{ "id": 222670, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL B. DOUGLAS, Defendant-Appellant", "name_abbreviation": "People v. Douglas", "decision_date": "1998-05-04", "docket_number": "No. 4\u2014 97\u20140582", "first_page": "192", "last_page": "205", "citations": [ { "type": "official", "cite": "296 Ill. App. 3d 192" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "650 N.E.2d 1026", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "1033" }, { "page": "1033" } ], "opinion_index": 0 }, { "cite": "165 Ill. 2d 235", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483556 ], "year": 1995, "pin_cites": [ { "page": "250" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0235-01" ] }, { "cite": "606 N.E.2d 1137", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1142", "parenthetical": "appellate counsel \" 'has no obligation to raise every conceivable argument which might be made, and counsel's assessment of what to raise and argue will not be questioned unless it can be said that his judgment in this regard was patently erroneous' \"" } ], "opinion_index": 0 }, { "cite": "153 Ill. 2d 130", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738666 ], "year": 1992, "pin_cites": [ { "page": "140", "parenthetical": "appellate counsel \" 'has no obligation to raise every conceivable argument which might be made, and counsel's assessment of what to raise and argue will not be questioned unless it can be said that his judgment in this regard was patently erroneous' \"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0130-01" ] }, { "cite": "640 N.E.2d 638", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "266 Ill. App. 3d 369", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 887260 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-app-3d/266/0369-01" ] }, { "cite": "660 N.E.2d 919", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "927" }, { "page": "927" } ], "opinion_index": 0 }, { "cite": "168 Ill. 2d 509", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307270 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "523" }, { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0509-01" ] }, { "cite": "533 N.E.2d 1089", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "1096" } ], "opinion_index": 0 }, { "cite": "126 Ill. 2d 248", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5557518 ], "year": 1989, "pin_cites": [ { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/126/0248-01" ] }, { "cite": "606 N.E.2d 1078", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1087" } ], "opinion_index": 0 }, { "cite": "153 Ill. 2d 264", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738560 ], "year": 1992, "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0264-01" ] }, { "cite": "664 N.E.2d 76", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1996, "pin_cites": [ { "page": "88" }, { "page": "85-86" }, { "page": "84" }, { "page": "87" } ], "opinion_index": 0 }, { "cite": "171 Ill. 2d 207", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57342 ], "year": 1996, "pin_cites": [ { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0207-01" ] }, { "cite": "642 N.E.2d 1224", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "1227-28" } ], "opinion_index": 0 }, { "cite": "162 Ill. 2d 235", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477533 ], "year": 1994, "pin_cites": [ { "page": "243-45" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0235-01" ] }, { "cite": "107 N.E.2d 721", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1952, "pin_cites": [ { "page": "724" } ], "opinion_index": 0 }, { "cite": "412 Ill. 528", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2663119 ], "weight": 2, "year": 1952, "pin_cites": [ { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/ill/412/0528-01" ] }, { "cite": "556 N.E.2d 896", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "898" } ], "opinion_index": 0 }, { "cite": "199 Ill. App. 3d 291", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2467200 ], "year": 1990, "pin_cites": [ { "page": "294" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/199/0291-01" ] }, { "cite": "413 N.E.2d 416", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "421", "parenthetical": "section's requirements cannot be waived except in accordance with statute's own exception, i.e., the parties have agreed to the imposition of a specific sentence" } ], "opinion_index": 0 }, { "cite": "82 Ill. 2d 556", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474979 ], "year": 1980, "pin_cites": [ { "page": "565", "parenthetical": "section's requirements cannot be waived except in accordance with statute's own exception, i.e., the