People v. Inman

2014 IL App (5th) 120097, 2014 WL 464210

• Court: Appellate Court of Illinois
• Decided: February 4, 2014
• Docket: 5-12-0097
• Status: Unpublished

Opinion

NOTICE 2014 IL App (5th) 120097 Decision filed 02/04/14. The text of this decision may be changed or NO. 5-12-0097 corrected prior to the filing of a Petition for Rehearing or the IN THE disposition of the same. APPELLATE COURT OF ILLINOIS FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 85-CF-181 ) THOMAS G. INMAN, ) Honorable ) Brian Babka, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Justices Goldenhersh and Wexstten1 concurred in the judgment and opinion.

OPINION

¶1 The defendant, Thomas G. Inman, appeals an order dismissing his petition for

postconviction relief at the second stage. The defendant was convicted of first-degree

murder and attempted first-degree murder and sentenced to concurrent prison terms of

natural life for murder and 30 years for attempted first-degree murder. After his

natural-life sentence was vacated years later, the defendant was resentenced to 35 years on

the murder charge, to be served consecutive to the 30-year attempted murder sentence.

The defendant filed a postconviction petition, alleging that the resentencing court violated

1 Justice Wexstten fully participated in the decision prior to his retirement. See

Cirro Wrecking Co. v. Roppolo, 153 Ill. 2d 6, 605 N.E.2d 544 (1992).

1 principles of double jeopardy by ordering his sentences to run consecutively. On appeal

from the second-stage dismissal of that petition, the defendant argues that (1) the

consecutive sentences violate his right to due process and (2) consecutive sentences

constitute double jeopardy. We affirm.

¶2 The charges at issue in this appeal stem from an argument in a bar that escalated to a

violent confrontation. The defendant and two friends waited outside the bar for two other

men to leave. They then followed the other men in their car and ran the car off the road at

the next exit. In the ensuing fight, one man was stabbed to death. The other was stabbed

multiple times and suffered serious injuries, but survived. The defendant was arrested in

March 1985 and subsequently convicted on one count of murder and one count of

attempted murder. In August 1985, the trial court found that the murder was committed in

an exceptionally brutal and heinous manner. Based on this finding, the court sentenced

the defendant to natural life in prison for the murder conviction. The court sentenced the

defendant to 30 years for the attempted murder conviction, to be served concurrently with

the sentence for murder.

¶3 In August 2000, the defendant filed a petition for relief from judgment pursuant to

section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)), which

the court treated as a postconviction petition. He alleged that his natural-life sentence

violated the rule annunciated in Apprendi v. New Jersey, 530 U.S. 466 (2000). He argued

that the sentencing court imposed this extended-term sentence relying on a finding which,

under Apprendi, had to be made beyond a reasonable doubt by the trier of fact.

Specifically, the sentencing court found that the murder was committed in an exceptionally 2 brutal and heinous manner (Ill. Rev. Stat. 1985, ch. 38, ¶ 1005-8-1(a)(1)).

¶4 In June 2001, the court granted the defendant's petition and vacated his natural-life

sentence for murder.2 The court directed the State to choose between two options. The

State could again seek a natural-life sentence, which would require the State to retry the

defendant and prove to a jury beyond a reasonable doubt that the murder was committed in

an exceptionally brutal and heinous manner. Alternatively, the State could choose not to

seek an extended-term sentence, in which case the court would hold only a new sentencing

hearing. The State chose the latter option.

¶5 Most of the proceedings that followed involved the question of whether the trial

court could impose consecutive sentences. The court ultimately determined that (1) under

the sentencing law in effect in 1985, it had the discretion to impose consecutive sentences,

and (2) consecutive sentences would not run afoul of the constitutional protection against

double jeopardy.

