People v. Moore
Annotate this Case
People v. Moore, No. 81947 (10/2/97)
NOTICE: Under Supreme Court Rule 367 a party has 21 days
after the filing of the opinion to request a rehearing.
Also, opinions are subject to modification, correction or
withdrawal at anytime prior to issuance of the mandate by
the Clerk of the Court. Therefore, because the following
slip opinion is being made available prior to the Court's
final action in this matter, it cannot be considered the
final decision of the Court. The official copy of the
following opinion will be published by the Supreme Court's
Reporter of Decisions in the Official Reports advance sheets
following final action by the Court.
Docket No. 81947--Agenda 12--May 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
STEFAN A. MOORE, Appellant.
Opinion filed October 2, 1997.
JUSTICE HARRISON delivered the opinion of the court:
In this appeal, we are asked to determine whether
our decision in People v. Kilpatrick, 167 Ill. 2d 439
(1995), should be applied retroactively to the case at
bar. In Kilpatrick, this court held that section 5--8--
1(c) of the Unified Code of Corrections prohibits a trial
court from imposing a longer sentence on reconsideration,
despite the fact that the aggregate period of
imprisonment remains the same. In this case, defendant
originally received consecutive sentences of 12 and 18
years' imprisonment for two counts of aggravated criminal
sexual assault and was subsequently resentenced to
concurrent terms of 30 years' imprisonment on each count.
Defendant raised the issue regarding his sentence being
improperly increased in his post-conviction petition and
the trial court dismissed the petition finding that the
increased sentence was permissible. The appellate court
affirmed, reasoning that Kilpatrick should not be given
retroactive application because it established a new rule
of law. 282 Ill. App. 3d 602. We granted defendant's
petition for leave to appeal. 155 Ill. 2d R. 315. For the
reasons which follow, we reverse and remand.
Defendant, Stefan Moore, was convicted of two counts
of aggravated criminal sexual assault (Ill. Rev. Stat.
1991, ch. 38, par. 12--14(b)(1)), based on acts he
committed against his niece while he was living with his
brother's family. After a sentencing hearing, the trial
court sentenced Moore to consecutive terms of 12 years'
imprisonment for the charge stemming from the summer of
1990 and 18 years' imprisonment based on the incident
which occurred on January 30, 1992. The court reasoned
that the offenses were part of a single course of conduct
and, therefore, consecutive sentences were mandatory
under section 5--8--4(a) of the Unified Code of
Corrections (Ill. Rev. Stat. 1991, ch. 38, par. 1005--8--
4(a)). Moore appealed. The appellate court vacated his
sentences and remanded to the trial court for
resentencing on the grounds that the offenses could not
be considered part of a single course of conduct due to
the lapse of time between them. People v. Moore, 250 Ill.
App. 3d 906, 918 (1993).
On April 1, 1994, the trial court resentenced Moore
to concurrent terms of 30 years' imprisonment on each
count of aggravated criminal sexual assault. On direct
appeal from defendant's resentencing hearing, the sole
issue he raised was that the sentencing order failed to
reflect the true amount of time he served. On August 11,
1995, the appellate court vacated a portion of the
sentence and remanded with directions to allow defendant
the proper amount of credit for time already served. No.
4--94--0362 (unpublished order under Supreme Court Rule
23).
On June 24, 1994, while defendant's direct appeal
from his resentencing hearing was pending, he filed a pro
se petition for post-conviction relief alleging that the
trial court erred in increasing his sentence to 30 years
for each count. The trial court dismissed defendant's
petition without a hearing on July 20, 1994. The trial
court, relying on People v. Todd, 263 Ill. App. 3d 435
(1994), reasoned that increasing a defendant's sentence
on remand is permissible as long as the total period of
incarceration does not increase.
After the trial court dismissed Moore's post-
conviction petition, on October 26, 1995, this court
rejected the reasoning in Todd, in People v. Kilpatrick,
167 Ill. 2d 439 (1995), and held that upon
reconsideration, a trial court cannot impose a longer
sentence, despite the fact that the aggregate period of
imprisonment remains the same. The defendant in
Kilpatrick was originally sentenced to consecutive terms
of six years' imprisonment for his home invasion
conviction and a nine-year term for his attempted murder
conviction. The trial court eventually granted
defendant's motion to reconsider his sentences, vacated
his consecutive sentences, and imposed a single sentence
of 15 years' imprisonment. In Kilpatrick, this court
reasoned that the fact that the total number of years'
imprisonment remained the same did not negate the fact
that defendant's sentence was improperly increased in
violation of section 5--8--1(c) of the Code of
Corrections. Kilpatrick, 167 Ill. 2d at 446-47.
Relying on Kilpatrick, Moore argued on appeal from
the dismissal of his post-conviction petition that he was
denied due process of law when the trial court
impermissibly increased his sentence on remand. The
appellate court recognized that under Kilpatrick, Moore's
increased sentence was improper. However, the court held
that Kilpatrick should not be applied retroactively to
the case at bar because it announces a new rule of law.
282 Ill. App. 3d at 607. The appellate court refused to
apply the reasoning from Kilpatrick to the present case
and affirmed the trial court's dismissal of Moore's post-
conviction petition on August 1, 1996.
Before this court, Moore contends that our decision
in Kilpatrick should be given retroactive application
because it does not create a new rule of law, but merely
applies existing statutory and case law to the facts of
the case. The State responds that Kilpatrick announced a
new rule of law which should not be applied retroactively
to a case on collateral review. Furthermore, the State
contends that we need not even address the issue of
Kilpatrick's retroactivity, and argues that this claim is
waived because defendant never raised it on direct
appeal. The State notes that in defendant's direct appeal
from the resentencing hearing, the only issue he raised
concerned the incorrect calculation of time served to be
credited to defendant. According to the State, Moore's
failure to challenge his increased sentence on direct
appeal, when he allegedly had the opportunity to do so,
should result in the waiver of that claim on post-
conviction review. We will first address the State's
contention that Moore waived this sentencing issue by not
raising it on direct appeal.
The Post-Conviction Hearing Act provides a remedy
to criminal defendants when they claim that substantial
violations of their constitutional rights occurred in
their trials. People v. Owens, 129 Ill. 2d 303, 307
(1989). A post-conviction proceeding is a collateral
attack upon a final judgment and "the scope of post-
conviction review is limited to issues which have not
been, and could not have been, previously adjudicated."
Owens, 129 Ill. 2d at 307-08. In a post-conviction
proceeding, the determinations of the reviewing court on
the prior direct appeal "are res judicata as to issues
actually decided and issues that could have been
presented on direct appeal, but were not, are deemed
waived." People v. Whitehead, 169 Ill. 2d 355, 371
(1996). This court has noted, however, that the
application of the waiver rule is not a jurisdictional or
absolute bar to review of procedurally defaulted claims,
but rather is a rule of administrative convenience.
Whitehead, 169 Ill. 2d at 371. Therefore, the strict
application of res judicata and the waiver rule will be
relaxed in post-conviction proceedings where "fundamental
fairness" so requires. Whitehead, 169 Ill. 2d at 371.