parties have agreed to the imposition of a specific sentence" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0556-01" ] }, { "cite": "623 N.E.2d 255", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "261-62" } ], "opinion_index": 0 }, { "cite": "157 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 778584 ], "year": 1993, "pin_cites": [ { "page": "14-15" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/157/0001-01" ] }, { "cite": "651 N.E.2d 174", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "182" } ], "opinion_index": 0 }, { "cite": "165 Ill. 2d 445", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483570 ], "year": 1995, "pin_cites": [ { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0445-01" ] }, { "cite": "662 N.E.2d 1168", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "1184-85" } ], "opinion_index": 0 }, { "cite": "171 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57341 ], "year": 1995, "pin_cites": [ { "page": "41-42" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0001-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 9, "pin_cites": [ { "page": "694" }, { "page": "698" }, { "page": "2068" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "662 N.E.2d 1265", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "1276" } ], "opinion_index": 0 }, { "cite": "171 Ill. 2d 158", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57337 ], "year": 1996, "pin_cites": [ { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0158-01" ] }, { "cite": "613 N.E.2d 1234", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "1237-38" } ], "opinion_index": 0 }, { "cite": "242 Ill. App. 3d 941", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5120240 ], "year": 1993, "pin_cites": [ { "page": "946-47" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/242/0941-01" ] }, { "cite": "500 N.E.2d 445", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "page": "446" } ], "opinion_index": 0 }, { "cite": "148 Ill. App. 3d 911", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3642895 ], "year": 1986, "pin_cites": [ { "page": "913" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0911-01" ] }, { "cite": "662 N.E.2d 1287", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "1292" } ], "opinion_index": 0 }, { "cite": "171 Ill. 2d 124", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57338 ], "year": 1996, "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0124-01" ] }, { "cite": "1992 Ill. Laws 1747", "category": "laws:leg_session", "reporter": "Ill. Laws", "opinion_index": 0 }, { "cite": "687 N.E.2d 1188", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "1190" }, { "page": "1188" } ], "opinion_index": 0 }, { "cite": "293 Ill. App. 3d 329", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847560 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "332" }, { "page": "330-31" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/0329-01" ] } ], "analysis": { "cardinality": 1025, "char_count": 28143, "ocr_confidence": 0.757, "pagerank": { "raw": 7.022141416132458e-08, "percentile": 0.4238640940070251 }, "sha256": "fb82179e6cd48d40ce80cdc624164b94917d5aab5d86d8c62444d61925cfe737", "simhash": "1:b73c28b972f59496", "word_count": 4637 }, "last_updated": "2023-07-14T20:46:46.961592+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL B. DOUGLAS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn December 1994, defendant, Daniel B. Douglas, pleaded guilty to aggravated battery of a child (720 ILCS 5/12 \u2014 4.3(a) (West 1992)). The trial court later sentenced him to 25 years in prison as a Class X offender pursuant to section 5 \u2014 5\u20143(c)(8) of the Unified Code of Corrections (Code) (730 ILCS 5/5 \u2014 5\u20143(c)(8) (West 1992)). Defendant appealed, and this court affirmed. People v. Douglas, No. 4 \u2014 95\u2014 1003 (1997) (unpublished order under Supreme Court Rule 23).\nIn February 1997, defendant filed a pro se petition for postconviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 et seq. (West 1996)), alleging that he was denied effective assistance of counsel when his trial counsel failed to advise him prior to the guilty plea hearing that he was eligible to be sentenced as a Class X offender. In March 1997, defendant filed an amended pro se petition, in which he reasserted all of the allegations set forth in his original petition and further alleged that (1) section 5 \u2014 5\u20143(c)(8) of the Code subjected him to an impermissible double enhancement of his penalty; and (2) he was denied effective assistance of counsel when his counsel on appeal failed to challenge that section\u2019s constitutionality. The trial court subsequently dismissed defendant\u2019s petitions as frivolous and patently without merit, pursuant to section 122 \u2014 2.1 of the Act (725 ILCS 5/122 \u2014 2.1 (West 1996)). Defendant appeals, arguing that (1) because the court failed to rule upon his original petition within 90 days of its filing, the court lacked authority to dismiss the petition under section 122 \u2014 2.1 of the Act; and (2) the court erred by ruling his petition was frivolous and patently without merit. We affirm.