¶6 The matter came for a resentencing hearing in July 2006. The defendant chose to

be sentenced under the law in effect in 1985, when the murder was committed. See

People v. Strebin, 209 Ill. App. 3d 1078, 1081, 568 N.E.2d 420, 422 (1991). The parties

presented evidence in aggravation and mitigation. Much of the evidence in mitigation

concerned the defendant's rehabilitative efforts during the 21 years he had already served in

2 We note that the Illinois Supreme Court subsequently held that Apprendi does not

apply retroactively. People v. De La Paz, 204 Ill. 2d 426, 437, 791 N.E.2d 489, 496

(2003).

3 prison. Much of the evidence in aggravation focused on the defendant's extensive prior

criminal record and the nature of the offense. The court found that consecutive sentences

were appropriate for two reasons: (1) the defendant committed a Class X or Class 1 felony

and inflicted serious bodily injuries (Ill. Rev. Stat. 1985, ch. 38, ¶ 1005-8-4(a)), and (2)

consecutive sentences were necessary to protect the public (Ill. Rev. Stat. 1985, ch. 38, ¶

1005-8-4(b)). The court sentenced the defendant to 35 years in prison, to be served

consecutive to his sentence for attempted murder. The sentencing order provided that the

defendant was to be given credit for time served.

¶7 The defendant appealed that sentence, arguing that the resentencing court abused its

discretion by imposing consecutive sentences. He did not raise the constitutional issues

involved in this appeal. This court affirmed the sentence. People v. Inman, 375 Ill. App.

3d 1161, 945 N.E.2d 703 (2007) (unpublished order pursuant to Supreme Court Rule 23).

¶8 The defendant next filed a pro se petition under the Post-Conviction Hearing Act

(725 ILCS 5/122-1 to 122-8 (West 2008)). In relevant part, he alleged that consecutive

sentences violated the double jeopardy clause and that appellate counsel was ineffective

for failing to raise this issue on direct appeal. The postconviction court dismissed the

defendant's petition summarily, finding it to be a successive petition filed without leave of

the court. On appeal from that ruling, this court found that the petition at issue was the

first petition to challenge the 2006 sentencing order. We thus concluded that it was not a

"successive" petition and the defendant, therefore, "did not require leave of the court to file

it." People v. Inman, 407 Ill. App. 3d 1156, 1162, 947 N.E.2d 319, 324-25 (2011). We

reversed the court's order dismissing the defendant's petition and directed the court to 4 docket the matter for second-stage proceedings. Inman, 407 Ill. App. 3d at 1163, 947

N.E.2d at 325.

¶9 On remand, counsel was appointed to represent the defendant. Counsel filed an

amended petition on behalf of the defendant, which also alleged that consecutive sentences

violated the constitutional protection against double jeopardy. The amended petition

further alleged that both appellate counsel and counsel at the resentencing hearing were

ineffective. The State filed a motion to dismiss the defendant's petition. The

postconviction court found that there was no double jeopardy violation. In support of this

conclusion, the court noted that (1) the resentencing court had the statutory authority to

impose consecutive sentences and (2) the length of the murder sentence was reduced, not

increased. The court therefore granted the State's motion to dismiss. This appeal

followed.

¶ 10 In this appeal, the defendant raises two issues. He first argues that the consecutive

sentences violate principles of due process under North Carolina v. Pearce, 395 U.S. 711

(1969). He next argues that consecutive sentences violate the double jeopardy clause.

Before considering the merits of these arguments, we must address the State's contention

that the defendant has forfeited both of these arguments.

¶ 11 The State argues that the defendant has forfeited his arguments for two reasons.

First, the State contends that both arguments are forfeited because the defendant could

have raised them in his direct appeal, but did not do so. We note, however, that the

defendant has alleged ineffective assistance of counsel on direct appeal. The State further

contends that the defendant forfeited his due process argument because he did not raise it in 5 his amended postconviction petition. We note that forfeiture is a limitation on the parties,

not the courts. People v. Haissig, 2012 IL App (2d) 110726, ¶ 20, 976 N.E.2d 1121

(citing People v. Carter, 208 Ill. 2d 309, 318-19, 802 N.E.2d 1185, 1190 (2003)). We

further note that the arguments are closely connected. We will therefore consider both of

the defendant's arguments on their merits.

