People v. Terry
Annotate this Case
People v. Terry, No. 84156 (6/18/98)
Docket No. 84156--Agenda 10--March 1998.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MELKY
TERRY, Appellant.
Opinion filed June 18, 1998.
JUSTICE BILANDIC delivered the opinion of the court:
Following a 1987 jury trial in the circuit court of Cook County,
defendant Melky Terry was convicted of one count of first degree murder and
one count of voluntary manslaughter, arising out of the 1985 deaths of Grace
and John Marcatante. Defendant was sentenced to natural life imprisonment
on the murder conviction, and was given an extended-term sentence of 30
years' imprisonment on the voluntary manslaughter conviction. Defendant's
convictions and sentences were affirmed by the appellate court on direct
appeal. No. 1--87--1226 (unpublished order under Supreme Court Rule 23).
This court denied defendant's petition for leave to appeal.
In October 1993, defendant filed a pro se petition for post-conviction
relief in the circuit court. The circuit court appointed a public defender to
represent defendant. The State moved to dismiss the post-conviction petition
on the ground that it was not timely filed. The circuit court granted the State's
motion. Defendant's motion for reconsideration was denied.
On appeal to the appellate court, defendant argued that the circuit court
erred in dismissing his post-conviction petition on timeliness grounds because
his post-conviction counsel failed to comply with Supreme Court Rule 651(c)
(134 Ill. 2d R. 651(c)). The appellate court rejected defendant's argument that
Rule 651(c) required a remand in this case. Defendant also contended on
appeal that his extended-term sentence for voluntary manslaughter was void
because it violated section 5--8--2 of the Unified Code of Corrections (Ill.
Rev. Stat. 1985, ch. 38, par. 1005--8--2(a)). The appellate court did not
address this argument because it determined that, even if the sentence violated
section 5--8--2, the sentence was merely voidable, not void, and was therefore
not subject to attack in this collateral proceeding. In so holding, the appellate
court declined to follow this court's decision in People v. Arna, 168 Ill. 2d 107 (1995).
We accepted defendant's petition for leave to appeal. 166 Ill. 2d R.
315. In this court, the parties have addressed only the issue of whether
defendant's extended-term sentence for voluntary manslaughter was authorized
by section 5--8--2. No argument is made regarding the timeliness of
defendant's post-conviction petition and we therefore do not address that issue.
ANALYSIS
Defendant argues that his extended-term sentence for voluntary
manslaughter is void because it violates section 5--8--2 of the Unified Code
of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005--8--2(a), now 730 ILCS
5/5--8--2(a) (West 1996)). Section 5--8--1 of the Code of Corrections sets forth
the authorized sentences of imprisonment for felony offenses. Ill. Rev. Stat.
1985, ch. 38, par. 1005--8--1, now 730 ILCS 5/5--8--1 (West 1996). Section
5--8--2 authorizes a trial court to impose an extended term of imprisonment
for a felony conviction where certain circumstances are present. At the time
defendant committed his offenses in this case, section 5--8--2(a) provided, in
pertinent part:
"A judge shall not sentence an offender to a term of
imprisonment in excess of the maximum sentence authorized by
Section 5--8--1 for the class of the most serious offense of which the
offender was convicted unless the factors in aggravation set forth in
paragraph (b) of Section 5--5--3.2 were found to be present. Where the
judge finds that such factors were present, he may sentence an offender
to the following." (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par.
1005--8--2(a).
In section 5--5--3.2(b), the Code lists a number of aggravating factors which
may be considered by a trial court as reasons to impose an extended-term
sentence under section 5--8--2. Ill. Rev. Stat. 1985, ch. 38, par. 1005--5--3.2,
now 730 ILCS 5/5--5--3.2 (West 1996).
Defendant argues that section 5--8--2 did not authorize the trial court
to impose an extended-term sentence for his voluntary manslaughter
conviction. Defendant relies primarily on this court's holding in People v.
Jordan, 103 Ill. 2d 192 (1984). In Jordan, the defendant was convicted of
murder and kidnapping and sentenced to extended-term sentences of
imprisonment under section 5--8--2 for each offense. On appeal, the defendant
argued that the extended-term sentence for kidnapping, the less serious
offense, was improper because section 5--8--2 permitted an extended-term
sentence to be imposed only for the most serious class of offense of which the
offender was convicted. This court agreed with the defendant that the
extended-term sentence for kidnapping was not authorized by section 5--8--2.