\nI. THE TRIAL COURT\u2019S TIMELINESS IN RULING ON DEFENDANT\u2019S PETITION\nDefendant first argues that the trial court\u2019s failure to rule on his original petition (filed February 19, 1997) within 90 days of its filing rendered the court\u2019s dismissal void. In response, the State argues that the statutory time period commenced running upon the March 6, 1997, filing of defendant\u2019s amended petition. We agree with the State.\nSection 122 \u2014 2.1(a) of the Act requires a trial court to which a postconviction petition is directed, \u201c[w]ithin 90 days after the filing and docketing of each petition!, to] examine such petition and enter an order thereon pursuant to [that] [s]ection.\u201d 725 ILCS 5/122\u2014 2.1(a) (West 1996). The 90-day period set forth in section 122 \u2014 2.1(a) is \u201cmandatory and [a trial court\u2019s] order of dismissal after the end of that period must be set aside.\u201d People v. Dauer, 293 Ill. App. 3d 329, 332, 687 N.E.2d 1188, 1190 (1997).\nThe Act does not address the effect of a defendant\u2019s filing an amended or supplemental petition upon the 90-day period (725 ILCS 5/122 \u2014 2.1 (West 1996)). Nor does it address limits on the number of amended or supplemental petitions a defendant may file. In our judgment, when, as here, a defendant files an amended or supplemental petition, the date on which the defendant filed his original petition cannot begin the running of the 90-day period under section 122\u2014 2.1(a) of the Act. To give full effect to a defendant\u2019s ability to file an amended or supplemental petition and to give the trial court the full time the legislature deemed necessary for the court to consider such petitions under section 122 \u2014 2.1, we hold that a defendant\u2019s filing of any amended or supplemental petition starts the 90-day period anew, not only for the later-filed petition, but for any earlier petitions, as well.\nWe agree with the State that to hold otherwise would allow a defendant to file an amended or supplemental petition and effectively shorten the 90-day period in which the trial court must examine and rule upon that petition. For example, under defendant\u2019s proposed construction of section 122 \u2014 2.1(a), a defendant could file an amended petition on day 88 of the 90-day period, thus giving the trial court only two days to examine and rule upon the amended petition. Clearly, the legislature could not have intended such an absurd result. We note that the legislature has instead shown its intent to give trial courts more time to examine and rule upon postconviction petitions when it amended section 122 \u2014 2.1 of the Act (effective January 1, 1993) to increase the amount of time for such examination and ruling from 30 days to 90 days. See Pub. Act 87 \u2014 904, eflf. January 1, 1993 (1992 Ill. Laws 1747).\nContrary to defendant\u2019s contention, our decision in Dauer does not require us to reach a different result. In Dauer, this court held that the trial court violated section 122 \u2014 2.1(a) of the Act when it failed to examine the defendant\u2019s petition within the 90-day statutory period. Defendant correctly points out that the defendant in Dauer filed an amended petition. However, he did so only after the State filed a motion to dismiss his petition and in response to the court\u2019s granting him an extension of time to respond to the State\u2019s motion. Dauer, 293 Ill. App. 3d at 330-31, 687 N.E.2d at 1188. Further, the precise issue we now resolve \u2014 the effect of multiple petitions upon the 90-day period of section 122 \u2014 2.1 of the Act \u2014 was not even addressed in Dauer.\nIn the present case, the 90-day period began on March 6, 1997, the date defendant filed his amended petition. On May 27, 1997, the trial court summarily dismissed defendant\u2019s amended petition. (We note that the court, in an effort to be thorough, dismissed both defendant\u2019s original and amended petitions. Because defendant\u2019s amended petition incorporated his original petition, we refer to the court\u2019s ruling as a summary dismissal of defendant\u2019s amended petition.) No dispute exists that the court\u2019s order of dismissal was within 90 days of defendant\u2019s filing of his amended petition. Thus, we hold that the court did not violate section 122 \u2014 2.1(a) of the Act (725 ILCS 5/122 \u2014 2.1(a) (West 1996)).