People v. Douglas
State: Illinois
Court: 4th District Appellate
Docket No: 4-97-0582
Case Date: 05/04/1998
NO. 4-97-0582
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
DANIEL B. DOUGLAS, ) No. 94CF783
Defendant-Appellant. )
) Honorable
) John G. Townsend,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
In December 1994, defendant, Daniel B. Douglas, pleaded
guilty to aggravated battery of a child (720 ILCS 5/12-4.3(a) (West
1992)). The trial court later sentenced him to 25 years in prison
as a Class X offender pursuant to section 5-5-3(c)(8) of the
Unified Code of Corrections (Code) (730 ILCS 5/5-5-3(c)(8) (West
1992)). Defendant appealed, and this court affirmed. People v.
Douglas, No. 4-95-1003 (1997) (unpublished order under Supreme
Court Rule 23).
In February 1997, defendant filed a pro se petition for
postconviction relief under the Post-Conviction Hearing Act (Act)
(725 ILCS 5/122-1 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 5-5-3(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's constitutionality. The trial
court subsequently dismissed defendant's petitions as frivolous and
patently without merit, pursuant to section 122-2.1 of the Act (725
ILCS 5/122-2.1 (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 122-2.1 of the Act; and (2) the court erred
by ruling his petition was frivolous and patently without merit.
We affirm.
I. THE TRIAL COURT'S TIMELINESS IN RULING ON
DEFENDANT'S PETITION
Defendant first argues that the trial court's failure to
rule on his original petition (filed February 19, 1997) within 90
days of its filing rendered the court's dismissal void. In
response, the State argues that the statutory time period commenced
running upon the March 6, 1997, filing of defendant's amended peti-
tion. We agree with the State.
Section 122-2.1(a) of the Act requires a trial court to
which a postconviction petition is directed, "[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."
725 ILCS 5/122-2.1(a) (West 1996). The 90-day period set forth in
section 122-2.1(a) is "mandatory and [a trial court's] order of
dismissal after the end of that period must be set aside." People
v. Dauer, 293 Ill. App. 3d 329, 332, 687 N.E.2d 1188, 1190 (1997).
The Act does not address the effect of a defendant's
filing an amended or supplemental petition upon the 90-day period
(725 ILCS 5/122-2.1 (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 122-2.1(a) of the Act. To give full effect to a
defendant's 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
122-2.1, we hold that a defendant's 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.
We 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's proposed construction of section 122-2.1(a), a defen-
dant 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-
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 87-904, eff. January 1, 1993 (1992 Ill. Laws 1747).
Contrary to defendant's 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 122-2.1(a) of the
Act when it failed to examine the defendant's 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's granting him an extension of time to
respond to the State's motion. Dauer, 293 Ill. App. 3d at 330-31,
687 N.E.2d at 1188. Further, the precise issue we now resolve--the
effect of multiple petitions upon the 90-day period of section 122-
2.1 of the Act--was not even addressed in Dauer.
In 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's amended
petition. (We note that the court, in an effort to be thorough,
dismissed both defendant's original and amended petitions. Because
defendant's amended petition incorporated his original petition, we
refer to the court's ruling as a summary dismissal of defendant's
amended petition.) No dispute exists that the court's order of
dismissal was within 90 days of defendant's filing of his amended
petition. Thus, we hold that the court did not violate section
122-2.1(a) of the Act (725 ILCS 5/122-2.1(a) (West 1996)). II. POST-CONVICTION HEARING ACT
In 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:
"The [Act] provides a remedy for defendants
who have suffered a substantial violation of
their constitutional rights at trial. [Cita-
tion.] 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 oc-
curred. [Citation.]"
For a postconviction petition to withstand scrutiny and
avoid dismissal under section 122-2.1 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 122-2.1, as follows:
"A 'gist of a meritorious claim' is not a bare
allegation of a deprivation of a constitution-
al 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 depri-
vation of a constitutional right. ***
***
*** [T]he trial court should consider the
petition at the first stage [of the court's
analysis] to determine whether it contains
sufficient facts upon which a meritorious
constitutional claim could be based." (Em-
phasis in original.)
It is within this context that we address defendant's claims.
III. DEFENDANT'S CLAIMS OF CONSTITUTIONAL DEPRIVATION
A. Defendant's 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's 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 5-5-
3(c)(8) of the Code (730 ILCS 5/5-5-3(c)(8) (West 1992)) (based
upon two prior felony convictions in 1980 and 1984). We disagree.
In People v. Munson, 171 Ill. 2d 158, 184, 662 N.E.2d
1265, 1276 (1996), the supreme court wrote the following:
"Ineffective-assistance claims are as-
sessed 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's performance was so deficient
that counsel was not functioning as the coun-
sel guaranteed by the sixth amendment. Sec-
ondly, the defendant must show that the defi-
cient performance prejudiced the defense.
