{ "id": 1209118, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY T. ROBERTS, Defendant-Appellant", "name_abbreviation": "People v. Roberts", "decision_date": "2002-06-11", "docket_number": "No. 2\u201400\u20141336", "first_page": "15", "last_page": "21", "citations": [ { "type": "official", "cite": "331 Ill. App. 3d 15" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "136 Ill. 2d 157", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3254662 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "166-67" }, { "page": "168" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/136/0157-01" ] }, { "cite": "325 Ill. App. 3d 354", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570403 ], "year": 2001, "pin_cites": [ { "page": "361", "parenthetical": "seriousness of the offense is the most important factor in sentencing" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0354-01" ] }, { "cite": "184 Ill. 2d 462", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926975 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "476" }, { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/184/0462-01" ] }, { "cite": "177 Ill. 2d 495", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317115 ], "year": 1997, "pin_cites": [ { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0495-01" ] }, { "cite": "167 Ill. 2d 140", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 222776 ], "year": 1995, "pin_cites": [ { "page": "145" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/167/0140-01" ] }, { "cite": "184 Ill. 2d 159", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926966 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "171" }, { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/184/0159-01" ] }, { "cite": "297 Ill. App. 3d 818", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910244 ], "year": 1998, "pin_cites": [ { "page": "821" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0818-01" ] }, { "cite": "328 Ill. App. 3d 418", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 333128 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "33" }, { "page": "33-34" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0027-01" ] }, { "cite": "274 Ill. App. 3d 793", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291698 ], "year": 1995, "pin_cites": [ { "page": "797-98" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/0793-01" ] }, { "cite": "125 Ill. 2d 24", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5554744 ], "year": 1988, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/125/0024-01" ] } ], "analysis": { "cardinality": 666, "char_count": 14829, "ocr_confidence": 0.792, "pagerank": { "raw": 5.298132930532853e-08, "percentile": 0.332284816605138 }, "sha256": "82ad35ca82b8225ed03f9e8ae9238d7072c2bdf14dfb39dec047d38f7389b4b6", "simhash": "1:ac5be631e4041ee0", "word_count": 2477 }, "last_updated": "2023-07-14T14:37:46.779771+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. TERRY T. ROBERTS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BOWMAN\ndelivered the opinion of the court:\nAfter a jury trial, defendant, Terry T. Roberts, was found guilty of burglary (720 ILCS 5/19 \u2014 1(a) (West 1996)) and sentenced as a Class X offender to 20 years\u2019 imprisonment. He was tried and sentenced in absentia. Defendant sought a new sentencing hearing pursuant to section 115 \u2014 4.1(e) of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure) (725 ILCS 5/115 \u2014 4.1(e) (West 2000)), and the trial court denied the motion. On appeal, defendant argues that the statute the trial court relied upon to sentence him as a Class X offender, section 5 \u2014 5\u20143(c)(8) of the Unified Code of Corrections (Code) (730 ILCS 5/5 \u2014 5\u20143(c)(8) (West 1996)), violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7 11). We affirm.\nAlthough defendant was not present during the sentencing proceedings, he was represented. The State relied on the presentence report and certified copies of some of defendant\u2019s prior convictions to establish his eligibility for a Class X sentence. These documents revealed convictions, among others, of a burglary committed in 1980 (Ill. Rev. Stat. 1979, ch. 38, par. 19\u20141(a) (now 720 ILCS 5/19 \u2014 1(a) (West 2000))), a residential burglary committed in 1982 (Ill. Rev. Stat. 1981, ch. 38, par. 19\u20143(a) (now 720 ILCS 5/19 \u2014 3(a) (West 2000))), and a residential burglary committed in 1984 (Ill. Rev. Stat. 1983, ch. 38, par. 19 \u2014 3(a) (now 720 ILCS 5/19 \u2014 3(a) (West 2000))).