\nII. POST-CONVICTION HEARING ACT\nIn People v. Henderson, 171 Ill. 2d 124, 131, 662 N.E.2d 1287, 1292 (1996), the supreme court discussed the general rules regarding postconviction proceedings, as follows:\n\u201cThe [Act] provides a remedy for defendants who have suffered a substantial violation of'their constitutional rights at trial. [Citation.] A post-conviction proceeding is not an appeal of the underlying conviction; rather, it is a collateral attack on the trial court proceedings in which a defendant attempts to establish constitutional violations that have not been and could not have been previously adjudicated. [Citation.] The defendant bears the burden of establishing that a substantial violation of his constitutional rights occurred. [Citation.]\u201d\nFor a postconviction petition to withstand scrutiny and avoid dismissal under section 122 \u2014 2.1 of the Act, it need only contain a simple statement presenting a gist of a claim for relief which is meritorious when considered in view of the record of trial court proceedings. People v. Dredge, 148 Ill. App. 3d 911, 913, 500 N.E.2d 445, 446 (1986). In People v. Lemons, 242 Ill. App. 3d 941, 946-47, 613 N.E.2d 1234, 1237-38 (1993), this court discussed analysis under section 122 \u2014 2.1, as follows:\n\u201cA \u2018gist of a meritorious claim\u2019 is not a bare allegation of a deprivation of a constitutional right. Although a pro se defendant seeking post-conviction relief would not be expected to construct legal arguments, cite legal authority, or draft her petition as artfully as would counsel, the pro se defendant must still plead sufficient facts from which the trial court could find a valid claim of deprivation of a constitutional right. ***\n*** [T]he trial court should consider the petition at the first stage [of the court\u2019s analysis] to determine whether it contains sufficient facts upon which a meritorious constitutional claim could be based.\u201d (Emphasis in original.)\nIt is within this context that we address defendant\u2019s claims.\nIII. DEFENDANT\u2019S CLAIMS OF CONSTITUTIONAL DEPRIVATION\nA. Defendant\u2019s Allegedly Unknowing Guilty Plea Defendant argues that he sufficiently set forth the gist of a claim in his postconviction petition that he was denied effective assistance of counsel when his trial counsel failed to (1) familiarize himself with defendant\u2019s criminal history; and (2) advise defendant prior to the guilty plea hearing that he was eligible to be sentenced as a Class X offender under section 5 \u2014 5\u20143(c)(8) of the Code (730 ILCS 5/5 \u2014 5\u2014 3(c)(8) (West 1992)) (based upon two prior felony convictions in 1980 and 1984). We disagree.\nIn People v. Munson, 171 Ill. 2d 158, 184, 662 N.E.2d 1265, 1276 (1996), the supreme court wrote the following:\n\u201cIneffective-assistance claims are assessed using the two-pronged test articulated in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. [Citation.] First, the defendant must show that counsel\u2019s performance was so deficient that counsel was not functioning as the counsel guaranteed by the sixth amendment. Secondly, the defendant must show that the deficient performance prejudiced the defense. Unless both prongs of the test are satisfied, it cannot be said that the conviction *** resulted from a breakdown in the adversary process.\u201d\nIn People v. Bounds, 171 Ill. 2d 1, 41-42, 662 N.E.2d 1168, 1184-85 (1995), the supreme court also addressed this subject, as follows:\n\u201cTo establish prejudice, a defendant \u2018must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u2019 (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.)\u201d\nFurther, in People v. Mahaffey, 165 Ill. 2d 445, 458, 651 N.E.2d 174, 182 (1995), the supreme court wrote that \u201cif the ineffective-assistance claim can be disposed of on the ground that the defendant did not suffer prejudice, a court need not decide whether counsel\u2019s performance was constitutionally deficient.\u201d\nTo establish that defendant was denied effective assistance of counsel in entering a guilty plea, defendant must demonstrate both (1) that his counsel\u2019s performance was deficient; and (2) prejudice to defendant (defined as a reasonable probability that, but for counsel\u2019s errors, defendant would not have pleaded guilty and would have insisted on going to trial). Prejudice is assessed in light of the likelihood of success at trial, and if prejudice has not been demonstrated, we need not consider whether counsel\u2019s performance was deficient. People v. Pugh, 157 Ill. 2d 1, 14-15, 623 N.E.2d 255, 261-62 (1993).