¶ 12 This case was dismissed at the second stage of postconviction proceedings. Our

review is therefore de novo. People v. Clark, 2011 IL App (2d) 100188, ¶ 17, 957 N.E.2d

162 (citing People v. Simpson, 204 Ill. 2d 536, 547, 792 N.E.2d 265, 274-75 (2001)).

¶ 13 The defendant first argues that principles of due process precluded the court from

imposing consecutive sentences on remand. The relevant principles were discussed by

the United States Supreme Court in North Carolina v. Pearce. There, the Court explained

that "it would be a flagrant violation" of a defendant's right to due process if a sentencing

court were to impose a harsher sentence after remand from a successful appeal "for the

explicit purpose of punishing the defendant" for filing the appeal. Pearce, 395 U.S. at

723-24. The Court noted, however, that "there exists no absolute constitutional bar to the

imposition of a more severe sentence upon retrial." Pearce, 395 U.S. at 723. The Court

held that when a trial judge imposes a more severe sentence after remand from an appeal,

the record must affirmatively show the reasons for the court's decision to do so, and those

reasons must relate to "objective information concerning identifiable conduct" by the

defendant subsequent to the original sentencing proceedings. Pearce, 395 U.S. at 726.

¶ 14 Our legislature codified the Pearce holding in section 5-5-4 of the Unified Code of

Corrections (730 ILCS 5/5-5-4 (West 2006)). That statute provides that a court "shall not 6 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 *** 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(a) (West 2006).

¶ 15 On resentencing in this case, the defendant was sentenced to 35 years for the murder

conviction. This is a shorter sentence than his original sentence of natural life in prison.

His 30-year sentence for attempted murder was not changed. The question raised by the

defendant is whether the trial court nevertheless made either of these sentences more

onerous than the original sentences by ordering the reduced murder sentence to run

consecutive to the defendant's sentence for attempted murder when the sentences were

originally ordered to run concurrently. For the reasons that follow, we conclude that it did

not.

¶ 16 One of the first cases to address this question was this court's decision in People v.

Giller, 191 Ill. App. 3d 710, 548 N.E.2d 341 (1989). There, the defendant was convicted

on three charges of aggravated criminal sexual assault. Giller, 191 Ill. App. 3d at 711, 548

N.E.2d at 341. He was originally sentenced to concurrent extended-term sentences of 60

years on all three charges. Giller, 191 Ill. App. 3d at 712, 548 N.E.2d at 342. On appeal,

this court found the extended-term sentences to be improper. Giller, 191 Ill. App. 3d at

711, 548 N.E.2d at 341. On remand, the trial court imposed sentences of 30 years on all

three charges. The court ordered two of those sentences to run concurrently, but ordered

that the third be served consecutive to the other two sentences. Giller, 191 Ill. App. 3d at

711, 548 N.E.2d at 342. 7 ¶ 17 The defendant again appealed. He argued, much as the defendant argues here, that

consecutive sentences were not proper when concurrent sentences were originally

imposed. Giller, 191 Ill. App. 3d at 712, 548 N.E.2d at 342. In rejecting his contention,

this court stated that the "defendant's sentence on remand was no more severe than his

original sentence. His original sentence was for an extended term of 60 years'

imprisonment, and his resentence totaled 60 years' imprisonment." Giller, 191 Ill. App.

3d at 712, 548 N.E.2d at 342. We thus found that the new sentences complied with the

requirements of section 5-5-4 of the Unified Code of Corrections, the same statute that is at

issue here. Giller, 191 Ill. App. 3d at 711-12, 548 N.E.2d at 342.

