People v. Petrenko , 237 Ill. 2d 490 ( 2010 )

Docket No. 107503.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
SHAWN PETRENKO, Appellant.
Opinion filed June 4, 2010.
JUSTICE THOMAS delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Kilbride, Garman, and
Karmeier concurred in the judgment and opinion.
Justice Freeman specially concurred, with opinion.
Justice Burke concurred in part and dissented in part, with
opinion.
OPINION
This case presents two issues: (1) whether the trial court erred in
summarily dismissing defendant’s pro se postconviction petition as
frivolous and patently without merit, and (2) whether the imposition
of a 10-year prison term consecutive to a natural-life prison term was
void in this case.
BACKGROUND
Following a jury trial, defendant, Shawn Petrenko, was convicted
of one count of first degree murder (720 ILCS 5/9–1 (West 2000))
and one count of residential burglary (720 ILCS 5/19–3 (West 2000)).
The circuit court of Kankakee County sentenced him to a term of
natural life in prison for the first degree murder conviction and a
consecutive term of 10 years in prison for the residential burglary.
Defendant appealed, and the appellate court affirmed both the
convictions and the sentences. People v. Petrenko, No. 3–02–0507
(2005) (unpublished order under Supreme Court Rule 23).
Defendant later filed a 17-page pro se postconviction petition
raising 31 separate claims. The trial court summarily dismissed the
petition as frivolous and patently without merit, and defendant
appealed. On appeal, defendant argued that the summary dismissal of
his petition was improper because two of his ineffective assistance of
counsel claims stated the gist of a meritorious constitutional claim. In
addition, defendant argued for the first time that, under this court’s
decision in People v. Palmer, 218 Ill. 2d 148 (2006), his consecutive
term of years was void and must be modified to run concurrently with
the natural-life term. The appellate court rejected both of defendant’s
arguments, finding that summary dismissal was proper and that
defendant had forfeited the Palmer argument by not raising it
previously. 385 Ill. App. 3d 479. We allowed defendant’s petition for
leave to appeal. 210 Ill. 2d R. 315.
ANALYSIS
Before this court, defendant raises the same two arguments that
he raised below. First, defendant argues that he received ineffective
assistance of both trial counsel and appellate counsel. According to
defendant, his trial counsel was ineffective for failing to request a
Franks hearing to contest the validity of a search warrant (see Franks
v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978)),
and his appellate counsel was ineffective for failing to raise trial
counsel’s ineffectiveness as an issue on direct appeal. Second,
defendant argues that, under Palmer, his 10-year sentence for
residential burglary must be modified to run concurrently with, rather
than consecutively to, his natural-life term.
Summary Dismissal
The Post-Conviction Hearing Act
The Post-Conviction Hearing Act (725 ILCS 5/122–1 et seq.
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(West 2006)) provides a method by which persons under criminal
sentence can assert that their convictions were the result of a
substantial denial of their rights under the United States Constitution
or the Illinois Constitution or both. See 725 ILCS 5/122–1 et seq.
(West 2006). A circuit court may summarily dismiss a postconviction
petition if it determines that the petition is “frivolous or is patently
without merit.” 725 ILCS 5/122–2.1(a)(2) (West 2006). This court
recently explained that a petition is frivolous or patently without merit
only if it has no “arguable basis either in law or in fact.” People v.
Hodges, 234 Ill. 2d 1, 16 (2009). A petition lacks an arguable basis
in law if it is based on an indisputably meritless legal theory, such as
one that is completely contradicted by the record. Hodges, 234 Ill. 2d
at 16. A petition lacks an arguable basis in fact if it is based upon a
fanciful factual allegation, such as one that is clearly baseless,
fantastic or delusional. Hodges, 234 Ill. 2d at 16-17. The summary
dismissal of a postconviction petition is a legal question that is
subject to de novo review. People v. Coleman, 183 Ill. 2d 366, 388-89
(1998).
Here, defendant’s pro se petition alleged that both his trial
counsel and his appellate counsel provided ineffective assistance.
