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No. 3--00--0982

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

JUSTICE HOMER delivered the opinion of the court:

Following a bench trial, the defendant, Scott Tooley, wasfound guilty of three counts of theft by deception. 720 ILCS5/16--1(a)(2)(A) (West 1996). He was sentenced to two concurrentextended term prison sentences of 10 years each to be servedconsecutively to one 10-year extended term of imprisonment. 720ILCS 5/16--1(b)(4); 730 ILCS 5/5--8--2(a)(5), 5--8--4 (West1996). He filed a pro se postconviction petition, which wasdismissed at the second stage on the grounds of untimeliness andwaiver. 725 ILCS 5/122--1 et seq. (West 2000). On appeal, heargues that (1) he was not culpably negligent for the untimelyfiling of his petition, (2) the arguments in his petition werenot waived, and (3) his extended term sentences are void becausethey violate the proportionality provisions of the IllinoisConstitution. We reduce his sentences from 10-year extendedterms to 5-year nonextended terms, but otherwise affirm.

BACKGROUND

The facts that led to the defendant's indictment are fullydiscussed in the defendant's direct appeal to this court inPeople v. Tooley, No. 3--96--0416 (1997) (unpublished order underSupreme Court Rule 23). Only those facts which are necessary toan understanding of the instant appeal will be set forth here.

The defendant was indicted on four counts of theft bydeception, but the State dismissed count III. According to theevidence adduced at trial, the defendant convinced three elderlyvictims to write checks to him for future home nursing and healthcare from a nonexistent company. These elderly victims wrote himchecks of $3,398, $4,402, and $1,329, respectively. He wasconvicted of three counts of theft by deception of propertyexceeding $300, but not exceeding $10,000. 720 ILCS 5/16--1(b)(4) (West 1996). He was sentenced to extended terms on thebasis that his victims were 60 years of age or older.

On May 3, 1996, the defendant was sentenced and transferredto Iowa to serve a sentence previously imposed in that state. OnMay 8, 1996, he filed his notice of direct appeal. In thatappeal, we affirmed his conviction and sentence.

His petition for leave to appeal to the Illinois SupremeCourt was denied on April 1, 1998. People v. Tooley, 177 Ill. 2d584, 698 N.E.2d 548 (1998). On September 20, 1999, the defendantfiled a pro se postconviction petition. In his petition, heargued that his due process rights were violated because (1) theState failed to prove one of the elements of the crime beyond areasonable doubt, (2) the court erred by imposing a consecutivesentence because the offenses were committed as part of a singlecourse of conduct, (3) his extended term sentences were voidunder a theory of disproportionality, (4) his extended termsentences subjected him to double jeopardy because the sameaggravating factor was used both to enhance and to extend theterm of his sentence, (5) his trial counsel was ineffective, and(6) his appellate counsel was ineffective for failing to allegeineffectiveness of trial counsel.

The trial court appointed counsel and docketed the petitionfor further proceedings. The State moved to dismiss the petitionas untimely and on waiver grounds. Through his counsel, thedefendant filed a supplemental affidavit in support of thepetition. In this affidavit, the defendant alleged that he wasnot culpably negligent for filing his petition late because (1)he was incarcerated in Iowa from the date he was sentenced, May3, 1996, until January 28, 1999, when he was transferred fromIowa to Illinois, and he had no access to a law library thatcontained Illinois law during that time; (2) after he wastransferred from Iowa to Illinois, he did not have access to anylaw library from January 28 to February 19, 1999; and (3) he didnot have access to a law library during several lock-downs in theIllinois prison thereafter. He asserted that he filed hispetition as soon as he reasonably could have become aware that hewas eligible for postconviction relief in Illinois.

On November 17, 2000, the trial court granted the State'smotion to dismiss "based on the statute of limitation theory andthe waiver theory." The defendant appealed.

ANALYSIS

I. Timeliness

No postconviction proceeding shall be commenced more thansix months after the denial of a petition for leave to appeal, orthree years from the date of conviction, whichever is sooner,unless the petitioner alleges facts showing that the delay wasnot due to his culpable negligence. 725 ILCS 5/122--1(c) (West2000). This time limit acts as a statute of limitations in whichthe State may challenge the timeliness of a defendant's petitionin a second stage motion to dismiss. People v. Wright, 189 Ill.2d 1, 723 N.E.2d 230 (1999).

A defendant has the burden of establishing that a delay infiling his postconviction petition was not due to his culpablenegligence. People v. Parham, 318 Ill. App. 3d 818, 743 N.E.2d697 (2001). The trial court's determination of culpablenegligence will not be disturbed unless it is manifestlyerroneous. People v. Mitchell, 296 Ill. App. 3d 930, 696 N.E.2d365 (1998).