The court held that, under the plain language of section 5--8--2, an extended-
term sentence may be imposed only for the most serious class of offense of
which the defendant was convicted. Jordan, 103 Ill. 2d at 204-06.
In this case, defendant contends that Jordan requires vacatur of his
extended-term sentence for voluntary manslaughter because he was also
convicted of murder, a more serious class of offense. Defendant's contention
has been expressly rejected by this court. In People v. Young, 124 Ill. 2d 147
(1988), the defendant was convicted of murder and armed robbery and was
sentenced to natural life imprisonment for the murder and an extended 60-year
term of imprisonment for the armed robbery. Relying on Jordan, the defendant
in Young argued that the extended-term sentence for armed robbery violated
section 5--8--2 because it was not the most serious offense of which the
defendant was convicted.
The Young court held that the defendant's extended-term sentence for
armed robbery was proper under the statute. In so holding, the court relied on
its prior decision in People v. Neal, 111 Ill. 2d 180 (1985). In Neal, the court
upheld the imposition of an extended-term sentence for the defendant's armed
robbery conviction even though the defendant had also been convicted of
murder for which he had been given the death penalty. The Neal court
reasoned that section 5--8--2 applied to extend the "terms of imprisonment"
authorized by section 5--8--1. Section 5--8--2 therefore could not apply to
capital sentences and would not apply to the defendant's murder conviction in
that case. Consequently, the court determined, section 5--8--2 could be applied
to extend the defendant's sentence for the next most serious offense of which
he was convicted, armed robbery. The court held that section 5--8--2 allowed
the imposition of an extended-term sentence "for the class of the most serious
offense of which the defendant was convicted when defendant was sentenced
to a term of years." Neal, 111 Ill. 2d at 204-05.
In Young, this court determined that the rationale of Neal was also
applicable where a defendant was convicted of murder and sentenced to
natural life imprisonment. The court concluded that, just as the extended-term
sentencing provisions of section 5--8--2 could not "extend" a death sentence,
those provisions also could not "extend" a sentence of natural life
imprisonment. The Young court focused on the fact that the extended-term
provisions of section 5--8--2 authorized imposition of a sentence "in excess of
the maximum sentence authorized by Section 5--8--1." Ill. Rev. Stat. 1981, ch.
38, par. 1005--8--2(a). Section 5--8--1(a)(1) set forth the noncapital sentencing
options for first degree murder. Under section 5--8--1(a)(1)(a), a defendant
convicted of murder could be sentenced to a fixed term of 20 to 40 (now 20
to 60) years' imprisonment. Ill. Rev. Stat. 1981, ch. 38, par. 1005--8--
1(a)(1)(a). Under subsections (b) or (c) of that section, a defendant convicted
of murder could be sentenced to natural life imprisonment, a sentence which
precluded the possibility of parole. Ill. Rev. Stat. 1981, ch. 38, pars. 1005--8--
1(1)(b), (1)(c). The court determined that, where a defendant is sentenced to
natural life imprisonment for murder under subsections (b) or (c), the
authorization in section 5--8--2 to impose an extended-term sentence "in
excess of the maximum sentence authorized by section 5--8--1" could not
apply because the authorized extended-term sentence for murder, 40 to 80
(now 60 to 100) years, was less severe than natural life imprisonment. Thus,
the court held, a sentence of natural life imprisonment could not be "extended"
pursuant to section 5--8--2. Rather, the extended-term provision could only
apply to a murder conviction for which the defendant was sentenced to a term
of years pursuant to section 5--8--1(a)(1)(a). Only when a defendant convicted
of murder is sentenced to a term of years could section 5--8--2 operate to
impose a sentence "in excess of the maximum sentence authorized by section
5--8--1." Accordingly, because the extended-term sentencing provisions could
not apply to the defendant's natural life sentence for murder, the extended-
term provisions could properly be applied to the next most serious offense of
which the defendant was convicted, armed robbery. Young, 124 Ill. 2d at 165-
66.
The State asserts that Young, having addressed the identical issue, is
dispositive of this appeal. Defendant contends, however, that both Young and
Neal were implicitly overruled by this court in People v. Henderson, 142 Ill. 2d 258 (1990). In Henderson, the defendant was convicted of murder,
aggravated criminal sexual assault and aggravated kidnapping. He was
sentenced to death for the murder conviction and was also given an extended-
term sentence of 45 years' imprisonment for the aggravated criminal sexual
assault conviction. One of the issues raised by the defendant on his direct
appeal to this court was that this extended-term sentence was improper
because aggravated criminal sexual assault was not the most serious offense
of which he was convicted. The Henderson court agreed, finding that, because
murder was the most serious offense of which the defendant was convicted,
the sentencing judge erred in imposing an extended-term sentence for
aggravated criminal sexual assault. Henderson, 142 Ill. 2d at 333. Defendant
urges us to follow Henderson in this case and hold that his extended-term
sentence for voluntary manslaughter was not statutorily authorized.