¶ 18 The quoted language in Giller focused on the aggregate length of all of the

defendant's sentences. As the defendant here correctly points out, subsequent decisions

have focused instead on the severity of the individual sentences. For example, in People

v. Kilpatrick, 167 Ill. 2d 439, 657 N.E.2d 1005 (1995), the defendant was originally

sentenced to consecutive terms of nine years and six years. After a motion to reconsider

his sentence, the court vacated the consecutive sentences and imposed a " 'single sentence

of 15 years.' " Kilpatrick, 167 Ill. 2d at 441, 657 N.E.2d at 1006. The supreme court

found that, even though the aggregate prison term remained the same, the new sentence ran

afoul of the relevant statute because the individual sentences were increased from 9 and 6

years, respectively, to 15 years. Kilpatrick, 167 Ill. 2d at 446-47, 657 N.E.2d at 1008; see

also People v. Rivera, 212 Ill. App. 3d 519, 525, 571 N.E.2d 202, 206 (1991). The

rationale behind these holdings is that consecutive sentences for multiple offenses

"constitute separate sentences for each crime of which a defendant has been convicted." 8 People v. Carney, 196 Ill. 2d 518, 529, 752 N.E.2d 1137, 1143 (2001). "[C]onsecutive

sentences are not treated as a single sentence" for purposes of determining whether the new

sentence is harsher than the original sentence. Kilpatrick, 167 Ill. 2d at 446, 657 N.E.2d at

1008.

¶ 19 The defendant points to this rationale and argues that Giller was wrongly decided.

He contends that these subsequent decisions show that Illinois takes a count-by-count

approach to sentencing rather than determining the question based on the aggregate term in

prison. This argument implies that under Giller, an increase in any individual sentence

would be permissible as long as the aggregate was not increased. This apparent

interpretation overstates our holding. In Giller, there was no question that none of the

individual sentences were more onerous than the sentences originally imposed. The

original sentences were extended-term sentences of 60 years; the sentences on remand

were nonextended-term sentences of 30 years. Thus, unlike the Kilpatrick and Rivera

courts, the Giller court was not called upon to consider the propriety of an increase to any

individual sentence. The court was concerned only with the effect of running reduced

sentences consecutively on the aggregate term in prison.

¶ 20 Under Kilpatrick and the express terms of section 5-5-4, courts may not increase

any individual sentence. The implication of our decision in Giller is that courts also may

not increase the aggregate term of multiple sentences. We note that, subsequent to our

decision, other districts of the Illinois Appellate Court have found that an increase in the

aggregate term a defendant will spend in prison does not run afoul of section 5-5-4 or raise

due process concerns as long as no individual sentence is increased. See, e.g., People v. 9 Harris, 366 Ill. App. 3d 1161, 1165-66, 853 N.E.2d 912, 916 (2006); People v. Sanders,

356 Ill. App. 3d 998, 1005, 827 N.E.2d 17, 22-23 (2005). We do not believe this is an

appropriate case to reconsider our holding in Giller. Here, the defendant acknowledges

that the aggregate was not increased. Moreover, as we will next discuss, we find that

neither of the individual sentences became more severe as a result of being made

consecutive.

¶ 21 The defendant bases his argument to the contrary on People v. Pugh, 325 Ill. App.

3d 336, 758 N.E.2d 319 (2001). There, the defendant was convicted on charges of

murder, armed robbery, and forcible detention. Pugh, 325 Ill. App. 3d at 338, 758 N.E.2d

at 322. He was originally sentenced to death for the murder charge and to concurrent

sentences of 30 years and 7 years for the additional charges. The defendant successfully

appealed his death sentence, and the matter was remanded for resentencing. Pugh, 325 Ill.

App. 3d at 338, 758 N.E.2d at 322.