Ineffective assistance of counsel claims are governed by the standard
set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674,
104 S. Ct. 2052 (1984), and adopted by this court in People v.
Albanese, 104 Ill. 2d 504 (1984). To prevail on a claim of ineffective
assistance of counsel, a defendant must show both that counsel’s
performance was deficient and that the deficient performance
prejudiced the defendant. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at
693, 104 S. Ct. at 2064. More specifically, the defendant must
demonstrate that counsel’s performance was objectively unreasonable
under prevailing professional norms and 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. The Strickland standard
applies equally to claims of ineffective appellate counsel, and a
defendant raising such a claim must show both that appellate
counsel’s performance was deficient and that, but for counsel’s
errors, there is a reasonable probability that the appeal would have
been successful. People v. Golden, 229 Ill. 2d 277, 283 (2008). At the
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first stage of proceedings under the Act, a petition alleging ineffective
assistance of counsel may not be summarily dismissed if (i) it is
arguable that counsel’s performance fell below an objective standard
of reasonableness and (ii) it is arguable that the defendant was
prejudiced. Hodges, 234 Ill. 2d at 17.
Although defendant raised numerous ineffective assistance of
counsel claims in his pro se petition, only two of those claims are at
issue in this appeal. The first is that defendant’s trial counsel was
ineffective for failing to contest the validity of the search warrant that
was issued for defendant’s home. The second is that defendant’s
appellate counsel was ineffective for failing to raise trial counsel’s
error as an issue on direct appeal.
In support of these claims, defendant maintains that the officer
who requested the search warrant for defendant’s home “knowingly
and with reckless disregard for the truth included false statements” in
the affidavit he submitted in support of the warrant application. In
that affidavit, the officer informed the court that the victim, Rubin
Rivas, was found face down and dead in his home, having been
bludgeoned to death with “a hammer, or similar object.” Rivas lived
in one unit of a duplex, with defendant and his family occupying the
other. According to the officer, the evidence linking defendant to the
crime included the following: a left-handed white glove with red,
blue, and white paint on it that was found in Rivas’s house; a
right-handed white glove with red, blue, and white paint on it that
was found in defendant’s garbage; mail addressed to Rivas that was
found in defendant’s garbage; a small metal object broken off in the
lock of Rivas’s back door; a broken key with the tip missing that was
found in defendant’s garbage; and a fingerprint from defendant that
was found in Rivas’s home on an empty ceramic jar in which Rivas
was known to keep his rent money in cash. Based on this information,
the circuit court issued a search warrant for defendant’s home, where
additional evidence was found linking defendant to the murder.
According to defendant, the record shows that the officer who
requested the search warrant for defendant’s home intentionally
omitted from the supporting affidavit certain information that, if
disclosed, would have negated the presence of probable cause.
Specifically, defendant contends the officer’s trial testimony shows
that, at the time he requested the warrant, the officer knew that
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defendant had been a guest in Rivas’s home approximately five days
before the murder. This information, defendant insists, provided a
lawful explanation for the presence of defendant’s fingerprint on the
empty money jar and therefore would have precluded a probable
cause finding if disclosed. Accordingly, defendant’s trial counsel was
ineffective for failing to contest the validity of both the warrant and
the evidence it produced, once the officer’s knowledge was disclosed
at trial. In addition, defendant argues that his appellate counsel was
ineffective for failing to raise trial counsel’s ineffectiveness as an
issue on direct appeal.
After thoroughly reviewing both defendant’s petition and the
supporting record, we conclude that the trial court properly dismissed
defendant’s pro se petition as frivolous and patently without merit. To
begin with, defendant has clearly forfeited his claim that trial counsel
was ineffective for failing to contest the validity of the search
warrant. A postconviction proceeding is not an appeal from the
judgment of conviction, but is a collateral attack on the trial court
proceedings. People v. Johnson, 191 Ill. 2d 257, 268 (2000).
Consequently, issues that could have been raised on direct appeal but
were not are forfeited. People v. Enis, 194 Ill. 2d 361, 375 (2000).
