People v. Flaugher

920 N.E.2d 1262, 396 Ill. App. 3d 673, 336 Ill. Dec. 672, 2009 Ill. App. LEXIS 1309
CourtAppellate Court of Illinois
DecidedDecember 23, 2009
Docket4-08-0484
StatusPublished
Cited by5 cases

This text of 920 N.E.2d 1262 (People v. Flaugher) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Flaugher, 920 N.E.2d 1262, 396 Ill. App. 3d 673, 336 Ill. Dec. 672, 2009 Ill. App. LEXIS 1309 (Ill. Ct. App. 2009).

Opinions

JUSTICE APPLETON

delivered the opinion of the court:

In October 1991, the trial court sentenced defendant, Ronald D. Flaugher, to two consecutive 15-year prison terms upon his convictions of two counts of attempt (first degree murder) (Ill. Rev. Stat. 1991, ch. 38, pars. 8 — 4(a), 9 — 1(a)(1)). The court stayed the execution of defendant’s sentence until he was released from federal prison. After serving 17 years in federal custody, defendant filed a motion for a declaratory judgment, seeking a declaration that his Calhoun County sentences should run concurrently with his federal sentence, thereby entitling him to sentence credit for time served in federal prison.

In June 2008, the trial court granted defendant’s motion, ordering defendant’s two 15-year sentences for attempted first degree murder run concurrently with each other and with his federal sentence. The State appeals. We find the court (1) lacked jurisdiction to modify the two 15-year terms from mandatory consecutive to concurrent and (2) erred in ordering defendant’s state sentence to run concurrently with his federal sentence when the two were statutorily mandated to run consecutively. We vacate the court’s judgment and remand with directions.

I. BACKGROUND

On July 9, 1990, by information, the State charged defendant with two counts of attempt (first degree murder) (Ill. Rev. Stat. 1991, ch. 38, pars. 8 — 4(a), 9 — 1(a)(1)) for shooting his brother, Thomas Flaugher, and Thomas’s then wife, Dorothy, with a shotgun on July 8, 1990. The shooting incident stemmed from a dispute regarding a land partnership between Thomas and defendant. Defendant was released on bond on July 10, 1990. On August 3, 1990, the State charged defendant with the same offenses by the issuance of superseding indictments.

On November 30, 1990, while released on bond, defendant was arrested by federal authorities and later charged in the Southern District of Illinois in case No. 92 — 2559 with (1) conspiracy to distribute five kilograms or more of cocaine, (2) using or carrying a firearm during and in relation to a drug-trafficking crime, and (3) possession of a firearm by a convicted felon. According to the statement of facts in the subsequent reported appellate decision (see United States v. Carson, 9 F.3d 576, 579-81 (7th Cir. 1993)), defendant and several other individuals were involved in the drug trade. In the spring of 1990, a confidential informant notified federal agents about the drug trafficking, which triggered a six-month investigation. Finally, on November 30, 1990, a controlled sale of cocaine was organized. Federal agents began surveillance and watched as the informant and the various individuals met at several different locations throughout the day exchanging drugs and cash. As for defendant’s role, he provided $50,000 to one of the buyers. When all of the parties (except for defendant) arrived at the designated location, each was arrested. Agents confiscated five kilograms of cocaine, and in some of the vehicles, the agents found loaded weapons. Defendant was arrested a few hours later with $1,500 in his wallet and bundled cash totaling $5,000 in his truck. On May 30, 1991, a jury convicted defendant on all counts. On June 5, 1992, the federal court sentenced defendant to 235 months in prison. He appealed, and his convictions and sentence were affirmed. See Carson, 9 F.3d at 592-93.

On August 5, 1991, after defendant was convicted on his federal charges but before he was sentenced thereon, a Calhoun County jury convicted him of two counts of attempt (first degree murder). On October 2, 1991, defendant filed a posttrial motion, challenging the strength of the evidence, the admission of certain jury instructions, the State’s closing argument, and several evidentiary rulings. The trial court denied defendant’s motion.

On October 4, 1991, the trial court sentenced defendant to two consecutive 15-year prison terms, finding specifically that Dorothy had been “severely injured.” The court further noted as follows:

“This [c]ourt is not taking into consideration the federal offense at all or what sentence they might hand down. That has nothing to do — it doesn’t relate to this proceeding at all. This is a totally separate proceedings [sic] in the Circuit Court of Calhoun County. What happens in the Federal Court is a total other ball[ ]game.”

After sentencing, defendant was remanded to the custody of the federal marshal.

On October 11, 1991, the trial court entered the sentencing judgment, which stated as follows: “Mittimus is stayed until defendant is released from custody of the United States Department of Justice.” Defendant appealed. On August 13, 1992, this court affirmed defendant’s convictions and sentences. See People v. Flaugher, 232 Ill. App. 3d 864, 598 N.E.2d 391 (1992).

On September 7, 1993, defendant filed his first pro se postconviction petition, alleging, inter alia, that the trial court erred by imposing consecutive prison terms because the evidence at trial did not reveal that either victim suffered severe bodily injury justifying consecutive terms. The court appointed counsel to represent defendant and, after a hearing, “dismissed” the petition. Defendant timely appealed the court’s order. This court affirmed the dismissal. See People v. Flaugher, No. 4—94—0652 (September 15, 1995) (unpublished order under Supreme Court Rule 23).

On March 12, 1997, defendant filed his second pro se postconviction petition, alleging, inter alia, the ineffective assistance of trial, postconviction, and appellate counsel. On June 7, 1997, the trial court dismissed defendant’s petition as frivolous and patently without merit.

On June 22, 2005, defendant filed his third pro se postconviction petition, alleging the trial court had failed to present the issue of whether the victims suffered great bodily harm to a jury for consideration before imposing consecutive prison terms on those grounds. He claimed his sentencing judgment was void. On January 12, 2007, the court summarily dismissed defendant’s petition, finding that the law set forth in Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000) (any factor used as a reason to increase a sentence must be submitted to a jury and proved beyond a reasonable doubt) could not be applied retroactively. Defendant appealed, filing a motion for remand, for the appointment of counsel and for further proceedings. This court allowed the motion and dismissed the appeal. See People v. Flaugher, No. 4—07—0154 (May 25, 2007) (appeal dismissed on appellant’s motion).

On April 24, 2008, defendant, through counsel, filed a motion for declaratory judgment (the subject of this appeal), claiming that, at the time he was sentenced in this matter to two consecutive 15-year prison terms, he had not yet been sentenced on his pending federal charges. The sentencing court had stayed the execution of the sentencing judgment until defendant was released from federal custody. Citing People v. McNeal, 301 Ill. App. 3d 889, 891,

Related

People v. Pizarro
2020 IL App (1st) 170651 (Appellate Court of Illinois, 2020)
People v. Johnson
2019 IL App (4th) 170622 (Appellate Court of Illinois, 2019)
People v. Bailey
2014 IL 115459 (Illinois Supreme Court, 2014)
People v. Flaugher
920 N.E.2d 1262 (Appellate Court of Illinois, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
920 N.E.2d 1262, 396 Ill. App. 3d 673, 336 Ill. Dec. 672, 2009 Ill. App. LEXIS 1309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-flaugher-illappct-2009.