\nOn February 13, 1998, the trial court found that defendant was eligible to receive a Class X sentence and accordingly sentenced him to 20 years\u2019 imprisonment. Defense counsel appealed on defendant\u2019s behalf. This court granted the Appellate Defender\u2019s motion to withdraw as defendant\u2019s counsel on appeal and affirmed defendant\u2019s conviction and sentence. People v. Roberts, No. 2\u201498\u20140317 (1999) (unpublished order under Supreme Court Rule 23).\nOn August 6, 1999, defendant filed a pro se motion for a new sentencing hearing pursuant to section 115 \u2014 4.1(e) of the Code of Criminal Procedure. Defendant offered several explanations for his absence from the sentencing proceedings including that he was (1) incarcerated in Indiana, (2) incapacitated due to severe drug and alcohol addiction, and (3) terminally ill and under excessive psychological stress.\nThe trial court conducted a hearing during which defendant and his mother testified about why defendant was absent from the sentencing proceedings and defendant\u2019s efforts during that time to contact his trial counsel. Finding that defendant failed to establish that his absence was not his fault and due to circumstances beyond his control, the trial court denied the request for a new sentencing hearing. Defendant timely appealed.\nIn this appeal, defendant raises for the first time his claim that section 5 \u2014 5\u20143(c)(8) of the Code is unconstitutional. He does not challenge the trial court\u2019s rejection of his excuses for not appearing during the sentencing proceedings. Although the State does not argue that defendant\u2019s claim is procedurally defaulted, we will address the principles governing review after the denial of a motion under section 115 \u2014 4.1(e) of the Code of Criminal Procedure.\nSection 115 \u2014 4.1 provides for the trial of a person who is absent at the time of the trial. Section 115 \u2014 4.1(e) allows a defendant convicted or sentenced in absentia to obtain a new trial or sentencing hearing if he \u201ccan establish that his failure to appear in court was both without his fault and due to circumstances beyond his control.\u201d 725 ILCS 5/115 \u2014 4.1(e) (West 2000). Section 115 \u2014 4.1(g) provides that a defendant whose section 115 \u2014 4.1(e) motion is denied may appeal. The notice of appeal \u201cmay also include a request for review of the judgment and sentence not vacated by the trial court.\u201d 725 ILCS 5/115 \u2014 4.1(g) (West 2000).\nOur supreme court has characterized section 115 \u2014 4.1(e) as a collateral remedy that under the appropriate circumstances may be used to secure a review of the conviction. Thus, it is analogous to a petition under section 2 \u2014 1401 of the Code of Civil Procedure (735 ILCS 5/2\u2014 1401 (West 2000)) or under the Post-Conviction Hearing Act (725 ILCS 5/122 \u2014 1 et seq. (West 2000)) and will support an appeal separate from a direct appeal of the underlying judgment. People v. Partee, 125 Ill. 2d 24, 35 (1988); see also People v. Williams, 274 Ill. App. 3d 793, 797-98 (1995).\nThis court has held that the defendant must request in his notice of appeal a review of the underlying judgment. Otherwise, \u201cthe notice of appeal would necessarily pertain only to issues relating to the order denying his section 115 \u2014 4.1(e) motion ***, i.e., whether his absence from court was without his fault and due to circumstances beyond his control.\u201d People v. Pontillo, 267 Ill. App. 3d 27, 33 (1994).\nIn Pontillo, the defendant argued on appeal that he was denied a fair trial because, during the closing arguments, the prosecutor misstated the law. The defendant failed to include in his notice of appeal a request for review of the underlying conviction and sentence, however. Relying on the general rule that an appellate court has jurisdiction over only those matters raised in the notice of appeal, this court held that it was vested with jurisdiction over only the issues arising from the denial of the defendant\u2019s section 115 \u2014 4.1(e) motion. Pontillo, 267 Ill. App. 3d at 33-34.\nDefendant\u2019s notice of appeal did not include a request for review of the conviction or sentence. Pontillo does not mandate a dismissal here, however. Unlike the defendant in Pontillo, who raised only a claim of trial error, defendant here is challenging the constitutionality of the statute used to sentence him as a Class X offender. Generally, a challenge to the constitutionality of a criminal statute may be raised at any time, including for the first time on appeal. People v. Wright, 194 Ill. 2d 1, 23 (2000); People v. Wooters, 188 Ill. 2d 500, 510 (1999).