{ "id": 3739914, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALBERT L. HARPER, Defendant-Appellant", "name_abbreviation": "People v. Harper", "decision_date": "2003-12-29", "docket_number": "No. 4-02-0155", "first_page": "276", "last_page": "286", "citations": [ { "type": "official", "cite": "345 Ill. App. 3d 276" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "791 N.E.2d 621", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "624", "parenthetical": "Second District decision disagreeing with Thompson" }, { "page": "624" } ], "opinion_index": 0 }, { "cite": "339 Ill. App. 3d 887", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2469757 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "891", "parenthetical": "Second District decision disagreeing with Thompson" }, { "page": "891" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/339/0887-01" ] }, { "cite": "662 N.E.2d 161", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "278 Ill. App. 3d 65", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156775 ], "year": 1996, "pin_cites": [ { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/0065-01" ] }, { "cite": "727 N.E.2d 1052", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "1057" }, { "page": "1057" } ], "opinion_index": 0 }, { "cite": "312 Ill. App. 3d 553", "category": "reporters:state", "reporter": "Ill. 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ALBERT L. HARPER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE APPLETON\ndelivered the opinion of the court:\nDefendant, Albert L. Harper, is serving consecutive terms of imprisonment for two separate offenses of burglary (720 ILCS 5/19\u2014 1(a) (West 1992)), one term imposed in this case (Harper I) and the other imposed in another Macon County case, People v. Harper, No. 94 \u2014 CF\u2014326 (Harper II). In the present case, Harper I, he filed a motion to vacate the sentence on the ground that the aggregate of the consecutive sentences for burglary in this case and Harper II was greater than section 5 \u2014 8\u20144(c)(2) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5 \u2014 8\u20144(c)(2) (West 1992)) allowed. The trial court denied the motion, as well as a motion to reconsider, and defendant appeals.\nConstruing defendant\u2019s motion to vacate as a postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 through 122 \u2014 8 (West 2000)), the State argues the trial court was correct in dismissing it because (1) the so-called \u201cpetition\u201d alleges no constitutional violation, (2) res judicata and the doctrine of waiver bar it, and (3) the legislature implicitly repealed section 5 \u2014 8\u20144(c)(2) by enacting section 5 \u2014 8\u20144(h) of the Unified Code (730 ILCS 5/5 \u2014 8\u2014 4(h) (West 1992)).\nBecause a party can challenge a void sentence at any time, either directly or collaterally, we disagree with the State\u2019s first and second contentions. We do not reach the State\u2019s third contention. We find section 5 \u2014 8\u20144(c)(2) to be patently inapplicable to the present case, Harper I, for the simple reason that the trial court imposed no consecutive sentence \u2014 and therefore could not have violated section 5 \u2014 8\u20144(c)(2)\u2014in the present case; it imposed the consecutive sentence in Harper II. Therefore, we affirm.\nI. BACKGROUND\nOn April 27, 1994, in Harper I, a jury found defendant guilty of burglary (720 ILCS 5/19 \u2014 1(a) (West 1992)), possession of burglary tools (720 ILCS 5/19 \u2014 2(a) (West 1992)), and possession of a controlled substance (720 ILCS 570/402(c) (West 1992)). For those offenses, the trial court sentenced him to concurrent prison terms of 20 years, 2 years, and 2 years, respectively.\nOn June 16, 1994, in Harper II, defendant pleaded guilty to burglary, and the trial court sentenced him to 10 years\u2019 imprisonment, ordering that the 10-year term run consecutively to the prison terms in Harper I.