People v. Eaglin

SIXTH DIVISION
September 30, 1997

No. 1-95-1146

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) P.C. 88 C 660474
)
NORMAN EAGLIN, ) Honorable
) Robert Krop,
Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE GREIMAN delivered the opinion of the

court:

Defendant Norman Eaglin appeals the trial court's dismissal
of his postconviction petition without conducting an evidentiary
hearing. Defendant asserts that the factual allegations stated
in his postconviction petition were sufficient to warrant an
evidentiary hearing and thus, the trial court erred in granting
the State's motion to dismiss. In addition, the State raises the
issue of whether the trial court improperly declined to sentence
defendant as an habitual criminal.
For the reasons that follow, we affirm the dismissal of
defendant's postconviction petition. We further find that the
elements of the Habitual Criminal Act (Act) (720 ILCS 5/33B-1
(West 1994)) have not been satisfied and, thus, we cannot
sentence defendant as an habitual criminal as urged by the State.
Following a jury trial in 1989, defendant was convicted of
two counts of armed robbery based on the robbery of an ice cream
store at the time two store employees and the store owner were
present. At sentencing, the trial court specifically elected not
to sentence defendant as a habitual criminal and imposed a 52-
year sentence of imprisonment. On direct appeal, this court
affirmed defendant's conviction. People v. Eaglin, No. 1--89--
2513 (1992) (unpublished order under Supreme Court Rule 23).
On April 5, 1993, defendant filed a pro se petition for
postconviction relief, challenging, in pertinent part, the
legality of his arrest and the identification of him by the
victims outside the store where the robbery occurred.
On March 11, 1994, the State filed a motion to dismiss
defendant's postconviction petition. The State contended that
defendant's allegations (1) are barred by the doctrines of res
judicata and waiver where defendant already has appealed his
conviction and (2) are not sufficient to require a hearing.
On March 24, 1995, the trial court conducted a hearing. On
behalf of defendant, an assistant public dfender informed the
court that he had complied with the statute, read defendant's pro
se petition, read the relevant transcripts and orders, found "no
new issues with which to supplement the petition," and was
"prepared to argue the [defendant's] petition as it stand[s]."
To certify his verbal representations to the court, the assistant
public defender also filed a certificate in accordance with
Supreme Court Rule 651(c). 134 Ill. 2d R. 651(c). After hearing
counsel's arguments, the trial court granted the State's motion
to dismiss and ordered that defendant's postconviction petition
be dismissed.
On appeal, defendant asserts that an evidentiary hearing was
warranted. Defendant argues that his postconviction petition
alleged sufficient factual claims to establish that the police
did not have probable cause to arrest him, that his trial
attorney was ineffective for failing to move to quash the arrest,
and that the subsequent identifications of him by two victims
should have been suppressed as the fruit of the unlawful arrest.
The filing of a postconviction petition does not entitle a
defendant to an evidentiary hearing as a matter of right. People
v. Whitehead, 169 Ill. 2d 355, 370-71 (1996). The Post-
Conviction Act provides for an evidentiary hearing at the
discretion of the trial court. 725 ILCS 5/122-6 (West 1994). On
review, we will not disturb the trial court's determinations
unless manifestly erroneous. Whitehead, 169 Ill. 2d at 365.
The Post-Conviction Act further provides that "[a]ny claim
of substantial denial of constitutional rights not raised in the
original or an amended petition is waived." 725 ILCS 5/122-3
(West 1994). In addition, the doctrines of res judicata and
waiver limit the scope of review of a postconviction petition to
only those issues that have not and could not have been
previously adjudicated. E.g., People v. Maxwell, 173 Ill. 2d 102, 123 (1996). An issue that could have been raised on direct
appeal is, therefore, waived in the postconviction stage. People
v. Orange, 168 Ill. 2d 138, 154 (1995).
In the present case, we first find that defendant waived any
claim of ineffectiveness of trial counsel because defendant's
post-conviction petition makes no allegation that his trial
attorney was ineffective. 725 ILCS 5/122-3 (West 1994).
Defendant's two remaining arguments as to the legality of
his arrest and identification of him by two of the victims are
also waived. Both issues were matters of record which could have
been, but were not, raised on direct appeal. See, e.g., People
v. Schaff, 281 Ill. App. 3d 290, 295 (1996) ("when facts relating
to the issue appear in the record and are not raised on direct
appeal," the issue is waived on a postconviction petition);
People v. Hayes, 279 Ill. App. 3d 575, 580 (1996) (defendant's