Here, defendant’s claim concerning trial counsel’s failure to contest
the validity of the search warrant is based entirely on facts contained
in the trial court record. That claim therefore could have been raised
on direct appeal, and defendant’s failure to do so results in its
forfeiture.
That leaves defendant’s claim that his appellate counsel was
ineffective for failing to raise trial counsel’s error. Unlike defendant’s
claim for ineffective assistance of trial counsel, this claim is not
forfeited, as this court has elected to relax the ordinary forfeiture rules
with respect to postconviction claims stemming from appellate
counsel’s ineffectiveness. See People v. Williams, 209 Ill. 2d 227,
233 (2004).
The question, therefore, is whether defendant’s ineffective
assistance of appellate counsel claim has no arguable basis either in
law or in fact–that is, whether it is based on either an indisputably
meritless legal theory or a factual allegation that is clearly baseless,
fantastic or delusional. Hodges, 234 Ill. 2d at 16-17. We will begin
with the claim’s legal basis.
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Legal Basis
In Franks, the United States Supreme Court recognized a limited
right to challenge the veracity of the affidavit supporting a search
warrant. In order to overcome the presumption of validity that
attaches to a warrant affidavit and obtain a Franks hearing, a
defendant must make a “substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disregard for
the truth, was included by the affiant in the warrant affidavit” and that
“the allegedly false statement is necessary to the finding of probable
cause.” Franks, 438 U.S. at 155-56, 57 L. Ed. 2d at 672, 98 S. Ct. at
2676. A “substantial preliminary showing” is made where the
defendant offers proof that is “somewhere between mere denials on
the one hand and proof by a preponderance on the other.” People v.
Lucente, 116 Ill. 2d 133, 151-52 (1987). If, after the alleged untruths
in the warrant affidavit are set aside, the remaining statements in the
affidavit are sufficient to establish probable cause, no hearing is
required. Franks, 438 U.S. at 171-72, 57 L. Ed. 2d at 682, 98 S. Ct.
at 2684. The principles underlying the Franks decision also apply
where information necessary to a determination of probable cause is
intentionally or recklessly omitted from the affidavit. People v.
Stewart, 105 Ill. 2d 22, 43 (1984). In such cases, “[t]he defendant
must show that the information omitted was material to the
determination of probable cause and that it was omitted for the
purpose of misleading the magistrate.” Stewart, 105 Ill. 2d at 44.
Omitted information is “material” where it is of such a character that
had it been included in the affidavit it would have defeated probable
cause. People v. Hickey, 178 Ill. 2d 256, 282 (1997).
Here, defendant insists that had the requesting officer disclosed
the fact that defendant had been in Rivas’s home lawfully just days
before the murder, the issuing judge would not have found probable
cause to issue the warrant because defendant’s lawful presence in the
home provides an innocent explanation for the presence of
defendant’s fingerprint at the crime scene. We disagree. We are
dealing here not with a trial, but with a probable cause hearing, where
the State’s burden is substantially lower. At a probable cause hearing,
the trial court’s task is simply to make a practical, commonsense
decision whether, given all the circumstances set forth in the affidavit,
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there is “ ‘a fair probability that contraband or evidence of a crime
will be found in a particular place.’ ” People v. Hickey, 178 Ill. 2d
256, 285 (1997), quoting Illinois v. Gates, 462 U.S. 213, 238-39, 76
L. Ed. 2d 527, 548, 103 S. Ct. 2317, 2332 (1983). In other words, the
probable cause requirement is “rooted in principles of common
sense.” Hickey, 178 Ill. 2d at 285. Setting aside for the moment the
additional evidence that the requesting officer included in his
affidavit, we are here faced with the rather compelling fact that
defendant’s fingerprint was found not simply at the crime scene, but
rather on an empty ceramic jar in which the murder victim was
known to keep upwards of $450 in cash. Whether or not defendant’s
prior lawful presence in Rivas’s home was disclosed to the issuing
judge, the presence of defendant’s fingerprint in that particular
location is sufficient, probably by itself, to establish probable cause.
