*1 ap- reasons, judgment foregoing For affirmed. court is pellate
Affirmed. denial of from the dissented McMORROW JUSTICE rehearing.
(No.77551. ILLINOIS, OF Appel- THE STATE THE PEOPLE OF lee, ARNA, Appellant. v. DANIEL Rehearing denied
Opinion October 1995. filed 4, 1995. December *2 NICKELS,J., McMORROW,J., dissenting. joined *3 Pelletier, Defender, and Kenneth Deputy Michael J. Defender, Jones, of the Office of Appellate L. Assistant Defender, Chicago, appellant. of for Appellate the State General, Springfield, and Ryan, Attorney James of (Arleen Chicago Attorney, C. O’Malley, Jack State’s of General, Anderson, Attorney Chicago, of and Assistant Goldfarb, Eagle, M. R. and Ross Renee Susan Schiеrl counsel), Attorneys, People. of for Assistant State’s opinion HEIPLE delivered the of JUSTICE court: trial, Daniel Arna judge
After a convicted bench attempted degree of two counts of first murder for shootings Tonya Whitney Parks and Newell and sentenced him to terms in years of 30 and 45 prison. appealed, Defendant af court firmed his App. convictions. Addition however, ally, court found consecutive sentences mandatory and ordered the circuit impose consecutive sentences on remand. We affirm.
The relevant facts Tonya are as follows. lived Parks years with Darrin Newell for four until she out moved in December leaving of 1990. Within few months of Newell, Parks met and in moved with defendant. While they together, lived defendant told Parks that if she Nevertheless, left him ever he would kill her. left Parks the defendant in of 1991 in mid-June and moved back with Darrin Newell. Newell, 20, Parks, children,
On June and two their Porchia, Whitney and to a currency exchange at went Chicago 422 East 61st in pick up Street public Parks’ aid check. Parks received check her and turned to use up table. She looked and saw the standing door exchangе. of the currency Defendant then handgun pulled Whitney out a shot and twice in the As Whitney, head. Parks ducked tried protect the defendant her At shot once chest. the time shooting, Whitney years was two old. away. put
Defendant then ran Newell Parks Whitney car began driving to the hospitаl. route, En Parks told a that ex- police officer her Daniel, defendant, boyfriend had her shot and Whit- ney. day, viewing lineup, Later after Newell positively identified defendant as the shooter. turned in to He police. himself claimed Parks, he currency exchange went to find an him person pushed but unidentified aside and committed the crimes. *4 trial, re- the defendant awaiting jail
While asked Parks Defendant Parks. contact with established the man he was not stating that him a letter to write of 1991. May so in Parks did Whitney. her and who shot which stated affidavit a notarized Parks also executed implicating into еssentially coerced Parks had been was not the Parks knew defendant and that defendant man shot her. who trial jury waived his trial, implicated Parks defen- trial. At a bench
received exculpating and affidavit stated that her letter dant and him were not true. of two counts of guilty defеndant judge
The found he judge The stated that degree first murder. attempted changed story her several aware that Parks had *** established without times, that "the evidence but He the crimes. committed any doubt” aside pushed he had been story found defendant’s completely be without аn unknown assailant "to belief.” years’ imprison- to 30 judge
The sentenced defendant Tonya Parks. He attempted ment for the murder term of 30 to eligible for an extended found defendant Whitney Newell attempted for the murder of years The on that count. years and sentenced dеfendant to 45 run stated that the sentences were to judge specifically concurrently. he made sev- appeal filed an wherein
The defendant Neither challenging his convictions. arguments eral nature of objected to the concurrent party rejected court first sentences. The defendant’s affirmed his convictions. claims of error and defendant’s however, on, that consecutive The went hold 5—8—4 of the mandatory under section sentences were (730 ILCS Unified Code of Corrections 5/5 — (West 1992)). ordering that The court concluded