postconviction claims were waived where they did "not depend on
any fact dehors the record"); People v. Mendez, 221 Ill. App. 3d
868, 871 (1991) (issues concerning matters of record were
waived). In addition, defendant made no allegation in his
postconviction petition that the identification should have been
suppressed as the fruit of an allegedly unlawful arrest.
Instead, in his postconviction petition, defendant contested the
identification procedure on the grounds that it was unnecessarily
suggestive and was doubtful, vague and uncertain.
Even assuming that the issues were not waived, to secure an
evidentiary hearing, a postconviction petitioner must make a
substantial showing that his constitutional rights were violated
and the record or accompanying affidavits support the allegations
in the petition. People v. Owens, 129 Ill. 2d 303, 307-08
(1989). In the present case, no affidavits were attached to the
postconviction petition. Furthermore, our review of the entire
record reveals no support for the arguments advanced by
defendant. The record establishes that one evening defendant and
a man named Ernest Wallace entered a Baskin Robbins store where
two teenaged clerks (Theresa Nelson and Regina Gordon) and the
store owner (Anderson Nash) were working. While defendant and
Wallace were robbing the store, Nash telephoned the police
department to report a robbery in progress. When the police
arrived, they apprehended defendant as he emerged from the store
walking backwards and then caught Wallace. After the police
secured the crime scene, the two sales clerks (Nelson and Gordon)
identified defendant and Wallace as the two robbers. In addition
to their identification of defendant at the crime scene, the two
sales clerks also identified defendant incourt at trial as one of
the robbers. In light of the evidence in the instant case, we
would find that the record does not support defendant's
contentions regarding the alleged illegality of his arrest and
the identification of him by two of the robbery victims.
Accordingly, we hold that the trial court did not abuse its
discretion in denying defendant an evidentiary hearing.
Next, the State asserts that the 52-year sentence imposed by
the trial court is void because the Act mandates a sentence of
natural life imprisonment. We disagree.
A sentence that does not conform to a statutory requirement
is void, and this court is authorized to correct a sentence at
any time. People v. Arna, 168 Ill. 2d 107, 113 (1995).
Section 33B-1 of the Act requires that a person who has been
convicted twice of an offense that contains the same elements of
an offense now classified as a Class X felony and thereafter is
convicted of a Class X felony "shall be adjudged an habitual
criminal." 720 ILCS 5/33B-1(a) (West 1994). The Act then
dictates that an habitual criminal "shall be sentenced to life
imprisonment." 720 ILCS 5/33B-1(e) (West 1994). The directives
of section 33B-1 are mandatory. People v. Dunigan, 165 Ill. 2d 235 (1995) (upheld the constitutionality of the Act); People v.
Simpson, 272 Ill. App. 3d 1000, 1001 (1995) ("[t]he language of
section 33B-1 is mandatory").
To adjudge a person as an habitual criminal and to impose a
term of life imprisonment, the Act enunciates four elements that
must be satisfied:
"(1) the third offense was committed after the
effective date of this Act;
(2) the third offense was committed within 20 years of
the date that judgment was entered on the first conviction,
provided, however, that time spent in custody shall not be
counted;
(3) the third offense was committed after conviction on
the second offense;
(4) the second offense was committed after conviction
on the first offense." 720 ILCS 5/33B-
1(d)(1),(d)(2),(d)(3),(d)(4) (West 1994).
Proof by a preponderance of the evidence, not beyond a
reasonable doubt, establishes the eligibility of a defendant for
sentencing as an habitual criminal under the Act. People v.
Robinson, 167 Ill. 2d 53, 73 (1995).
At sentencing in the present case, the State contended that
defendant had committed three prior armed robberies, i.e., on
February 3, 1972; on January 30, 1978; and on March 8, 1978.
According to the State, therefore, the instant armed robbery
conviction was defendant's fourth conviction for the purpose of
the Act. The State provided various documentation relating to
these prior crimes in the form of its petition, the presentence
report, the rap sheet, indictments and certified statements of
convictions.
Regarding the first prior offense, the State claimed that
defendant committed the offense of armed robbery in February 1972
and was convicted of that offense by a jury in April 1973. To
support this contention the State offered as evidence its
petition, the presentence report, the rap sheet, the indictment,
and two questionable certified copies of conviction. The State's
petition has no evidentiary value. The presentence report stated
that the conviction was for robbery and the State amended the
report by inserting the handwritten word "armed." The rap sheet