\nIn the present case, defendant\u2019s amended petition failed to allege the particulars underlying the allegation that his trial counsel incorrectly advised him regarding the range of penalties to which he could have been sentenced, such as when, where, or how defense counsel .communicated such misinformation. Defendant merely alleges that \u201c[d]uring discussions between [defendant] and [d]efense counsel prior to plea hearing, [d]efense counsel advised [defendant] on a likely sentence of 10 years for a guilty plea [to a Class 1 felony].\u201d In addition, we agree with the trial court that defendant failed to allege how he was prejudiced by his trial counsel\u2019s failure to advise him of his eligibility to be sentenced as a Class X offender where (1) defendant (apparently mirroring his trial counsel\u2019s understanding) asserts in his petition that he believed if he pleaded guilty to a Class 1 felony, he could receive an extended term of 5 to 30 years in prison (the penalty range for a Class X offender is 6 to 30 years (730 ILCS 5/5 \u2014 8\u20141(a)(3) (West 1994)); and (2) defendant\u2019s 25-year prison sentence fell within either sentencing range. Moreover, defendant concedes in his amended petition that he \u201cwas to be subjected to a similar sentence [as compared to a sentence under sections 5 \u2014 5\u2014 3(c)(8) and 5 \u2014 8\u20141(a)(3) of the Code] under the statute of the offense [of aggravated battery of a child,] 720 ILCS 5/12[ \u2014 ]4.3 [(West 1996)], 5 to 30 [years].\u201d\nNonetheless, defendant contends that even if he asserted in his petition his belief that he could receive up to 30 years for a Class 1 felony conviction pursuant to section 5 \u2014 8\u20142 of the Code (730 ILCS 5/5 \u2014 8\u20142 (West 1994)), such a belief would not matter because the record \u201ccontains no firm proof\u2019 that he was eligible to be sentenced to an extended term. Specifically, he contends that \u201cthe record simply does not affirmatively demonstrate that this 1994 offense occurred \u2018within 10 years after\u2019 \u201d defendant\u2019s 1984 felony conviction under section 5 \u2014 5\u20143.2(b)(1) of the Code (730 ILCS 5/5 \u2014 5\u2014 3.2(b)(1) (West 1994)). Defendant thus claims that the trial court, in examining his amended petition, was not entitled to rely upon his trial counsel\u2019s \u201capparently mistaken belief\u2019 that he was eligible to be sentenced to an extended-term sentence. We disagree.\nThis court does not know that the record contains \u201cno firm proof\u2019 in the absence of defendant\u2019s presenting that record to us. Because the parties had not agreed to the imposition of a specific sentence when defendant pleaded guilty in December 1994, we will presume that the trial court complied with the requirement of section 5 \u2014 3\u20141 of the Code that a presentence investigation be conducted and a presentence report prepared. 730 ILCS 5/5 \u2014 3\u20141 (West 1994); People v. Youngbey, 82 Ill. 2d 556, 565, 413 N.E.2d 416, 421 (1980) (section\u2019s requirements cannot be waived except in accordance with statute\u2019s own exception, i.e., the parties have agreed to the imposition of a specific sentence). Further, any presentence report prepared by the probation office would have contained information regarding defendant\u2019s prior convictions, and the court could have appropriately relied upon that information. See People v. Powell, 199 Ill. App. 3d 291, 294, 556 N.E.2d 896, 898 (1990).\nIn addition, our review of the record makes clear that the trial court thoroughly and completely admonished defendant as to the consequences of his guilty plea. At the guilty plea proceedings, the following colloquy took place:\n\u201cTHE COURT: That is a Class 1 felony [(referring to the offense to which defendant was pleading guilty)]. What is the range of possible penalties for which the defendant is qualified by reason of the offense and his prior record; your understanding, [prosecutor]?\n[Prosecutor]: Your Honor, I believe he should be admonished upon sentencing as a Class X felon. I would suggest to the [c]ourt that pursuant to [section 5 \u2014 5\u20143(c)(8) of the Code], because of a prior 1980 conviction for burglary, and a 1984 conviction for aggravated battery of a child, he shall be sentenced as a Class X offender.\nTHE COURT: Is that your understanding, [defense counsel]?\n[Defense counsel]: May I have just a moment, your Honor? We\u2019re ready to proceed, your Honor.