{ "id": 2961188, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Cornell D. Green, Defendant-Appellant", "name_abbreviation": "People v. Green", "decision_date": "1975-11-14", "docket_number": "No. 61266", "first_page": "153", "last_page": "157", "citations": [ { "type": "official", "cite": "34 Ill. App. 3d 153" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "200 N.E.2d 146", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "49 Ill.App.2d 464", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2935455 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0053-01" ] } ], "analysis": { "cardinality": 594, "char_count": 9541, "ocr_confidence": 0.708, "pagerank": { "raw": 1.8234206420380108e-07, "percentile": 0.7195375097158174 }, "sha256": "8b5e80272232ed3f8e654ab8ddf8d7100284b149c8a750931734626d60eb1df8", "simhash": "1:2830f6a67f07abdc", "word_count": 1610 }, "last_updated": "2023-07-14T14:50:26.295263+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. Cornell D. Green, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE SULLIVAN\ndelivered the opinion of the court:\nThis is an appeal by defendant upon denial of his amended post-conviction petition. He was initially convicted on two charges of armed robbery. When he failed to appear for a hearing in aggravation and mitigation, he was sentenced in absentia to terms of 8 to 15 years on each charge, to run concurrently, and a warrant vzas issued for his arrest. He was apprehended four months later and subsequently his conviction was affirmed on appeal. (People v. Harris, 11 Ill.App.3d 53, 295 N.E.2d 553. ) Thereafter, defendant filed this petition for post-conviction relief in which he alleges a violation of his constitutional right to counsel as to his sentencing and, for that reason, he asks for a new trial; or, alternatively, that he be granted a hearing to reconsider the sentence imposed upon him.\nIt appears that a motion to dismiss the petition was denied and that, after a hearing, the trial court denied defendant\u2019s petition.\nThe record discloses that at the time of his sentencing in July, 1971, defendant was absent, and the trial judge made the following statement:\n\u201cIf Green is apprehended or comes in willingly, voluntarily, and you wish to request the Court to reconsider the sentence that I have imposed upon him, of course, I want you to do so because there may be something you wish to tell me in mitigation that you are unaware of now that might cause me to impose a different sentence.\u201d\nAt the hearing on his post-conviction petition, defendant testified that after he was taken into custody in November, 1971, he had talked to his trial attorney but the latter did not inform him of the trial judge\u2019s statement at the time of sentencing concerning a possible reconsideration of his sentence.\nDefendant argues that this failure of his attorney to so advise him when he was returned to custody violated his sixth amendment right to competent representation. His position is stated in his brief as follows:\n\u201cIn mid-November, 1971, Counsel was in contact with Petitioner. Counsel failed, in spite of the Court\u2019s urging, to request the Court to reconsider the sentence imposed upon Petitioner. Moreover, Counsel made no attempt at all to apprise his client of the Court\u2019s suggestion leading to a possible mitigation of sentence. Neither Counsel\u2019s failure, to follow the express urging by the Court nor his failure to assist Petitioner shows the degree of conscientiousness expected of defense lawyers either as officers of the Court or advocates of their client\u2019s cause.\u201d (Appellant\u2019s Brief at 12-13.)\nGenerally, a constitutional issue not specifically raised in the direct appeal is considered waived unless application of the waiver privilege would result in a \u201cfundamental lack of due process\u201d (People v. Ashley, 34 Ill.2d 402, 216 N.E.2d 126) or would be inconsistent with the concept of fundamental fairness (People v. Keagle, 37 Ill.2d 96, 224 N.E.2d 834). Here, the issue of competence of counsel was not raised in the direct appeal but, in view of the fact that trial counsel also handled the appeal, we believe this is a situation in which fundamental fairness requires that the waiver principle not be invoked.\nThere can be no question but that an accused has the right to be represented by counsel (Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792, at all critical stages of the proceedings (Escobedo v. Illinois, 378 U.S. 478, 12 L.Ed.2d 977, 84 S.Ct. 1758, that sentencing proceedings are a critical stage to which the right attaches (Mempa v. Rhay, 389 U.S. 128, 19 L.Ed.2d 336, 88 S.Ct. 254), and that the right to counsel includes the right to reasonably competent representation. McMann v. Richardson, 397 U.S. 759, 25 L.Ed.2d 763, 90 S. Ct. 1441.\nIt is the settled law in Illinois that a trial judge is without power to modify a sentence more than 30 days after the sentence has been entered. This rule is based upon section 50 of the Civil Practice Act (Ill. Rev. Stat. 1967, ch. 110, par. 50), which provides that a valid judgment cannot be set aside by the court that entered it after the expiration of 30 days from the date it was entered. (See generally 23 Ill. L. & Pr. Judgments \u00a7 163 (1956) and cases therein cited.) The 30-day period is recognized as applying in criminal cases. (People v. McCloskey, 2 Ill.App.3d 892, 274 N.E.2d 358.) It has been held that \u201c[t]he final judgment in a criminal case is the sentence.