states that the conviction was for robbery, not armed robbery.
Although the indictment charges defendant with the offense of
armed robbery, it provides no information regarding the
conviction.
Most importantly, all of the records reflect that a four-to
seven-year sentence of imprisonment was imposed for the 1973
conviction. However, the sentence for armed robbery at the
relevant time was a minimum of five years. Ill. Rev. Stat. 1971,
ch. 38, par. 18-2(b)a ("[a] person convicted of armed robbery
shall be imprisoned in the penitentiary for any indeterminate
term with a minimum of not less than 5 years"). Obviously, the
sentence imposed for the 1973 conviction did not conform with the
statutory dictates of the sentence to be imposed for armed
robbery. Furthermore, the two certified copies of conviction are
not dispositive. One certified copy is undated and the other
contains an obvious error in the date of arraignment. In light
of the conflicting documents presented by the State regarding the
1973 conviction, we find that the State did not sufficiently
prove an armed robbery conviction in 1973 for the purpose of the
Act.
In contrast to the conflicting documentation provided for
the 1973 conviction, the record contains consistent documentation
for the two armed robbery convictions alleged in 1978. The
presentence report states that the charge in 1978 was armed
robbery for case numbers "Inf 78-16221/2," the disposition was
seven years in prison, the date was May 11, 1978, and the judge
was Judge McElligott. The rap sheet conforms with the
presentence report and provides "armed robbery (2)" for
information numbers 78-16221/2, seven years in prison, the date
was May 11, 1978, and the judge was Judge McElligott.
Information number 78-16221 charges defendant with armed robbery
based on an occurrence on January 30, 1978. The information
further states "concurrent with 78-16222." The certified
statement of conviction reveals that defendant pled guilty to
armed robbery for information number 78-16621 on May 11, 1978.
The certified statement of conviction further provides that Judge
McElligott imposed a sentence of seven years and the sentence was
"to run concurrent with 78-16222."
We find that the documents for the two 1978 convictions
establish, by a preponderance of the evidence, that defendant was
convicted of two armed robberies in 1978. Unlike the documents
presented for the 1973 conviction, there are no internal
inconsistencies in the documents relating to the 1978
convictions. Moreover, unlike the sentence imposed for the 1973
conviction, the seven-year, concurrent sentence imposed for the
1978 convictions falls within the statutory declaration for armed
robbery, a Class 1 felony at that time. Ill. Rev. Stat. 1977,
ch. 38, pars. 18-2, 1005-8-1.
Furthermore, when the State argued at sentencing that
defendant was convicted of three prior armed robberies occurring
on February 3, 1972, on January 30, 1978, and on March 8, 1978,
defense counsel responded as follows:
"Judge, we will stipulate that the elements, I believe, were
the same back in '72, '78. Presently armed robbery. We
would ask to review those certified documents by the Clerk's
Office upon their arrival today."
On appeal to this court, by which time defendant certainly has
reviewed the documentation missing during the sentencing
proceedings, defendant disputes the sufficiency of the evidence
to establish the 1973 conviction but does not contest the 1978
convictions.
Notwithstanding our finding that the two convictions in 1978
were proved by a preponderance of the evidence, the Act fails to
apply in this case. The Act requires that "the second offense
was committed after conviction of the first offense." Emphasis
added. 720 ILCS 5/33B-1(d)(4) (West 1994). In the present case,
the first relevant offense occurred in January 1978 and the
second offense occurred in March 1978. However, the convictions,
according to the record, were both on May 11, 1978. Therefore,
there was no conviction of the first offense before the
commission of the second offense. Instead, the two 1978
convictions, as best as the record reveals to us, were
concurrent, as further evidenced by the imposition of concurrent
sentences.
To adjudge anyone as an habitual criminal for a third
offense under the Act, the chronology of events must be (1) the
conviction of a first offense, (2) the subsequent commission and
conviction of a second offense, and (3) then the commission of
the third offense. 720 ILCS 5/33B-1(d)(3),(d)(4) (West 1994).
Since the record in the present case does not establish a
conviction of the first offense before the commission of the
second offense, we hold that the elements of the Act have not
been satisfied and the trial court did not err in declining to
sentence defendant as an habitual criminal.
For all the foregoing reasons, we affirm the dismissal of
defendant's postconviction petition and the 52-year sentence
imposed by the trial court.
Affirmed.
THEIS and ZWICK, JJ., concur.