Moreover, "where the alleged waiver stems from
incompetency of appointed counsel on appeal, the doctrine
is also relaxed." Whitehead, 169 Ill. 2d at 371.
Moore asserts that the issue, regarding his
sentences being unconstitutionally increased, was not
raised on direct appeal due to ineffective assistance of
appellate counsel. It is well established that "[t]he
doctrine of waiver does not bar review of an issue when
the waiver arises from ineffective assistance of
appellate counsel." People v. Foster, 168 Ill. 2d 465,
474 (1995). To prove his claim of ineffective assistance
of counsel, defendant must show that (1) counsel's
performance fell below an objective standard of
reasonableness, and that (2) counsel's deficient
performance resulted in prejudice to defendant.
Strickland v. Washington, 466 U.S. 668, 688-92, 80 L. Ed. 2d 674, 693-96, 104 S. Ct. 2052, 2064-67 (1984). We
address the merits of defendant's claim, that his
sentences were improperly increased, to determine whether
appellate counsel's failure to raise this issue on direct
appeal amounted to ineffective assistance. If defendant's
claim of improper resentencing is meritorious, then
clearly, counsel's failure to raise this issue on direct
appeal resulted in prejudice to defendant.
As stated, relying on Kilpatrick, Moore contends
that the trial court improperly increased his sentences
on remand. Moore points out that under Kilpatrick, his
sentences could not be increased even if the total period
of incarceration remained the same. In both Kilpatrick
and the case at bar, the defendants were originally
sentenced to two terms of imprisonment which were to be
served consecutively. Subsequently, both defendants were
resentenced to either concurrent sentences or a single
sentence which basically combined the two terms they were
originally sentenced to serve.
In Kilpatrick, this court held that when the trial
court increased the defendant's sentence to a single 15-
year term, it contravened the provision in section 5--8--
1(c) of the Unified Code of Corrections which states that
" `A motion to reduce a sentence may be made, or the
court may reduce a sentence without a motion, within 30
days after the sentence is imposed. However, the court
may not increase a sentence once it is imposed.' "
(Emphasis omitted.) Kilpatrick, 167 Ill. 2d at 442,
quoting 730 ILCS 5/5--8--1(c) (West 1992). This court
reasoned in Kilpatrick that although the total number of
years imprisonment remained the same, the sentence was
still increased from either six or nine years'
incarceration to 15 years in prison. Kilpatrick, 167 Ill. 2d at 447.
The Kilpatrick court relied on section 5--8--1(c),
which addresses motions to reduce sentence, for its
holding that courts are prohibited from increasing a
sentence once it has been imposed. However, the court in
Kilpatrick also applied the same analysis to section 5--
5--4 of the Code of Corrections, which is the section at
issue in this case. Section 5--5--4 provides that:
"Where a conviction or sentence has been
set aside on direct review or on collateral
attack, the court shall not impose a new
sentence for the same offense or for a
different offense based on the same conduct
which is more severe than the prior sentence
less the portion of the prior sentence
previously satisfied unless the more severe
sentence is based upon conduct on the part of
the defendant occurring after the original
sentencing." 730 ILCS 5/5--5--4 (West 1994).
The court in Kilpatrick indicated that section 5--5--4
also prevents a sentencing court from increasing a
defendant's term of imprisonment. The court specifically
rejected the reasoning in People v. Todd, 263 Ill. App.
3d 435 (1994), which held that increased sentences were
permissible on remand under section 5--5--4, as long as
defendant's new sentence is no more severe than his
original. Kilpatrick, 167 Ill. 2d at 445, citing Todd,
263 Ill. App. 3d at 438. We conclude that if Kilpatrick
were to be applied retroactively, its reasoning would
clearly extend to the case at bar, preventing the
sentencing court from increasing Moore's term of
imprisonment after his original sentence was set aside on
direct review.
We next address whether retroactive application of
Kilpatrick is proper in this case. Generally, decisions
which announce "new rules" are not to be applied
retroactively to cases pending on collateral review.
Teague v. Lane, 489 U.S. 288, 304-05, 103 L. Ed. 2d 334,
352, 109 S. Ct. 1060, 1072 (1989); Penry v. Lynaugh, 492 U.S. 302, 313, 106 L. Ed. 2d 256, 274, 109 S. Ct. 2934,
2944 (1989); Butler v. McKellar, 494 U.S. 407, 412, 108 L. Ed. 2d 347, 355, 110 S. Ct. 1212, 1216 (1990). Teague
recognized two exceptions under which a new rule is
available on collateral review. The first exception
applies to those rules that place " `certain kinds of
primary, private individual conduct beyond the power of
the criminal law-making authority to proscribe.'
[Citation.]" Teague, 489 U.S. at 307, 103 L. Ed. 2d at
353, 109 S. Ct. at 1073. Under the second exception, a
new rule should be applied retroactively on collateral
review "if it requires the observance of `those
procedures that ... are "implicit in the concept of
ordered liberty." September 10, 1997' [Citations.]"
Teague, 489 U.S. at 307, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073. Neither one of the exceptions is at issue here,
so our inquiry is confined to the question of whether
Kilpatrick announced a new rule of law.
The United Stated Supreme Court has conceded that it
is often difficult to determine when a case announces a
new rule and chose not to define the spectrum of what may
or may not constitute a new rule for retroactivity
purposes. Teague, 489 U.S. at 301, 103 L. Ed. 2d at 349,
109 S. Ct. at 1070. Teague stated that in general,
however, a case announces a "new rule" when it breaks new
ground or imposes a new obligation on the state or
federal government. Teague, 489 U.S. at 301, 103 L. Ed. 2d at 349, 109 S. Ct. at 1070. Put differently, "a case
announces a new rule if the result was not dictated by
precedent existing at the time the defendant's conviction
became final." (Emphasis in original.) Teague, 489 U.S. at 301, 103 L. Ed. 2d at 349, 109 S. Ct. at 1070. A case
does not announce a new rule if " ` "it has simply
applied a well-established constitutional principle to
govern a case which is closely analogous to those which
have been previously considered in the prior case law." '
[Citations.]" Penry, 492 U.S. at 314, 106 L. Ed. 2d at
275, 109 S. Ct. at 2944. With these basic guidelines in
mind, we conclude that a decision clearly does not
announce a new rule if it merely applies existing
precedent to an analogous set of facts.
We will examine whether Kilpatrick announced a "new
rule" or merely applied existing precedent to the facts
of the case. As stated, Kilpatrick holds that section 5--
8--1(c) of the Code of Corrections prohibits a trial
court from increasing consecutive sentences of six and
nine years to a single 15-year sentence, despite the fact
that the aggregate period of imprisonment remains the
same. In reaching this holding, we relied on the United
States Supreme Court's decision in North Carolina v.
Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072
(1969). In Kilpatrick, we noted that section 5--8--1(c)
is consistent with the reasoning in Pearce, which states
that due process may prohibit a judge from imposing a
more severe sentence where a defendant has been convicted
following a retrial. Kilpatrick, 167 Ill. 2d at 443.
