2015 IL App (1st) 123519 No. 1-12-3519 Opinion filed January 28, 2015 Third Division
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
) Appeal from the Circuit Court THE PEOPLE OF THE STATE OF ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) ) No. 06 CR 8798 v. ) ) LATHERN LAMPKINS, ) The Honorable ) James M. Obbish, Defendant-Appellant. ) Judge, presiding. )
JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.
OPINION
¶1 Defendant Lathern Lampkins appeals from the judgment of the circuit court that
summarily dismissed his pro se petition for relief under the Post-Conviction Hearing Act (Act)
(725 ILCS 5/122-1 et seq. (West 2012)). For the reasons that follow, we find that a portion of
defendant's sentence is void, as asserted by defendant for the first time in a petition for rehearing,
and remand for resentencing.
¶2 The record shows that on March 19, 2006, 17-year-old defendant and codefendant Robert
Falls, who is not a party to this appeal, saw Kevin Porter exit his front door at 2544 East 81st
Street and walk toward a vehicle parked on the street. Defendant and codefendant approached 1-12-3519
Porter, pointed guns at his head, and demanded his wallet. Porter indicated that he did not have
his wallet, and, holding him at gunpoint, they searched Porter's vehicle and then took him back
into the house. After Porter opened the door to his residence, defendants stole several items
including bank cards and jewelry. While in the house, defendant pointed a gun at Porter's
girlfriend Katherine Benson and sexually assaulted her. At gunpoint, defendants then took Porter
to a bank and forced him to withdraw money from a cash station. Porter complied and gave
defendant the cash. While defendants took Porter to the cash station, Benson called the police.
Defendants dropped off Porter in an alley and were arrested shortly thereafter. Defendant and
codefendant were charged on April 20, 2006, with numerous counts in connection with this
incident, including aggravated criminal sexual assault (ACSA), home invasion, armed robbery,
vehicular hijacking, kidnaping, and unlawful restraint.
¶3 Following a 2008 bench trial, defendant was convicted of ACSA with a firearm, two
counts of home invasion, armed robbery, and vehicular hijacking. He was then sentenced to 27
years' imprisonment for ACSA, which included a 15-year add-on for being armed with a firearm,
to run consecutively to the four concurrent terms of 8 years' imprisonment imposed on his
remaining convictions. This court affirmed that judgment on direct appeal after allowing direct-
appeal counsel's motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967).
People v. Lampkins, No. 1-08-2535 (2010) (unpublished order under to Supreme Court Rule 23).
¶4 On June 13, 2012, defendant filed a pro se post-conviction petition, alleging, in pertinent
part, that direct-appeal counsel was ineffective for failing to raise any issues on his behalf. In
particular, defendant maintained that counsel did not raise any issue on appeal "before-during-
and or after reviewing the petitioner transcripts," was in "dis-attude" when counsel stated that
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there were no issues of arguable merit and filed a motion to withdraw, and was ineffective for
"not filing ineffective assistance on the trial counsel for not preserving issues by objecting so that
the defendant could [have] had meritorious issues to raise in his appeal." According to defendant,
direct-appeal counsel's performance fell below an objective standard of reasonableness and
prejudiced him.
¶5 As evidence of direct-appeal counsel's ineffectiveness, defendant attached to his petition
an October 15, 2009, letter written by his counsel advising him to dismiss his appeal because the
sentencing issues she could argue had a very low chance of success, and raising them would
bring to light a sentencing error that was in his favor. In particular, direct-appeal counsel stated
that because he was convicted of armed robbery with a firearm, he should have received "15
years on top of the 8 years [he] received." Therefore, counsel indicated that the court should have
imposed a 23-year sentence for his armed robbery with a firearm conviction, making his total
sentence for all crimes 50 years instead of 35 years. Counsel concluded the letter by advising
defendant to dismiss his appeal to avoid the risk of exposing the purported sentencing error,
which would result in him receiving a higher sentence. Defendant also attached direct-appeal
counsel's motion to withdraw as counsel pursuant to Anders.
¶6 On August 3, 2012, the circuit court dismissed defendant's petition as frivolous and
patently without merit. In doing so, the court found, in relevant part, that because defendant's
underlying claims of ineffective assistance of trial counsel were without merit, the ineffective
assistance of direct-appeal counsel claim based on counsel's failure to argue ineffective
assistance of trial counsel was likewise without merit. This appeal followed.