\nAlthough burglary was a Class 2 felony, the court sentenced him as a Class X offender in both cases, pursuant to section 5 \u2014 5\u20143(c)(8) of the Unified Code (730 ILCS 5/5 \u2014 5\u20143(c)(8) (West 1992) (\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)).\nOn January 25, 1996, in a consolidated appeal, we upheld the convictions and sentences in Harpers I and II. People v. Harper, Nos. 4-94-0563, 4-94-1040 cons. (January 25, 1996) (unpublished order pursuant to Supreme Court Rule 23).\nOn November 6, 1996, defendant filed, pro se, a petition for post-conviction relief from the judgments in Harpers I and II. The trial court summarily dismissed the petition as frivolous and patently without merit, and defendant appealed. In his appeal from the dismissal of his postconviction petition, he argued, inter alia, that the 30-year aggregate maximum of the consecutive sentences in Harpers I and II exceeded the 28-year aggregate maximum allowable under section 5 \u2014 8\u20144(c)(2) of the Unified Code (730 ILCS 5/5 \u2014 8\u20144(c)(2) (West 1992)). We affirmed, holding that defendant had forfeited that argument by failing to raise it in his postconviction petition. People v. Harper, No. 4-96-1008 (February 2,1998) (unpublished order pursuant to Supreme Court Rule 23).\nOn April 17, 2001, defendant filed, pro se, a document entitled \u201cMotion to Vacate [a] Void Sentence and for Resentencing,\u201d in which he requested, on the authority of People v. Pullen, 192 Ill. 2d 36, 733 N.E.2d 1235 (2000), that the trial court vacate the sentences in Harpers I and II and hold a new sentencing hearing, arguing, again, that the aggregate maximum of the consecutive sentences in those cases exceeded that permissible under section 5 \u2014 8\u20144(c)(2) of the Unified Code. He acknowledged that in Harper, No. 4-96-1008, we held he had forfeited that issue by failing to raise it in his postconviction petition. Nevertheless, he argued that \u201c[bjecause the sentences are void, they must be vacated. Void sentences can be attacked at any time. People v. Arna, 168 Ill. 2d 107, 658 N.E.2d 445 (1995); People v. Zeisler, 125 Ill. 2d 42, 531 N.E.2d 24 (1988).\u201d\nOn October 15, 2001, construing defendant\u2019s motion as a post-conviction petition, the State filed a motion to dismiss it on the following grounds: (1) instead of alleging a substantial denial of a constitutional right, he alleged only a violation of a state statute; (2) the present petition was untimely (see 725 ILCS 5/122 \u2014 1(c) (West 2000)); (3) our decision in Harper, Nos. 4 \u2014 94\u20140563, 4 \u2014 94\u20141040 cons., was res judicata-, and (4) he had forfeited the issue he now raised by failing to raise it in his first petition for postconviction relief (see 725 ILCS 5/122 \u2014 3 (West 2000)).\nOn January 15, 2002, in Harper I, the trial court entered an order entitled \u201cJudgment Dismissing [the] Request for [Postconviction] Sentencing Relief.\u201d In that order, the court noted that the 20-year term of imprisonment it had imposed in Harper I was \u201cwithin the statutory [range] for Class X sentencing pursuant to the recidivist provisions of [section 5 \u2014 5\u20143(c)(8) of the Unified Code].\u201d The court had imposed the sentence on May 20, 1994, while defendant was awaiting trial in Harper II. On June 16, 1994, defendant pleaded guilty in Harper II, after the court imposed the sentence in Harper I. On July 11, 1994, the court imposed the 10-year term of imprisonment in Harper II, after defendant appealed the 20-year term of imprisonment in Harper I. The court reasoned that because the 20-year term of imprisonment in Harper I \u201cwas lawful when imposed,\u201d defendant\u2019s \u201cclaim of [a] void sentence [had] validity only in [Harper II].\u201d Therefore, the court denied defendant\u2019s motion to vacate the sentence in Harper I.