Opinion
No. 1-10-2527
05-10-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDY BROWN, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of Cook County
99 CR 12888
Honorable
Thomas V. Gainer,
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Howse and Palmer concurred in the judgment.
ORDER
¶ 1 HELD: Defendant's consecutive sentences for aggravated kidnaping and aggravated robbery were not authorized by statute and defendant's sentencing order is modified to have his sentences for both aggravated kidnaping and aggravated robbery run concurrently to each other, but consecutive to his sentence for aggravated criminal sexual assault. ¶ 2 Defendant Randy Brown appeals from the trial court's dismissal of his pro se postconviction petition at the second stage of postconviction proceedings. On appeal, defendant argues that his consecutive sentence for aggravated robbery is void and should be corrected to run concurrently with his sentence for aggravated kidnaping. ¶ 3 Following an October 2002 jury trial, defendant was convicted of two counts of aggravated criminal sexual assault, aggravated kidnaping, and aggravated robbery in the April 1999 attack of K.T. After the jury trial, defendant was sentenced to 30 years for one count of aggravated criminal sexual assault, consecutive to a term of 30 years for the second count of aggravated criminal sexual assault, and a consecutive term of 15 years for aggravated robbery. This is defendant's third appeal and the only issue raised is whether the 15-year consecutive sentence on the aggravated robbery conviction was erroneous. Before we reach that singular issue, we will briefly summarize the evidence presented at defendant's jury trial. People v. Brown, No. 1-03-0411 (September 24, 2004) (unpublished order pursuant to Supreme Court Rule 23). ¶ 4 On April 8, 1999, K.T. took the Metra train to downtown Chicago to meet her boyfriend at his office on South Jefferson Street. When she exited the train station, K.T. was unsure which direction she should travel. Defendant approached her and asked if she needed help. Defendant directed K.T. in the wrong direction and as she was walking, defendant came up behind her and shoved an object that felt like a gun in her back. Defendant told K.T. to keep walking and not to run. He said he had a gun and would shoot her. Defendant linked arms with K.T. and forced her to walk with him while he continually threatened to shoot and kill her. As they crossed a bridge, defendant told K.T. to open her purse and demanded her money. K.T. complied. Defendant then forced K.T. to a nearby park, pushed her to the ground and sexually assaulted her. After the attack, K.T. took a cab to her boyfriend's office and called the police. ¶ 5 In May 1999, after defendant was arrested on an unrelated matter, K.T. identified defendant in a lineup. A forensic expert compared the DNA analysis of a vaginal swab taken from K.T. after the attack to a buccal swab from defendant and determined within a reasonable degree of scientific certainty that the semen from the vaginal swabs matched defendant. Additionally, semen found on K.T.'s underwear matched defendant's DNA profile. ¶ 6 The jury found defendant guilty of one count of aggravated criminal sexual assault (vaginal intercourse), one count of aggravated criminal sexual assault (digital penetration), aggravated kidnaping, and aggravated robbery. When imposing the original sentence, the trial court merged the aggravated kidnaping count into the aggravated criminal sexual assault convictions and then sentenced defendant to consecutive terms of 30 years for each conviction for aggravated criminal sexual assault, and an additional consecutive sentence of 15 years for aggravated robbery, for an aggregate term of 75 years. This 75-year term was also required to be served consecutively to a prior sentence of 30 years for an unrelated aggravated criminal sexual assault conviction for which defendant had been already found guilty. At the original sentencing hearing, the trial court stated:
"Also [the] court believes [the three consecutive sentences are] mandatorily required but if there's any doubt whatsoever for purposes of the record, I also believe that the consecutive sentences are necessary to protect the public from your future criminal actions. I have no doubt whatsoever sitting here today that if you were to be released to the public, that you would pose a significant and dangerous threat to the public at large."