¶ 22 On remand, the trial court sentenced the defendant to an extended term of 70 years

for the murder charge, to be served consecutive to the concurrent sentences for armed

robbery and forcible detention. Pugh, 325 Ill. App. 3d at 338, 758 N.E.2d at 322. The

defendant appealed the new sentence. A panel of the First District found that by ordering

the sentences to be served consecutively when they were originally ordered to run

concurrently, the trial court "effectively increased the amount of time defendant would

spend incarcerated for the armed robbery and forcible detention offenses." Pugh, 325 Ill.

App. 3d at 349, 758 N.E.2d at 330. In light of this finding, the court amended the

sentencing order to provide that the sentences would run concurrently. Pugh, 325 Ill. 10 App. 3d at 349, 758 N.E.2d at 330-31.

¶ 23 The State argues that Pugh is distinguishable from the instant case because the

sentences there could not have been ordered to run consecutively when the defendant was

originally sentenced. See Pugh, 325 Ill. App. 3d at 348-49, 758 N.E.2d at 330 (explaining

that the statute permitting consecutive sentencing is not applicable when the death penalty

is imposed). We disagree. The Pugh court expressly stated that it was concerned that

imposing consecutive sentences would increase the defendant's time in prison on the armed

robbery and forcible detention charges. Pugh does, therefore, support the defendant's

position.

¶ 24 However, we are not bound by the decisions of other districts of the Illinois

Appellate Court. People v. Damkroger, 408 Ill. App. 3d 936, 944, 946 N.E.2d 948,

954-55 (2011). The Pugh court did not explain the rationale for its conclusion that

making the defendant's new murder sentence run consecutive to his other sentences would

result in more time in prison on the additional charges. We do not find this holding

persuasive, particularly when it is at odds with the overwhelming weight of authority in

Illinois, which holds that ordering sentences to run consecutively on remand does not itself

constitute an increase in any individual sentence. See Harris, 366 Ill. App. 3d at 1165-66,

853 N.E.2d at 916; People v. Moore, 359 Ill. App. 3d 1090, 1092-93, 835 N.E.2d 980, 982

(2005); Sanders, 356 Ill. App. 3d at 1005, 827 N.E.2d at 22-23. We therefore decline to

follow Pugh.

¶ 25 The defendant, however, argues that his 30-year-attempt sentence will become

more onerous due to the impact a consecutive sentence will have on the calculation of his 11 sentence credit. We find this argument unavailing.

¶ 26 When a defendant is sentenced to concurrent sentences, he is entitled to credit

against both sentences for any time spent in custody that is attributable to both charges.

People v. Robinson, 172 Ill. 2d 452, 462-63, 667 N.E.2d 1305, 1310 (1996) (citing 730

ILCS 5/5-8-7(b) (West 1992)). By contrast, when consecutive sentences are imposed, all

time spent in custody is credited only once against the aggregate term of the consecutive

sentences. People v. Latona, 184 Ill. 2d 260, 270-71, 703 N.E.2d 901, 907 (1998) (citing

730 ILCS 5/5-8-4(e) (West 1994)). The day-for-day good-time credit available to the

defendant under the sentencing laws in effect in 1985 is calculated based on the same

principle. See Armstrong v. Washington, 289 Ill. App. 3d 306, 309, 682 N.E.2d 761, 763

(1997). Thus, the defendant argues, he will lose credit for the 21 years he spent in prison

prior to resentencing in this case, including the day-for-day good-time credit.

¶ 27 This argument overlooks the nature of the natural-life sentence imposed when the

defendant was originally sentenced. Under that sentence, the defendant was not eligible

for parole. See Heirens v. Prisoner Review Board, 162 Ill. App. 3d 762, 765, 516 N.E.2d

613, 615 (1987) (citing Ill. Rev. Stat. 1985, ch. 38, ¶¶ 1003-3-3(d), 1005-8-1(d)). He was

not eligible for any release except through a grant of executive clemency. Ill. Rev. Stat.