\nOn January 16, 2002, in Harper II, the trial court entered an order entitled \u201cOrder Denying [the] State\u2019s Motion to Dismiss.\u201d In that order, the court determined its sentence was void:\n\u201c[T]he [10-]year sentence in this case is consecutive to the 20[-] year sentence in [Harper I].\nThe 30[-]year total exceeds the maximum length of consecutive sentences [that] may be imposed on [defendant] for the burglary offenses. See [Pullen]. Consequently, the sentence in this case is void.\u201d\nAccordingly, the court denied the State\u2019s motion to dismiss in Harper II and set defendant\u2019s \u201cMotion to Vacate [a] Void Sentence and for Resentencing\u201d for hearing on February 8, 2002, \u201cto determine the nature of the relief to be allowed.\u201d\nOn February 8, 2002, defendant filed a \u201cMotion to Reconsider [the] Judgment Dismissing [His] Request for [Postconviction] Sentencing Relief\u201d in Harper I. He pointed out that in Pullen, \u201ceach of the defendant\u2019s sentences [was] vacated, even though neither one of them, individually, exceeded the allowable aggregate sentence.\u201d (Emphasis in original.) (We note, however, that in Pullen, 192 Ill. 2d at 39, 733 N.E.2d at 1236-37, the trial court imposed the consecutive sentences in the same criminal proceeding, in contrast to Harpers I and II.) Citing People v. Kilpatrick, 167 Ill. 2d 439, 657 N.E.2d 1005 (1995), defendant argued that \u201cthe most [he could] now be sentenced to [was] 14 years in this case and 10 years in [Harper II], for a total of 24 years, as this court could not now increase the 10[~]year component of his sentence.\u201d On February 8, 2002, the same day defendant filed his motion to reconsider, the trial court held a hearing on that motion and denied it. It does not appear, from the record, that the parties argued, or the trial court considered, \u201cthe nature of the relief to be allowed\u201d in Harper II, although, by the terms of the order entered on January 16, 2002, that issue was to be taken up on February 8.\nOn February 13, 2002, defendant filed a notice of appeal in Harper I and in that case alone. That is the appeal now before us.\nII. ANALYSIS\nA. Defendant\u2019s Right To Challenge a Void Sentence \u201cat [A]ny [T]ime\u201d\n1. Statutory Violation, as Opposed to a Constitutional Issue\nThe State construes defendant\u2019s \u201cMotion to Vacate [a] Void Sentence and for Resentencing\u201d as a petition for postconviction relief. The Act remedies only substantial deprivations of constitutional rights, not deprivations of statutory rights. 725 ILCS 5/122 \u2014 1(a) (West 2000); People v. Stokes, 333 Ill. App. 3d 655, 665, 776 N.E.2d 657, 665 (2002). The State argues that insomuch as the total of 30 years\u2019 imprisonment exceeded the \u201caggregate of consecutive sentences\u201d section 5 \u2014 8\u20144(c)(2) of the Unified Code allowed, the excess portion of the sentence violated only the Unified Code, not the state or federal constitution, and therefore the trial court was correct in granting the motion to dismiss. In support of that argument, the State cites People v. Orndoff, 39 Ill. 2d 96, 99, 233 N.E.2d 378, 380 (1968); People v. Shaw, 49 Ill. 2d 309, 313, 273 N.E.2d 816, 817 (1971); People v. Matthews, 60 Ill. 2d 123, 125, 324 N.E.2d 396, 398 (1975); People v. Kessinger, 133 Ill. App. 3d 831, 834, 479 N.E.2d 466, 468 (1985); People v. Del Vecchio, 129 Ill. 2d 265, 278, 544 N.E.2d 312, 316 (1989); and People v. Thompson, 335 Ill. App. 3d 1027, 1029, 782 N.E.2d 946, 948 (2003), appeal granted, 204 Ill. 2d 680, 792 N.E.2d 312 (2003).