issues at his sentenc-

ing hearing and in his posttrial motion. Palmer, 218 Ill. 2d at

154, 843 N.E.2d at 296. One of the sentencing issues listed was

"whether the trial court properly imposed consecutive natural-

life sentences pursuant to the [Unified] Code." Palmer, 218 Ill.

2d at 154, 843 N.E.2d at 296. Our supreme court agreed with the

parties it could review the defendant's claim the trial court's

sentence was void and gave the following reasoning:

"A sentence imposed without statutory author-

ity is not subject to defendant's forfeiture.

[Citations.] It is well established that a

sentencing judge cannot impose a penalty not

otherwise allowed by the sentencing statute

in question." Palmer, 218 Ill. 2d at 154,

843 N.E.2d at 296.

The Third District also overlooked the Palmer court's

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express holding that the consecutive-sentencing provision of

section 5-8-4(a) did not apply. Palmer, 218 Ill. 2d at 165, 843

N.E.2d at 302. An order is void where the court that entered the

judgment lacked (1) jurisdiction of the (a) parties or (b)

subject matter or (2) the inherent power to make or enter the

order. People v. Madej, 193 Ill. 2d 395, 401, 739 N.E.2d 423,

427 (2000). Specifically, regarding the inherent power to enter

a criminal-sentencing order, it is well settled any portion of a

sentence not authorized by statute is void. People v. Thompson,

209 Ill. 2d 19, 23, 805 N.E.2d 1200, 1203 (2004). The Palmer

court's conclusion section 5-8-4(a) did not authorize the consec-

utive sentences means the trial court did not have the inherent

authority to order consecutive sentences, and thus the consecu-

tive sentences were void.

Additionally, the Third District and the State cite

People v. Davis, 156 Ill. 2d 149, 155, 619 N.E.2d 750, 754

(1993), in support of the conclusion the consecutive-sentencing

order was not void. See Petrenko, 385 Ill. App. 3d at 485, 896

N.E.2d at 878. However, as our supreme court has pointed out,

Davis was not a sentencing case. Thompson, 209 Ill. 2d at 24,

805 N.E.2d at 1203. At issue in Palmer and here is voidness

based on a court's inherent power to enter a particular sentenc-

ing order, not personal or subject-matter jurisdiction.

Accordingly, if the consecutive sentences at issue here

were unauthorized like the ones in Palmer, defendant's consecu-

tive sentences are void, and section 2-1401's two-year limita-

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tions period did not apply to defendant's petition. See People

v. Ramey, 393 Ill. App. 3d 661, 671, 913 N.E.2d 670, 679 (2009)

(declining to follow Petrenko's conclusion an order requiring a

sentence to be served consecutive to a natural-life term is

voidable). In this case, the trial court imposed the consecutive

sentences at issue under section 5-8-4(f) of the Unified Code

(730 ILCS 5/5-8-4(f) (West Supp. 1995)), and thus we next analyze

whether that section authorizes the imposition of consecutive

sentences to a sentence of natural life in prison.

B. Section 5-8-4(f) of the Unified Code

Section 5-8-4(f) of the Unified Code (730 ILCS 5/5-8-

4(f) (West Supp. 1995)) provides the following:

"A sentence of an offender committed to

[DOC] at the time of the commission of the

offense shall be served consecutive to the

sentence under which he is held by [DOC].

However, in case such offender shall be sen-

tenced to punishment by death, the sentence

shall be executed at such time as the court

may fix without regard to the sentence under

which such offender may be held by [DOC]."

In this case, defendant committed the crimes at issue

while in DOC. Thus, it would appear the trial court not only had

the authority to, but was mandated to, order the sentences be

consecutive to defendant's natural-life sentence in case 11.

However, the same situation existed in Palmer. There, the

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language of section 5-8-4(a)(i) of the Unified Code (730 ILCS

5/5-8-4(a)(i) (West 2002)) appeared to require the trial court to

impose consecutive sentences because the offenses at issue were

Class X felonies and the defendant had clearly inflicted severe

bodily injury. Palmer, 218 Ill. 2d at 165, 843 N.E.2d at 302.

Despite the trial court's apparent statutory compliance, our

supreme court held section 5-8-4(a) did not apply, "based on the

plain meaning of the word 'consecutive.'" Palmer, 218 Ill. 2d at

165, 843 N.E.2d at 302.

The Palmer court explained the definition of "consecu-

tive" as follows:

"'Consecutive' has been defined as 'following

esp. in a series: one right after the other

often with small intervening intervals.'