Pearce held that the more severe sentences imposed
on two defendants who were retried and reconvicted were
unconstitutional because no justification was offered to
explain the increase. Pearce, 395 U.S. at 725-26, 23 L. Ed. 2d at 669-70, 89 S. Ct. at 2080-81. The Court
reasoned that due process of law:
"requires that vindictiveness against a
defendant for having successfully attacked his
first conviction must play no part in the
sentence he receives after a new trial. And
since the fear of such vindictiveness may
unconstitutionally deter a defendant's
exercise of the right to appeal or
collaterally attack his first conviction, due
process also requires that a defendant be
freed of apprehension of such a retaliatory
motivation on the part of the sentencing
judge." Pearce, 395 U.S. at 725, 23 L. Ed. 2d
at 669, 89 S. Ct. at 2080.
The Court in Pearce required that a trial judge's
reasons for imposing a heavier sentence appear in the
record and be based upon objective information concerning
identifiable conduct of defendant occurring after the
time of the original sentencing.
This court followed Pearce in People v. Baze, 43 Ill. 2d 298, 303 (1969), which held that an increased
sentence after retrial is only proper if the trial court
is able to point to specific conduct on the part of
defendants occurring subsequent to their original
sentencing, which warrants a heavier sentence.
Furthermore, in 1973, the Illinois legislature
incorporated the Pearce and Baze decisions when it
enacted section 5--5--4, which also provides that on
resentencing, a trial court shall not impose a more
severe sentence unless it is based upon conduct on the
part of the defendant which occurred subsequent to the
original sentencing. People v. Rivera, 166 Ill. 2d 279,
295 (1995).
Clearly, it has been the rule in Illinois for over
20 years that defendants are not to be resentenced to
longer periods of incarceration unless the increased
sentence is based on conduct occurring subsequent to the
original sentencing. Our decision in Kilpatrick was
merely an attempt to apply the language from sections 5--
8--1(c) and 5--5--4 and the reasoning from Pearce to the
facts of that case. The rule enunciated in Kilpatrick was
predicated on well-settled principles of law announced in
Pearce and later codified in section 5--5--4.
It is well-established that a harsher sentence
imposed after a successful appeal or motion to reconsider
is only proper if it is based on additional bad conduct
performed by the defendant after the original sentencing.
This was not the scenario in Kilpatrick, or the case at
bar, because there was no additional conduct which a
trial judge could use to justify an increased sentence.
Under Pearce and sections 5--8--1(c) and 5--5--4, such an
increase is clearly improper. Therefore, the decision in
Kilpatrick merely applied existing precedent and
statutory law to the facts of the case.
The only question which Kilpatrick clarified was
whether modifying consecutive sentences of nine and six
years' imprisonment to a single 15-year term amounted to
an increase, when the aggregate number of years'
imprisonment remained the same. However, this court also
relied on existing precedent to answer this issue raised
in Kilpatrick. We followed the analysis of the appellate
court in People v. Rivera, 212 Ill. App. 3d 519 (1991),
which held that the trial court was barred from
increasing a defendant's sentence upon reconsideration,
despite the fact that the defendant's total number of
years' incarceration remained unchanged.
In Rivera, defendant was convicted of multiple
counts of burglary and was sentenced to four consecutive
sentences of four years each for a total of 16 years'
imprisonment. Upon defendant's motion to reconsider, the
circuit court regrouped defendant's convictions,
separating the offenses into two groups. Each group was
composed of three burglary convictions and each
conviction within the same group went from a four- to a
six-year sentence. In addition, each of the two groups
was to be served consecutively, for a total of 12 years'
imprisonment. The circuit court further imposed a four-
year term, to be served consecutively, for a remaining
conviction. Therefore, defendant's aggregate period of
imprisonment remained the same at 16 years.
On review, in Rivera, the appellate court reduced
the defendant's sentences on the six burglary convictions
from six- to four-year terms of imprisonment. The court
reasoned that under section 5--8--1(c) a sentence may not
be increased when a motion to reduce is made. The court
further stated that: "Although the total number of years
for all of the sentences remained the same, the sentences
for each group ordered to be served consecutively are not
one sentence. [Citation.] The fact that the total number
of years remained the same due to the consecutive nature
of the sentences does not change the fact that each
individual sentence was increased." Rivera, 212 Ill. App.
3d at 525. In Rivera, the court went on to reason that
"should this court determine that consecutive sentences
were not required, defendant would be faced with
concurrent terms of six years' imprisonment rather than
four years' imprisonment on each burglary conviction."
Rivera, 212 Ill. App. 3d at 525. The court concluded that
the trial court improperly increased the individual
sentences on the six burglary convictions.
The facts in Kilpatrick were almost identical to
those in Rivera. In both cases sentences were increased,
but the aggregate period of imprisonment which each
defendant faced remained the same. Rivera determined that
this was still considered a sentencing increase under
section 5--8--1(c). Kilpatrick properly relied on
Rivera's reasoning that consecutive sentences are not
treated as a single sentence under section 5--8--1(c).
Furthermore, Kilpatrick followed Rivera's holding that
although the total number of years for all of the
sentences remained the same, the fact that each
individual sentence is increased violates the express
terms of 5--8--1(c). Again, we conclude that Kilpatrick
simply applied existing Illinois precedent to an
analogous set of facts. The holding in Kilpatrick was
compelled by Pearce, Rivera, and Illinois statutory law.
The State points out that a contrary result was
reached by another appellate district in People v. Todd,
263 Ill. App. 3d 435 (1994). The State argues that since
the opposite result was reached in Todd, the holding in
Kilpatrick was not dictated by all existing precedent
and, therefore, Kilpatrick announced a new rule of law.
Furthermore, the appellate court in this case reasoned
that when differing opinions have been rendered by lower
courts on the issue being decided, this indicates that a
new rule was being established. 282 Ill. App. 3d at 606,
citing Butler v. McKellar, 494 U.S. 407, 415, 108 L. Ed. 2d 347, 356-57, 110 S. Ct. 1212, 1217-18 (1990).
We find that the fact that a given case reached a
contrary result is not dispositive in our analysis of
whether Kilpatrick announced a new rule. The "new rule"
principle "validates reasonable, good-faith
interpretations of existing precedents made by state
courts even though they are shown to be contrary to later
decisions." Butler, 494 U.S. at 414, 108 L. Ed. 2d at
356, 110 S. Ct. at 1217. For a decision to be considered
a new rule, its outcome must be "susceptible to debate
among reasonable minds." See Butler, 494 U.S. at 415, 108 L. Ed. 2d at 356, 110 S. Ct. at 1217. Therefore, when
contrary decisions exist, they must be reasonable
interpretations of existing precedent to effect the new
rule analysis.
As in Kilpatrick, we reject the court's reasoning in
Todd and find that its holding was not a reasonable
application of existing precedent. In Todd, the appellate
court, with one dissent, rejected the defendant's
argument that on resentencing, section 5--5--4 prevents
a trial court from imposing a more severe sentence than
originally imposed.
The appellate court reasoned that defendant's
sentence on remand, of three 12-year sentences to run
concurrently, was no more severe than his original
sentence of three four-year terms of imprisonment to be
served consecutively. Todd, 263 Ill. App. 3d at 438.