¶ 7 On direct appeal, defendant contended that the trial court erred in admitting irrelevant evidence that he had been arrested on an unrelated matter and that he was prejudiced when the forensic expert inadvertently used the name of a victim from a separate case during his trial. Defendant also asked that the case be remanded for resentencing because the trial court should have sentenced defendant on aggravated kidnaping, the greater offense, instead of aggravated criminal sexual assault, the lesser-included offense, which would result in the imposition of concurrent sentences for aggravated kidnaping and aggravated robbery, to be served consecutive to the remaining count of aggravated criminal sexual assault. ¶ 8 Although another panel of this court rejected defendant's first two claims challenging his convictions, the panel did remand for resentencing. The reviewing court found that under the charging instrument approach, aggravated criminal sexual assault was a lesser-included offense of aggravated kidnaping and that defendant had been prejudiced because "the offense of aggravated kidnaping without proof that defendant caused severe bodily injury [would] not trigger consecutive sentences." Brown, No. 1-03-0411, at p. 14. The court noted that if defendant had been sentenced for the aggravated kidnaping conviction instead of the second aggravated criminal sexual assault, then "defendant would have received a concurrent, not consecutive, sentence for aggravated robbery." Brown, No. 1-03-0411, at p. 14. The court then vacated one count of aggravated criminal sexual assault, reinstated what it concluded was the greater offense, aggravated kidnaping, and remanded the matter to the trial court to sentence defendant on the aggravated kidnaping count. In the Rule 23, we note that the appellate panel did not indicate which aggravated criminal sexual assault count was being vacated, nor did it specifically indicate that defendant should be resentenced on the aggravated robbery. See Brown, No. 1-03-0411, at p. 14. Although the mandate in the previous Rule 23 was not as precise as it could have been, the import, we believe, was to have the trial court sentence defendant to concurrent terms for both the aggravated kidnaping and aggravated robbery to be served consecutive to the one count of aggravated criminal sexual assault. ¶ 9 Due to the lack of clarity in our previous Rule 23 order, the trial court on remand was uncertain as to its direction and the trial court correctly pointed out that it was unclear from the appellate court mandate which count of aggravated criminal sexual assault was vacated. Without any guidance from the appellate court decision, the trial court vacated the count of aggravated criminal sexual assault alleging digital penetration. The court then took up the sentencing challenge with which it was charged. Although defense counsel argued that the appellate court decision required the trial court to sentence defendant to concurrent sentences for the aggravated kidnaping and aggravated robbery, the trial court concluded that the appellate decision was not "clear" in limiting "the court's ability or responsibility of imposing sentences that are in accordance with the code of corrections as best as can be determined." ¶ 10 After wrestling with this court's previous mandate, the trial court then stated, it was still of the opinion that the imposition of consecutive sentences was mandatory in this case under section 5-8-4(a) of the Unified Code of Corrections (730 ILCS 5/5-8-4(a) (West 1998)). The court noted that both aggravated criminal sexual assault and aggravated kidnaping were class X felonies and that since that aggravated kidnaping was also a Class X felony, the "statute requires that where one of the convictions is for 12-14, aggravated criminal sexual assault, [the] Court shall enter [each] sentence to run consecutively." The trial court ultimately concluded that the sentence for aggravated criminal sexual assault "must run consecutive" to the aggravated kidnaping conviction. ¶ 11 The court further found that if consecutive sentences were not mandatory under section 5-8-4(a), then defendant's extensive criminal history required consecutive sentences to protect the public from further criminal conduct under section 5-8-4(b) (730 ILCS 5/5-8-4(b) (West 1998)). The court detailed the basis for the sentence imposed and again relied on the factors enunciated at the original sentencing hearing. The court stated that it agreed with the prosecutor that defendant lacked rehabilitative potential, and observed that it had "no doubt whatsoever sitting here today that if [defendant] were to be release[d] to the public, that [defendant] would pose [a] significant dangerous threat to the public at large." ¶ 12 The court then imposed consecutive terms of 30 years for aggravated criminal sexual assault, 30 years for aggravated kidnaping, and 15 years for aggravated robbery. This 75-year sentence was to run consecutive to defendant's prior sentence of 30 years for an unrelated aggravated criminal sexual assault. ¶ 13 Defendant appealed for the second time, again challenging his sentence. However, he only claimed at that time that the mittimus should be corrected to reflect the proper time spent in presentence custody. The reviewing court corrected the mittimus to include an additional credit of two days in presentence custody. See People v. Brown, No. 1-06-0211 (October 4, 2007) (unpublished order pursuant to Supreme Court Rule 23). ¶ 14 In May 2008, defendant filed the instant pro se postconviction petition, alleging that the trial court erred in denying his motion to quash his arrest and