Freedom from culpable negligence is very difficult for adefendant to establish. Parham, 318 Ill. App. 3d 818, 743 N.E.2d697. A defendant's allegation that he lacked access to a lawlibrary is insufficient to prove lack of culpable negligence. People v. Lee, 292 Ill. App. 3d 941, 688 N.E.2d 673 (1997).

Where the record shows that prison lock-downs have deprivedthe defendant of a meaningful opportunity to prepare his petitionin a timely fashion, some delay is excusable. Mitchell, 296 Ill.App. 3d 930, 696 N.E.2d 365. In Mitchell, however, we held thatthe defendant failed to allege facts sufficient to show a lack ofculpable negligence where his petition was 232 days late and hewas on lock-down 103 days during that period.

Although the defendant claims that he did not have access toa law library that contained Illinois law while incarcerated inIowa, this assertion fails to persuade. The defendant did notallege that he was deprived of access to a law library while inIowa, only that he did not have access to a law librarycontaining Illinois law. Even if he had alleged that he did nothave access to any law library while in Iowa, such allegationswould have been insufficient to prove lack of culpablenegligence. See Lee, 292 Ill. App. 3d 941, 688 N.E.2d 673.

The defendant alleges that lock-downs and other events inIllinois further delayed his access to a law library containingIllinois law. These Illinois events could not have deprived himof a meaningful opportunity to prepare his petition in a timelyfashion because his petition already would have been late at thetime he was transferred from Iowa to Illinois. His petitionshould have been filed by October 1, 1998, and he was transferredto Illinois on January 28, 1999.

We hold that it was not manifestly erroneous for the trialcourt to dismiss the defendant's postconviction petition asuntimely. Because we affirm the trial court's dismissal of thedefendant's postconviction petition as untimely, we need notaddress his waiver arguments.

II. Disproportionate Sentences

The defendant argues that his extended term sentences arevoid because they violate the proportionality provisions of theIllinois Constitution. The State notes that this court has heldthat matters that could have been raised on direct appeal, butwere not, are considered waived. See People v. Smith, 136 Ill.App. 3d 300, 483 N.W.2d 655 (1985). However, we have also heldthat a defendant may challenge a void sentence at any time. SeePeople v. Chapin, 233 Ill. App. 3d 28, 597 N.E.2d 1250 (1992).

In Chapin, this court held that the proportionate penaltiesand due process provisions of the Illinois Constitution (Ill.Const.1970, art I, secs. 2, 11) precluded a defendant from beingsentenced to an extended term sentence for theft by deception,based on the aggravating factor that the victim was 60 years ofage or older. Chapin, 233 Ill. App. 3d 28, 597 N.E.2d 1250.

In pertinent part, section 16--1 of the Criminal Code of1961 (Code)provides:

"(a) A person commits theft when he knowingly:

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(2) Obtains by deception control over property of the owner*** [and]

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(A) Intends to deprive the owner permanently of the use or benefit of the property.

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(b)(4) *** theft of property exceeding $300 and not exceeding $10,000 in value, is a Class 3 felony.

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(b)(7) Theft by deception, as described by paragraph (2)

of subsection (a) of this Section, in which the offenderobtained money or property valued at $5,000 or more from

a victim 60 years of age or older is a Class 2 felony."

720 ILCS 5/16--1 (West 1996).

In this instance, because the amount taken from each elderlyvictim was less than $5,000, the trial court was required tosentence the defendant as a Class 3 offender under section 16--1(b)(4), rather than as a Class 2 offender under section 16--(b)(7). A Class 3 felony carries a sentencing range of two tofive years. 730 ILCS 5/5--8--1(6) (West 1996). However, sincethe victims in this case were over 60 years of age, the trialcourt determined that the defendant was eligible for extendedterm sentences, and sentenced him to ten-year extended terms oneach of the three counts. 730 ILCS 5/5--5--3.2(b)(4)(ii), 5--8--2(a)(5) (West 1996).

Had the defendant been sentenced as a Class 2 offender undersection 16--1(b)(7) of the Code, he would have faced a sentencingrange from three to seven years of imprisonment. 720 ILCS 5/16--1(b)(7); 730 ILCS 5/5--8--1(a)(5) (West 1996). An extended termcould not be applied to section 16--1(b)(7) because the victim'sage could not be used both as an element of the offense and as anaggravation factor to extend the sentence. Chapin, 233 Ill. App.3d 28, 597 N.E.2d 1250; People v. Ferguson, 132 Ill. 2d 86, 547N.E.2d 429 (1989).

This sentencing scheme leads to the disproportionate resultthat a defendant who steals more than $5,000 deceptively from anelderly victim could be sentenced to a maximum of 7 years'imprisonment, but a defendant who steals $301 deceptively from anelderly victim could be sentenced to an extended term of 10years' imprisonment. Under this scheme, a less serious offensereceives a greater penalty and a more serious offense receives alesser penalty. As we stated in Chapin, "[t]he policy underlyingIllinois' constitutional assurances of proportionate penaltiesand due process (Ill. Const 1970, art. I,