We disagree with this reasoning and find that Todd
conflicts with North Carolina v. Pearce and the plain
language of sections 5--8--1(c) and 5--5--4 of the Code.
As stated, Pearce and sections 5--8--1(c) and 5--5--4
clearly prohibit increasing a defendant's sentence for
the same offense unless such an increase is based on
conduct occurring subsequent to the original sentence.
Furthermore, consecutive sentences are not treated as a
single sentence under Pearce or sections 5--8--1(c) and
5--5--4. Therefore, although the total number of years
for all the sentences may remain the same for a
defendant, increasing the number of years which a
defendant must serve for a specific offense is considered
an improper increase in violation of Pearce and sections
5--8--1(c) and 5--5--4.
We find that it would be illogical and an
unreasonable interpretation of prior precedent and
statutory law to treat consecutive sentences as one
sentence. Even the dissent in Todd agreed that since
defendant was originally sentenced to four-year terms of
imprisonment on three different counts of criminal sexual
assault, defendant could not be resentenced to a 12-year
term for any of the three counts. Todd, 263 Ill. App. 3d
at 439 (Lund, J., dissenting). We conclude that when an
individual sentence for a specific conviction is
increased, this must be considered a sentencing increase
under Pearce and sections 5--8--1(c) and 5--5--4.
Kilpatrick followed existing precedent and properly
rejected an unreasonable interpretation of the law in
Todd. For these reasons, we hold that Kilpatrick did not
announce a new rule of law and, therefore, its holding
may be applied retroactively to the case at bar.
Since we find defendant's contention that his
sentences were improperly increased on remand to be
meritorious, we must concluded that his appellate
counsel's failure to raise this issue on direct appeal
resulted in prejudice to defendant. Clearly, the second
prong of Strickland was satisfied by defendant in this
case. We further find that defendant met the first prong
of Strickland, by proving that appellate counsel's
performance fell below an objective standard of
reasonableness. Strickland v. Washington, 466 U.S. 668,
688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984).
Although Kilpatrick was not decided until after
defendant's direct appeal, the same issue was addressed
in the earlier cases of Rivera and Todd. It was
unreasonable for appellate counsel to fail to raise this
meritorious issue on direct appeal. We find that
defendant's claim of improper resentencing was not raised
on direct appeal due to ineffective assistance of
appellate counsel. Therefore, the issue was not waived
and was properly considered by this court. People v.
Foster, 168 Ill. 2d 465, 474 (1995).
For the reasons stated, the judgments of the
appellate and circuit courts are reversed. The cause is
remanded to the circuit court for resentencing with
directions to impose sentences consistent with our
opinion in this case.
Judgments reversed;
cause remanded with directions.
JUSTICE HEIPLE, dissenting:
The majority holds that People v. Kilpatrick, 167 Ill. 2d 439 (1995), may be applied retroactively to the
case at bar because Kilpatrick did not announce a new
rule of law. This holding is fundamentally flawed because
the United States Supreme Court precedent on which it
purports to rely governs only "new constitutional rules
of criminal procedure." (Emphasis added.) Teague v. Lane,
489 U.S. 288, 310, 103 L. Ed. 2d 334, 356, 109 S. Ct. 1060, 1075 (1989) (plurality opinion). The rule announced
in Kilpatrick, however, is a rule of statutory
construction, and hence not subject to Teague's
retroactivity analysis.
This court stated in Kilpatrick that the issue
presented was "whether the trial court violated section
5--8--1(c) when the court vacated the defendant's
consecutive sentences of nine and six years' imprisonment
and instead imposed a 'single sentence' of 15 years'
incarceration." Kilpatrick, 167 Ill. 2d at 440. We then
concluded that "the trial court contravened the explicit
dictates of section 5--8--1(c) when it impermissibly
increased the sentences for defendant's two convictions
***." Kilpatrick, 167 Ill. 2d at 446-47. Thus, our
decision was based on a statutory rather than a
constitutional violation.
Although we noted in Kilpatrick that our
interpretation of section 5--8--1(c) of the Unified Code
of Corrections (730 ILCS 5/5--8--1(c) (West 1992))
"serves the goals identified in [North Carolina v.]
Pearce," 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072
(1969), we did not hold that the rule announced in
Kilpatrick was required by Pearce or by any other
constitutional authority. Kilpatrick, 167 Ill. 2d at 447.
In Pearce, the United States Supreme Court held that a
defendant is denied constitutional due process if his
resentencing following a successful appeal imposes,
without appropriate justification, a longer period of
incarceration than his original sentence. Pearce, 395 U.S. at 724, 23 L. Ed. 2d at 669, 89 S. Ct. at 2080 For
example, one of the defendants in Pearce initially
received a sentence of 10 years, but, after his original
sentence was overturned on appeal, was resentenced to 25
years. Pearce, 395 U.S. at 714, 23 L. Ed. 2d at 663, 89 S. Ct. at 2075. In Kilpatrick, however, the defendant's
resentencing increased the incarceration period for
certain individual counts, but imposed the same aggregate
period of imprisonment as the original sentence (15
years). Kilpatrick, 167 Ill. 2d at 440. The United States
Supreme Court has never held this practice to be
constitutionally prohibited. Faced in Kilpatrick with
this lack of constitutional precedent, this court based
its prohibition of the practice solely on principles of
statutory construction. See Kilpatrick, 167 Ill. 2d at
443.
Although a newly announced statutory rule of
criminal procedure may, in certain circumstances, be
applied retroactively to cases which were pending on
direct review when the rule was announced (see People v.
Erickson, 117 Ill. 2d 271, 289-90 (1987)), there is no
authority for applying such a statutory rule to cases on
collateral review in which the defendant's conviction
became final before the rule was announced. Since the
instant case falls into the latter category, I cannot
agree with the majority that defendant is entitled to
retroactive application of Kilpatrick.
Perhaps anticipating this distinction, the majority
also holds that appellate counsel in this case rendered
unconstitutionally ineffective assistance by not arguing
on direct appeal that the new sentence imposed by the
trial court on remand was improper. Appellate counsel
can, however, decline to raise an issue if he believes it
to be without merit. People v. Guest, 166 Ill. 2d 381
(1995). Defendant took his direct appeal before this
court decided Kilpatrick. At the time of defendant's
appeal, then, the rule announced in Kilpatrick was not
the governing law in Illinois. As the majority points
out, the rule eventually adopted by this court in
Kilpatrick was rejected in People v. Todd, 263 Ill. App.
3d 435 (1994). At the time of defendant's direct appeal,
Todd was the most recent appellate decision on this
issue. Todd also was decided by the same appellate
district that heard defendant's direct appeal. It was
therefore entirely reasonable for counsel to rely on Todd
in choosing not to raise this issue on direct appeal.
This fact also refutes the majority's contention that
defendant was prejudiced by appellate counsel's failure
to raise the issue; given the state of the law at the
time of the appeal, there was not a reasonable
probability that defendant's sentence would have been
reversed had counsel argued the point. See People v.
Caballero, 126 Ill. 2d 248, 270 (1989).
For these reasons, I respectfully dissent.