1985, ch. 38, ¶ 1003-3-3(d). Thus, the natural-life sentence could not have been reduced

by any type of sentence credit. Had the defendant not challenged his original sentence, his

30-year-attempt sentence would have been discharged when satisfied, and the defendant

would have remained in prison serving the original natural-life sentence for murder for the

remainder of his life. 12 ¶ 28 The resentencing order changes this result in two ways. First, instead of spending

the remainder of his life in prison, the defendant will remain in prison long enough to

satisfy both the 30-year and 35-year sentences, with credit for time served as well as all

day-for-day good-time credit for which he is eligible. Second, because the Department of

Corrections treats consecutive sentences as a single sentence for the limited purposes of

calculating sentence credit and determining how consecutive sentences will be served (see

730 ILCS 5/5-8-4(e) (West 2012)), the mittimus reflects that the defendant's attempted

murder sentence has not been discharged.

¶ 29 We do not believe that this mittimus change rises to the level of a due process

violation where, as here, neither sentence is more severe than the original sentences

imposed. As the supreme court has repeatedly held, consecutive sentencing alters the

manner in which a sentence is to be served, not the actual sentence. People v. Phelps, 211

Ill. 2d 1, 14, 809 N.E.2d 1214, 1222 (2004); Carney, 196 Ill. 2d at 530, 752 N.E.2d at 1144.

The amount of time the defendant will spend in prison as a result of the attempt charge

remains unchanged, while the time he will spend in prison as a result of the murder

sentence has been reduced. Thus, neither individual sentence has been made more severe.

¶ 30 Nevertheless, the defendant points out that if the original sentencing court had

sentenced him to a concurrent term of 35 years for the murder, he would have been eligible

for credit against that sentence. The question, however, is not whether the court has

rendered a sentence that is more severe than a hypothetical original sentence the court

might have imposed. Rather, the question is whether an otherwise authorized sentence is

more severe than the original sentence the court actually imposed. As we have explained, 13 that did not occur here. We thus conclude that the resentencing court did not violate

principles of due process or the requirements of section 5-5-4 when it ordered the

defendant's sentence for murder to run consecutive to his sentence for attempt.

¶ 31 The defendant next argues that the sentencing court violated the double jeopardy

clause of the fifth amendment by ordering that the sentences be served consecutively after

he had already served 21 years of a concurrent sentence. We disagree.

¶ 32 There are three components to double jeopardy protection. The double jeopardy

clause protects criminal defendants from (1) facing a new trial after an acquittal, (2) facing

a second trial after a conviction, and (3) facing multiple punishments for the same offense.

Jones v. Thomas, 491 U.S. 376, 380-81 (1989). The prohibition on multiple punishments

is " 'limited to ensuring that the total punishment [does] not exceed that authorized by the

legislature.' " Jones, 491 U.S. at 381 (quoting United States v. Halper, 490 U.S. 435, 450

(1989)). Generally, consecutive sentences do not implicate this aspect of double jeopardy

because consecutive sentences do not constitute " 'punishment beyond that authorized by

the jury's verdict, provided that the sentence for each separate offense does not exceed the

maximum permitted by statute for that offense.' " Phelps, 211 Ill. 2d at 14, 809 N.E.2d at

1222 (quoting Carney, 196 Ill. 2d at 532, 752 N.E.2d at 1145).

¶ 33 However, the defendant argues that under the circumstances of this case,

consecutive sentences raise double jeopardy concerns for two closely connected reasons.

First, as the defendant correctly notes, double jeopardy requires that a defendant receive

credit against his sentence for any time already served. Pearce, 395 U.S. at 718-19. This

includes any good-time credit attributable to time already served. Pearce, 395 U.S. at 719 14 n.13. Here, the 2006 resentencing order gives the defendant credit for all time served

since his March 1985 arrest. The defendant argues that this is insufficient because under

Latona, that credit need only be applied once toward the aggregate prison term; it need not

be applied in full to each individual sentence. Latona, 184 Ill. 2d at 270-71, 703 N.E.2d at

907.