сoncurrent be sentences vacated cause re- manded the trial court for of determination the “ap- be propriate imposed consecutively.” sentences claim Defendant’s first of error relates sponte sua propriety of the apрellate court’s action ordering that imposed. consecutive sentences be Section governs of the imposition 5 —8—4 Code of concur (730 rent and consecutive sentences. ILCS 5/5 —8—4 (West 1992).) In People Wittenmyer (1992), both People v. Bole Ill. this interpreted court seсtion of the statute as 5 — setting up certain conditions under which either consec utive or concurrent are mandatory. terms The determin ing criterion is whether the offenses were “committed single as of a part during course conduct which there change substantial was nо the nature of the criminal (730 8—4(a) (West 1992).) objective.” If ILCS these 5/5 — are conditions satisfied then consecutive are sentences (1) if mandatory either: one of the offenses was a Class X 1 felony or Class and the defendant inflicted severe (2) injury, bodily or one the offenses was а violation of section 12 — 13 or 12 — 14 of the Criminal Code of 1961 (720 (West 1992) (sexual 5/12—13, ILCS — 14 assault 12 assault)). aggravated or sexual primary argument Defendant’s once the is that trial court not decides consecutive terms are mandatory, court no appellate authority has to review this de supreme termination. relies on two court 615(b), Rule grant rules: which does not review, the authority to increase a sentence 604(a), grant does State and Rule which not 604(a), issues. 2d Rules 615(b).) The State contends instead that pursuant authority court acted to its inherent to corrеct void of the trial court. orders agree imposing
We with the State the order requirements was Each terms void. met in this sentences was mandatory for consecutive single in a First, offenses were committed case. Second, there was no substantial course of conduct. change objective from one shoot- in defendant’s criminal was to ing to His clear intent from the start the next. fact that more than one shoot kill both victims. The de- finding that preclude victim involved does not was This objective. fendant did not one not a intended to commit cаse where crime, a new developed that crime course of Third, mur- objective attempted another. and committed der, sentence, coupled a Class X is subject which is bodily infliction injury. here with the of severe *6 statutory A a which does not conform to sentence (1990), (See, requirement e.g., People Mapps is void. v. (declaring 198 521 of a App. portion 3d void the maximum); longer than v. statutory People sentence (1993), (declaring 256 Ill. 3d 651 void App. Simmons statute).) probation permitted by sentence of where not void, imposing Because the order terms was authority the it at appellate had the to correct (1987), 1), any (People time v. Wade 116 Ill. 2d actions of the court were not barred our rules the which limit State’s and which prohibit increasing court from defen (1977), dant’s sentence on v. Scott 69 Ill. People review. 85; (1982), 91 Pеople also Ill. 2d 346. see v. Dixon argues next statute violates process proportionate penalties due clauses of the (Ill. 1970, I, 2, Illinois Constitution of 1970 Const. art. §§ 11). single in a He contends all offenses committed a substantial course of conduct without are than objeсtive their nature less serious those offenses in courses multiple same committed this fact recognize conduct. Because statute fails to involved, when serious felonies are he contends the stat- is ute unconstitutional. disagree. legislature granted The
We is broad discre affixing crimes defining punishment. tion their (See 250.) People (1994), v. Hickman The Ill. 2d stat ute this case does not A exceed constitutional limits. sentencing statute due process satisfies the clause as long as it is reasonably designed remedy the evils legislature which has determined to bе threat health, public safety general (People welfare. v. 308.) (1982), Wagner 89 Ill. 2d A scheme violates the proportionate penalties only clause if the is or or penalty degrading, cruel so disproportionate committed the offense as to shock moral sense of the community. (People Steppan Sentencing defendants to consecutive terms for Class X and Class 1 felonies and for when sexual assault those single offenses are committed in a course of is a conduct legislative Thus, reasonable determination. we conclude section of the Code ILCS 8/5 —8— 5 — (West 4(a) 1992)) process does not violate either due proportionate penalties or clauses of our constitution (Ill. 11). I, Const. art. §§ final
