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Docket No. 89522-Agenda 9-March 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PHILLIP HARVEY, Appellant.

Opinion filed June 21, 2001.

CHIEF JUSTICE HARRISON delivered the opinion of thecourt:

Following a jury trial in the circuit court of ChampaignCounty in 1985, defendant was found guilty of armed robbery (Ill.Rev. Stat. 1983, ch. 38, par. 18-2(a)) and sentenced to an extendedterm of 45 years' imprisonment based on a previous conviction forattempted murder. The circuit court's judgment was affirmed ondirect review. People v. Harvey, 140 Ill. App. 3d 1151 (1986)(unpublished order under Supreme Court Rule 23). A post-conviction petition challenging the judgment was subsequentlyrejected. People v. Harvey, 190 Ill. App. 3d 1112 (1989)(unpublished order under Supreme Court Rule 23).

Defendant has now filed a petition under section 2-1401 ofthe Code of Civil Procedure (735 ILCS 5/2-1401 (West 1998)),challenging his extended-term sentence on the grounds that it isvoid. The circuit court rejected defendant's challenge, and theappellate court affirmed. No. 4-99-0073 (unpublished order underSupreme Court Rule 23). For the reasons that follow, we nowaffirm the judgment of the appellate court.

In undertaking our review, we begin by noting that there is noissue as to defendant's right to seek redress by means of a section2-1401 petition. Section 2-1401 provides a comprehensivestatutory procedure by which final orders, judgments, and decreesmay be vacated after 30 days from their entry. Although a section2-1401 petition is usually characterized as a civil remedy, itsremedial powers extend to criminal cases. People v. Haynes, 192Ill. 2d 437, 460-61 (2000).

As a general rule, a petition for relief from judgment undersection 2-1401 must be filed within two years after entry of thejudgment being challenged. 735 ILCS 5/2-1401(c) (West 1998).A section 2-1401 petition filed beyond the two-year period willnot normally be considered. People v. Caballero, 179 Ill. 2d 205,210 (1997). An exception to the two-year period has beenrecognized where a clear showing has been made the personseeking relief is under legal disability or duress or the grounds forrelief are fraudulently concealed. Caballero, 179 Ill. 2d at 210-11.A person may also seek relief beyond section 2-1401's two-yearlimitations period where the judgment being challenged is void.R.W. Sawant & Co. v. Allied Programs Corp., 111 Ill. 2d 304,309-10 (1986); see In re Marriage of Steinberg, 302 Ill. App. 3d845, 856 (1998). In addition, section 2-1401's limitations periodmay be waived by the opposing party. People v. Ross, 191 Ill.App. 3d 1046, 1053 (1989).

Because the defendant in this case is challenging hisextended-term sentence on the grounds that it is void, the State hasconceded that section 2-1401's two-year limitations period isinapplicable. Here, as in the appellate court, it has not attemptedto invoke that deadline as a barrier to defendant's petition. Weshall therefore proceed to address defendant's claims on themerits.

In imposing sentences, trial courts must adhere to statutoryrequirements. If a trial court imposes a sentence greater than thatpermitted by statute, the excess portion of the sentence is void. SeePeople v. Rankin, 297 Ill. App. 3d 818, 822 (1998). Accordingly,the extended-term portion of a criminal sentence is subject tochallenge and cannot stand where the requirements of theextended-term sentencing statute have not been met. See Peoplev. Pittman, 316 Ill. App. 3d 245, 253 (2000). Defendant contendsthat this is such a case.

The extended-term sentence challenged here was imposed bythe circuit court pursuant to section 5-8-2 of the Unified Code ofCorrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-2) based onits findings that the factors in aggravation set forth in section5-5-3.2(b)(1) of the Unified Code of Corrections (Ill. Rev. Stat.,1984 Supp., ch. 38, par. 1005-5-3.2(b)(1)) were present. Theaggravating factors set forth in section 5-5-3.2(b)(1) exist whena defendant has been "convicted of any felony, after having beenpreviously convicted in Illinois of the same or greater class felony,within 10 years, excluding time spent in custody, and such chargesare separately brought and tried and arise out of different series ofacts." Ill. Rev. Stat., 1984 Supp., ch. 38, par. 1005-5-3.2(b)(1).

The felony for which defendant was convicted and for whichhe was sentenced to the extended term was armed robbery. At thetime he received the extended-term sentence, defendant hadpreviously been convicted of attempted murder. That conviction,dating to 1974, was also a felony. There is no dispute that bothconvictions took place in Illinois and occurred within 10 years ofeach other, excluding time defendant spent in custody. There islikewise no dispute that the charges underlying the convictionswere separately brought and tried and arose out of different seriesof acts. Defendant's challenge to his extended-term sentence turnssolely on the question of whether attempted murder can beregarded as "the same or greater class felony" as armed robbery. At the time defendant committed attempted murder, theoffense was classified as a Class 1 felony for sentencing purposes.See Ill. Rev. Stat. 1973, ch. 38, par. 8-4(c)(1). So was armedrobbery. Ill. Rev. Stat. 1973, ch. 38, par. 18-2(b). By the timedefendant had committed the armed robbery for which he receivedthe extended term, the Criminal Code of 1961 had been amended.For purposes of sentencing, attempted murder was no longerconsidered a Class 1 felony. It was now a Class X felony. Ill. Rev.Stat. 1983, ch. 38, par. 8-4(c)(1); People v. Zuniga, 99 Ill. App. 3d396, 401-02 (1981). The same was true, however, of armedrobbery. It was also reclassified as a Class X felony. Ill. Rev. Stat.1983, ch. 38, par. 18-2(b). The relative severity of the offensesthus remained unchanged. For purposes of sentencing, bothoffenses were still of the same class. That being so, therequirements of the extended-term sentencing provisions weresatisfied.

Defendant challenges this conclusion by arguing that theclassification of his attempted murder conviction should bedetermined in accordance with the law as it existed at the time hecommitted that offense. In his view, the reclassification should bedisregarded. Similar claims were advanced by other defendants inthe wake of the legislature's reclassification of offenses in 1978.They were properly rejected by the appellate court then (seePeople v. Tipton, 207 Ill. App. 3d 688, 703-04 (1990); People v.Butler, 78 Ill. App. 3d 809, 814-18 (1979)), and they wereproperly rejected by the appellate court here. The change in thelaw did not affect the elements of the crime, and the relativeseverity of attempted murder was correctly assessed by the circuitcourt in accordance with the law as it existed after that offense wasreclassified.

How defendant's attempted murder conviction should beclassified for purposes of the extended-term sentencing rules is notaffected by this court's recent decision in People v. Olivo, 183 Ill.2d 339 (1998). In contrast to the present case, Olivo had nothingto do with the effect of statutory reclassification on offenses whichwere and remained of the same relative severity. The priorconvictions in Olivo were less severe than the conviction forwhich the extended term was imposed. They had merely drawnenhanced sentences. Because enhancement of a sentence does notoperate to elevate the class of the crime for which the sentence isimposed, the defendant in Olivo could not be said to have beenpreviously convicted "of the same or greater class felony" withinthe meaning of section 5-5-3.2(b)(1). That case is thereforeinapposite.

As an alternative basis for attacking the lower courts'judgments, defendant argues that using his 1974 attempted murderconviction as an aggravating factor to support imposition of anextended term for his subsequent armed robbery convictioncontravenes the federal and state constitutional prohibitionsagainst ex post facto laws (U.S. Const., art. I,