JUSTICE BILANDIC joins in this dissent.
NOTICE: Under Supreme Court Rule 367 a party has 21 days
after the filing of the opinion to request a rehearing.
Also, opinions are subject to modification, correction or
withdrawal at anytime prior to issuance of the mandate by
the Clerk of the Court. Therefore, because the following
slip opinion is being made available prior to the Court's
final action in this matter, it cannot be considered the
final decision of the Court. The official copy of the
following opinion will be published by the Supreme Court's
Reporter of Decisions in the Official Reports advance sheets
following final action by the Court.
Docket No. 81947--Agenda 12--May 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
STEFAN A. MOORE, Appellant.
Opinion filed October 2, 1997.
JUSTICE HARRISON delivered the opinion of the court:
In this appeal, we are asked to determine whether
our decision in People v. Kilpatrick, 167 Ill. 2d 439
(1995), should be applied retroactively to the case at
bar. In Kilpatrick, this court held that section 5--8--
1(c) of the Unified Code of Corrections prohibits a trial
court from imposing a longer sentence on reconsideration,
despite the fact that the aggregate period of
imprisonment remains the same. In this case, defendant
originally received consecutive sentences of 12 and 18
years' imprisonment for two counts of aggravated criminal
sexual assault and was subsequently resentenced to
concurrent terms of 30 years' imprisonment on each count.
Defendant raised the issue regarding his sentence being
improperly increased in his post-conviction petition and
the trial court dismissed the petition finding that the
increased sentence was permissible. The appellate court
affirmed, reasoning that Kilpatrick should not be given
retroactive application because it established a new rule
of law. 282 Ill. App. 3d 602. We granted defendant's
petition for leave to appeal. 155 Ill. 2d R. 315. For the
reasons which follow, we reverse and remand.
Defendant, Stefan Moore, was convicted of two counts
of aggravated criminal sexual assault (Ill. Rev. Stat.
1991, ch. 38, par. 12--14(b)(1)), based on acts he
committed against his niece while he was living with his
brother's family. After a sentencing hearing, the trial
court sentenced Moore to consecutive terms of 12 years'
imprisonment for the charge stemming from the summer of
1990 and 18 years' imprisonment based on the incident
which occurred on January 30, 1992. The court reasoned
that the offenses were part of a single course of conduct
and, therefore, consecutive sentences were mandatory
under section 5--8--4(a) of the Unified Code of
Corrections (Ill. Rev. Stat. 1991, ch. 38, par. 1005--8--
4(a)). Moore appealed. The appellate court vacated his
sentences and remanded to the trial court for
resentencing on the grounds that the offenses could not
be considered part of a single course of conduct due to
the lapse of time between them. People v. Moore, 250 Ill.
App. 3d 906, 918 (1993).
On April 1, 1994, the trial court resentenced Moore
to concurrent terms of 30 years' imprisonment on each
count of aggravated criminal sexual assault. On direct
appeal from defendant's resentencing hearing, the sole
issue he raised was that the sentencing order failed to
reflect the true amount of time he served. On August 11,
1995, the appellate court vacated a portion of the
sentence and remanded with directions to allow defendant
the proper amount of credit for time already served. No.
4--94--0362 (unpublished order under Supreme Court Rule
23).
On June 24, 1994, while defendant's direct appeal
from his resentencing hearing was pending, he filed a pro
se petition for post-conviction relief alleging that the
trial court erred in increasing his sentence to 30 years
for each count. The trial court dismissed defendant's
petition without a hearing on July 20, 1994. The trial
court, relying on People v. Todd, 263 Ill. App. 3d 435
(1994), reasoned that increasing a defendant's sentence
on remand is permissible as long as the total period of
incarceration does not increase.
After the trial court dismissed Moore's post-
conviction petition, on October 26, 1995, this court
rejected the reasoning in Todd, in People v. Kilpatrick,
167 Ill. 2d 439 (1995), and held that upon
reconsideration, a trial court cannot impose a longer
sentence, despite the fact that the aggregate period of
imprisonment remains the same. The defendant in
Kilpatrick was originally sentenced to consecutive terms
of six years' imprisonment for his home invasion
conviction and a nine-year term for his attempted murder
conviction. The trial court eventually granted
defendant's motion to reconsider his sentences, vacated
his consecutive sentences, and imposed a single sentence
of 15 years' imprisonment. In Kilpatrick, this court
reasoned that the fact that the total number of years'
imprisonment remained the same did not negate the fact
that defendant's sentence was improperly increased in
violation of section 5--8--1(c) of the Code of
Corrections. Kilpatrick, 167 Ill. 2d at 446-47.
Relying on Kilpatrick, Moore argued on appeal from
the dismissal of his post-conviction petition that he was
denied due process of law when the trial court
impermissibly increased his sentence on remand. The
appellate court recognized that under Kilpatrick, Moore's
increased sentence was improper. However, the court held
that Kilpatrick should not be applied retroactively to
the case at bar because it announces a new rule of law.
282 Ill. App. 3d at 607. The appellate court refused to
apply the reasoning from Kilpatrick to the present case
and affirmed the trial court's dismissal of Moore's post-
conviction petition on August 1, 1996.
Before this court, Moore contends that our decision
in Kilpatrick should be given retroactive application
because it does not create a new rule of law, but merely
applies existing statutory and case law to the facts of
the case. The State responds that Kilpatrick announced a
new rule of law which should not be applied retroactively
to a case on collateral review. Furthermore, the State
contends that we need not even address the issue of
Kilpatrick's retroactivity, and argues that this claim is
waived because defendant never raised it on direct
appeal. The State notes that in defendant's direct appeal
from the resentencing hearing, the only issue he raised
concerned the incorrect calculation of time served to be
credited to defendant. According to the State, Moore's
failure to challenge his increased sentence on direct
appeal, when he allegedly had the opportunity to do so,
should result in the waiver of that claim on post-
conviction review. We will first address the State's
contention that Moore waived this sentencing issue by not
raising it on direct appeal.
The Post-Conviction Hearing Act provides a remedy
to criminal defendants when they claim that substantial
violations of their constitutional rights occurred in
their trials. People v. Owens, 129 Ill. 2d 303, 307
(1989). A post-conviction proceeding is a collateral
attack upon a final judgment and "the scope of post-
conviction review is limited to issues which have not
been, and could not have been, previously adjudicated."
Owens, 129 Ill. 2d at 307-08. In a post-conviction
proceeding, the determinations of the reviewing court on
the prior direct appeal "are res judicata as to issues
actually decided and issues that could have been
presented on direct appeal, but were not, are deemed
waived." People v. Whitehead, 169 Ill. 2d 355, 371
(1996). This court has noted, however, that the
application of the waiver rule is not a jurisdictional or
absolute bar to review of procedurally defaulted claims,
but rather is a rule of administrative convenience.
Whitehead, 169 Ill. 2d at 371. Therefore, the strict
application of res judicata and the waiver rule will be
relaxed in post-conviction proceedings where "fundamental
fairness" so requires. Whitehead, 169 Ill. 2d at 371.
