People v. Bishop

2014 IL App (1st) 113335, 12 N.E.3d 616

Opinion

2014 IL App (1st) 113335 No. 1-11-3335 Opinion filed May 14, 2014 Third Division

_____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 84 CR 6448 ) ROBERT BISHOP, ) ) The Honorable Defendant-Appellant. ) Lawrence Edward Flood ) Judge, presiding. ) ______________________________________________________________________________

PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Pucinski and Mason concurred in the judgment and opinion.

OPINION

¶1 Defendant, Robert Bishop, seeks to vacate his 1986 conviction and sentence for

attempted armed robbery as void on the ground of double jeopardy. He contends that attempted

armed robbery also served as the predicate offense for his felony murder conviction and thus

cannot stand. His appeal arises from the circuit court's dismissal of his pro se petition for relief

from judgment under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401

(West 2010)). We find that Bishop was not convicted of felony murder but, rather, intentional 1-11-3335

murder, and because attempted armed robbery is not a predicate offense, the trial court's

conviction and sentence on both charges did not constitute a double jeopardy violation. This

being the case, the statute of limitations in section 2-1401 had run, and his petition was untimely.

¶2 BACKGROUND

¶3 On March 20, 1985, Bishop pled guilty to murder and attempted armed robbery for the

May 30, 1984 shooting death of Oralia Velasquez. Bishop was ordered to serve an extended-

term sentence of 80 years' imprisonment for murder and a consecutive sentence of 15 years for

attempted armed robbery. Bishop appealed, claiming ineffective assistance of trial counsel and

trial court error in sentencing him to 95 years in prison. The appellate court affirmed both the

conviction and the sentence. People v. Bishop, 179 Ill. App. 3d 99 (1989). On December 27,

1991, Bishop filed a pro se postconviction petition claiming ineffective assistance of counsel and

an excessive sentence. The trial court dismissed the petition and the appellate court affirmed.

People v. Bishop, No. 1-92-1534 (1994) (unpublished order under Supreme Court Rule 23). In

December 2000, Bishop filed a successive postconviction petition alleging his sentences violated

the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000). The circuit court dismissed the petition

after second-stage arguments, and the appellate court again affirmed. People v. Bishop, No. 1-

03-2255 (2005) (unpublished order under Supreme Court Rule 23).

¶4 On July 11, 2011, Bishop filed a pro se petition for relief from judgment under section 2-

1401 of the Code (735 ILCS 5/2-1401 (West 2010)). As grounds for relief, Bishop alleged: (i)

his extended-term sentences are unconstitutional; (ii) his convictions violate the one-act, one-

crime rule and subject him to double jeopardy; and (iii) the trial court lacks subject matter

jurisdiction. The circuit court dismissed the petition in a written order on October 13, 2011. The

court found Bishop did not rely on any newly discovered evidence or other material outside the

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record that would form the basis of a section 2-1401 petition. The court also found that (i) res

judicata barred Bishop's claims regarding his extended-term sentence since they were raised in

an earlier postconviction petition and (ii) waiver barred his other claims because they were not

raised on direct appeal. The trial court determined that Bishop's convictions for murder and

attempted robbery were separate acts and therefore did not implicate the one-act, one-crime rule

or subject him to double jeopardy. Lastly, the court dismissed Bishop's petition as untimely

having been filed well beyond the limitation period prescribed by section 2-1401 and making no

claim of legal duress or fraud that would have tolled the statute of limitations. Bishop now

challenges the dismissal of his section 2-1401 petition.

¶5 ANALYSIS

¶6 Section 2-1401 provides a comprehensive, statutory procedure that allows for vacating a

final judgment older than 30 days. People v. Vincent, 226 Ill. 2d 1, 7 (2007). A petition must be

filed within two years of that order or judgment, unless it alleges a claim of voidness, which can

be raised at any time. See Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104 (2002).

Relief under section 2-1401 depends on proof, by a preponderance of evidence, of a defense or

claim that would have precluded entry of the judgment in the original action and diligence in

both discovering the defense or claim and presenting the petition. Vincent, 226 Ill. 2d at 8. We

review the dismissal of a section 2-1401 petition on the pleadings de novo. Id. at 18.

¶7 Bishop maintains that his conviction and sentence are void (rather than voidable) and

thus not subject to the two-year statute of limitations for a section 2-1401 petition. According to

Bishop, he was convicted for felony murder and the predicate offense of attempted armed

robbery violated the one-act, one-crime and double jeopardy rules. See People v. Coady, 156 Ill.

2d 531, 537 (1993) ("armed robbery was the offense underlying the felony murder charge and, as

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an included offense, will not support a separate conviction and sentence"). The State agrees the

well-established rule is that multiple convictions are improper if based on lesser-included

offenses. People v. King, 66 Ill. 2d 551, 564 (1977)). But, contends the State, Bishop’s

conviction was for intentional murder not felony murder, and armed robbery is not a predicate

offense to intentional murder, and thus the one act, one-crime or double jeopardy issue does not

arise. Alternatively, the State asserts that one-act, one-crime errors are voidable and not subject

to an untimely collateral attack.