¶ 34 Ordinarily, this method of calculating sentencing credit does not raise double

jeopardy concerns. As the Latona court pointed out, the purpose of sentence credit "is to

ensure that defendants do not ultimately remain incarcerated for periods in excess of their

eventual sentences." Latona, 184 Ill. 2d at 270, 703 N.E.2d at 906 (citing People v.

Ramos, 138 Ill. 2d 152, 159, 561 N.E.2d 643, 647 (1990)). This, as we have noted, is a

requirement of double jeopardy protection. See Pearce, 395 U.S. at 718-19. It was with

this requirement in mind that the Latona court determined what sentence credit calculation

method was appropriate for consecutive sentences.

¶ 35 The court explained that when a defendant is sentenced to concurrent prison terms,

time spent in custody that is applicable to both offenses must be credited towards each of

the sentences in order to satisfy the requirement that a defendant serve no more time than

the sentence actually imposed. "[B]ecause the sentences are served concurrently," the

court explained, "the credits are applied in that manner as well." Latona, 184 Ill. 2d at

271, 703 N.E.2d at 907. In the context of consecutive sentences, however, giving a

defendant credit for each day served and applying that credit to the defendant's aggregate

term is sufficient to ensure the defendant serves no more time than the sentence imposed.

This is because "[d]efendants must be given credit for all the days they actually served, but 15 no more." Latona, 184 Ill. 2d at 272, 703 N.E.2d at 907.

¶ 36 What makes this case different from Latona is the fact that the defendant here was in

prison for 21 years prior to being sentenced to consecutive terms. For much of that time,

he understood that he was serving two consecutive sentences. This brings us to the second

aspect of the defendant's contention.

¶ 37 As the defendant correctly points out, the double jeopardy clause protects a

defendant's interest in finality. People v. Levin, 157 Ill. 2d 138, 161, 623 N.E.2d 317, 328

(1993). This includes a legitimate interest in the finality of his sentence. Jones, 491 U.S.

at 393-94 (Scalia, J., dissenting) (quoting United States v. DiFrancesco, 449 U.S. 117, 139

(1980)); Levin, 157 Ill. 2d at 161, 623 N.E.2d at 328. Essentially, the defendant argues

that he must be given credit against both sentences to protect his interest in the finality of

the concurrent aspect of the original sentencing order. We are not persuaded.

¶ 38 Although the underlying facts are not analogous to those of the case before us, we

find the United States Supreme Court's discussion of this aspect of double jeopardy in

Jones v. Thomas instructive. There, the defendant was originally convicted and sentenced

in Missouri on charges of felony murder and attempted robbery. The attempted robbery

was the underlying felony for the charge of felony murder. Jones, 491 U.S. at 378. The

defendant was sentenced to natural life in prison for the murder and 15 years for the

attempted robbery, to be served consecutively. The court ordered that the attempted

robbery sentence be served first. Jones, 491 U.S. at 378.

¶ 39 Four years after he was sentenced, the defendant filed a postconviction petition,

alleging that it was improper for the court to impose sentences on both charges because the 16 attempted robbery was the underlying felony for the felony-murder charge. Jones, 491

U.S. at 378. After another 4 years, the 15-year attempted robbery sentence was commuted

to a shorter sentence with a release date that month. At this point, the postconviction

petition was still pending. Jones, 491 U.S. at 379. The following year, the

postconviction court granted the defendant's petition and vacated the attempted robbery

conviction and sentence. Jones, 491 U.S. at 379.

¶ 40 The defendant appealed, arguing that because he had fully satisfied the reduced

sentence for attempted robbery, "his continued confinement under the longer sentence

constituted double jeopardy." Jones, 491 U.S. at 379. The state appeals court rejected

this claim, finding that credit for his entire period of incarceration against the longer

sentence was sufficient to protect him against double jeopardy. Jones, 491 U.S. at 379

(citing Thomas v. State, 665 S.W.2d 621 (Mo. Ct. App. 1983)).

