People v. Bishop , 2014 IL App (1st) 113335 ( 2014 )

2014 IL App (1st) 113335
No. 1-11-3335
Opinion filed May 14, 2014
Third Division
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 84 CR 6448
)
ROBERT BISHOP, )
) The Honorable
Defendant-Appellant. ) Lawrence Edward Flood
) Judge, presiding.
)
______________________________________________________________________________
PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion.
Justices Pucinski and Mason concurred in the judgment and opinion.
OPINION
¶1 Defendant, Robert Bishop, seeks to vacate his 1986 conviction and sentence for
attempted armed robbery as void on the ground of double jeopardy. He contends that attempted
armed robbery also served as the predicate offense for his felony murder conviction and thus
cannot stand. His appeal arises from the circuit court's dismissal of his pro se petition for relief
from judgment under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401
(West 2010)). We find that Bishop was not convicted of felony murder but, rather, intentional
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murder, and because attempted armed robbery is not a predicate offense, the trial court's
conviction and sentence on both charges did not constitute a double jeopardy violation. This
being the case, the statute of limitations in section 2-1401 had run, and his petition was untimely.
¶2 BACKGROUND
¶3 On March 20, 1985, Bishop pled guilty to murder and attempted armed robbery for the
May 30, 1984 shooting death of Oralia Velasquez. Bishop was ordered to serve an extended-
term sentence of 80 years' imprisonment for murder and a consecutive sentence of 15 years for
attempted armed robbery. Bishop appealed, claiming ineffective assistance of trial counsel and
trial court error in sentencing him to 95 years in prison. The appellate court affirmed both the
conviction and the sentence. People v. Bishop, 179 Ill. App. 3d 99 (1989). On December 27,
1991, Bishop filed a pro se postconviction petition claiming ineffective assistance of counsel and
an excessive sentence. The trial court dismissed the petition and the appellate court affirmed.
People v. Bishop, No. 1-92-1534 (1994) (unpublished order under Supreme Court Rule 23). In
December 2000, Bishop filed a successive postconviction petition alleging his sentences violated
the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000). The circuit court dismissed the petition
after second-stage arguments, and the appellate court again affirmed. People v. Bishop, No. 1-
03-2255 (2005) (unpublished order under Supreme Court Rule 23).
¶4 On July 11, 2011, Bishop filed a pro se petition for relief from judgment under section 2-
1401 of the Code (735 ILCS 5/2-1401 (West 2010)). As grounds for relief, Bishop alleged: (i)
his extended-term sentences are unconstitutional; (ii) his convictions violate the one-act, one-
crime rule and subject him to double jeopardy; and (iii) the trial court lacks subject matter
jurisdiction. The circuit court dismissed the petition in a written order on October 13, 2011. The
court found Bishop did not rely on any newly discovered evidence or other material outside the
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record that would form the basis of a section 2-1401 petition. The court also found that (i) res
judicata barred Bishop's claims regarding his extended-term sentence since they were raised in
an earlier postconviction petition and (ii) waiver barred his other claims because they were not
raised on direct appeal. The trial court determined that Bishop's convictions for murder and
attempted robbery were separate acts and therefore did not implicate the one-act, one-crime rule
or subject him to double jeopardy. Lastly, the court dismissed Bishop's petition as untimely
having been filed well beyond the limitation period prescribed by section 2-1401 and making no
claim of legal duress or fraud that would have tolled the statute of limitations. Bishop now
challenges the dismissal of his section 2-1401 petition.
¶5 ANALYSIS
¶6 Section 2-1401 provides a comprehensive, statutory procedure that allows for vacating a
final judgment older than 30 days. People v. Vincent, 226 Ill. 2d 1, 7 (2007). A petition must be
filed within two years of that order or judgment, unless it alleges a claim of voidness, which can
be raised at any time. See Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104 (2002).
Relief under section 2-1401 depends on proof, by a preponderance of evidence, of a defense or
claim that would have precluded entry of the judgment in the original action and diligence in
both discovering the defense or claim and presenting the petition. Vincent, 226 Ill. 2d at 8. We
review the dismissal of a section 2-1401 petition on the pleadings de novo. Id. at 18.
¶7 Bishop maintains that his conviction and sentence are void (rather than voidable) and
thus not subject to the two-year statute of limitations for a section 2-1401 petition. According to
Bishop, he was convicted for felony murder and the predicate offense of attempted armed
robbery violated the one-act, one-crime and double jeopardy rules. See People v. Coady, 156 Ill.
2d 531, 537 (1993) ("armed robbery was the offense underlying the felony murder charge and, as
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an included offense, will not support a separate conviction and sentence"). The State agrees the
well-established rule is that multiple convictions are improper if based on lesser-included
offenses. People v. King, 66 Ill. 2d 551, 564 (1977)). But, contends the State, Bishop’s
conviction was for intentional murder not felony murder, and armed robbery is not a predicate
offense to intentional murder, and thus the one act, one-crime or double jeopardy issue does not
arise. Alternatively, the State asserts that one-act, one-crime errors are voidable and not subject
to an untimely collateral attack.