\nTHE COURT: Okay, [defense counsel]. The recitation by the prosecutor as to the prior record of your client, and the implications that that record holds for the required sentencing here, is that consistent with your understanding?\n[Defense counsel]: I believe that yes, that the qualifying factors that she mentioned would be present. However, this was a Class 1, [with a sentencing range of] five to thirty [years], anyway. But, yes, it was a Class 1 offense, a Class X sentence.\nTHE COURT: All right. As I understand the situation here, [defendant], with your prior record and the representations made by the lawyers, if you plead guilty to or are convicted of the offense, the [c]ourt would be required to sentence you under the Class X sentencing provisions of the statute. That means if you plead guilty to or are convicted of this, the [c]ourt is required to sentence you to a term of imprisonment. The range of possible prison sentences would be for a definite period of time; not less than six years, not more than thirty years. Any term in prison, or the term in prison, would be followed by a period of mandatory supervised release of at least three years. The law also permits the possibility of a fine of any amount of money up to a maximum of $10,000.00. Now do you understand the range of possible penalties that the law provides for this charge against you, given your prior record?\n[Defendant]: Yes.\u201d\nThe State then indicated that defendant\u2019s guilty plea was \u201copen\u201d as to the sentence to be imposed, and the court admonished defendant that it could sentence him to any prison term within the range set forth under the Class X sentencing provisions \u2014 that is, between 6 and 30 years. Defendant then tendered his guilty plea.\nDefendant\u2019s responses to the trial court\u2019s questions do not reveal any misunderstanding or hesitancy in his decision to plead guilty. The record does not show that any alleged misunderstanding by defendant or his trial counsel regarding defendant\u2019s eligibility to be sentenced as a Class X offender in any way affected whether defendant knowingly or voluntarily pleaded guilty. Thus, defendant has not demonstrated prejudice to him in his decision to plead guilty. Accordingly, we conclude that defendant\u2019s amended petition fails to satisfy the prejudice prong of the Strickland test.\nIn so concluding, we note that the case upon which defendant relies, People v. Morreale, 412 Ill. 528, 107 N.E.2d 721 (1952), is inapposite. In Morreale, the supreme court concluded that the trial court\u2019s admonitions in that case were not sufficient to negate the effect of counsel\u2019s erroneous advice regarding the defendant\u2019s sentence. However, several factors were present in Morreale that are not present in this case. For example, defendant here was not represented by his trial counsel\u2019s \u201cyouthful associate.\u201d Trial counsel and his associate did not engage in hurried consultations during a court recess by passing back and forth between two courtrooms. The prosecutor here was not advising or pressuring defendant to plead guilty in return for a more lenient sentence. Defendant here was not \u201cinduced to change his plea while confused and in a state of misapprehension.\u201d Morreale, 412 Ill. at 533, 107 N.E.2d at 724. Moreover, the trial court\u2019s admonitions to defendant under Supreme Court Rule 402 (134 111. 2d R. 402) were more comprehensive than those required in 1952 when Morreale pleaded guilty, and the admonitions given here adequately ensured that defendant entered a knowing and voluntary guilty plea. Compare Ill. Rev. Stat. 1951, ch. 38, par. 732, with 134 Ill. 2d R. 402; see People v. Ramirez, 162 Ill. 2d 235, 243-45, 642 N.E.2d 1224, 1227-28 (1994).\nB. Defendant\u2019s Claim That Section 5 \u2014 5\u20143(c)(8) Was Unconstitutional Because It Subjected Defendant to a Double Enhancement of Penalty\nDefendant also argues that he sufficiently set forth the gist of a claim in his postconviction petition that section 5 \u2014 5\u20143(c)(8) of the Code was unconstitutional because it subjected him to an impermissible double enhancement of his penalty. We disagree.