Moreover, "where the alleged waiver stems from
incompetency of appointed counsel on appeal, the doctrine
is also relaxed." Whitehead, 169 Ill. 2d at 371.
Moore asserts that the issue, regarding his
sentences being unconstitutionally increased, was not
raised on direct appeal due to ineffective assistance of
appellate counsel. It is well established that "[t]he
doctrine of waiver does not bar review of an issue when
the waiver arises from ineffective assistance of
appellate counsel." People v. Foster, 168 Ill. 2d 465,
474 (1995). To prove his claim of ineffective assistance
of counsel, defendant must show that (1) counsel's
performance fell below an objective standard of
reasonableness, and that (2) counsel's deficient
performance resulted in prejudice to defendant.
Strickland v. Washington, 466 U.S. 668, 688-92, 80 L. Ed. 2d 674, 693-96, 104 S. Ct. 2052, 2064-67 (1984). We
address the merits of defendant's claim, that his
sentences were improperly increased, to determine whether
appellate counsel's failure to raise this issue on direct
appeal amounted to ineffective assistance. If defendant's
claim of improper resentencing is meritorious, then
clearly, counsel's failure to raise this issue on direct
appeal resulted in prejudice to defendant.
As stated, relying on Kilpatrick, Moore contends
that the trial court improperly increased his sentences
on remand. Moore points out that under Kilpatrick, his
sentences could not be increased even if the total period
of incarceration remained the same. In both Kilpatrick
and the case at bar, the defendants were originally
sentenced to two terms of imprisonment which were to be
served consecutively. Subsequently, both defendants were
resentenced to either concurrent sentences or a single
sentence which basically combined the two terms they were
originally sentenced to serve.
In Kilpatrick, this court held that when the trial
court increased the defendant's sentence to a single 15-
year term, it contravened the provision in section 5--8--
1(c) of the Unified Code of Corrections which states that
" `A motion to reduce a sentence may be made, or the
court may reduce a sentence without a motion, within 30
days after the sentence is imposed. However, the court
may not increase a sentence once it is imposed.' "
(Emphasis omitted.) Kilpatrick, 167 Ill. 2d at 442,
quoting 730 ILCS 5/5--8--1(c) (West 1992). This court
reasoned in Kilpatrick that although the total number of
years imprisonment remained the same, the sentence was
still increased from either six or nine years'
incarceration to 15 years in prison. Kilpatrick, 167 Ill. 2d at 447.
The Kilpatrick court relied on section 5--8--1(c),
which addresses motions to reduce sentence, for its
holding that courts are prohibited from increasing a
sentence once it has been imposed. However, the court in
Kilpatrick also applied the same analysis to section 5--
5--4 of the Code of Corrections, which is the section at
issue in this case. Section 5--5--4 provides that:
"Where a conviction or sentence has been
set aside on direct review or on collateral
attack, the court shall not impose a new
sentence for the same offense or for a
different offense based on the same conduct
which is more severe than the prior sentence
less the portion of the prior sentence
previously satisfied unless the more severe
sentence is based upon conduct on the part of
the defendant occurring after the original
sentencing." 730 ILCS 5/5--5--4 (West 1994).
The court in Kilpatrick indicated that section 5--5--4
also prevents a sentencing court from increasing a
defendant's term of imprisonment. The court specifically
rejected the reasoning in People v. Todd, 263 Ill. App.
3d 435 (1994), which held that increased sentences were
permissible on remand under section 5--5--4, as long as
defendant's new sentence is no more severe than his
original. Kilpatrick, 167 Ill. 2d at 445, citing Todd,
263 Ill. App. 3d at 438. We conclude that if Kilpatrick
were to be applied retroactively, its reasoning would
clearly extend to the case at bar, preventing the
sentencing court from increasing Moore's term of
imprisonment after his original sentence was set aside on
direct review.
We next address whether retroactive application of
Kilpatrick is proper in this case. Generally, decisions
which announce "new rules" are not to be applied
retroactively to cases pending on collateral review.
Teague v. Lane, 489 U.S. 288, 304-05, 103 L. Ed. 2d 334,
352, 109 S. Ct. 1060, 1072 (1989); Penry v. Lynaugh, 492 U.S. 302, 313, 106 L. Ed. 2d 256, 274, 109 S. Ct. 2934,
2944 (1989); Butler v. McKellar, 494 U.S. 407, 412, 108 L. Ed. 2d 347, 355, 110 S. Ct. 1212, 1216 (1990). Teague
recognized two exceptions under which a new rule is
available on collateral review. The first exception
applies to those rules that place " `certain kinds of
primary, private individual conduct beyond the power of
the criminal law-making authority to proscribe.'
[Citation.]" Teague, 489 U.S. at 307, 103 L. Ed. 2d at
353, 109 S. Ct. at 1073. Under the second exception, a
new rule should be applied retroactively on collateral
review "if it requires the observance of `those
procedures that ... are "implicit in the concept of
ordered liberty." September 10, 1997' [Citations.]"
Teague, 489 U.S. at 307, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073. Neither one of the exceptions is at issue here,
so our inquiry is confined to the question of whether
Kilpatrick announced a new rule of law.
The United Stated Supreme Court has conceded that it
is often difficult to determine when a case announces a
new rule and chose not to define the spectrum of what may
or may not constitute a new rule for retroactivity
purposes. Teague, 489 U.S. at 301, 103 L. Ed. 2d at 349,
109 S. Ct. at 1070. Teague stated that in general,
however, a case announces a "new rule" when it breaks new
ground or imposes a new obligation on the state or
federal government. Teague, 489 U.S. at 301, 103 L. Ed. 2d at 349, 109 S. Ct. at 1070. Put differently, "a case
announces a new rule if the result was not dictated by
precedent existing at the time the defendant's conviction
became final." (Emphasis in original.) Teague, 489 U.S. at 301, 103 L. Ed. 2d at 349, 109 S. Ct. at 1070. A case
does not announce a new rule if " ` "it has simply
applied a well-established constitutional principle to
govern a case which is closely analogous to those which
have been previously considered in the prior case law." '
[Citations.]" Penry, 492 U.S. at 314, 106 L. Ed. 2d at
275, 109 S. Ct. at 2944. With these basic guidelines in
mind, we conclude that a decision clearly does not
announce a new rule if it merely applies existing
precedent to an analogous set of facts.
We will examine whether Kilpatrick announced a "new
rule" or merely applied existing precedent to the facts
of the case. As stated, Kilpatrick holds that section 5--
8--1(c) of the Code of Corrections prohibits a trial
court from increasing consecutive sentences of six and
nine years to a single 15-year sentence, despite the fact
that the aggregate period of imprisonment remains the
same. In reaching this holding, we relied on the United
States Supreme Court's decision in North Carolina v.
Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072
(1969). In Kilpatrick, we noted that section 5--8--1(c)
is consistent with the reasoning in Pearce, which states
that due process may prohibit a judge from imposing a
more severe sentence where a defendant has been convicted
following a retrial. Kilpatrick, 167 Ill. 2d at 443.