Unless both prongs of the test are satisfied,
it cannot be said that the conviction *** re-
sulted from a breakdown in the adversary
process."
In People v. Bounds, 171 Ill. 2d 1, 41-42, 662 N.E.2d
1168, 1184-85 (1995), the supreme court also addressed this sub-
ject, as follows:
"To establish prejudice, a defendant 'must
show that there is a reasonable probability
that, but for counsel's unprofessional errors,
the result of the proceeding would have been
different.' (Strickland, 466 U.S. at 694, 80
L. Ed. 2d at 698, 104 S. Ct. at 2068.)"
Further, in People v. Mahaffey, 165 Ill. 2d 445, 458, 651 N.E.2d
174, 182 (1995), the supreme court wrote that "if 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's performance was constitutionally deficient."
To establish that defendant was denied effective assis-
tance of counsel in entering a guilty plea, defendant must
demonstrate both (1) that his counsel's performance was deficient;
and (2) prejudice to defendant (defined as a reasonable probability
that, but for counsel's 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's performance was deficient. People v. Pugh, 157 Ill. 2d
1, 14-15, 623 N.E.2d 255, 261-62 (1993).
In the present case, defendant's 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 "[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]."
In addition, we agree with the trial court that defendant
failed to allege how he was prejudiced by his trial counsel's
failure to advise him of his eligibility to be sentenced as a Class
X offender where (1) defendant (apparently mirroring his trial
counsel's 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 5/5-8-1(a)(3) (West
1994)); and (2) defendant's 25-year prison sentence fell within
either sentencing range. Moreover, defendant concedes in his
amended petition that he "was to be subjected to a similar sentence
[as compared to a sentence under sections 5-5-3(c)(8) and 5-8-
1(a)(3) of the Code] under the statute of the offense [of aggra-
vated battery of a child,] 720 ILCS 5/12[-]4.3 [(West 1996)], 5 to
30 [years]."
Nonetheless, 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 5-8-2 of the Code
(730 ILCS 5/5-8-2 (West 1994)), such a belief would not matter
because the record "contains no firm proof" that he was eligible to
be sentenced to an extended term. Specifically, he contends that
"the record simply does not affirmatively demonstrate that this
1994 offense occurred 'within 10 years after'" defendant's 1984
felony conviction under section 5-5-3.2(b)(1) of the Code (730 ILCS
5/5-5-3.2(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's "apparently mistaken belief" that he was
eligible to be sentenced to an extended-term sentence. We dis-
agree.
This court does not know that the record contains "no
firm proof" in the absence of defendant's 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 5-3-1 of the Code that a presentence investigation be
conducted and a presentence report prepared. 730 ILCS 5/5-3-1
(West 1994); People v. Youngbey, 82 Ill. 2d 556, 565, 413 N.E.2d
416, 421 (1980) (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). Further, any
presentence report prepared by the probation office would have con-
tained information regarding defendant's 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).
In 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:
"THE 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, [prosecu-
tor]?
[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 5-5-3(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.
THE COURT: Is that your understanding,
[defense counsel]?
[Defense counsel]: May I have just a
moment, your Honor? We're ready to proceed,
your Honor.
THE 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 sen-
tencing here, is that consistent with your
understanding?
[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.
THE 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?
[Defendant]: Yes."
The State then indicated that defendant's guilty plea was "open" 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--that is, between 6
and 30 years. Defendant then tendered his guilty plea.
Defendant's responses to the trial court's questions do
not reveal any misunderstanding or hesitancy in his decision to
plead guilty. The record does not show that any alleged misunder-
standing by defendant or his trial counsel regarding defendant's
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 deci-
sion to plead guilty. Accordingly, we conclude that defendant's
amended petition fails to satisfy the prejudice prong of the
Strickland test.
In 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's admonitions in that case were not sufficient
to negate the effect of counsel's erroneous advice regarding the
defendant's 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's "youthful associ-
ate." 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 "induced to change his plea while
confused and in a state of misapprehension." Morreale, 412 Ill. at
533, 107 N.E.2d at 724. Moreover, the trial court's admonitions to
defendant under Supreme Court Rule 402 (134 Ill. 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).
B. Defendant's Claim That Section 5-5-3(c)(8) Was
Unconstitutional Because It Subjected Defendant to a
Double Enhancement of Penalty
Defendant also argues that he sufficiently set forth the
gist of a claim in his postconviction petition that section 5-5-
3(c)(8) of the Code was unconstitutional because it subjected him
to an impermissible double enhancement of his penalty. We dis-
agree.
In People v. Thomas, 171 Ill. 2d 207, 229, 664 N.E.2d 76,
88 (1996), the supreme court held that a sentencing court's use of
prior convictions to impose a Class X sentence under section 5-5-
3(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:
"In the exercise of its duties, the legisla-
ture 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). ***
*** Section 5-5-3(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's offense was not en-
hanced from a Class 1 to a Class X felony; he
was simply subject to a single punishment
enhancement to the Class X range.