[Citation.] Additionally, 'consecutive sen-

tences' are '[t]wo or more sentences of jail

time to be served in sequence. For example,

if a defendant receives consecutive sentences

of 20 years and [5] years, the total amount

of jail time is 25 years.' [Citation.] It

belabors the obvious to state that at the

conclusion of a defendant's first

natural-life sentence, his life is over.

Further, [DOC] cannot enforce an order impos-

ing another natural-life sentence consecutive

to it. Thus, consecutive natural-life sen-

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 tences cannot follow in a series right after

one another. Defendant cannot serve two

natural-life sentences in sequence, nor will

the total amount of two or more natural-life

sentences ever be more than defendant's one

life. There is only one way in which a de-

fendant can serve the sentences, with his one

life. Therefore, the sentences may not be

consecutive, but must be concurrent because

concurrent sentences are sentences which

operate simultaneously." Palmer, 218 Ill. 2d

at 167-68, 843 N.E.2d at 303-04.

Our supreme court also noted calling the sentences "consecutive

would add not one minute or one day to [the] defendant's punish-

ment." Palmer, 218 Ill. 2d at 169, 843 N.E.2d at 304. The

"defendant's actual sentence is governed by the laws of nature."

Palmer, 218 Ill. 2d at 169, 843 N.E.2d at 305.

Section 5-8-4(f) of the Unified Code (730 ILCS 5/5-8-

4(f) (West Supp. 1995)) also uses the term "consecutive." As

with mandatory consecutive life sentences under section 5-8-

4(a)(i), a prison term of years cannot follow a natural-life

sentence as the defendant's life is over at the end of the

natural-life sentence. Moreover, just as with consecutive life

sentences, only one method of serving a natural-life sentence and

a term-of-years sentence exists, and that is concurrently.

The State argues Palmer's reasoning does not apply to

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section 5-8-4(f) because the section's second sentence indicates

the legislature recognized the potential impossibility of a

defendant actually or physically serving the consecutive sentence

due to death but still expressly required consecutive sentences.

We disagree as the State has misinterpreted that provision. The

second sentence of section 5-8-4(f) of the Unified Code provides

that, if the defendant is sentenced to death for the crime he or

she committed in prison, the court may set an execution date

regardless of another sentence for which the defendant is in DOC.

In other words, the death sentence does not have to follow in a

series, i.e., be consecutive to, another prison sentence.

Thus, while the supreme court has not addressed section

5-8-4(f) of the Unified Code and consecutive sentences to a

natural-life term, the same reasoning and logic used by the

supreme court applies to the situation here. We note the First

and Second Districts have reached the same conclusion with regard

to a prison term of years consecutive to a natural-life sentence

under section 5-4-8(a) of the Unified Code. See Ramey, 393 Ill.

App. 3d at 670-71, 913 N.E.2d at 679 (First District); People v.

Waldron, 375 Ill. App. 3d 159, 161, 872 N.E.2d 1036, 1038 (2007)

(Second District); People v. Spears, 371 Ill. App. 3d 1000, 1008,

864 N.E.2d 758, 766 (2007) (First District); People v. Dixon, 366

Ill. App. 3d 848, 856, 853 N.E.2d 1235, 1243 (2006) (First

District). Additionally, while we tend to agree with Justice

Garman's dissent in Palmer, 218 Ill. 2d at 170-74, 843 N.E.2d at

305-08 (Garman, J., concurring in part and dissenting in part,

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joined by Thomas, C.J., and Karmeier, J.), we recognize, like the

First District, that this court is bound by the majority's

holding. See Ramey, 393 Ill. App. 3d at 671, 913 N.E.2d at 679.

Accordingly, this court finds the trial court erred by

striking defendant's section 2-1401 petition as the consecutive-

sentence order at issue was void because section 5-8-4(f) of the

Unified Code did not provide the trial court the inherent author-

ity to impose consecutive sentences. Thus, pursuant to Supreme

Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)), we modify

defendant's sentences to run concurrently to his natural-life

sentence in case 11. See Palmer, 218 Ill. 2d at 170, 843 N.E.2d

at 305. We remand for issuance of an amended sentencing judgment

so reflecting.

III. CONCLUSION

For the reasons stated, we reverse the trial court's

judgment, modify defendant's sentences as stated, and remand with

directions.

Reversed; judgment modified and remanded with direc-

tions.

McCULLOUGH and KNECHT, JJ., concur.

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