People v. Hall , 2014 IL App (1st) 122868 ( 2014 )

Illinois Official Reports
Appellate Court
People v. Hall, 2014 IL App (1st) 122868Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption THOMAS HALL, Defendant-Appellant.
District & No. First District, First Division
Docket No. 1-12-2868
Filed October 20, 2014
Held The summary dismissal of defendant’s pro se postconviction petition
(Note: This syllabus as frivolous and patently without merit was affirmed by the appellate
constitutes no part of the court, but based on the argument properly raised by defendant for the
opinion of the court but first time in his appeal from the dismissal of his postconviction
has been prepared by the petition that he was subjected to an improper double enhancement of
Reporter of Decisions his sentence, his sentence was vacated and the cause was remanded for
for the convenience of resentencing, since the argument that his sentence was void could be
the reader.) raised at any time, and in defendant’s case, his prior conviction for
aggravated criminal sexual assault was improperly used as an element
of the charged offense of violating the Sex Offender Registration Act
and as one of his two prior felony convictions that made him eligible
for Class X sentencing; furthermore, the issue was not rendered moot
on the ground that defendant had completed his imprisonment and was
serving a term of mandatory supervised release, because that term is
considered a part of his sentence, and under the circumstances,
defendant would be subject to a two-year term rather than the
three-year term applicable to a Class X sentence.
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CR-7457; the
Review Hon. Carol A. Kipperman, Judge, presiding.
Judgment Affirmed in part; vacated in part; remanded for resentencing.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Lauren A. Bauser, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Jeffrey Allen, and Heather Fahrenkrog, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Delort and Justice Connors concurred in the
judgment and opinion.
OPINION
¶1 Defendant Thomas Hall appeals from the summary dismissal of his pro se petition for
relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)). On
appeal, defendant contends that he was subject to an improper double enhancement at
sentencing because a prior conviction was used both as an element of the instant offense and to
find him eligible for a Class X sentence. Defendant acknowledges that he did not include this
issue in his pro se postconviction petition, but argues that his sentence is void, and thus, this
issue may be raised at any time. We agree with defendant and remand for a new sentencing
hearing.
¶2 In 2010, defendant was charged by indictment with violating section 6 of the Sex Offender
Registration Act (Act) (730 ILCS 150/6 (West 2008)), in that he, having been previously
convicted of an aggravated criminal sexual assault and having previously been convicted of a
violation of the Act, knowingly failed to report and register in person to the appropriate law
enforcement agency with whom he had last registered no later than 90 days after his last
registration and every 90 days thereafter. Defendant was charged with a Class 2 felony because
he had previously been convicted of a violation of the Act in case number 05 CR 13203.
Following a bench trial, defendant was found guilty. At sentencing, the State asked that
defendant be sentenced as a Class X offender based upon prior Class 2 convictions for
aggravated criminal sexual assault in case number 92 CR 27522 and driving under the
influence of alcohol in case number 05 CR 013203. Ultimately, defendant was sentenced,
because of his background, to a Class X sentence of seven years in prison.
¶3 On direct appeal, this judgment was affirmed, and defendant’s mittimus was corrected. See
People v. Hall, 2012 IL App (1st) 102908-U. In August 2012, defendant filed the instant pro se
postconviction petition. The circuit court summarily dismissed the petition as frivolous and
patently without merit. It is from this judgment that defendant appeals.
¶4 On appeal, defendant contends for the first time that the trial court erred when it sentenced
him as a Class X offender because his prior conviction for aggravated criminal sexual assault
-2-
in case number 92 CR 27522 was used both as an element of the instant offense and as the basis
to find him eligible for a Class X sentence.
¶5 Initially, the State responds that even if defendant was subject to an improper double
enhancement, the issue is moot because defendant has completed his term of imprisonment
and is currently serving a term of mandatory supervised release (MSR). We disagree.
¶6 This court has held that a challenge to the length of a prison term is not moot if it is brought
before the defendant has completed his term of MSR (People v. Lieberman, 332 Ill. App. 3d
193, 196 (2002)), because a defendant’s term of MSR is considered to be part of his sentence
(People v. Whitney, 368 Ill. App. 3d 678, 681 (2006)). See also People v. Saleh, 2013 IL App
(1st) 121195, ¶ 10 (a challenge to the validity of an imposed sentence becomes moot once the
entire sentence has been served). In the case at bar, defendant is currently serving a three-year
term of MSR in the custody of the Department of Corrections. Upon resentencing for the Class
2 felony of failure to register, defendant would be subject to a two-year term of MSR rather
than the three-year term applicable to a Class X sentence. See 730 ILCS 5/5-8-1(d)(2) (West
2008). Therefore, under these circumstances, relief, that is a shorter term of MSR, could be
granted upon resentencing, and consequently, defendant’s claim is not moot. See People v.
McNulty, 383 Ill. App. 3d 553, 558 (2008).
¶7 Before turning to the merits of defendant’s contention, this court notes that on appeal
defendant abandons the issues he raised in his pro se postconviction petition, and therefore,
those issues are forfeited. People v. McKown, 236 Ill. 2d 278, 310 (2010) (the failure to raise an
issue on appeal results in forfeiture of that issue).
¶8 Here, defendant contends that he was subjected to a double enhancement in that his
conviction for aggravated criminal sexual assault is an element of the instant offense, but was
also used as one of the two prior felonies relied upon to make him eligible for Class X
sentencing. Although defendant did not argue that he was subject to a double enhancement
before the circuit court, void judgments and orders can be challenged on collateral review for
the first time on appeal. People v. Thompson, 209 Ill. 2d 19, 25 (2004); see also People v. Arna,
168 Ill. 2d 107, 113 (1995) (a sentence which does not conform to a statutory requirement is
void). Whether a judgment is void is a legal question that we review de novo. People v.