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¶7 In defendant's brief on appeal, postconviction appellate counsel raised the issue of
whether direct-appeal counsel was ineffective for failing to challenge the 15-year add-on penalty
to his sentence on ACSA for possessing a firearm at the time he committed the offense. In a Rule
23 order issued on June 25, 2014, we found that this issue could not be raised for the first time on
appeal because it was not included in defendant's postconviction petition, even under liberal
construction. People v. Lampkins, 2014 IL App (1st) 123519-U; Ill. S. Ct. R. 23 (eff. July 1,
2011). We noted that defendant was free to pursue any defaulted claims he believed to be of
merit by filing a successive postconviction petition. Accordingly, we affirmed the judgment of
the circuit court summarily dismissing defendant's petition.
¶8 In a petition for rehearing, new appellate counsel on rehearing contends for the first time
that defendant's sentence for ACSA with a firearm is void. Counsel on rehearing acknowledges
that defendant's former postconviction appellate counsel failed to raise the voidness issue. In
turn, counsel on rehearing attributes the failure to raise the claim of voidness sooner on former
postconviction appellate counsel's unreasonable assistance. Counsel on rehearing further argues
that judicial economy is best served by addressing this issue now rather than in a successive post-
conviction petition. Notably, in its answer to the rehearing petition, the State requests that we
grant defendant's petition for rehearing and concedes that the now-challenged sentencing add-on
is void.
¶9 Points not raised in the appellant's brief shall not be raised in a petition for rehearing. Ill.
S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). However, a defendant may argue that a criminal statute is
unconstitutional and void at any time. See People v. Guevara, 216 Ill. 2d 533, 542 (2005)
(permitting the defendant to challenge for the first time on appeal the 15-year sentencing
-4- 1-12-3519
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2015 IL App (1st) 123519 No. 1-12-3519 Opinion filed January 28, 2015 Third Division
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
) Appeal from the Circuit Court THE PEOPLE OF THE STATE OF ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) ) No. 06 CR 8798 v. ) ) LATHERN LAMPKINS, ) The Honorable ) James M. Obbish, Defendant-Appellant. ) Judge, presiding. )
JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.
OPINION
¶1 Defendant Lathern Lampkins appeals from the judgment of the circuit court that
summarily dismissed his pro se petition for relief under the Post-Conviction Hearing Act (Act)
(725 ILCS 5/122-1 et seq. (West 2012)). For the reasons that follow, we find that a portion of
defendant's sentence is void, as asserted by defendant for the first time in a petition for rehearing,
and remand for resentencing.
¶2 The record shows that on March 19, 2006, 17-year-old defendant and codefendant Robert
Falls, who is not a party to this appeal, saw Kevin Porter exit his front door at 2544 East 81st
Street and walk toward a vehicle parked on the street. Defendant and codefendant approached 1-12-3519
Porter, pointed guns at his head, and demanded his wallet. Porter indicated that he did not have
his wallet, and, holding him at gunpoint, they searched Porter's vehicle and then took him back
into the house. After Porter opened the door to his residence, defendants stole several items
including bank cards and jewelry. While in the house, defendant pointed a gun at Porter's
girlfriend Katherine Benson and sexually assaulted her. At gunpoint, defendants then took Porter
to a bank and forced him to withdraw money from a cash station. Porter complied and gave
defendant the cash. While defendants took Porter to the cash station, Benson called the police.
Defendants dropped off Porter in an alley and were arrested shortly thereafter. Defendant and
codefendant were charged on April 20, 2006, with numerous counts in connection with this
incident, including aggravated criminal sexual assault (ACSA), home invasion, armed robbery,
vehicular hijacking, kidnaping, and unlawful restraint.
¶3 Following a 2008 bench trial, defendant was convicted of ACSA with a firearm, two
counts of home invasion, armed robbery, and vehicular hijacking. He was then sentenced to 27
years' imprisonment for ACSA, which included a 15-year add-on for being armed with a firearm,
to run consecutively to the four concurrent terms of 8 years' imprisonment imposed on his
remaining convictions. This court affirmed that judgment on direct appeal after allowing direct-
appeal counsel's motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967).
