People v. Blanks

October 9, 1998

No. 3--97--0188

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IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 95--CF--5946
)
RICHMOND LEE BLANKS, ) Honorable
) Amy Bertani
Defendant-Appellant. ) Judge, Presiding
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JUSTICE HOLDRIDGE DELIVERED THE OPINION OF THE COURT:
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The defendant, Richmond Lee Blanks, pleaded guilty to aggra-

vated criminal sexual assault (720 ILCS 5/12--14 (West 1996)) in
exchange for the dismissal of another charge of aggravated
criminal sexual assault and a 12-year term of imprisonment. He
subsequently filed a post-conviction petition, which the trial
court dismissed as frivolous and patently without merit. On
appeal, the defendant contends that his sentence must be modified
because it was imposed pursuant to the truth-in-sentencing
statute and that statute is unconstitutional. For the following
reasons, we find that the defendant has waived this issue on
appeal and we therefore affirm.
The record reflects that after imposing sentence, the trial
court advised the defendant that the truth-in-sentencing provi-

sions of the Unified Code of Corrections were applicable to the
defendant's case. Therefore, it noted that the defendant would
be required to serve at least 85% of his sentence. The defendant
subsequently filed pro se motions to reduce his sentence and
withdraw his guilty plea. The trial court dismissed both motions
as untimely. On direct appeal, this court dismissed the defen
dant's appeal for failure to comply with Supreme Court Rule
604(d). People v. Blanks, No. 3--96--0778 (1996) (unpublished
order under Supreme Court Rule 23).
Before this court ruled on the defendant's direct appeal, he
filed a post-conviction petition. In that petition, he contended
that he received ineffective assistance of trial counsel because
counsel failed to: (1) advise him about the truth-in-sentencing
guidelines for his offense; (2) advise him of his right to appeal
a guilty plea; and (3) perfect his appeal by filing a proper Rule
604(d) certificate. The trial court dismissed the defendant's
petition as frivolous and patently without merit. The defendant
appeals from the denial of his petition.
On appeal, the defendant now argues that the truth-in-sen-

tencing statute was passed as part of Public Act 89--404 and that
act violated the single subject rule of the Illinois Constitu-

tion. Pub. Act 89--404, eff. August 20, 1995 (amending 730 ILCS
5/3--6--3 (West 1994)). Therefore, he requests that this court:
(1) vacate the portion of his sentencing order requiring him to
serve 85% of the sentence imposed; and (2) clarify that he is
entitled to receive the day-for-day credit that he would have
been entitled to under the earlier version of the law. See 730
ILCS 5/3--6--3 (West 1994).
In response, the State argues that the defendant has waived
this issue on appeal because he did not raise it in any prior
proceeding, including his post-conviction petition. In reply,
the defendant argues that the Illinois Supreme Court has held
that a challenge to the constitutionality of a statute is not
subject to waiver. See People v. Bryant, 128 Ill. 2d 448, 539 N.E.2d 1221 (1989).
In People v. Bryant, 128 Ill. 2d 448, 539 N.E.2d 1221
(1989), the supreme court stated that a constitutional issue may
be raised at any time. However, the appellate court distin-

guished Bryant in People v. Starnes, 273 Ill. App. 3d 911, 653 N.E.2d 4 (1995). The Starnes court held that Bryant only "pro-

hibits waiver of a challenge to the constitutionality of the
statute under which a defendant is convicted." Starnes, 273 Ill.
App. 3d at 913-14, 653 N.E.2d at 6. Therefore, the doctrine of
waiver may apply to a constitutional attack on a statute which is
collateral, i.e., a statute which does not directly affect the
defendant's conviction. Starnes, 273 Ill. App. 3d 911, 653 N.E.2d 4.
We find that the truth-in-sentencing provisions of the
Unified Code of Corrections are collateral to the statutes under
which a defendant is convicted and sentenced. In doing so, we
note that the amount of time that a defendant must serve in
prison is determined by Illinois law and applied by the Illinois
Department of Corrections and the Illinois Prisoner Review Board.
730 ILCS 5/5--4--1(c--2) (West 1996); People v. Pitts, 295 Ill.
App. 3d 182, 192, 691 N.E.2d 1174, 1181 (1998) (McCullough, J.,
dissenting). Accordingly, an attack on the constitutionality of
the truth-in-sentencing law would be subject to waiver.
In this case, the defendant appeals from the denial of a
post-conviction petition alleging ineffective assistance of trial
counsel. The defendant did not argue that the truth-in-sentenc-

ing law was unconstitutional in his post-conviction petition.
Therefore, he has waived this issue and we shall not address it.
Accordingly, the judgment of the circuit court of Will
County is affirmed.
Affirmed.
SLATER, J., concurs; LYTTON, J., dissents.

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JUSTICE LYTTON dissenting:

I respectfully dissent. Adhering to the views expressed in my
dissent in People v. Watford, 294 Ill. App. 3d 462, 465-66, 690 N.E.2d 1009, 1012 (1997) (Lytton, J., dissenting), I believe that
the interests of justice would be served by a prompt and conclusive
determination of the constitutional issue presented in this case.