\u201d (People v. Becker, 414 Ill. 291, 295, 111 N.E.2d 491.) Consequently, section 50 of the Civil Practice Act would apply to preclude a trial judge from modifying the sentence more than 30 days after it had been pronounced.\nThe principle that the trial court is without jurisdiction to alter a sentence after the statutory term time has expired is consistently supported by the case law. People v. Weinstein, 298 Ill. 264, 131 N.E. 631, is squarely on point. In that case, the defendant had been sentenced in absentia in 1911. When he was recaptured in 1921, an order was entered purporting to vacate the original sentence and impose a new sentence. The appellate court reversed, holding that the trial court was without jurisdiction to disturb the original sentence after term time had expired. Similarly, in People v. Sweetland, 210 Ill.App. 432, 434, it was held that \u201cthe court had no jurisdiction at the June term to vacate the judgment of the April term * *\nA partial listing of the Illinois cases supporting the proposition that a trial court is without power to modify a sentence after the expiration of 30 days includes, an addition to those cases previously cited, People v. Lance, 25 Ill.2d 455, 185 N.E.2d 221; People v. Miller, 13 Ill.2d 84, 148 N.E.2d 455; People v. Gulley, 411 Ill. 228, 103 N.E.2d 650; People v. Putnam, 398 Ill. 421, 76 N.E.2d 183, cert. denied, 334 U.S. 822, 92 L.Ed. 1751, 68 S.Ct. 1076; People v. DeLisle, 374 Ill. 437, 29 N.E.2d 600; People v. Thon, 374 Ill. 624, 30 N.E.2d 54; People v. Sprague, 371 Ill. 627, 21 N.E.2d 763; People v. Collins, 353 Ill. 468, 187 N.E. 450; People v. Schuedter, 336 Ill. 244, 168 N.E. 323; People v. Drysch, 311 Ill. 342, 143 N.E. 100; People v. Rudecki, 309 Ill. 125, 140 N.E. 832; People v. Wilmot, 254 Ill. 554, 98 N.E. 973; People v. McCloskey, 2 Ill.App.3d 892, 274 N.E.2d 358; People v. Freeman, 49 Ill.App.2d 464, 200 N.E.2d 146.\nIn light of the foregoing authorities, the court\u2019s remarks at the time of sentencing can be considered to have been interpreted by defendant\u2019s trial counsel as meaning that if defendant came in voluntarily or was apprehended within 30 days, the court would hear him on matters in mitigation. It must be presumed that defendant\u2019s trial counsel was aware that the judge had no power to modify the sentence in mid-November (four months after he was sentenced), when defendant was finally apprehended. Thus, we assume that counsel did not inform him of the judge\u2019s remarks because he was aware that it was beyond the power of the trial judge to modify the sentence by the time he was apprehended. Further, it appears that after defendant\u2019s return to custody, his trial counsel handled his direct appeal. In this regard, we observe that no contention of inadequacy is raised as to the actual trial or the direct appeal therefrom.\nMoreover, we note that he was given a higher sentence than codefendant Harris and, on direct appeal, he contended that the difference was a penalty imposed by the court because of his absence at the time of sentencing. The appellate court upheld the sentence, stating it was apparent from the record that the reason for the difference was because defendant had a record of numerous convictions; whereas, Harris had no record of convictions.\nIn any event, from our review of the record here, we cannot say that the failure of defendant\u2019s trial counsel to inform him that the trial judge had been willing to hear from defendant in mitigation fell short of present standards of competence. It appears to us that defendant was not heard in mitigation because he failed to appear for sentencing, a matter beyond the control of his attorney. The subsequent expiration of the 30-day period during which the trial court retained jurisdiction to modify the sentence was also beyond counsel\u2019s control. Under such circumstances, the failure to inform defendant after he was apprehended was not a violation of his constitutional right to reasonably competent representation.\nWe find no error in the denial of defendant\u2019s post-conviction petition, and we affirm the order of the trial court.\nAffirmed.\nBARRETT, P. J., and DRUCKER, J., concur.\nHarris was indicted with defendant Green; they were tried together and convicted on the same charges. Their separate appeals were consolidated.\nThe 30-day limitation upon sentence modification has been recently codified in section 5 \u2014 8\u20141(d) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 \u2014 8\u20141(d)). This section provides:\n\u201c(d) The court may * * * modify, but shall not increase the length of a sentence by order entered not later than 30 days from the date that sentence was imposed. This shall not enlarge the jurisdiction of the court for any other purpose.\u201d", "type": "majority", "author": "Mr. JUSTICE SULLIVAN" } ], "attorneys": [ "Price, Cushman, Keck, Mahin & Cate, of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and Linda Ann Miller, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Cornell D. Green, Defendant-Appellant.\n(No. 61266;\nFirst District (5th Division)\nNovember 14, 1975.\nPrice, Cushman, Keck, Mahin & Cate, of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and Linda Ann Miller, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0153-01", "first_page_order": 179, "last_page_order": 183 }