*** [T]his 'second use' of defendant's
prior convictions [(when the trial court
considered the same two prior convictions
which established the defendant's eligibility
for Class X sentencing as aggravating fac-
tors)] 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 de-
fendant, within the available parameters, is a
requisite part of every individualized sen-
tencing 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 'enhancement.'"
(Emphasis in original.) Thomas, 171 Ill. 2d
at 223-25, 664 N.E.2d at 85-86.
Thus, contrary to defendant's claim, his sentence under
section 5-5-3(c)(8) of the Code did not constitute an impermissible
double enhancement. Accordingly, we agree with the trial court
that defendant's claim regarding section 5-5-3(c)(8) of the Code
does not allege any deprivation of his constitutional rights.
We also disagree with defendant's 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's failure to
object to the constitutionality of section 5-5-3(c)(8) of the Code.
Because we have already concluded that defendant's double enhance-
ment claim is groundless, appellate counsel could not have been
ineffective for failing to raise the issue on appeal.
C. Defendant's Claim That Appellate Counsel Was Ineffective
For Failing To Raise on Direct Appeal Section 5-5-3(c)(8)'s
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 5-5-3(c)(8) of the
Code violates the separation of powers provision of the Illinois
Constitution (Ill. Const. 1970, art. II, 1). In his amended peti-
tion, defendant alleged that "the [s]entencing [c]ourt was
encroahed [sic] by the legislature because of the mandantory [sic]
application of [section 5-5-3(c)(8) of the Code]." We disagree.
Claims 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) "'the failure to raise that issue was objectively
unreasonable'" (performance component) and that, "'but for this
failure, his sentence or conviction would have been reversed'"
(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's failure to raise them on
direct appeal. People v. Coleman, 168 Ill. 2d 509, 523, 660 N.E.2d
919, 927 (1995).
Initially, 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 "'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'"). Under the circumstances of this
case, we cannot say that appellate counsel's judgment in not
raising this issue was "patently erroneous."
Moreover, we conclude that had Caddick raised on direct
appeal the issue that section 5-5-3(c)(8) of the Code violates the
separation of powers provision of the Illinois Constitution (Ill.
Const. 1970, art. II, 1), it would not have mattered to this court
because the issue is not meritorious.
In Thomas (171 Ill. 2d at 222, 664 N.E.2d at 84), the
supreme court held that section 5-5-3(c)(8) of the Code is
mandatory in that it requires that all offenders meeting the statu-
tory requirements be treated as Class X offenders for sentencing
purposes. Although the Thomas court did not specifically address
whether section 5-5-3(c)(8) of the Code violates the separation of
powers provision, the court's discussion is instructive:
"[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's discretion in
fashioning an appropriate sentence, within the
Class X range [(emphasis added)], by preclud-
ing consideration of their criminal history as
an aggravating factor. Rather, while the fact
of a defendant's 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." (Emphasis in
original unless otherwise noted.) Thomas, 171
Ill. 2d at 227-28, 664 N.E.2d at 87.
Further, in People v. Dunigan, 165 Ill. 2d 235, 250, 650
N.E.2d 1026, 1033 (1995), the supreme court rejected a defendant's
claim that the Habitual Criminal Act (Ill. Rev. Stat. 1989, ch. 38,
par. 33B-1 et seq. (now 720 ILCS 5/33B-1 et seq. (West 1996)))
violated the separation of powers provision of the Illinois
Constitution (Ill. Const. 1970, art. II, 1). Section 33B-1(a) of
the Habitual Criminal Act provides that "Every person [whose felony
convictions meet the eligibility requirements of the statute] shall
be adjudged an habitual criminal." Ill. Rev. Stat. 1989, ch. 38,
par. 33B-1(a) (now 720 ILCS 5/33B-1(a) (West 1996)). Section 33B-
1(e) provides that "Except when the death penalty is imposed,
anyone adjudged an habitual criminal shall be sentenced to life
imprisonment." (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38,
par. 33B-1(e) (now 720 ILCS 5/33B-1(e) (West 1996)). In so
holding, the supreme court reasoned, in part, that "[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." (Emphasis added.)
Dunigan, 165 Ill. 2d at 250, 650 N.E.2d at 1033.
Consistent with our supreme court's decisions in Thomas
and Dunigan, we conclude that defendant's claim that section 5-5-
3(c)(8) of the Code violates the separation of powers provision of
the Illinois Constitution (Ill. Const. 1970, art. II, 1) is
patently without merit. Thus, we agree with the trial court that
defendant's claim does not allege any deprivation of his constitu-
tional rights.
Under the circumstances of this case, we hold that the
trial court did not err by summarily dismissing defendant's amended
petition as frivolous and patently without merit.
IV. CONCLUSION
In closing, we commend the trial court for its thoughtful
trial court memorandum, which we found helpful.
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
GREEN and McCULLOUGH, JJ., concur.
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