suppress evidence, the trial court erred in admitting irrelevant evidence of other crimes, ineffective assistance of trial and appellate counsel, and that the sentence imposed on remand was incorrect. The petition was docketed and defense counsel was appointed. The State filed a motion to dismiss defendant's petition. In August 2010, the trial court granted the State's motion and dismissed the petition, finding that defendant failed to attach any supporting evidence and the claims raised were either waived or barred by res judicata. Further, for his claims of ineffective assistance of counsel, defendant could not establish either deficient performance or prejudice under Strickland v. Washington, 466 U.S. 668 (1984). ¶ 15 This appeal followed. ¶ 16 On appeal, defendant contends that his sentence for aggravated robbery should run concurrent with his sentence for aggravated kidnaping and that the trial court could not impose consecutive sentences under multiple grounds in section 5-8-4, i.e., mandatory consecutive sentence under subsection (a) as well as consecutive sentences under subsection (b) to protect the public from future criminal conduct. ¶ 17 The State responds that the Rule 23 order entered in defendant's first appeal was decided incorrectly. The State suggests that this court should reinstate defendant's original conviction for aggravated criminal sexual assault and the original consecutive sentence because it contends aggravated criminal sexual assault is not a lesser-included offense of aggravated kidnaping under the abstract elements test. The State does not respond or contest in any way defendant's argument that if aggravated kidnaping is the greater offense, then the aggravated robbery sentence should have run concurrently as opposed to consecutively. Rather, the State solely argues that our first Rule 23 order was erroneous and that under an exception to the law of the case doctrine, we should reconsider the order we entered in defendant's direct appeal. The State contends that in our Rule 23 order, we incorrectly used the charging instrument approach to conclude that the aggravated kidnaping was a greater offense than one of the aggravated criminal sexual assault convictions. It relies upon People v. Miller, 238 Ill. 2d 161 (2010), in which the supreme court held that for purposes of determining what offense is the greater of charged offenses under the one act, one crime doctrine, the abstract elements test, not the charging instrument approach, should be used to determine a lesser-included charged offense. Other than saying the abstract elements test is the correct test, the State does not explain how the outcome in this case would be any different. In reply, defendant maintains that the State's argument has been forfeited or barred by res judicata and that no exception to the law of the case doctrine applies. ¶ 18 As a general rule, the doctrine of the law of the case bars relitigation of the same issue already decided in the same case. People v. McDonald, 366 Ill. App. 3d 243, 247 (2006). "The doctrine *** provides that an issue of law decided on a previous appeal is binding on the circuit court on remand as well as the appellate court on a subsequent appeal." McDonald, 366 Ill. App. 3d at 247. "The purpose of the law of the case doctrine is to protect settled expectations of the parties, ensure uniformity of decisions, maintain consistency during the course of a single case, effectuate proper administration of justice, and bring litigation to an end." McDonald, 366 Ill. App. 3d at 247. ¶ 19 The two exceptions to the law of the case are: "(1) 'when a higher reviewing court, subsequent to the lower reviewing court's decision, makes a contrary ruling on the same issue' [or] (2) where the court finds that its prior decision was palpably erroneous, but only when the court remanded the case for a new trial on all issues." McDonald, 366 Ill. App. 3d at 248 (quoting Martin v. Federal Life Insurance Co., 268 Ill. App. 3d 698, 701 (1994)). ¶ 20 After reviewing the Rule 23 order from defendant's direct appeal, we conclude that our holding that aggravated kidnaping was the greater offense was correct. At that time, our finding was based on People v. Novak, 163 Ill. 2d 93 (1994) as well as People v. Conerty, 296 Ill. App. 3d 459 (1998), and People v. Bratton, 178 Ill. App. 3d 718 (1989), that the use of the charging instrument approach was the proper method to determine the greater offense. In Novak, the supreme court found the charging instrument approach "best serves the purposes of the lesser included offense doctrine." Novak, 163 Ill. 2d at 112-13. Under the charging instruments approach, "an offense is deemed to be a lesser included offense if it is described by the charging instrument." Novak, 163 Ill. 2d at 107. Miller, which was decided seven years after the Rule 23 order was filed in defendant's direct appeal, held that the abstract elements test was the proper approach to use when determining the lesser-included offense of charged offenses under the one act, one crime doctrine. Miller, 