\nWe recognize that defendant\u2019s claim could have been raised during the direct appeal. As noted above, however, an appeal from the denial of a section 115 \u2014 4.1(e) motion is akin to a petition under section 2 \u2014 1401 of the Code of Civil Procedure. Section 2 \u2014 1401 grants criminal defendants a means to challenge void judgments. People v. Harvey, 196 Ill. 2d 444, 448 (2001). Defendant\u2019s claim is that, because section 5 \u2014 5\u20143(c)(8) of the Code is unconstitutional, the trial court lacked the authority to sentence him as a Class X offender. If a trial court imposes a sentence greater than that permitted by statute, the excess portion of the sentence is void and may be attacked at any time, either directly or collaterally. Harvey, 196 Ill. 2d at 447-48; People v. Tooley, 328 Ill. App. 3d 418, 421-22 (2002); People v. Rankin, 297 Ill. App. 3d 818, 821 (1998). If, as defendant argues, section 5 \u2014 5\u20143(c)(8) of the Code is unconstitutional, it would be fundamentally unfair to uphold his sentence. Wright, 194 Ill. 2d at 24. For these reasons, we decline to apply either Pontillo or waiver principles here and will address defendant\u2019s contention on appeal.\nThe proportionate penalties clause states in relevant part that \u201c[a]ll penalties shall be determined *** according to the seriousness of the offense.\u201d Ill. Const. 1970, art. I, \u00a7 11. At the time of the offense, section 5 \u2014 5\u20143(c)(8) of the Code provided in pertinent part:\n\u201cWhen a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender.\u201d 730 ILCS 5/5 \u2014 5\u20143(c)(8) (West 1996).\nDefendant\u2019s complaint is that in cases where section 5 \u2014 5\u20143(c)(8) is triggered, someone who is convicted of a Class 2 felony will receive the same Class X sentence as someone who is convicted of a Class 1 felony. According to defendant, because Class 1 felonies are categorically more serious than Class 2 felonies, section 5 \u2014 5\u20143(c)(8) results in disproportionate penalties.\nStatutes are presumed constitutional, and the party challenging a statute has the burden of clearly establishing a constitutional violation. Wright, 194 Ill. 2d at 24. The legislature is more aware of the evils confronting society and therefore is more capable of measuring the seriousness of offenses. People v. Koppa, 184 Ill. 2d 159, 171 (1998). As a result, the courts are reluctant to invalidate penalties that the legislature has established. People v. Lee, 167 Ill. 2d 140, 145 (1995).\nThe courts have identified three ways in which the proportionate penalties clause may be violated: (1) where the punishment for an offense is cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community; (2) where similar offenses are compared and conduct that creates a less serious threat to the public health and safety is punished more harshly; and (3) where identical offenses result in different sentences. Koppa, 184 Ill. 2d at 164.\nDefendant\u2019s challenge is based on the second type of violation. This is a cross-comparison analysis that involves a two-step inquiry: (1) whether the purposes of the compared offenses are similar such that a comparative analysis is appropriate; and (2) if the purposes are related, whether the offense with the harsher penalty is more serious than the offense with the less severe penalty. People v. Davis, 177 Ill. 2d 495, 506 (1997).\nDefendant has failed to demonstrate that either condition has been satisfied here. First, defendant\u2019s proportionate penalties challenge is anomalous because, instead of comparing specific offenses, defendant is comparing entire classes of offenses. It is inappropriate, however, to compare offenses and their penalties unless the offenses have common statutory purposes. When offenses have different purposes, the courts presume that the legislature considered different factors in establishing the penalties and accordingly defer to the legislature\u2019s judgment. People v. Lombardi, 184 Ill. 2d 462, 476 (1998).\nAlthough Class 1 felonies are generally considered more serious than Class 2 felonies, we are unaware of any decision that has broadened the cross-comparison analysis to include the comparison of entire classes of offenses that do not necessarily have related purposes. We decline to do so. Accordingly, we conclude that defendant has failed to demonstrate that a comparative analysis is appropriate here.