\nThe State also reminds us that in Harper, No. 4-96-1008, we rejected the very argument defendant is making now \u2014 that the total period of imprisonment in his consecutive sentences exceeds that which section 5 \u2014 8\u20144(c)(2) of the Unified Code allows \u2014 on the ground that he had failed to allege a violation of section 5 \u2014 8\u20144(c)(2) in the postconviction petition itself. Therefore, the State concludes, res judicata now bars defendant from resurrecting that argument in the present appeal, and defendant has \u201cwaived,\u201d or forfeited, the argument. The State cites People v. Johnson, 206 Ill. 2d 348, 356, 794 N.E.2d 294, 300 (2002), for the familiar rule that in postconviction proceedings, res judicata bars issues previously decided as well as issues \u201cthat could have been raised[ ] but were not.\u201d\nDefendant responds that the appellate court can correct a void sentence \u201cat any time,\u201d as the supreme court held in Arna, 168 Ill. 2d at 113, 658 N.E.2d at 448.\n\u201cIf a trial court imposes a sentence greater than that permitted by statute, the excess portion of the sentence is void.\u201d People v. Harvey, 196 Ill. 2d 444, 448, 753 N.E.2d 293, 295 (2001), cert. denied sub nom. Harvey v. Illinois, 535 U.S. 958, 152 L. Ed. 2d 360, 122 S. Ct. 1366 (2002). \u201cA sentence which does not conform to a statutory requirement is void.\u201d Arna, 168 Ill. 2d at 113, 658 N.E.2d at 448.\nIn Arna, 168 Ill. 2d at Ill. 658 N.E.2d at 447, neither party objected to the concurrent nature of the defendant\u2019s prison terms. Nevertheless, the appellate court held, sua sponte, that consecutive sentences were mandatory under section 5 \u2014 8\u20144(a) of the Unified Code (730 ILCS 5/5 \u2014 8\u20144(a) (West 1992)) and, for that reason, vacated the concurrent sentences and remanded the case to the trial court for the determination of appropriate consecutive prison terms. Arna, 168 Ill. 2d at 111-12, 658 N.E.2d at 447-48. The defendant appealed to the supreme court, arguing that Rule 615(a) (134 Ill. 2d R. 615(a)) withheld from the appellate court the power to increase a sentence on review, and Rule 604(a) (134 Ill. 2d R. 604(a)) withheld from the State the right to appeal a sentencing issue. Arna, 168 Ill. 2d at 112, 658 N.E.2d at 448.\nThe supreme court held:\n\u201cA sentence which does not conform to a statutory requirement is void. [Citations.] Because the order imposing concurrent terms was void, the appellate court had the authority to correct it at any time [citation], and the actions of the appellate court were not barred by our rules which limit the State\u2019s right to appeal and which prohibit the appellate court from increasing a defendant\u2019s sentence on review.\u201d Arna, 168 Ill. 2d at 113, 658 N.E.2d at 448.\nIn Harvey, 196 Ill. 2d at 449, 753 N.E.2d at 296, the defendant contended that his extended-term sentence violated statutory law. After the appellate court affirmed the judgment on direct review and upheld the dismissal of his postconviction petition, defendant filed a petition to vacate the sentence pursuant to section 2 \u2014 1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 1401 (West 1998)). Harvey, 196 Ill. 2d at 446-47, 753 N.E.2d at 294-95. \u00a3\u00a3[T]here [was] no issue as to [the] defendant\u2019s right to seek redress by means of a section 2 \u2014 1401 petition.\u201d Harvey, 196 Ill. 2d at 447, 753 N.E.2d at 295. Despite that concession by the State, the supreme court explained why section 2 \u2014 1401 provided the correct procedural vehicle. Normally, section 2 \u2014 1401 was invoked in civil cases, but \u201cits remedial powers extend[ed] to criminal cases\u201d as well. Harvey, 196 Ill. 2d at 447, 753 N.E.2d at 295. In criminal cases, as in civil cases, one could \u201cseek relief beyond section 2 \u2014 1401\u2019s two-year limitations period [(735 ILCS 5/2 \u2014 1401(c) (West 1998))] [if] the judgment being challenged [was] void.\u201d Harvey, 196 Ill. 2d at 447, 753 N.E.2d at 295. To the extent the sentence violated \u201cthe extended-term sentencing statute,\u201d the sentence was void, and section 2 \u2014 1401 provided a remedy. Harvey, 196 Ill. 2d at 448, 753 N.E.2d at 295. (The supreme court ultimately concluded, however, that the sentence did not violate the extended-term sentencing statute. Harvey, 196 Ill. 2d at 449, 753 N.E.2d at 296.)