¶ 41 The Supreme Court first emphasized that the prohibition on multiple punishments is

intended to prevent a sentencing court from imposing sentences that exceed those intended

by the legislature. Jones, 491 U.S. at 381. The Court explained that its resolution of the

defendant's double jeopardy claim turned on the fact that this was the interest meant to be

protected. Jones, 491 U.S. at 381. The Court acknowledged, however, that the double

jeopardy clause "protects not only against punishment in excess of legislative intent, but

also against additions to a sentence in a subsequent proceeding that upset a defendant's

legitimate expectation of finality." (Emphasis added.) Jones, 491 U.S. at 385. In

determining whether the Missouri state courts upset this expectation in the case before it,

the Court analyzed what the defendant's reasonable expectations were with regard to that 17 sentence.

¶ 42 The Court noted that when the defendant was originally sentenced, he had no reason

to expect to serve only the shorter attempted robbery sentence. "Indeed," the Court

explained, "his expectation at that point was to serve both consecutive sentences." Jones,

491 U.S. at 386. This was because the Missouri state cases holding that a defendant could

not be sentenced for both felony murder and the underlying felony were decided after the

original sentences were imposed. Jones, 491 U.S. at 386. The Court further noted that,

once the Missouri Supreme Court determined that both sentences could not be imposed,

the defendant's legitimate expectation was that he would serve one sentence or the other.

Jones, 491 U.S. at 386. Thus, taking into account the defendant's expectations, the

Supreme Court found that the decision to leave his murder sentence intact did not

constitute an increase or addition. Jones, 491 U.S. at 385-86.

¶ 43 Here, when the defendant was originally sentenced, his expectation was that he

would spend the rest of his life in prison. As explained previously, he had no legitimate

expectation that his natural-life sentence for murder would actually be reduced by any

available credit because that sentence carried with it no possibility of release during his

lifetime. Moreover, while a criminal defendant does have an interest in the finality of

sentencing determinations, this interest is far less significant than his interest in not being

convicted. Levin, 157 Ill. 2d at 144, 623 N.E.2d at 320 (noting that this is so because

"[t]he imposition of a particular sentence usually is not regarded as an acquittal of any

more severe sentence than could have been imposed"). Assuming the defendant here had

any legitimate expectation that a single aspect of his original sentence, viewed in isolation, 18 would remain unchanged after he challenged the sentence, that expectation alone does not

rise to the level of the interests meant to be protected by double jeopardy. Here, both the

individual murder sentence and the aggregate term in prison have been reduced by the

resentencing court. Thus, the court did not impose a punishment that exceeded the

sentence the defendant expected to serve when he was originally sentenced. We find no

double jeopardy violation.

¶ 44 For the foregoing reasons, the order of the postconviction court dismissing the

defendant's petition is affirmed.

¶ 45 Affirmed.

19 2014 IL App (5th) 120097

NO. 5-12-0097

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 85-CF-181 ) THOMAS G. INMAN, ) Honorable ) Brian Babka, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

Opinion Filed: February 4, 2014 ________________________________________________________________________ Justices: Honorable Melissa A. Chapman, J.

Honorable Richard P. Goldenhersh, J., and Honorable James M. Wexstten, J., Concur ________________________________________________________________________

Attorneys Michael J. Pelletier, State Appellate Defender, Peter A. Carusona, for Deputy Defender, Thomas A. Karalis, Assistant Appellate Defender, Appellant Office of the State Appellate Defender, Third Judicial District, 770 E. Etna Road, Ottawa, IL 61350 ________________________________________________________________________ Attorneys Hon. Brendan F. Kelly, State's Attorney, St. Clair County, 10 Public for Square, Belleville, IL 62220 Appellee Patrick Delfino, Director, Stephen E. Norris, Deputy Director, David M. Sanchez, Staff Attorney, Whitney E. Atkins, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Fifth District Office, 730 E. Illinois Hwy. 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864 ________________________________________________________________________