238 Ill. 2d at 173. "Under the abstract elements approach, a comparison is made of the statutory elements of the two offenses. If all of the elements of one offense are included within a second offense and the first offense contains no element not included in the second offense, the first offense is deemed a lesser-included offense of the second." Miller, 238 Ill. 2d at 166. This is a strict approach, "[i]n other words, it must be impossible to commit the greater offense without necessarily committing the lesser offense." Miller, 238 Ill. 2d at 166. ¶ 21 Having reviewed Novak, Miller and our prior Rule 23 order, we conclude that the supreme court did not consider the same issue that is presented in this case. Further, the State has failed to cite any authority holding that the supreme court's decision in Miller should be applied retroactively to cases in which the court's mandate had issued. Since we applied the law in effect at the time, we find that the prior Rule 23 order was not palpably erroneous. Additionally, we point out that the case was only remanded for resentencing, not for a new trial on all issues. Therefore, we reject the State's invitation to review our prior decision under the law of the case doctrine. ¶ 22 We now turn to defendant's claim that the 15 year consecutive sentence for aggravated robbery is void. A sentencing judge cannot impose a penalty not otherwise allowed by the sentencing statute in question. People v. Harris, 203 Ill. 2d 111, 116 (2003) ¶ 23 Defendant contends that his sentence for aggravated kidnaping did not trigger mandatory consecutive sentences under section 5-8-4(a) of the Unified Code of Corrections (730 ILCS 5/5-8-4(a) (West 1998)), nor could the trial court impose a consecutive sentence for the nontriggering offenses to protect the public from future criminal conduct under section 5-8-4(b) (730 ILCS 5/5-8-4(b) (West 1998)). As already noted, the trial court concluded at resentencing that mandatory consecutive sentencing was required under section 5-8-4(a), but in the alternative, it imposed consecutive sentences to protect the public under subsection (b). Defendant, citing People v. Wilder, 325 Ill. App. 3d 987 (2001), argues that the trial court could not impose consecutive sentences under subsection (b) when a mandatory consecutive sentence was triggered under subsection (a). The State does not contest that defendant is correct in his position, nor does it argue that the trial court could have imposed consecutive sentences under both subsections. ¶ 24 It is undisputed that a consecutive sentence was required for defendant's sentence for aggravated criminal sexual assault (720 ILCS 5/12-14 (West 1998)). Further, under section 5-8-4(a), "any consecutive sentences imposed for triggering offenses must be served prior to, and independent of, any sentences imposed for nontriggering offenses. Sentences for multiple nontriggering offenses may be served concurrently to one another after any consecutive sentences for triggering offenses have been discharged." People v. Curry, 178 Ill. 2d 509, 539 (1997). ¶ 25 The reviewing court in Wilder engaged in a lengthy analysis of consecutive sentences imposed pursuant to section 5-8-4(a) and (b). In considering subsection (a), "[a]fter determining whether the offenses were carried out in a single course of conduct, we believe that a court should then look for any instances of a 'triggering offense.' " Wilder, 325 Ill. App. 3d at 1000. The court emphasized that if the trial court concludes that the offenses occurred as part of a single course of conduct, then it could only use section 5-8-4(a) to impose consecutive sentences, and then it must decide if one of the triggering offenses was committed, i.e., a Class X or Class 1 felony and severe bodily harm occurred during the commission of that offense; or a conviction for criminal sexual assault or aggravated criminal sexual assault. Wilder, 325 Ill. App. 3d at 1002-03. Stated another way, "if multiple convictions arise out of a single course of conduct, and none of those convictions is for a triggering offense, section 5-8-4(a) prohibits consecutive sentences." People v. Sergeant, 326 Ill. App. 3d 974, 987 (2001) (citing People v. Whitney, 188 Ill. 2d 91, 99 (1999). ¶ 26 The Wilder court also determined that under subsection (b), consecutive sentences are imposed two ways. First, consecutive sentences are required if the offenses were not committed in a single course of conduct and one of the triggering offenses was committed (Class X or Class 1 with severe bodily harm or criminal sexual assault or aggravated criminal sexual assault). The second is if the offenses were not committed in a single course of conduct and no triggering offense is present, then the trial court has the discretion to impose consecutive sentences to protect the public and must state such finding on the record. Wilder, 325 Ill. App. 3d at 1003; 730 ILCS 5/5-8-4(a), (b) (West 1998). The Wilder court also considered whether all consecutive sentences imposed under subsection (b) must involve crimes