\nInstead of discussing in detail every case the State cites, we will choose, from among them, only a few illustrative cases. In Orndoff, 39 Ill. 2d at 99, 233 N.E.2d at 380, the supreme court stated:\n\u201cA careful examination of the lengthy [postconviction] petition filed by the defendant reveals that many of his allegations pertain, not to constitutional rights, but rather to rights conferred by statute. *** [T]he *** Act is limited to those errors which are of constitutional magnitude. A statute does not confer constitutional rights[,] and the greater part of defendant\u2019s petition ignores the distinction between these two categories of rights. [Citation.] *** [T]hose portions of the petition which refer to alleged statutory irregularities with reference to his arrest and detention prior to the return of the indictment charging him with larceny and burglary do not present issues of constitutional magnitude, and therefore the trial court was correct in dismissing those allegations.\u201d\nIn Shaw, 49 Ill. 2d at 311, 273 N.E.2d at 817, the defendant alleged, in his postconviction petition, that by sentencing him to a determinate term of imprisonment, the trial court had violated section 1 \u2014 7 of the Criminal Code of 1961 (Ill. Rev. Stat. 1969, ch. 38, par. 1 \u2014 7(e)), which required indeterminate sentences. The supreme court held:\n\u201cThere is no constitutional requirement that sentences to the penitentiary be indeterminate. *** The right which defendant claims was violated is *** statutory and not constitutional. The *** Act is limited to those errors which are of constitutional magnitude.\u201d Shaw, 49 Ill. 2d at 311, 273 N.E.2d at 817.\nIn Thompson, 335 Ill. App. 3d at 1028, 782 N.E.2d at 947, the trial court sentenced the defendant to concurrent extended terms for aggravated battery (720 ILCS 5/12 \u2014 4(b)(ll) (West 1998)) and violation of an order of protection (720 ILCS 5/12 \u2014 30(a) (West 1998)). The defendant filed a postconviction petition, in which he contended that his \u201cextended-term sentence for violating an order of protection was unauthorized according to section 5 \u2014 8\u20142(a) of the Unified Code *** (730 ILCS 5/5 \u2014 8\u20142(a) (West 1998)) and [was] void.\u201d Thompson, 335 Ill. App. 3d at 1029, 782 N.E.2d at 948. We stated: \u201cThe issue raised by defendant (that only the greater class offense may include an extended-term sentence) involves a matter created by statute. We have consistently held such issues are not of constitutional magnitude and, thus, not subject to scrutiny under the *** Act.\u201d Thompson, 335 Ill. App. 3d at 1029, 782 N.E.2d at 948.\nActually, we had not \u201cconsistently held\u201d that sentences that violated the Unified Code were unassailable in postconviction proceedings. In People v. Rankin, 297 Ill. App. 3d 818, 820, 697 N.E.2d 1246, 1248 (1998), the defendant filed a postconviction petition, alleging that his extended-term sentence \u201cviolated various provisions of Illinois sentencing law.\u201d We identified no constitutional violation but nevertheless explained:\n\u201cIn [Arna, 168 Ill. 2d at 113, 658 N.E.2d at 448], the supreme court stated that a sentence that does not conform to statutory requirements is void and may be corrected at any time. See also People v. Wade, 116 Ill. 2d 1, 5-6, 506 N.E.2d 954, 955 (1987) (\u2018[a] void judgment may be attacked at any time, either directly or collaterally\u2019). In People v. Perruquet, 181 Ill. App. 3d 660, 663-64, 537 N.E.2d 351, 353-54 (1989), the court accepted the defendant\u2019s post-conviction petition and directed that an improper extended-term sentence be reduced, holding that the excess portion of the defendant\u2019s sentence was void. Because we conclude that defendant\u2019s extended-term sentence did not conform to statutory requirements, we hold that he did not forfeit this issue and that he properly raised it in this proceeding under the Act.