We agree with the State that this issue was correctly decided in Young
and Neal. In both Young and Neal, the court extensively analyzed the issue of
whether an extended-term sentence was permissible for a less serious class of
offense when the defendant was also convicted of murder and sentenced to
death or natural life. In particular, in Young, the court conducted an extended
analysis of section 5--8--2 to conclude that it permitted an extended-term
sentence to be imposed where a defendant was also sentenced to natural life
for murder. In contrast, the decision in Henderson did not conduct any
analysis of this issue. Moreover, the Henderson decision did not cite to Young
or Neal and did not express an intent to overrule those decisions. Notably,
defendant here does not provide us with any argument as to why the
Henderson result is better reasoned than the result reached in Young and Neal.
We find that the holdings of Young and Neal on this issue represent the better
reasoned approach. These holdings make the logical distinction between a
sentence of a term of years for murder, which is subject to application of the
extended-term provisions of section 5--8--2, and a sentence of death or natural
life for murder, which are not subject to application of section 5--8--2. As
those decisions concluded, since a sentence of death or natural life cannot be
"extended" under section 5--8--2, the extended-term statute should be
interpreted as applicable to the next most serious offense of which the
defendant was convicted. We therefore continue to adhere to this court's
decisions on this issue in Young and Neal. We hold that section 5--8--2
authorizes a trial court to impose an extended-term sentence for voluntary
manslaughter where the defendant is also sentenced to natural life for murder.
In light of our holding that defendant's extended-term sentence for
voluntary manslaughter was statutorily authorized, we do not address whether,
under our decision in People v. Arna, 168 Ill. 2d 107 (1995), that sentence was
void or voidable.
CONCLUSION
For the foregoing reasons, the judgment of the appellate court affirming
the judgment of the circuit court dismissing defendant's post-conviction
petition is affirmed.
Appellate court judgment affirmed.
Docket No. 84156--Agenda 10--March 1998.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MELKY
TERRY, Appellant.
Opinion filed June 18, 1998.
JUSTICE BILANDIC delivered the opinion of the court:
Following a 1987 jury trial in the circuit court of Cook County,
defendant Melky Terry was convicted of one count of first degree murder and
one count of voluntary manslaughter, arising out of the 1985 deaths of Grace
and John Marcatante. Defendant was sentenced to natural life imprisonment
on the murder conviction, and was given an extended-term sentence of 30
years' imprisonment on the voluntary manslaughter conviction. Defendant's
convictions and sentences were affirmed by the appellate court on direct
appeal. No. 1--87--1226 (unpublished order under Supreme Court Rule 23).
This court denied defendant's petition for leave to appeal.
In October 1993, defendant filed a pro se petition for post-conviction
relief in the circuit court. The circuit court appointed a public defender to
represent defendant. The State moved to dismiss the post-conviction petition
on the ground that it was not timely filed. The circuit court granted the State's
motion. Defendant's motion for reconsideration was denied.
On appeal to the appellate court, defendant argued that the circuit court
erred in dismissing his post-conviction petition on timeliness grounds because
his post-conviction counsel failed to comply with Supreme Court Rule 651(c)
(134 Ill. 2d R. 651(c)). The appellate court rejected defendant's argument that
Rule 651(c) required a remand in this case. Defendant also contended on
appeal that his extended-term sentence for voluntary manslaughter was void
because it violated section 5--8--2 of the Unified Code of Corrections (Ill.
Rev. Stat. 1985, ch. 38, par. 1005--8--2(a)). The appellate court did not
address this argument because it determined that, even if the sentence violated
section 5--8--2, the sentence was merely voidable, not void, and was therefore
not subject to attack in this collateral proceeding. In so holding, the appellate
court declined to follow this court's decision in People v. Arna, 168 Ill. 2d 107 (1995).
We accepted defendant's petition for leave to appeal. 166 Ill. 2d R.
315. In this court, the parties have addressed only the issue of whether
defendant's extended-term sentence for voluntary manslaughter was authorized
by section 5--8--2. No argument is made regarding the timeliness of
defendant's post-conviction petition and we therefore do not address that issue.