¶8 We first address the State's contention that Bishop was convicted of intentional murder

rather than felony murder, which would preclude Bishop from raising a one-act, one-crime

violation and from filing an untimely petition. After his arrest, Bishop was charged with three

counts of murder, one count of armed violence, and one count of attempted armed robbery. The

indictment listed those charges as follows: count I, murder, intentional and knowing; count II,

murder knowing that shooting with a gun created a strong probability of death; count III, armed

violence, in that he committed a felony, i.e., murder, knowing that the shooting created a strong

probability of death; count IV, felony murder; and count V, attempted armed robbery. After

accepting Bishop's guilty plea and holding a sentencing hearing, the trial court entered a

mittimus order sentencing Bishop to "a term of Eighty (80) years on the charge of count I murder

and Fifteen (15) years on the charge of count V attempt armed robbery." The State contends the

mittimus shows Bishop was convicted of intentional murder and attempted armed robbery,

counts I and V of the indictment, respectively, and because the former is not a predicate offense

to the latter, Bishop has failed to state a meritorious claim of double jeopardy.

¶9 Bishop, however, points to the report of proceedings and says it shows he was convicted

of felony murder. Specifically, Bishop notes that after accepting his guilty plea, the trial judge

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stated "I will accept your plea of guilty based upon the evidence that I have heard up to this point

in the trial, and I will enter a finding of guilty on count one, charging you with murder, finding of

guilty. Count two charges you with murder, finding of guilty. Count three charges you with

murder, finding of guilty. Count four charges you with attempted armed robbery, and I will

make the judgment of conviction on the attempted armed robbery, and make a judgment of

conviction on the murder count, which is count 4, I guess. Yes, count four. The other counts

will merge into that count." According to Bishop, this statement by the trial judge shows he was

convicted on count IV, felony murder, and that the other murder charges merged into that charge.

¶ 10 Generally, where the sentence reflected in the common law record conflicts with the

sentence imposed by the trial judge, as reflected by the report of proceedings, the report of

proceedings will control. People v. Peeples, 155 Ill. 2d 422, 496 (1993). Here, the issue is less

one of a conflict between the common law record and the report of proceedings than a lack of

clarity. As noted, the mittimus plainly stated Bishop was convicted of counts I and V,

intentional murder and attempted armed robbery. In the report of proceedings, the trial judge

noted that Bishop was guilty on all three of the murder charges, as well as the attempted armed

robbery charge, but incorrectly identified that charge as count IV. He then identified count IV as

a murder charge and stated that the other murder charges would merge into that charge.

¶ 11 Given this ambiguity as to what the trial judge intended, we turn to the law on multiple

murder convictions outlined by our supreme court in People v. Cardona, 158 Ill. 2d 403 (1994).

The court held in Cardona that a single murder victim supports only one conviction of murder,

which is on the most serious offense. Id. at 411-12. Among charges of intentional, knowing,

and felony murder, intentional murder constitutes the most serious offense. Id. "A killing that

occurs when acts are performed with the intent to kill or to do great bodily harm involves a more

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culpable mental state than does either a killing that occurs when acts are performed with the

knowledge that they create a strong probability of death or great bodily harm or a killing that

occurs in the course of a felony." Id. See also People v. Mack, 105 Ill. 2d 103, 137 (1984)

("When multiple convictions are had for offenses arising out of a single act, the rule is that the

sentence is imposed on the most serious offense." (citing People v. Donaldson, 91 Ill. 2d 164,

170 (1982))).

¶ 12 As noted, Bishop faced three murder charges, the most serious being intentional murder,

which carried a potential sentence of life imprisonment. Indeed, the State asked that Bishop be

sentenced to natural life, asserting that the evidence showing Bishop shot the victim in the right

side of the head while holding a gun in his right hand suggested he was pointing the gun at her

head and that the gun had not gone off accidentally. As the State explains, "this was an

execution and it was not an accident." During the sentencing hearing, the trial judge noted he

could grant the State's request for a natural life sentence (which would have been permitted for

intentional murder but not felony murder) but decided instead to impose an 80-year sentence for

murder and a consecutive 15 years for attempted armed robbery.

¶ 13 Although the trial judge never expressly stated Bishop was being sentenced for

intentional murder, the trial court is presumed to know the law and to follow it unless the record

affirmatively indicates the contrary. In re Jonathon C.B., 2011 IL 107750, ¶ 72. We presume

the sentencing judge knew and followed the law and, in particular, that he was aware intentional

murder was the most serious of the charges against Bishop and that when Bishop was found

guilty of that offense, the other murder counts, including felony murder, merged into count I.

Further, as noted, the record of proceedings is ambiguous and therefore, fails to "affirmatively

indicate" the trial judge did not follow the law. Given the unambiguous reference in the

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sentencing order and the mittimus to count I, as well as the evidence in the record supporting a

finding of guilty on the charge of intentional murder, we conclude the trial judge misspoke when

referring to the other counts of murder merging into count IV, the felony murder count, rather

than count I.

¶ 14 Because Bishop was convicted of both intentional murder and armed robbery and

because armed robbery is not a predicate offense for intentional murder, Bishop has failed to

raise a meritorious claim of double jeopardy violation. As a result, we need not address Bishop's

claimed error that his conviction and sentence are void rather than voidable and thus, not subject

to the two-year statute of limitations for a section 2-1401 petition.

¶ 15 The circuit court did not err in dismissing Bishop‘s section 2-1401 petition after the two-

year statutory period (735 ILCS 5/2-1401(c) (West 2010)). We affirm the dismissal of Bishop's

petition.

¶ 16 Affirmed.

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