In other words, had the requesting officer disclosed the allegedly
withheld information, the weight of the fingerprint evidence would
not have changed for purposes of probable cause. Now add to this the
fact that defendant’s fingerprint was not the only evidence described
to the issuing judge, but was in fact included among other things such
as the right-handed glove, the mail addressed to Rivas, and the broken
key (all of which were found in defendant’s trash), and there is simply
no possibility that the disclosure of defendant’s prior lawful presence
at the murder scene would have impacted, let alone defeated, the trial
court’s probable cause finding.
In short, defendant’s prior lawful presence in Rivas’s home was
not “material information” for purposes of Franks. This is because,
even had it been disclosed in the supporting affidavit, it would not
have defeated or in any way undermined the trial court’s probable
cause finding. Accordingly, any argument premised upon trial
counsel’s failure to request a Franks hearing would not have
succeeded on direct appeal. For these reasons, we find that there is no
arguable legal basis for defendant’s ineffective assistance of appellate
counsel claim and that summary dismissal of his pro se
postconviction therefore was proper.
In reaching this result, we note that, both in the appellate court
and before this court, defendant argued that the requesting officer
showed additional reckless disregard for the truth by failing to
disclose in the supporting affidavit that the mail found in defendant’s
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trash was several months old. According to defendant, this omission
would have provided an additional basis for requesting a Franks
hearing, and trial counsel’s failure to request one, as well as appellate
counsel’s failure to raise trial counsel’s oversight as an issue on direct
appeal, therefore amounted to ineffective assistance.
The problem with this argument is that it was not raised in the
petition that defendant filed in the trial court. In People v. Jones, 211
Ill. 2d 140, 148 (2004), this court explained that “ ‘[t]he question
raised in an appeal from an order dismissing a post-conviction
petition is whether the allegations in the petition, liberally construed
and taken as true, are sufficient to invoke relief under the Act.’ ”
(Emphasis in original.) Thus, any issues to be reviewed must be
presented in the petition filed in the circuit court, and a defendant
may not raise an issue for the first time while the matter is on review.
Jones, 211 Ill. 2d at 148. Here, defendant argued in his pro se petition
that trial counsel was ineffective for failing to contest the validity of
the February 3, 2000, search warrant that was issued for his home.
According to defendant, trial counsel should have contested that
warrant because (1) the requesting officer withheld from the issuing
judge facts that, if disclosed, would have provided an innocent
explanation for the presence of defendant’s fingerprint at the crime
scene; and (2) the remaining evidence described in the affidavit,
including the gloves, the broken key, and the “mail 7, 8, 9 months old
addressed to the victim,” failed to establish probable cause. Thus,
while defendant’s Franks-based ineffectiveness claims mention the
age of the mail that was found in defendant’s trash, they do not
mention it as an example of information that was wrongfully withheld
from the issuing judge. Rather, they mention it only in the context of
arguing that the remaining evidence, including the mail, was
insufficient to support a probable cause finding. For this reason, we
hold that defendant has forfeited any ineffectiveness claims on review
that are premised upon the requesting officer’s alleged failure to
disclose the age of the mail found in defendant’s trash. Jones, 211 Ill.
2d at 148.
Consecutive Sentencing
Defendant next argues that his 10-year sentence for residential
burglary must be modified to run concurrently with, rather than
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consecutively to, his natural-life term. In support, defendant cites this
court’s decision in People v. Palmer, 218 Ill. 2d 148 (2006). The
State responds first by arguing that defendant has forfeited this
argument because he raised it for the first time on appeal from the
summary dismissal of his postconviction petition. In the alternative,
the State argues that Palmer does not apply to this case.