\u201d Rankin, 297 Ill. App. 3d at 821, 697 N.E.2d at 1248.\nArna, Harvey, and Rankin do not purport to change the longstanding rule that only issues of constitutional magnitude are cognizable under the Act. Because of the limiting language of section 122 \u2014 1(a) (725 ILCS 5/122 \u2014 1(a) (West 2000)), mere violations of statutory law, such as those the defendant alleged in Orndoff, have no remedy under the Act. As Arna, Harvey, Rankin, and Perruquet teach, however, it does not follow that a particular type of statutory violation \u2014 a sentence that violates the Unified Code \u2014 has no remedy whatsoever under any other statute besides the Act or under any other legal theory. If a defendant requests the vacation of a void sentence, that he or she does so in a pleading erroneously titled as a postconviction petition is irrelevant. The title of a pleading does not determine what it is. \u201cThe character of a motion is determined by its content and not the title or label asserted by the petitioner.\u201d Harvey, 196 Ill. 2d at 457, 753 N.E.2d at 300 (Fitzgerald, J., specially concurring); see People ex rel. Ryan v. City of West Chicago, 216 Ill. App. 3d 683, 688, 575 N.E.2d 1321, 1324 (1991); Savage v. Pho, 312 Ill. App. 3d 553, 559, 727 N.E.2d 1052, 1057 (2000). If, as Arna holds, a court of review can, sua sponte, correct a void sentence \u2014 if the court can do so in the absence of a pertinent pleading \u2014 it must follow that the misdesignation of what is, essentially, a motion under section 2 \u2014 1401 cannot stand in the way of the court\u2019s doing so, either.\nA court of review has not only the power to correct a void sentence sua sponte, it has a duty to do so. A court should not knowingly tolerate the continued existence of a void sentence. As we held in People v. Childs, 278 Ill. App. 3d 65, 78, 662 N.E.2d 161, 169 (1996), \u201c[t]he duty to vacate a void judgment is based upon the inherent power of a court to expunge from its records void acts of which it has knowledge. [Citation.] Thus, if [a] sentence [were] void, this court would have *** a duty to sua sponte raise the issue.\u201d Given that duty, it is irrelevant that defendant, in the present case, apparently acquiesces in the characterization of his motion as a postconviction petition or that he fails to explicitly invoke section 2 \u2014 1401.\nOur decision in Thompson was sound in light of Shaw, but, after Arna and Harvey, we conclude the supreme court would no longer content itself with the analysis in Shaw. We conclude the supreme court would continue to hold, as it has always held, that mere violations of statutory law have no remedy under the Act; but because void sentences can be challenged at any time, either directly or collaterally (Wade, 116 Ill. 2d at 5-6, 506 N.E.2d at 955), and because the substance, rather than the title, of a motion determines what it is (Savage, 312 Ill. App. 3d at 559, 727 N.E.2d at 1057), we conclude the supreme court would take the additional step of construing the \u201cpost-conviction petition\u201d as a motion under section 2 \u2014 1401 of the Code. We will follow Arna, Harvey, Rankin, and Perruquet, and we will construe defendant\u2019s motion as a motion to vacate a sentence pursuant to section 2 \u2014 1401. \u201c[Although imposition of an improper extended-term sentence may not be recognizable under the Act, that does not mean that this court may not review such a sentence.\u201d People v. Muntaner, 339 Ill. App. 3d 887, 891, 791 N.E.2d 621, 624 (2003) (Second District decision disagreeing with Thompson).