ANALYSIS
Defendant argues that his extended-term sentence for voluntary
manslaughter is void because it violates section 5--8--2 of the Unified Code
of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005--8--2(a), now 730 ILCS
5/5--8--2(a) (West 1996)). Section 5--8--1 of the Code of Corrections sets forth
the authorized sentences of imprisonment for felony offenses. Ill. Rev. Stat.
1985, ch. 38, par. 1005--8--1, now 730 ILCS 5/5--8--1 (West 1996). Section
5--8--2 authorizes a trial court to impose an extended term of imprisonment
for a felony conviction where certain circumstances are present. At the time
defendant committed his offenses in this case, section 5--8--2(a) provided, in
pertinent part:
"A judge shall not sentence an offender to a term of
imprisonment in excess of the maximum sentence authorized by
Section 5--8--1 for the class of the most serious offense of which the
offender was convicted unless the factors in aggravation set forth in
paragraph (b) of Section 5--5--3.2 were found to be present. Where the
judge finds that such factors were present, he may sentence an offender
to the following." (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par.
1005--8--2(a).
In section 5--5--3.2(b), the Code lists a number of aggravating factors which
may be considered by a trial court as reasons to impose an extended-term
sentence under section 5--8--2. Ill. Rev. Stat. 1985, ch. 38, par. 1005--5--3.2,
now 730 ILCS 5/5--5--3.2 (West 1996).
Defendant argues that section 5--8--2 did not authorize the trial court
to impose an extended-term sentence for his voluntary manslaughter
conviction. Defendant relies primarily on this court's holding in People v.
Jordan, 103 Ill. 2d 192 (1984). In Jordan, the defendant was convicted of
murder and kidnapping and sentenced to extended-term sentences of
imprisonment under section 5--8--2 for each offense. On appeal, the defendant
argued that the extended-term sentence for kidnapping, the less serious
offense, was improper because section 5--8--2 permitted an extended-term
sentence to be imposed only for the most serious class of offense of which the
offender was convicted. This court agreed with the defendant that the
extended-term sentence for kidnapping was not authorized by section 5--8--2.
The court held that, under the plain language of section 5--8--2, an extended-
term sentence may be imposed only for the most serious class of offense of
which the defendant was convicted. Jordan, 103 Ill. 2d at 204-06.
In this case, defendant contends that Jordan requires vacatur of his
extended-term sentence for voluntary manslaughter because he was also
convicted of murder, a more serious class of offense. Defendant's contention
has been expressly rejected by this court. In People v. Young, 124 Ill. 2d 147
(1988), the defendant was convicted of murder and armed robbery and was
sentenced to natural life imprisonment for the murder and an extended 60-year
term of imprisonment for the armed robbery. Relying on Jordan, the defendant
in Young argued that the extended-term sentence for armed robbery violated
section 5--8--2 because it was not the most serious offense of which the
defendant was convicted.
The Young court held that the defendant's extended-term sentence for
armed robbery was proper under the statute. In so holding, the court relied on
its prior decision in People v. Neal, 111 Ill. 2d 180 (1985). In Neal, the court
upheld the imposition of an extended-term sentence for the defendant's armed
robbery conviction even though the defendant had also been convicted of
murder for which he had been given the death penalty. The Neal court
reasoned that section 5--8--2 applied to extend the "terms of imprisonment"
authorized by section 5--8--1. Section 5--8--2 therefore could not apply to
capital sentences and would not apply to the defendant's murder conviction in
that case. Consequently, the court determined, section 5--8--2 could be applied
to extend the defendant's sentence for the next most serious offense of which
he was convicted, armed robbery. The court held that section 5--8--2 allowed
the imposition of an extended-term sentence "for the class of the most serious
offense of which the defendant was convicted when defendant was sentenced
to a term of years." Neal, 111 Ill. 2d at 204-05.
In Young, this court determined that the rationale of Neal was also
applicable where a defendant was convicted of murder and sentenced to
natural life imprisonment. The court concluded that, just as the extended-term
sentencing provisions of section 5--8--2 could not "extend" a death sentence,
those provisions also could not "extend" a sentence of natural life
imprisonment. The Young court focused on the fact that the extended-term
provisions of section 5--8--2 authorized imposition of a sentence "in excess of
the maximum sentence authorized by Section 5--8--1." Ill. Rev. Stat. 1981, ch.