\nIn People v. Thomas, 171 Ill. 2d 207, 229, 664 N.E.2d 76, 88 (1996), the supreme court held that a sentencing court\u2019s use of prior convictions to impose a Class X sentence under section 5 \u2014 5\u20143(c)(8) of the Code does not preclude the court from considering those same prior convictions as an aggravating factor. The court reasoned as follows:\n\u201cIn the exercise of its duties, the legislature has the power to codify provisions which enhance a criminal offense (e.g., misdemeanor to a felony) or enhance the applicable range of punishment (e.g., extended term sentence or Class X sentencing). ***\n*** Section 5 \u2014 5\u20143(c)(8) does not elevate the class of a crime, but merely sets forth criteria under which a defendant shall be sentenced according to the guidelines for a Class X felony. [Citation.] Under this statute, the legislature manifested its intent to subject certain defendants convicted of Class 1 and Class 2 felonies to an enhanced sentencing range of from 6 to 30 years. Therefore, defendant\u2019s offense was not enhanced from a Class 1 to a Class X felony; he was simply subject to a single punishment enhancement to the Class X range.\n*** [T]his \u2018second use\u2019 of defendant\u2019s prior convictions [(when the trial court considered the same two prior convictions which established the defendant\u2019s eligibility for Class X sentencing as aggravating factors)] does not constitute an enhancement, because the discretionary act of a sentencing court in fashioning a particular sentence tailored to the needs of society and the defendant, within the available parameters, is a requisite part of every individualized sentencing determination. [Citation.] The judicial exercise of this discretion, in fashioning an appropriate sentence within the framework provided by the legislature, is not properly understood as an \u2018enhancement.\u2019 \u201d (Emphasis in original.) Thomas, 171 Ill. 2d at 223-25, 664 N.E.2d at 85-86.\nThus, contrary to defendant\u2019s claim, his sentence under section 5 \u2014 5\u20143(c)(8) of the Code did not constitute an impermissible double enhancement. Accordingly, we agree with the trial court that defendant\u2019s claim regarding section 5 \u2014 5\u20143(c)(8) of the Code does not allege any deprivation of his constitutional rights.\nWe also disagree with defendant\u2019s contention that his postconviction petition alleges the gist of a claim that his counsel on direct appeal provided ineffective assistance of counsel by failing to raise the issue of his trial counsel\u2019s failure to object to the constitutionality of section 5 \u2014 5\u20143(c)(8) of the Code. Because we have already concluded that defendant\u2019s double enhancement claim is groundless, appellate counsel could not have been ineffective for failing to raise the issue on appeal.\nC. Defendant\u2019s Claim That Appellate Counsel Was Ineffective For Failing To Raise on Direct Appeal Section 5 \u2014 5\u20143(c)(8)\u2019s Violation of the Separation of Powers Provision Last, defendant argues that he sufficiently set forth the gist of a claim in his postconviction petition that his counsel on direct appeal provided ineffective assistance of counsel by failing to raise on direct appeal the issue that section 5 \u2014 5\u20143(c)(8) of the Code violates the separation of powers provision of the Illinois Constitution (Ill. Const. 1970, art. II, \u00a7 1). In his amended petition, defendant alleged that \u201cthe [sentencing [c]ourt was encroahed [sic] by the legislature because of the mandantory [sic] application of [section 5 \u2014 5\u20143(c)(8) of the Code].\u201d We disagree.\nClaims of ineffective assistance of appellate counsel are evaluated under the standard set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). A defendant who contends that appellate counsel rendered ineffective assistance by failing to argue a particular issue must show that (1) \u201c \u2018the failure to raise that issue was objectively unreasonable\u2019 \u201d (performance component) and that, \u201c \u2018but for this failure, his sentence or conviction would have been reversed\u2019 \u201d (prejudice component). People v. Flores, 153 Ill. 2d 264, 283, 606 N.E.2d 1078, 1087 (1992), quoting People v. Caballero, 126 Ill. 2d 248, 270, 533 N.E.2d 1089, 1096 (1989). Further, unless the underlying issues are meritorious, the defendant obviously suffered no prejudice due to appellate counsel\u2019s failure to raise them on direct appeal. People v. Coleman, 168 Ill. 2d 509, 523, 660 N.E.2d 919, 927 (1995).\nInitially, we note that Elizabeth D. Caddick of the office of the State Appellate Defender, who was appointed to represent defendant on direct appeal, raised two issues and argued each issue thoroughly before this court. See People v. Martin, 266 Ill. App. 3d 369, 640 N.E.2d 638 (1994); see also Coleman, 168 Ill. 2d at 523, 660 N.E.2d at 927, quoting People v. Collins, 153 Ill. 2d 130, 140, 606 N.E.2d 1137, 1142 (1992) (appellate counsel \u201c \u2018has no obligation to raise every conceivable argument which might be made, and counsel\u2019s assessment of what to raise and argue will not be questioned unless it can be said that his judgment in this regard was patently erroneous\u2019 \u201d). Under the circumstances of this case, we cannot say that appellate counsel\u2019s judgment in not raising this issue was \u201cpatently erroneous.