People v. WimberlyPeople v. Wimberly
¶ 1 Held: The circuit court did not err in dismissing the defendant‘s postconviction petition at the first stage of postconviction proceedings.
¶ 2 The defendant, Darrell Wimberly, appeals from the circuit court‘s order dismissing his petition filed pursuant to the Post Conviction Hearing Act (Act) (
¶ 3 The evidence at the defendant‘s jury trial showed that, in 2006, the defendant approached two victims while holding a gun, ordered them to the ground, took valuables from them, took a few steps away, and then turned and shot one of the victims in the back before fleeing. In April 2009, after the jury returned a verdict finding the defendant guilty of attempted first degree murder and two counts
¶ 4 In July 2011, the defendant filed a pro se postconviction petition arguing, among other things, that his trial and appellate counsel were ineffective for failing to challenge the imposition of consecutive sentences against him. In September 2011, the circuit court dismissed the defendant‘s petition as frivolous and patently without merit. The defendant now timely appeals.
¶ 5 The Act provides a means by which a defendant may challenge his conviction or sentence for violations of federal or state constitutional rights. People v. Pendleton, 223 Ill. 2d 458, 471, 861 N.E.2d 999 (2006). Except in cases where the death penalty has been imposed, proceedings under the Act are divided into three distinct stages. People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E. 2d 102 (1996). At the first stage, the trial court has 90 days to examine the petition independently and summarily dismiss it if it is frivolous or patently without merit.
¶ 6 The defendant argues that his petition stated the gist of a constitutional claim, because it argued that the consecutive sentences imposed against him were not statutorily authorized and therefore must be modified to run concurrently. Although the State argues that the defendant has forfeited this argument for failing to raise it in earlier proceedings, the defendant correctly notes in
¶ 7 At the time of the defendant‘s crime, the imposition of consecutive sentences was governed by section 5-8-4(a) of the Unified Code of Corrections (Code) (
¶ 8 We agree with the defendant that his armed robbery sentences cannot run consecutively to one another unless one of them constitutes a triggering offense, that is, unless one of them involved serious bodily injury. However, we disagree with the defendant‘s position that his shooting one victim (and causing severe bodily injury) did not occur during the armed robberies.
¶ 9 Although our supreme court has not articulated a test for determining whether a violent act occurred during the commission of a felony, this court has drawn upon death-sentence jurisprudence for felony murder purposes to hold that the standard “is met where commission of the triggering offense and infliction of the bodily harm, the precise timing of which not being dispositive, occurred ‘essentially simultaneously.‘” People v. Thompson, 331 Ill. App. 3d 948, 956, 773 N.E.2d 15 (2002) (quoting People v. Sample, 326 Ill. App. 3d 914, 927-28, 761 N.E.2d 1199 (2001)). The flexibility of this standard is illustrated in People v. Thomas, 137 Ill. 2d 500, 561 N.E.2d 57 (1990), a case in which the defendant killed a victim and then left her body in a burning garage with the hope of concealing the murder. On appeal, the defendant argued that he could not have committed the murder during the arson, because the victim was dead at the time he started the fire. Thomas, 137 Ill. 2d at 533. In rejecting the defendant‘s argument, the supreme court held that, even if the two crimes were conceived separately, they occurred “essentially simultaneously,” because they were “part of the same criminal episode.” Thomas, 137 Ill. 2d at 533.
¶ 10 The defendant does not challenge this “essentially simultaneously” test, or argue that the application of the standard articulated in Thomas or related cases is unduly expansive. Thus, we do
¶ 11 Under this test as the supreme court has applied it, there can be little question that the defendant‘s shooting one victim occurred “essentially simultaneously” to his robbing that victim. Indeed, although the defendant had taken the victim‘s possessions and started to leave, he nonetheless shot the victim as part of a short encounter that also involved his robbing the same victim. Based on this timing, and on the circumstances of the shooting, it is nearly impossible to view the shooting and the armed robbery as anything other than a single transaction. Thus, in our view, the shooting took place during both the attempt murder and the armed robbery of the victim, so that both offenses triggered consecutive sentences under section 5-8-4(a).
¶ 12 The defendant‘s reliance on People v. Stanford, 2011 IL App (2d) 090420, does not change our result. In Stanford, the defendant was convicted of three counts of first-degree murder, five counts of aggravated battery with a firearm, and eight counts of armed violence, stemming from an incident in which he and a co-defendant “shot at five young men on a porch *** and injured three of them.” Stanford, 2011 IL App (2d) 090420, ¶ 1, 3. One victim, Matthew Pruneda, was shot in the face and both ankles. Id. at ¶ 3. For sentencing purposes, the trial court found that the injury to Pruneda‘s right ankle did not constitute a severe bodily injury, but that the injuries to his face and left ankle did constitute such an injury. Id. at ¶ 13. Thus, the trial court ordered that the sentences relating to the left ankle and face run consecutively, but it ordered the sentence relating to Pruneda‘s right ankle to run concurrently with those for other non-triggering offenses. Id. at ¶ 13. From Stanford,
¶ 13 For the above reasons, we conclude that the defendant‘s shooting one of the armed robbery victims inflicted the serious bodily injury necessary to make his armed robbery of that victim an offense that triggered mandatory consecutive sentencing pursuant to section 5-8-4(a) of the Code. Accordingly, we conclude that, when it ordered that the defendant‘s two sentences for armed robbery be served consecutively, the trial court did not exceed its statutory authority. Because the court did not exceed its statutory authority in imposing the defendant‘s consecutive sentences, those sentences are not void. As a result, we agree with the circuit court that the defendant‘s postconviction petition did not state the gist of a constitutional claim in the form of an excessive sentence.
¶ 14 The defendant also argues that his trial and appellate counsel provided ineffective assistance by failing to challenge the imposition of consecutive sentences against him. However, in order to succeed on a claim of ineffective assistance of counsel, a defendant must establish both that counsel‘s performance was substandard and that the substandard performance caused him prejudice. Strickland v. Washington, 466 U.S. 668 (1984); People v. Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984); People v. Boyd, 363 Ill. App. 3d 1027, 1034 (2006). Because we have held that the defendant‘s proposed sentencing argument is not meritorious, we necessarily hold any failure to raise it did not prejudice him. Eg., People v. Enis, 194 Ill. 2d 361, 377, 743 N.E.2d 1 (2000).
¶ 15 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 16 Affirmed.