that were not committed as part of a single course of conduct. Wilder, 325 Ill. App. 3d at 999. The court noted that most cases had already reached that conclusion. Wilder, 325 Ill. App. 3d at 999; see People v. Cooper, 239 Ill. App. 3d 339, 360 (1992); People v. Porter, 277 Ill. App. 3d 194, 198 (1995); People v. Kagan, 283 Ill. App. 3d 212, 222 (1996). Thus, whether the offenses were committed in a single course of conduct determines which subsection applies; if it was a single course of conduct, then subsection (a) applies, but if the offenses were not committed in a single course of conduct, then subsection (b) applies. See Wilder, 325 Ill. App. 3d at 1002-03; 730 ILCS 5/5-8-4(a), (b) (West 1998). ¶ 27 Here, neither party disputes that the offenses were carried out in a single course of conduct and that the aggravated criminal sexual assault triggered a mandatory consecutive sentence. The offense of aggravated kidnaping could trigger consecutive sentences, but only if defendant inflicted severe bodily injury during the commission of that felony. See Whitney, 188 Ill. 2d at 100 (finding that the first exception under section 5-8-4(a) only applies when the commission of a Class X or Class 1 felony involving the infliction of severe bodily injury). The appellate panel in defendant's direct appeal suggested that defendant's aggravated kidnaping conviction had not triggered a consecutive sentence and neither party contends in this appeal that this conviction triggered a mandatory consecutive sentence under section 5-8-4(a). As pointed out above, the State's only response on appeal is that the aggravated kidnaping was not the greater offense for purposes of imposing sentences on defendant in this case. However, we have already rejected the State's suggestion that our previous decision was palpably erroneous. ¶ 28 At resentencing, the trial court stated that it believed consecutive sentences were mandatory in defendant's case. The court expressed its confusion over the appellate panel's decision vacating one count of aggravated criminal sexual assault, but failing to specify which count. The trial court could also have been confused by our previous order when we did not specifically direct the trial court to enter a concurrent sentence on the aggravated robbery conviction. Indeed, the order stated that we affirm "defendant's conviction and sentence for one count of aggravated robbery." Though the trial court properly entered a mandatory consecutive sentence for defendant's remaining aggravated criminal sexual assault conviction, it also imposed consecutive sentences for the remaining convictions to protect the public from future criminal conduct of defendant. While we acknowledge the trial court's frustration with our previous mandate and agree with the trial court's conclusion that defendant posed a significant threat if released from prison, under the statute in effect at the time defendant committed these offenses, the court could not impose consecutive sentences under this alternate theory. Since defendant's convictions arose from a single course of conduct, the imposition of consecutive sentences under section 5-8-4(b) was not permitted and must be vacated. See Wilder, 325 Ill. App. 3d at 1003. ¶ 29 In conclusion, the trial court was required to impose a mandatory consecutive sentence for aggravated criminal sexual assault with the sentences for aggravated kidnaping and aggravated robbery to be served concurrently to each other, but consecutive to the aggravated criminal sexual assault sentence. Under this sentence, defendant would receive an aggregate sentence of 60 years, concurrent terms of 30 years for aggravated kidnaping and 15 years for aggravated robbery served consecutively to the 30-year term for aggravated criminal sexual assault. ¶ 30 Finally, we note that we have reviewed the decision in People v. Siguenza-Brito, 235 Ill. 2d 213 (2009), cited by the State at oral arguments as well as in the supplemental briefs filed by the parties and conclude that the case does not impact the result in this case. ¶ 31 Under Supreme Court Rule 615(b)(4), this court has the authority to "reduce the punishment imposed by the trial court." Ill. S. Ct. R. 615(b)(4) (eff. Jan. 1, 1967). Pursuant to that rule, we vacate the circuit court's order that defendant's sentence for aggravated robbery be served consecutive to the sentence for aggravated kidnaping and modify the sentence for aggravated robbery to run concurrent with the sentence for aggravated kidnaping. ¶ 32 Based on the foregoing reasons, we affirm the dismissal of petitioner's postconviction petition and vacate the circuit court's order that petitioner must serve his sentences consecutively and modify his sentence as ordered.
Now codified at 720 ILCS 5/11-1.30 (West 2010).
We point out that section 5-8-4 has been amended and no longer limits the imposition of consecutive sentences to protect the public to offenses not committed in a single course of conduct. See 730 ILCS 5/5-8-4 (West 2010).
Affirmed in part and vacated in part; sentence modified.