38, par. 1005--8--2(a). Section 5--8--1(a)(1) set forth the noncapital sentencing
options for first degree murder. Under section 5--8--1(a)(1)(a), a defendant
convicted of murder could be sentenced to a fixed term of 20 to 40 (now 20
to 60) years' imprisonment. Ill. Rev. Stat. 1981, ch. 38, par. 1005--8--
1(a)(1)(a). Under subsections (b) or (c) of that section, a defendant convicted
of murder could be sentenced to natural life imprisonment, a sentence which
precluded the possibility of parole. Ill. Rev. Stat. 1981, ch. 38, pars. 1005--8--
1(1)(b), (1)(c). The court determined that, where a defendant is sentenced to
natural life imprisonment for murder under subsections (b) or (c), the
authorization in section 5--8--2 to impose an extended-term sentence "in
excess of the maximum sentence authorized by section 5--8--1" could not
apply because the authorized extended-term sentence for murder, 40 to 80
(now 60 to 100) years, was less severe than natural life imprisonment. Thus,
the court held, a sentence of natural life imprisonment could not be "extended"
pursuant to section 5--8--2. Rather, the extended-term provision could only
apply to a murder conviction for which the defendant was sentenced to a term
of years pursuant to section 5--8--1(a)(1)(a). Only when a defendant convicted
of murder is sentenced to a term of years could section 5--8--2 operate to
impose a sentence "in excess of the maximum sentence authorized by section
5--8--1." Accordingly, because the extended-term sentencing provisions could
not apply to the defendant's natural life sentence for murder, the extended-
term provisions could properly be applied to the next most serious offense of
which the defendant was convicted, armed robbery. Young, 124 Ill. 2d at 165-
66.
The State asserts that Young, having addressed the identical issue, is
dispositive of this appeal. Defendant contends, however, that both Young and
Neal were implicitly overruled by this court in People v. Henderson, 142 Ill. 2d 258 (1990). In Henderson, the defendant was convicted of murder,
aggravated criminal sexual assault and aggravated kidnapping. He was
sentenced to death for the murder conviction and was also given an extended-
term sentence of 45 years' imprisonment for the aggravated criminal sexual
assault conviction. One of the issues raised by the defendant on his direct
appeal to this court was that this extended-term sentence was improper
because aggravated criminal sexual assault was not the most serious offense
of which he was convicted. The Henderson court agreed, finding that, because
murder was the most serious offense of which the defendant was convicted,
the sentencing judge erred in imposing an extended-term sentence for
aggravated criminal sexual assault. Henderson, 142 Ill. 2d at 333. Defendant
urges us to follow Henderson in this case and hold that his extended-term
sentence for voluntary manslaughter was not statutorily authorized.
We agree with the State that this issue was correctly decided in Young
and Neal. In both Young and Neal, the court extensively analyzed the issue of
whether an extended-term sentence was permissible for a less serious class of
offense when the defendant was also convicted of murder and sentenced to
death or natural life. In particular, in Young, the court conducted an extended
analysis of section 5--8--2 to conclude that it permitted an extended-term
sentence to be imposed where a defendant was also sentenced to natural life
for murder. In contrast, the decision in Henderson did not conduct any
analysis of this issue. Moreover, the Henderson decision did not cite to Young
or Neal and did not express an intent to overrule those decisions. Notably,
defendant here does not provide us with any argument as to why the
Henderson result is better reasoned than the result reached in Young and Neal.
We find that the holdings of Young and Neal on this issue represent the better
reasoned approach. These holdings make the logical distinction between a
sentence of a term of years for murder, which is subject to application of the
extended-term provisions of section 5--8--2, and a sentence of death or natural
life for murder, which are not subject to application of section 5--8--2. As
those decisions concluded, since a sentence of death or natural life cannot be
"extended" under section 5--8--2, the extended-term statute should be
interpreted as applicable to the next most serious offense of which the
defendant was convicted. We therefore continue to adhere to this court's
decisions on this issue in Young and Neal. We hold that section 5--8--2
authorizes a trial court to impose an extended-term sentence for voluntary
manslaughter where the defendant is also sentenced to natural life for murder.
In light of our holding that defendant's extended-term sentence for
voluntary manslaughter was statutorily authorized, we do not address whether,
under our decision in People v. Arna, 168 Ill. 2d 107 (1995), that sentence was
void or voidable.
CONCLUSION
For the foregoing reasons, the judgment of the appellate court affirming
the judgment of the circuit court dismissing defendant's post-conviction
petition is affirmed.
Appellate court judgment affirmed.
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