People v. Lampkins, No. 1-08-2535 (2010) (unpublished order under to Supreme Court Rule 23).
¶4 On June 13, 2012, defendant filed a pro se post-conviction petition, alleging, in pertinent
part, that direct-appeal counsel was ineffective for failing to raise any issues on his behalf. In
particular, defendant maintained that counsel did not raise any issue on appeal "before-during-
and or after reviewing the petitioner transcripts," was in "dis-attude" when counsel stated that
-2- 1-12-3519
there were no issues of arguable merit and filed a motion to withdraw, and was ineffective for
"not filing ineffective assistance on the trial counsel for not preserving issues by objecting so that
the defendant could [have] had meritorious issues to raise in his appeal." According to defendant,
direct-appeal counsel's performance fell below an objective standard of reasonableness and
prejudiced him.
¶5 As evidence of direct-appeal counsel's ineffectiveness, defendant attached to his petition
an October 15, 2009, letter written by his counsel advising him to dismiss his appeal because the
sentencing issues she could argue had a very low chance of success, and raising them would
bring to light a sentencing error that was in his favor. In particular, direct-appeal counsel stated
that because he was convicted of armed robbery with a firearm, he should have received "15
years on top of the 8 years [he] received." Therefore, counsel indicated that the court should have
imposed a 23-year sentence for his armed robbery with a firearm conviction, making his total
sentence for all crimes 50 years instead of 35 years. Counsel concluded the letter by advising
defendant to dismiss his appeal to avoid the risk of exposing the purported sentencing error,
which would result in him receiving a higher sentence. Defendant also attached direct-appeal
counsel's motion to withdraw as counsel pursuant to Anders.
¶6 On August 3, 2012, the circuit court dismissed defendant's petition as frivolous and
patently without merit. In doing so, the court found, in relevant part, that because defendant's
underlying claims of ineffective assistance of trial counsel were without merit, the ineffective
assistance of direct-appeal counsel claim based on counsel's failure to argue ineffective
assistance of trial counsel was likewise without merit. This appeal followed.
-3- 1-12-3519
¶7 In defendant's brief on appeal, postconviction appellate counsel raised the issue of
whether direct-appeal counsel was ineffective for failing to challenge the 15-year add-on penalty
to his sentence on ACSA for possessing a firearm at the time he committed the offense. In a Rule
23 order issued on June 25, 2014, we found that this issue could not be raised for the first time on
appeal because it was not included in defendant's postconviction petition, even under liberal
construction. People v. Lampkins, 2014 IL App (1st) 123519-U; Ill. S. Ct. R. 23 (eff. July 1,
2011). We noted that defendant was free to pursue any defaulted claims he believed to be of
merit by filing a successive postconviction petition. Accordingly, we affirmed the judgment of
the circuit court summarily dismissing defendant's petition.
¶8 In a petition for rehearing, new appellate counsel on rehearing contends for the first time
that defendant's sentence for ACSA with a firearm is void. Counsel on rehearing acknowledges
that defendant's former postconviction appellate counsel failed to raise the voidness issue. In
turn, counsel on rehearing attributes the failure to raise the claim of voidness sooner on former
postconviction appellate counsel's unreasonable assistance. Counsel on rehearing further argues
that judicial economy is best served by addressing this issue now rather than in a successive post-
conviction petition. Notably, in its answer to the rehearing petition, the State requests that we
grant defendant's petition for rehearing and concedes that the now-challenged sentencing add-on
is void.
¶9 Points not raised in the appellant's brief shall not be raised in a petition for rehearing. Ill.
S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). However, a defendant may argue that a criminal statute is
unconstitutional and void at any time. See People v. Guevara, 216 Ill. 2d 533, 542 (2005)
(permitting the defendant to challenge for the first time on appeal the 15-year sentencing
-4- 1-12-3519
enhancement for home invasion with a firearm as a violation of the proportionate penalties
clause when compared to the sentence for another offense); People v. Wright, 194 Ill. 2d 1, 23
(2000) (permitting the defendant to challenge the constitutionality of a records keeping provision
of the Vehicle Code for the first time on petition for rehearing). In light of the circumstances
here, we choose to grant defendant's petition for rehearing.