Henderson, 2011 IL App (1st) 090923, ¶ 41.
¶9 The State argues that defendant’s sentence is voidable, rather than void, because the trial
court had the jurisdiction to sentence defendant to a Class 2 sentence of seven years in prison
and merely made a mistake of law when it sentenced defendant to a Class X sentence of seven
years in prison. Because the voidness of a sentencing order is dependent on whether the court
exceeded its statutory authority in imposing it, we begin by examining whether defendant’s
Class X sentence was authorized by section 5-5-3(c)(8) of the Unified Code of Corrections (the
Code) (see 730 ILCS 5/5-5-3(c)(8) (West 2008)) (now 730 ILCS 5/5-4.5-95(b) (West 2010)).
¶ 10 Any portion of a defendant’s sentence that is not statutorily authorized is void. People v.
Day, 2011 IL App (2d) 091358, ¶ 48. In other words, when a trial court exceeds its sentencing
authority by entering an order that a statute does not allow, that order will be deemed void, and
a defendant may challenge that order on appeal even if he did not properly preserve that claim.
Id. ¶¶ 48-49; see also People v. Raczkowski, 359 Ill. App. 3d 494, 496-97 (2005) (if the circuit
court lacked jurisdiction over the parties or the subject matter or exceeded its statutory power
to act, the judgment is void and may be attacked at any time). However, if the order is improper
-3-
because of a mistake of law or fact, it is voidable, not void, and may be forfeited. Day, 2011 IL
App (2d) 091358, ¶ 48.
¶ 11 Here, defendant was charged with violating section 6 of the Act in that having previously
been convicted of aggravated criminal assault in case number 92 CR 27522 and a prior
violation of the Act, he failed to register with law enforcement every 90 days. 730 ILCS 150/6
(West 2008). Because of his prior conviction for failing to register in case number 05 CR
13203, defendant was charged as a Class 2 offender. See 730 ILCS 150/10(a) (West 2008)
(anyone “convicted for a violation of this Act for a second or subsequent time is guilty of a
Class 2 felony”). Defendant was then found eligible for Class X sentencing pursuant to section
5-5-3(c)(8) of the Code, which provides that a defendant convicted of a Class 2 felony shall be
sentenced as a Class X offender if he was previously convicted of two separately committed
and tried offenses of Class 2 felony or greater. 730 ILCS 5/5-5-3(c)(8) (West 2008) (now 730
ILCS 5/5-4.5-95(b) (West 2010)).
¶ 12 An improper double enhancement takes place when either a single factor is used both as an
element of an offense and as a basis for imposing a harsher sentence than might otherwise have
been imposed, or the same factor is used twice to elevate the severity of the offense itself.
People v. Guevara, 216 Ill. 2d 533, 545 (2005). A double enhancement is not necessarily
improper, as it may reflect legislative intent. People v. Thomas, 171 Ill. 2d 207, 224 (1996).
This court has previously determined that “nothing” in the statutory language of section
5-5-3(c)(8) of the Code (see 730 ILCS 5/5-5-3(c)(8) (West 2004)) “expressly” indicated that
the legislature intended such a double enhancement to be permissible in Class X sentencing.
People v. Owens, 377 Ill. App. 3d 302, 304-05 (2007); see also People v. Chaney, 379 Ill. App.
3d 524, 531-32 (2008).
¶ 13 Accordingly, because the record reveals that defendant only had two prior Class 2 or higher
felony convictions–one for driving under the influence of alcohol and one for aggravated
criminal sexual assault–the use of the same conviction as an element of the offense and as a
basis for imposing a Class X sentence amounted to an impermissible double enhancement
(Guevara, 216 Ill. 2d at 545). Therefore, the trial court erred when it determined that defendant
was eligible for a Class X sentence (Owens, 377 Ill. App. 3d at 304-05), and, consequently,
defendant’s Class X sentence is void because the court was not authorized under section
5-5-3(c)(8) of the Code to impose such a sentence upon defendant. See Raczkowski, 359 Ill.
App. 3d at 496-97 (if the trial court exceeded its statutory power to act, the judgment is void).
¶ 14 In so concluding, we reject the State’s argument that defendant’s prior conviction for
aggravated criminal sexual assault was not used to “enhance” both the charge in the instant
case and the sentence. Here, defendant was subject to the Act’s reporting requirements and
Class X sentencing based on his prior conviction for aggravated criminal sexual assault, i.e.,
the same conviction was improperly used both as an element of the offense and to make him
eligible for a more severe sentence. See Guevara, 216 Ill. 2d at 545.
¶ 15 Defendant was convicted of the failure to register in violation of section 6 of the Act (730
ILCS 150/6 (West 2008)), a Class 2 felony (see 730 ILCS 150/10(a) (West 2008)). The
sentencing range for a Class 2 felony is between three and seven years in prison. See 730 ILCS
5/5-8-1(a)(5) (West 2008). Although defendant’s seven-year sentence fell within the
permissible sentencing range for a Class 2 felony, the cause must still be remanded for
resentencing as the trial court relied upon the wrong sentencing range in imposing sentence.
See Owens, 377 Ill. App. 3d at 305-06 (even when a sentence imposed under an incorrect
-4-
sentencing range fits within the correct range, the original sentence must be vacated because
the trial court relied on the wrong sentencing range when imposing sentence).
¶ 16 Accordingly, we affirm the summary dismissal of defendant’s pro se postconviction
petition, vacate defendant’s Class X sentence of seven years in prison, and remand to the trial
court for resentencing.
¶ 17 Affirmed in part; vacated in part; remanded for resentencing.
-5-