\nSecond, even if we assume arguendo that a comparative analysis is appropriate, the decisions clearly state that for a violation to exist the offense at issue must be punished more severely than a similar but more serious offense. Our supreme court has stated that \u201cthe proportionate penalties clause is not violated if the penalty for a more serious offense is equal to or greater than that established for a less serious offense.\u201d (Emphasis in original.) Lombardi, 184 Ill. 2d at 482. Here, a conviction of a Class 2 felony that triggers section 5 \u2014 5\u2014 3(c)(8) is not punished more severely than a conviction of a Class 1 felony that triggers section 5 \u2014 5\u20143(c)(8). The penalties are equal.\nThe reason for the rule becomes apparent when applied in the context of section 5 \u2014 5\u20143(c)(8). The sentencing range for a Class X felony is wide. See 730 ILCS 5/5 \u2014 8\u20141(a)(3) (West 2000) (6 to 30 years). When sentencing a defendant, a trial court naturally will consider the nature of the offense and the defendant\u2019s criminal history. See, e.g., People v. Blackwell, 325 Ill. App. 3d 354, 361 (2001) (seriousness of the offense is the most important factor in sentencing). Thus, where other sentencing factors are equal, a defendant convicted of a Class 2 felony that triggers section 5 \u2014 5\u20143(c)(8) is more likely to receive a lower sentence than if he were being sentenced on a Class 1 felony that triggers section 5 \u2014 5\u20143(c)(8). Because the trial court has the discretion in this situation to fashion a sentence based on the seriousness of the offense and the defendant\u2019s criminal history, defendant\u2019s proportionate penalties claim is unconvincing.\nDefendant claims that in People v. Morris, 136 Ill. 2d 157 (1990), the court rejected the rule that no violation exists where the punishment for less serious offenses is the same as that for more serious offenses. Although the defendant in Morris mentioned that altering a temporary registration permit for one\u2019s own vehicle carried the same Class 2 penalty as the possession of a stolen vehicle (Morris, 136 Ill. 2d at 166-67), that case did not involve the cross-comparison analysis at issue here. Instead, the court held that the penalty for altering a temporary registration permit was disproportionate to the seriousness of the offense. Morris, 136 Ill. 2d at 168. As a result, Morris does not support defendant\u2019s position.\nFinally, we find Lombardi to be highly instructive. One of the defendants in Lombardi was convicted of armed violence predicated on the possession of a controlled substance (720 ILCS 5/33A \u2014 2(a) (West 1996); 720 ILCS 570/402(c) (West 1996)). He claimed that the armed violence statute violated the proportionate penalties clause because the offense carried the same penalty regardless of the seriousness of the underlying felony. In rejecting the defendant\u2019s challenge, the court stated that the legislature acted within its discretion in focusing on the use of a weapon rather than the character of the underlying felony. Thus, there was no violation of the proportionate penalties clause even though the penalty for armed violence did not vary according to the seriousness of the underlying felony. Lombardi, 184 Ill. 2d at 483.\nSimilarly, here, it was proper for the legislature to focus on recidivism rather than the character of the underlying Class 1 or Class 2 felony. The legislature reasonably could determine that Class 1 and Class 2 felonies are serious enough to warrant the same enhanced penalty when the elements of section 5 \u2014 5\u20143(c)(8) are satisfied.\nAccordingly, we hold that section 5 \u2014 5\u20143(c)(8) of the Code does not violate the proportionate penalties clause and affirm the judgment of the circuit court of Winnebago County.\nAffirmed.\nCALLUM and KAPALA, JJ., concur.", "type": "majority", "author": "JUSTICE BOWMAN" } ], "attorneys": [ "G. Joseph Weller and Jack Hildebrand, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Paul A. Logli, State\u2019s Attorney, of Rockford (Martin E Moltz and Marshall M. Stevens, both 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. TERRY T. ROBERTS, Defendant-Appellant.\nSecond District\nNo. 2\u201400\u20141336\nOpinion filed June 11, 2002.\nG. Joseph Weller and Jack Hildebrand, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nPaul A. Logli, State\u2019s Attorney, of Rockford (Martin E Moltz and Marshall M. Stevens, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0015-01", "first_page_order": 33, "last_page_order": 39 }