¶ 10 Defendant and the State correctly agree that the 15-year firearm enhancement imposed in
addition to his 12-year sentence on his conviction for ACSA violated the proportionate penalties
clause of the Illinois Constitution because it provided a harsher sentence for ACSA than for
armed violence predicated on criminal sexual assault.
¶ 11 The proportionate penalties clause of the Illinois Constitution declares that "[a]ll penalties
shall be determined *** according to the seriousness of the offense." Ill. Const. 1970, art. I, §
11. As relevant to this case, our supreme court held that a defendant may raise a proportionate
penalties challenge where offenses with identical elements are given different sentences. People
v. Sharpe, 216 Ill. 2d 481, 521 (2005).
¶ 12 In People v. Hauschild, 226 Ill. 2d 63, 86-87 (2007), our supreme court held that the
"defendant's sentence for armed robbery while armed with a firearm [citation] violates the
proportionate penalties clause because the penalty for that offense is more severe than the
penalty for the identical offense of armed violence predicated on robbery." After the supreme
court's decision in Hauschild, the legislature enacted Public Act 95-688 (eff. Oct. 23, 2007),
which amended the armed violence statute. Specifically, that public act amended the armed
violence statute so that armed robbery and other crimes, including ACSA, cannot serve as a
predicate offense for armed violence. Pub. Act 95-688, § 4 (eff. Oct. 23, 2007) (amending 720
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ILCS 5/33A-2 (West 2006)). As a result of this amendment, armed violence, armed robbery,
ACSA, and certain other offenses, no longer have identical elements for purposes of
proportionality review.
¶ 13 In People v. Blair, 2013 IL 114122, ¶¶ 30, 33-35, the supreme court held that Public Act
95-688 revived the 15-year sentence enhancement for armed robbery, but noted that Hauschild
continued to impose an impediment to the enforcement of the enhancement until the
proportionate penalties violation was cured, i.e., the date Public Act 95-688 took effect. See also
People v. Clemons, 2012 IL 107821, ¶ 19 ("Hauschild remains the law as to the meaning of the
armed violence statute prior to its amendment by Public Act 95-688."). The Blair court
concluded that the defendant, who committed armed robbery in April 2009, was properly subject
to the 15-year enhancement. Id. ¶¶ 4, 40.
¶ 14 In this case, defendant committed the crime in 2006 prior to the 2007 effective date of
Public Act 95-688, and thus the amendment has no impact upon the outcome of this case, and
Hauschild controls. The armed violence statute in effect at the time of defendant's indictment
excluded ACSA, but did not exclude criminal sexual assault. 720 ILCS 5/33A-2 (West 2006).
The aggravating factor in criminal sexual assault was the possession of a firearm (720 ILCS
5/12-14(a)(8) (West 2006) (now 720 ILCS 5/11-1.30(a)(8) (West 2012))), which was identical to
armed violence based on the commission of a criminal sexual assault. The sentence for ACSA
with a firearm, 21 to 45 years (730 ILCS 5/5-8-1(a)(3) (West 2006) (now 730 ILCS 5/5-4.5-25
(West 2012)); 720 ILCS 5/12-14(d)(1) (West 2006) (now 720 ILCS 5/11-1.30(d)(1) (West
2012))), was disproportionate to the penalty for armed violence predicated on criminal sexual
assault, 15 to 30 years (720 ILCS 5/33A-3(a) (West 2006)). Based on Hauschild, the 15-year
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enhancement for ACSA with a firearm has been found to be unconstitutional. See People v. Toy,
2013 IL App (1st) 120580, ¶¶ 28-29 (the 15-year add-on for ACSA with a firearm is
unconstitutional); People v. McBride, 2012 IL App (1st) 100375, ¶ 33, n. 4 (noting that since the
amended armed violence statute took effect after the defendant was indicted, it had no impact on
the outcome of the case); People v. Hampton, 406 Ill. App. 3d 925, 942 (2010) ("the 15-year
add-on for [ACSA] with a firearm is unconstitutional").
¶ 15 For all the foregoing reasons, we grant defendant's petition for rehearing on the voidness
issue, reverse the summary dismissal of defendant's postconviction petition, vacate defendant's
sentence for ACSA, and remand for resentencing. See Toy, 2013 IL App (1st) 120580, ¶ 30.
¶ 16 Reversed and remanded for resentencing.
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