dissenting:
The majority holds that People v. Kilpatrick, 167 Ill. 2d 439 (1995), may be applied retroactively to the case at bar because Kilpatrick did not announce a new rule of law. This holding is fundamentally flawed because the United States Supreme Court precedent on which it purports to rely governs only "new constitutional rules of criminal procedure.” (Emphasis added.) Teague v. Lane, 489 U.S. 288, 310, 103 L. Ed. 2d 334, 356, 109 S. Ct. 1060, 1075 (1989) (plurality opinion). The rule announced in Kilpatrick, however, is a rule of statutory construction, and hence not subject to Teague’s retroactivity analysis.
This court stated in Kilpatrick that the issue presented was "whether the trial court violated section 5 — 8 — 1(c) when the court vacated the defendant’s consecutive sentences of nine and six years’ imprisonment and instead imposed a 'single sentence’ of 15 years’ incarceration.” Kilpatrick, 167 Ill. 2d at 440. We then concluded that "the trial court contravened the explicit dictates of section 5 — 8 — 1(c) when it impermissibly increased the sentences for defendant’s two convictions ***.” Kilpatrick, 167 111. 2d at 446-47. Thus, our decision was based on a statutory rather than a constitutional violation.
Although we noted in Kilpatrick that our interpretation of section 5 — 8 — 1(c) of the Unified Code of Corrections (730 ILCS 5/5 — 8 — 1(c) (West 1992)) "serves the goals identified in [North Carolina y.] Pearce,” 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), we did not hold that the rule announced in Kilpatrick was required by Pearce or by any other constitutional authority. Kilpatrick, 167 Ill. 2d at 447. In Pearce, the United States Supreme Court held that a defendant is denied constitutional due process if his resentencing following a successful appeal imposes, without appropriate justification, a longer period of incarceration than his original sentence. Pearce, 395 U.S. at 724, 23 L. Ed. 2d at 669, 89 S. Ct. at 2080. For example, one of the defendants in Pearce initially received a sentence of 10 years, but, after his original sentence was overturned on appeal, was resentenced to 25 years. Pearce, 395 U.S. at 714, 23 L. Ed. 2d at 663, 89 S. Ct. at 2075. In Kilpatrick, however, the defendant’s resentencing increased the incarceration period for certain individual counts, but imposed the same aggregate period of imprisonment as the original sentence (15 years). Kilpatrick, 167 Ill. 2d at 440. The United States Supreme Court has never held this practice to be constitutionally prohibited. Faced in Kilpatrick with this lack of constitutional precedent, this court based its prohibition of the practice solely on principles of statutory construction. See Kilpatrick, 167 Ill. 2d at 443.
Although a newly announced statutory rule of criminal procedure may, in certain circumstances, be applied retroactively to cases which were pending on direct review when the rule was announced (see People v. Erickson, 117 Ill. 2d 271, 289-90 (1987)), there is no authority for applying such a statutory rule to cases on collateral review in which the defendant’s conviction became final before the rule was announced. Since the instant case falls into the latter category, I cannot agree with the majority that defendant is entitled to retroactive application of Kilpatrick.
Perhaps anticipating this distinction, the majority also holds that appellate counsel in this case rendered unconstitutionally ineffective assistance by not arguing on direct appeal that the new sentence imposed by the trial court on remand was improper. Appellate counsel can, however, decline to raise an issue if he believes it to be without merit. People v. Guest, 166 Ill. 2d 381 (1995). Defendant took his direct appeal before this court decided Kilpatrick. At the time of defendant’s appeal, then, the rule announced in Kilpatrick was not the governing law in Illinois. As the majority points out, the rule eventually adopted by this court in Kilpatrick was rejected in People v. Todd, 263 Ill. App. 3d 435 (1994). At the time of defendant’s direct appeal, Todd was the most recent appellate decision on this issue. Todd also was decided by the same appellate district that heard defendant’s direct appeal. It was therefore entirely reasonable for counsel to rely on Todd in choosing not to raise this issue on direct appeal. This fact also refutes the majority’s contention that defendant was prejudiced by appellate counsel’s failure to raise the issue; given the state of the law at the time of the appeal, there was not a reasonable probability that defendant’s sentence would have been reversed had counsel argued the point. See People v. Caballero, 126 Ill. 2d 248, 270 (1989).
For these reasons, I respectfully dissent.
JUSTICE BILANDIC joins in this dissent.