Pearce held that the more severe sentences imposed
on two defendants who were retried and reconvicted were
unconstitutional because no justification was offered to
explain the increase. Pearce, 395 U.S. at 725-26, 23 L. Ed. 2d at 669-70, 89 S. Ct. at 2080-81. The Court
reasoned that due process of law:
"requires that vindictiveness against a
defendant for having successfully attacked his
first conviction must play no part in the
sentence he receives after a new trial. And
since the fear of such vindictiveness may
unconstitutionally deter a defendant's
exercise of the right to appeal or
collaterally attack his first conviction, due
process also requires that a defendant be
freed of apprehension of such a retaliatory
motivation on the part of the sentencing
judge." Pearce, 395 U.S. at 725, 23 L. Ed. 2d
at 669, 89 S. Ct. at 2080.
The Court in Pearce required that a trial judge's
reasons for imposing a heavier sentence appear in the
record and be based upon objective information concerning
identifiable conduct of defendant occurring after the
time of the original sentencing.
This court followed Pearce in People v. Baze, 43 Ill. 2d 298, 303 (1969), which held that an increased
sentence after retrial is only proper if the trial court
is able to point to specific conduct on the part of
defendants occurring subsequent to their original
sentencing, which warrants a heavier sentence.
Furthermore, in 1973, the Illinois legislature
incorporated the Pearce and Baze decisions when it
enacted section 5--5--4, which also provides that on
resentencing, a trial court shall not impose a more
severe sentence unless it is based upon conduct on the
part of the defendant which occurred subsequent to the
original sentencing. People v. Rivera, 166 Ill. 2d 279,
295 (1995).
Clearly, it has been the rule in Illinois for over
20 years that defendants are not to be resentenced to
longer periods of incarceration unless the increased
sentence is based on conduct occurring subsequent to the
original sentencing. Our decision in Kilpatrick was
merely an attempt to apply the language from sections 5--
8--1(c) and 5--5--4 and the reasoning from Pearce to the
facts of that case. The rule enunciated in Kilpatrick was
predicated on well-settled principles of law announced in
Pearce and later codified in section 5--5--4.
It is well-established that a harsher sentence
imposed after a successful appeal or motion to reconsider
is only proper if it is based on additional bad conduct
performed by the defendant after the original sentencing.
This was not the scenario in Kilpatrick, or the case at
bar, because there was no additional conduct which a
trial judge could use to justify an increased sentence.
Under Pearce and sections 5--8--1(c) and 5--5--4, such an
increase is clearly improper. Therefore, the decision in
Kilpatrick merely applied existing precedent and
statutory law to the facts of the case.
The only question which Kilpatrick clarified was
whether modifying consecutive sentences of nine and six
years' imprisonment to a single 15-year term amounted to
an increase, when the aggregate number of years'
imprisonment remained the same. However, this court also
relied on existing precedent to answer this issue raised
in Kilpatrick. We followed the analysis of the appellate
court in People v. Rivera, 212 Ill. App. 3d 519 (1991),
which held that the trial court was barred from
increasing a defendant's sentence upon reconsideration,
despite the fact that the defendant's total number of
years' incarceration remained unchanged.
In Rivera, defendant was convicted of multiple
counts of burglary and was sentenced to four consecutive
sentences of four years each for a total of 16 years'
imprisonment. Upon defendant's motion to reconsider, the
circuit court regrouped defendant's convictions,
separating the offenses into two groups. Each group was
composed of three burglary convictions and each
conviction within the same group went from a four- to a
six-year sentence. In addition, each of the two groups
was to be served consecutively, for a total of 12 years'
imprisonment. The circuit court further imposed a four-
year term, to be served consecutively, for a remaining
conviction. Therefore, defendant's aggregate period of
imprisonment remained the same at 16 years.
On review, in Rivera, the appellate court reduced
the defendant's sentences on the six burglary convictions
from six- to four-year terms of imprisonment. The court
reasoned that under section 5--8--1(c) a sentence may not
be increased when a motion to reduce is made. The court
further stated that: "Although the total number of years
for all of the sentences remained the same, the sentences
for each group ordered to be served consecutively are not
one sentence. [Citation.] The fact that the total number
of years remained the same due to the consecutive nature
of the sentences does not change the fact that each
individual sentence was increased." Rivera, 212 Ill. App.
3d at 525. In Rivera, the court went on to reason that
"should this court determine that consecutive sentences
were not required, defendant would be faced with
concurrent terms of six years' imprisonment rather than
four years' imprisonment on each burglary conviction."
Rivera, 212 Ill. App. 3d at 525. The court concluded that
the trial court improperly increased the individual
sentences on the six burglary convictions.
The facts in Kilpatrick were almost identical to
those in Rivera. In both cases sentences were increased,
but the aggregate period of imprisonment which each
defendant faced remained the same. Rivera determined that
this was still considered a sentencing increase under
section 5--8--1(c). Kilpatrick properly relied on
Rivera's reasoning that consecutive sentences are not
treated as a single sentence under section 5--8--1(c).
Furthermore, Kilpatrick followed Rivera's holding that
although the total number of years for all of the
sentences remained the same, the fact that each
individual sentence is increased violates the express
terms of 5--8--1(c). Again, we conclude that Kilpatrick
simply applied existing Illinois precedent to an
analogous set of facts. The holding in Kilpatrick was
compelled by Pearce, Rivera, and Illinois statutory law.
The State points out that a contrary result was
reached by another appellate district in People v. Todd,
263 Ill. App. 3d 435 (1994). The State argues that since
the opposite result was reached in Todd, the holding in
Kilpatrick was not dictated by all existing precedent
and, therefore, Kilpatrick announced a new rule of law.
Furthermore, the appellate court in this case reasoned
that when differing opinions have been rendered by lower
courts on the issue being decided, this indicates that a
new rule was being established. 282 Ill. App. 3d at 606,
citing Butler v. McKellar, 494 U.S. 407, 415, 108 L. Ed. 2d 347, 356-57, 110 S. Ct. 1212, 1217-18 (1990).
We find that the fact that a given case reached a
contrary result is not dispositive in our analysis of
whether Kilpatrick announced a new rule. The "new rule"
principle "validates reasonable, good-faith
interpretations of existing precedents made by state
courts even though they are shown to be contrary to later
decisions." Butler, 494 U.S. at 414, 108 L. Ed. 2d at
356, 110 S. Ct. at 1217. For a decision to be considered
a new rule, its outcome must be "susceptible to debate
among reasonable minds." See Butler, 494 U.S. at 415, 108 L. Ed. 2d at 356, 110 S. Ct. at 1217. Therefore, when
contrary decisions exist, they must be reasonable
interpretations of existing precedent to effect the new
rule analysis.
As in Kilpatrick, we reject the court's reasoning in
Todd and find that its holding was not a reasonable
application of existing precedent. In Todd, the appellate
court, with one dissent, rejected the defendant's
argument that on resentencing, section 5--5--4 prevents
a trial court from imposing a more severe sentence than
originally imposed.
The appellate court reasoned that defendant's
sentence on remand, of three 12-year sentences to run
concurrently, was no more severe than his original
sentence of three four-year terms of imprisonment to be
served consecutively. Todd, 263 Ill. App. 3d at 438.