¶8 We first address the State's contention that Bishop was convicted of intentional murder
rather than felony murder, which would preclude Bishop from raising a one-act, one-crime
violation and from filing an untimely petition. After his arrest, Bishop was charged with three
counts of murder, one count of armed violence, and one count of attempted armed robbery. The
indictment listed those charges as follows: count I, murder, intentional and knowing; count II,
murder knowing that shooting with a gun created a strong probability of death; count III, armed
violence, in that he committed a felony, i.e., murder, knowing that the shooting created a strong
probability of death; count IV, felony murder; and count V, attempted armed robbery. After
accepting Bishop's guilty plea and holding a sentencing hearing, the trial court entered a
mittimus order sentencing Bishop to "a term of Eighty (80) years on the charge of count I murder
and Fifteen (15) years on the charge of count V attempt armed robbery." The State contends the
mittimus shows Bishop was convicted of intentional murder and attempted armed robbery,
counts I and V of the indictment, respectively, and because the former is not a predicate offense
to the latter, Bishop has failed to state a meritorious claim of double jeopardy.
¶9 Bishop, however, points to the report of proceedings and says it shows he was convicted
of felony murder. Specifically, Bishop notes that after accepting his guilty plea, the trial judge
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stated "I will accept your plea of guilty based upon the evidence that I have heard up to this point
in the trial, and I will enter a finding of guilty on count one, charging you with murder, finding of
guilty. Count two charges you with murder, finding of guilty. Count three charges you with
murder, finding of guilty. Count four charges you with attempted armed robbery, and I will
make the judgment of conviction on the attempted armed robbery, and make a judgment of
conviction on the murder count, which is count 4, I guess. Yes, count four. The other counts
will merge into that count." According to Bishop, this statement by the trial judge shows he was
convicted on count IV, felony murder, and that the other murder charges merged into that charge.
¶ 10 Generally, where the sentence reflected in the common law record conflicts with the
sentence imposed by the trial judge, as reflected by the report of proceedings, the report of
proceedings will control. People v. Peeples, 155 Ill. 2d 422, 496 (1993). Here, the issue is less
one of a conflict between the common law record and the report of proceedings than a lack of
clarity. As noted, the mittimus plainly stated Bishop was convicted of counts I and V,
intentional murder and attempted armed robbery. In the report of proceedings, the trial judge
noted that Bishop was guilty on all three of the murder charges, as well as the attempted armed
robbery charge, but incorrectly identified that charge as count IV. He then identified count IV as
a murder charge and stated that the other murder charges would merge into that charge.
¶ 11 Given this ambiguity as to what the trial judge intended, we turn to the law on multiple
murder convictions outlined by our supreme court in People v. Cardona, 158 Ill. 2d 403 (1994).
The court held in Cardona that a single murder victim supports only one conviction of murder,
which is on the most serious offense. Id. at 411-12. Among charges of intentional, knowing,
and felony murder, intentional murder constitutes the most serious offense. Id. "A killing that
occurs when acts are performed with the intent to kill or to do great bodily harm involves a more
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culpable mental state than does either a killing that occurs when acts are performed with the
knowledge that they create a strong probability of death or great bodily harm or a killing that
occurs in the course of a felony." Id. See also People v. Mack, 105 Ill. 2d 103, 137 (1984)
("When multiple convictions are had for offenses arising out of a single act, the rule is that the
sentence is imposed on the most serious offense." (citing People v. Donaldson, 91 Ill. 2d 164,
170 (1982))).
¶ 12 As noted, Bishop faced three murder charges, the most serious being intentional murder,
which carried a potential sentence of life imprisonment. Indeed, the State asked that Bishop be
sentenced to natural life, asserting that the evidence showing Bishop shot the victim in the right
side of the head while holding a gun in his right hand suggested he was pointing the gun at her
head and that the gun had not gone off accidentally. As the State explains, "this was an
execution and it was not an accident." During the sentencing hearing, the trial judge noted he
could grant the State's request for a natural life sentence (which would have been permitted for
intentional murder but not felony murder) but decided instead to impose an 80-year sentence for
murder and a consecutive 15 years for attempted armed robbery.
¶ 13 Although the trial judge never expressly stated Bishop was being sentenced for
intentional murder, the trial court is presumed to know the law and to follow it unless the record
affirmatively indicates the contrary. In re Jonathon C.B., 2011 IL 107750, ¶ 72. We presume
the sentencing judge knew and followed the law and, in particular, that he was aware intentional
murder was the most serious of the charges against Bishop and that when Bishop was found
guilty of that offense, the other murder counts, including felony murder, merged into count I.
Further, as noted, the record of proceedings is ambiguous and therefore, fails to "affirmatively
indicate" the trial judge did not follow the law. Given the unambiguous reference in the
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sentencing order and the mittimus to count I, as well as the evidence in the record supporting a
finding of guilty on the charge of intentional murder, we conclude the trial judge misspoke when
referring to the other counts of murder merging into count IV, the felony murder count, rather
than count I.
¶ 14 Because Bishop was convicted of both intentional murder and armed robbery and
because armed robbery is not a predicate offense for intentional murder, Bishop has failed to
raise a meritorious claim of double jeopardy violation. As a result, we need not address Bishop's
claimed error that his conviction and sentence are void rather than voidable and thus, not subject
to the two-year statute of limitations for a section 2-1401 petition.
¶ 15 The circuit court did not err in dismissing Bishop‘s section 2-1401 petition after the two-
year statutory period (735 ILCS 5/2-1401(c) (West 2010)). We affirm the dismissal of Bishop's
petition.
¶ 16 Affirmed.
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