\u201d\nMoreover, we conclude that had Caddick raised on direct appeal the issue that section 5 \u2014 5\u20143(c)(8) of the Code violates the separation of powers provision of the Illinois Constitution (111. Const. 1970, art. II, \u00a7 1), it would not have mattered to this court because the issue is not meritorious.\nIn Thomas (171 Ill. 2d at 222, 664 N.E.2d at 84), the supreme court held that section 5 \u2014 5\u20143(c)(8) of the Code is mandatory in that it requires that all offenders meeting the statutory requirements be treated as Class X offenders for sentencing purposes. Although the Thomas court did not specifically address whether section 5 \u2014 5\u2014 3(c)(8) of the Code violates the separation of powers provision, the court\u2019s discussion is instructive:\n\u201c[A]lthough the legislature considered the prior convictions of certain defendants in establishing their eligibility for Class X sentencing, the legislature did not intend to impede a sentencing court\u2019s discretion in fashioning an appropriate sentence, within the Class X range [(emphasis added)], by precluding consideration of their criminal history as an aggravating factor. Rather, while the fact of a defendant\u2019s prior convictions determines his eligibility for a Class X sentence, it is the nature and circumstances of these prior convictions which, along with other factors in aggravation and mitigation, determine the exact length of that sentence.\u201d (Emphasis in original unless otherwise noted.) Thomas, 171 Ill. 2d at 227-28, 664 N.E.2d at 87.\nFurther, in People v. Dunigan, 165 Ill. 2d 235, 250, 650 N.E.2d 1026, 1033 (1995), the supreme court rejected a defendant\u2019s claim that the Habitual Criminal Act (Ill. Rev. Stat. 1989, ch. 38, par. 33B \u2014 1 et seq. (now 720 ILCS 5/33B \u2014 1 et seq. (West 1996))) violated the separation of powers provision of the Illinois Constitution (Ill. Const. 1970, art. II, \u00a7 1). Section 33B \u2014 1(a) of the Habitual Criminal Act provides that \u201cEvery person [whose felony convictions meet the eligibility requirements of the statute] shall be adjudged an habitual criminal.\u201d Ill. Rev. Stat. 1989, ch. 38, par. 33B \u2014 1(a) (now 720 ILCS 5/33B \u2014 1(a) (West 1996)). Section 33B \u2014 1(e) provides that \u201cExcept when the death penalty is imposed, anyone adjudged an habitual criminal shall be sentenced to life imprisonment.\u201d (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 33B \u2014 -1(e) (now 720 ILCS 5/33B \u2014 l(e) (West 1996)). In so holding, the supreme court reasoned, in part, that \u201c[t]he power to petition the court to impose a particular sanction is not the power to sentence. Under the [Habitual Criminal] Act, the power to impose sentence remains with the trial judge.\u201d (Emphasis added.) Dunigan, 165 Ill. 2d at 250, 650 N.E.2d at 1033.\nConsistent with our supreme court\u2019s decisions in Thomas and Dunigan, we conclude that defendant\u2019s claim that section 5 \u2014 5\u2014 3(c)(8) of the Code violates the separation of powers provision of the Illinois Constitution (Ill. Const. 1970, art. II, \u00a7 1) is patently without merit. Thus, we agree with the trial court that defendant\u2019s claim does not allege any deprivation of his constitutional rights.\nUnder the circumstances of this case, we hold that the trial court did not err by summarily dismissing defendant\u2019s amended petition as frivolous and patently without merit.\nIV. CONCLUSION\nIn closing, we commend the trial court for its thoughtful trial court memorandum, which we found helpful.\nFor the reasons stated, we affirm the trial court\u2019s judgment.\nAffirmed.\nGREEN and McCULLOUGH, JJ., concur.", "type": "majority", "author": "JUSTICE STEIGMANN" } ], "attorneys": [ "Charles M. Schiedel and John J. Hanlon, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "John C. Piland, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Perry L. Miller, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL B. DOUGLAS, Defendant-Appellant.\nFourth District\nNo. 4\u2014 97\u20140582\nOpinion filed May 4, 1998.\nCharles M. Schiedel and John J. Hanlon, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJohn C. Piland, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Perry L. Miller, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0192-01", "first_page_order": 210, "last_page_order": 223 }