We disagree with this reasoning and find that Todd
conflicts with North Carolina v. Pearce and the plain
language of sections 5--8--1(c) and 5--5--4 of the Code.
As stated, Pearce and sections 5--8--1(c) and 5--5--4
clearly prohibit increasing a defendant's sentence for
the same offense unless such an increase is based on
conduct occurring subsequent to the original sentence.
Furthermore, consecutive sentences are not treated as a
single sentence under Pearce or sections 5--8--1(c) and
5--5--4. Therefore, although the total number of years
for all the sentences may remain the same for a
defendant, increasing the number of years which a
defendant must serve for a specific offense is considered
an improper increase in violation of Pearce and sections
5--8--1(c) and 5--5--4.
We find that it would be illogical and an
unreasonable interpretation of prior precedent and
statutory law to treat consecutive sentences as one
sentence. Even the dissent in Todd agreed that since
defendant was originally sentenced to four-year terms of
imprisonment on three different counts of criminal sexual
assault, defendant could not be resentenced to a 12-year
term for any of the three counts. Todd, 263 Ill. App. 3d
at 439 (Lund, J., dissenting). We conclude that when an
individual sentence for a specific conviction is
increased, this must be considered a sentencing increase
under Pearce and sections 5--8--1(c) and 5--5--4.
Kilpatrick followed existing precedent and properly
rejected an unreasonable interpretation of the law in
Todd. For these reasons, we hold that Kilpatrick did not
announce a new rule of law and, therefore, its holding
may be applied retroactively to the case at bar.
Since we find defendant's contention that his
sentences were improperly increased on remand to be
meritorious, we must concluded that his appellate
counsel's failure to raise this issue on direct appeal
resulted in prejudice to defendant. Clearly, the second
prong of Strickland was satisfied by defendant in this
case. We further find that defendant met the first prong
of Strickland, by proving that appellate counsel's
performance fell below an objective standard of
reasonableness. Strickland v. Washington, 466 U.S. 668,
688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984).
Although Kilpatrick was not decided until after
defendant's direct appeal, the same issue was addressed
in the earlier cases of Rivera and Todd. It was
unreasonable for appellate counsel to fail to raise this
meritorious issue on direct appeal. We find that
defendant's claim of improper resentencing was not raised
on direct appeal due to ineffective assistance of
appellate counsel. Therefore, the issue was not waived
and was properly considered by this court. People v.
Foster, 168 Ill. 2d 465, 474 (1995).
For the reasons stated, the judgments of the
appellate and circuit courts are reversed. The cause is
remanded to the circuit court for resentencing with
directions to impose sentences consistent with our
opinion in this case.
Judgments reversed;
cause remanded with directions.
JUSTICE HEIPLE, dissenting:
The majority holds that People v. Kilpatrick, 167 Ill. 2d 439 (1995), may be applied retroactively to the
case at bar because Kilpatrick did not announce a new
rule of law. This holding is fundamentally flawed because
the United States Supreme Court precedent on which it
purports to rely governs only "new constitutional rules
of criminal procedure." (Emphasis added.) Teague v. Lane,
489 U.S. 288, 310, 103 L. Ed. 2d 334, 356, 109 S. Ct. 1060, 1075 (1989) (plurality opinion). The rule announced
in Kilpatrick, however, is a rule of statutory
construction, and hence not subject to Teague's
retroactivity analysis.
This court stated in Kilpatrick that the issue
presented was "whether the trial court violated section
5--8--1(c) when the court vacated the defendant's
consecutive sentences of nine and six years' imprisonment
and instead imposed a 'single sentence' of 15 years'
incarceration." Kilpatrick, 167 Ill. 2d at 440. We then
concluded that "the trial court contravened the explicit
dictates of section 5--8--1(c) when it impermissibly
increased the sentences for defendant's two convictions
***." Kilpatrick, 167 Ill. 2d at 446-47. Thus, our
decision was based on a statutory rather than a
constitutional violation.
Although we noted in Kilpatrick that our
interpretation of section 5--8--1(c) of the Unified Code
of Corrections (730 ILCS 5/5--8--1(c) (West 1992))
"serves the goals identified in [North Carolina v.]
Pearce," 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072
(1969), we did not hold that the rule announced in
Kilpatrick was required by Pearce or by any other
constitutional authority. Kilpatrick, 167 Ill. 2d at 447.
In Pearce, the United States Supreme Court held that a
defendant is denied constitutional due process if his
resentencing following a successful appeal imposes,
without appropriate justification, a longer period of
incarceration than his original sentence. Pearce, 395 U.S. at 724, 23 L. Ed. 2d at 669, 89 S. Ct. at 2080 For
example, one of the defendants in Pearce initially
received a sentence of 10 years, but, after his original
sentence was overturned on appeal, was resentenced to 25
years. Pearce, 395 U.S. at 714, 23 L. Ed. 2d at 663, 89 S. Ct. at 2075. In Kilpatrick, however, the defendant's
resentencing increased the incarceration period for
certain individual counts, but imposed the same aggregate
period of imprisonment as the original sentence (15
years). Kilpatrick, 167 Ill. 2d at 440. The United States
Supreme Court has never held this practice to be
constitutionally prohibited. Faced in Kilpatrick with
this lack of constitutional precedent, this court based
its prohibition of the practice solely on principles of
statutory construction. See Kilpatrick, 167 Ill. 2d at
443.
Although a newly announced statutory rule of
criminal procedure may, in certain circumstances, be
applied retroactively to cases which were pending on
direct review when the rule was announced (see People v.
Erickson, 117 Ill. 2d 271, 289-90 (1987)), there is no
authority for applying such a statutory rule to cases on
collateral review in which the defendant's conviction
became final before the rule was announced. Since the
instant case falls into the latter category, I cannot
agree with the majority that defendant is entitled to
retroactive application of Kilpatrick.
Perhaps anticipating this distinction, the majority
also holds that appellate counsel in this case rendered
unconstitutionally ineffective assistance by not arguing
on direct appeal that the new sentence imposed by the
trial court on remand was improper. Appellate counsel
can, however, decline to raise an issue if he believes it
to be without merit. People v. Guest, 166 Ill. 2d 381
(1995). Defendant took his direct appeal before this
court decided Kilpatrick. At the time of defendant's
appeal, then, the rule announced in Kilpatrick was not
the governing law in Illinois. As the majority points
out, the rule eventually adopted by this court in
Kilpatrick was rejected in People v. Todd, 263 Ill. App.
3d 435 (1994). At the time of defendant's direct appeal,
Todd was the most recent appellate decision on this
issue. Todd also was decided by the same appellate
district that heard defendant's direct appeal. It was
therefore entirely reasonable for counsel to rely on Todd
in choosing not to raise this issue on direct appeal.
This fact also refutes the majority's contention that
defendant was prejudiced by appellate counsel's failure
to raise the issue; given the state of the law at the
time of the appeal, there was not a reasonable
probability that defendant's sentence would have been
reversed had counsel argued the point. See People v.
Caballero, 126 Ill. 2d 248, 270 (1989).
For these reasons, I respectfully dissent.
JUSTICE BILANDIC joins in this dissent.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