\n2. Res Judicata and Waiver\nThe State further argues that our Rule 23 order in Harper, No. 4\u2014 96 \u2014 1008, is res judicata and defendant has \u201cwaived,\u201d or forfeited, his argument by failing to raise it in his postconviction petition in that case. We disagree. Res judicata will not bar the relitigation of a claim if fundamental fairness requires relitigation. Perruquet, 181 Ill. App. 3d at 663, 537 N.E.2d at 354. Sentencing a defendant to a prison term longer than that which the Unified Code allows would be fundamentally unfair; therefore, res judicata would not bar the defendant from challenging the void sentence. Perruquet, 181 Ill. App. 3d at 663, 537 N.E.2d at 354. Because a party may attack a void sentence literally \u201cat any time, either directly or collaterally\u201d (Wade, 116 Ill. 2d at 5-6, 506 N.E.2d at 955), res judicata or the doctrine of waiver would not prevent a party from doing so (Muntaner, 339 Ill. App. 3d at 891, 791 N.E.2d at 624).\nB. No \u201cAggregate of Consecutive Sentences\u201d in Harper I\nHaving determined that defendant\u2019s \u201cMotion to Vacate [a] Void Sentence and for Resentencing\u201d is cognizable under section 2 \u2014 1401, we now consider the merits of the motion. Defendant reasons that because burglary is a Class 2 felony (720 ILCS 5/19 \u2014 1(b) (West 1992)), the maximum extended-term sentence for burglary is 14 years (730 ILCS 5/5 \u2014 8\u20142(a)(4) (West 1992)). Section 5 \u2014 8\u20144(c)(2) of the Unified Code provides: \u201cFor sentences imposed under the law in effect on or after February 1, 1978, the aggregate of consecutive sentences shall not exceed the sum of the maximum terms authorized under [s]ection 5\u2014 8 \u2014 2 [(730 ILCS 5/5 \u2014 8\u20142 (West 1992))] for the [two] most serious felonies involved.\u201d 730 ILCS 5/5 \u2014 8\u20144(c)(2) (West 1992). Burglary was the \u201cmost serious felony involved\u201d in Harpers I and II. Defendant concludes that under section 5 \u2014 8\u20144(c)(2), the maximum aggregate sentence allowable for two consecutive Class 2 felonies is 28 years\u2019 imprisonment instead of the total of 30 years\u2019 imprisonment he received. See Pullen, 192 Ill. 2d at 43, 733 N.E.2d at 1238.\nIn the present appeal, defendant challenges his sentence in Harper I. The trial court imposed a consecutive sentence in Harper II, not in Harper I. Because the trial court imposed no consecutive sentence at all in Harper I, section 5 \u2014 8\u20144(c)(2) was, and is, patently inapplicable to Harper I. In his brief, defendant concedes that \u201c[a]s a Class X offender,\u201d he could \u201clawfully be sentenced to 20 years\u2019 imprisonment for [the burglary in Harper I]\u201d; he merely contends that he \u201ccan receive a maximum sentence of no more than [eight] years for [the burglary in Harper II] in order to stay within the bounds of the statutory 28-year maximum aggregate.\u201d\nIf the trial court violated section 5 \u2014 8\u20144(c)(2), it did so not in the present case, Harper I, but rather in Harper II, in which it imposed the consecutive sentence. The trial court has already held that the sentence in Harper II is void, and defendant apparently is still awaiting resentencing in that case.\nIII. CONCLUSION\nFor the foregoing reasons, we affirm the trial court\u2019s judgment.\nAffirmed.\nKNECHT, EJ., and COOK, J., concur.", "type": "majority", "author": "JUSTICE APPLETON" } ], "attorneys": [ "Daniel D. Yuhas and Susan M. Wilham, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Scott Rueter, State\u2019s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Charles F. Mansfield, 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. ALBERT L. HARPER, Defendant-Appellant.\nFourth District\nNo. 4-02-0155\nOpinion filed December 29, 2003.\nDaniel D. Yuhas and Susan M. Wilham, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nScott Rueter, State\u2019s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Charles F. Mansfield, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0276-01", "first_page_order": 296, "last_page_order": 306 }