Defendant’s contention is that he denied attorney effective assistance оf counsel because his failed to use Parks’ as prior inconsistent statements substan- prove tive evidence of innocence. To ineffectiveness counsel, a defendant must establish that his counsel’s performance fell below an of reason- objectivе standard *7 (Strickland (1984), 668, Washington ableness U.S. 466 2064) 687-88, 2052, 674, 693, 80 2d L. Ed. 104 S. Ct. that there was reasonable if counsel probability a that errors, had not proceeding made the the result of the (Strickland, 694, different at would have been 466 U.S. 2068). L. Ed. 2d at 104 at S. Ct. prove prejudice. has failed to Parks the of the defendant whilе changed story at behest her highly It is a of reconciliation. they period were in to chosen the trial would have judge that unlikely of support defendant’s believe Parks’ inconsistent story over the consistent uncorroborated otherwise trial of Parks and Newell. testimony idеntifications story Indeed, that defendant’s himself stated judge Hence, defense coun- without belief.” "completely emphasize sel’s to the substantive value failure be harmless. only can considered statements is court affirmed. The judgment
Affirmed. NICKELS, dissenting: JUSTICE authority no con impose
The had impose case. In order to con secutive sentences this sentences, court must first make secutive the trial were part factual determination that the offenses during was no same of conduct which there course objective. ILCS substantial 8—4(a) (West 1992).) Once dеtermina factual 5/5 — made, tion is rules our do not allow State 604(a). Ill. R. issue. 134 2d majority sentencing The finds that order was In this may appeal. "void” therefore be corrected way, is review that is not majority able to which authority has agree reviewable. I a trial court no impоse contrary parameters a sentence is However, legislature. particular outlined this judgment. did produce decision not void following judgments This court has defined void manner: ju judgment is
"A one entered court without void lacks parties subject matter or that risdiction of the or the power particular 'the enter the order inherent make or ” 1, 5, quoting (People v. involved.’ Wade (1986), 111 Programs Corp. & Co. v. R.W. Sawant Allied *8 can There be no that trial court dispute the had both personal jurisdiction over the defendant subject jurisdiction regarding matter criminal matters. Further mоre, the trial power court had to statutory impose the it concurrent sentences if determined either that of the were not a part single fenses committed as course or a change conduct there was substantial in crim (730 1992).) (West objective. Thus, inal ILCS 5/5 — power the triаl court did lack "the not inherent to make or the particular enter order involved” sentenc ing was not order "void.” case,
In the instant the sentencing order is only con- trary to the statute if a court reviews the facts of the a regarding crime and comes to different сonclusion whether acts are of the course of part same conduct a change or whether there was substantial criminal objective. exactly This is what majority does. The states: majority change
"[TJhere was no substantial in defendant’s crimi objective shooting nаl from one next. His clear intent from was the start to shoot and kill both victims. The fact that more than one victim was involved does not preclude finding a did not his crim defendant objective. This was not a case where defendant inal crime, intended to one commit and in course of that developed objective crime a new and committed another.” 113.) added.) (168 (Emphasis Ill. 2d at The trial court is presumed know the law and act ac cordingly. App. 84 Ill. (People Sally sentences, imposing In it must be shooting presumed that the trial court each found that by separate was motivated a objective. Al though finding may different factual not be "pre case, cluded” the facts of this this factual determina tion made in favor and is not appeal subject by the State. now, sentencing could is appeal
Until the State not (134 604(а).) addition, sues. Ill. 2d R In our rules increasing prohibited from ap who exercised of a defendant sentence 615(b).) reasoning pre peal. R. Under majority opinion, State cannot sented wrong. Now, can the State issue unless it is argue appealing conclusion a factuаl it is not appealing court, it is instead the trial reached contrary addition, statute. In that is "void” order *9 carefully the decision to now consider defendant must having appeal his sentence of a new risk of because imposition of consecutive sentences increased. I find the Therefore, I to be an abuse of our rules. respectfully dissent. joins in this dissent.
JUSTICE McMORROW (No. 77721.
In THE re PETITION OF VILLAGE OF VERNON Territory the Vernon Fire
HILLS to Transfer Countryside Fire Protec- Protection District to the (The Village Appel- Hills, tion District of Vernon Appel- lant, lee). District, Fire v. Vernon Protection Rehearing Opinion September denied filed 1995. December 1995.