We begin with the forfeiture question. It is well settled that a
sentence that is in conflict with statutory guidelines is void and may
be challenged at any time. People v. Roberson, 212 Ill. 2d 430, 440
(2004). In Palmer, this court held that the imposition of consecutive
sentences in that case was “contrary to the legislature’s intent” and
therefore void. Palmer, 218 Ill. 2d at 163. Here, defendant is arguing
that his consecutive sentences are indistinguishable from those at
issue in Palmer and therefore void for the very same reasons. This is
clearly a voidness challenge, and defendant has not forfeited it.
As for the merits of defendant’s voidness claim, we find that
defendant’s reliance on Palmer is misplaced. Palmer was convicted
of seven separate Class X felonies. Prior to sentencing, the State filed
a petition to have him declared an habitual criminal under the
Habitual Criminal Act (Act) (720 ILCS 5/33B–1 et seq. (West 2000)).
The trial court granted the State’s petition and, pursuant to the Act,
sentenced Palmer to natural-life terms on all seven counts. In
addition, the trial court found that Palmer was eligible for consecutive
sentencing under section 5–8–4(a) of the Unified Code of Corrections
(Code) (730 ILCS 5/5–8–4(a) (West 2000)). Accordingly, the trial
court ordered that all seven of the Palmer’s natural-life terms be
served consecutively. Before this court, Palmer argued, inter alia, that
the trial court erred in ordering his natural-life sentences to run
consecutively. We agreed, finding that, because the Habitual Criminal
Act is a “separate sentencing scheme” from that set forth in the
Unified Code of Corrections, defendants who are sentenced pursuant
to the Act are not subject to the consecutive-sentencing provisions
found in section 5–8–4(a) of the Code. Accordingly, the trial court’s
imposition of consecutive sentences was void for lack of statutory
authority, and this court modified Palmer’s sentences to run
concurrently. Palmer, 218 Ill. 2d at 163-64.
Palmer, then, stands simply for the proposition that defendants
sentenced to natural life in prison under the Habitual Criminal Act are
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not subject to the consecutive-sentencing provisions of the Unified
Code of Corrections. In this case, defendant’s natural-life sentence
was not imposed under the Habitual Criminal Act. Rather, it was
imposed under section 5–8–1(a)(1)(b) of the Unified Code of
Corrections (730 ILCS 5/5–8–1(a)(1)(b) (West 2000)). Consequently,
Palmer’s prohibition on consecutive sentencing has no application to
this case. At the same time, defendant does not dispute that he falls
squarely within the class of defendants for whom section
5–8–1(a)(1)(b) specifically mandates consecutive sentencing. In other
words, while defendant insists that his consecutive sentences are void,
he has identified nothing in either the Unified Code of Corrections or
in this court’s jurisprudence that in any way prohibits consecutive
sentencing in this case. We therefore reject defendant’s voidness
challenge and affirm both of his sentences, as imposed.
In reaching this result, we acknowledge that, after concluding that
Palmer was never even subject to section 5–8–4(a), the court
nevertheless went on to discuss the propriety of imposing consecutive
natural-life sentences under that very section. See Palmer, 218 Ill. 2d
at 164-70. Indeed, the court even went so far as to “hold” that section
5–8–4(a) does not allow for the imposition of consecutive natural-life
sentences, “both according to natural law and within the plain
meaning of [section 5–8–4(a)].” Palmer, 218 Ill. 2d at 164-65. We
now recognize that the entire discussion of section 5–8–4(a), and
more specifically any “holding” with respect to the imposition of
consecutive natural-life sentences pursuant to that section, was a
mistake. This is because, once the court concluded that Palmer was
never even eligible for consecutive sentencing under section 5–8–4(a)
in the first place, anything it went on to say about the impossibility of
serving consecutive natural-life sentences could in no way affect the
outcome of that case. The analysis at that point became largely
advisory (see In re Barbara H., 183 Ill. 2d 482, 490-91 (1998) (a
decision is advisory if it cannot result in appropriate relief to the
prevailing party)), and this court has long expressed its reluctance to
consider issues where they are not essential to the disposition of the
cause or where the result will not be affected regardless of how the
issue is decided (Barth v. Reagan, 139 Ill. 2d 399, 419 (1990)).
Moreover, we now recognize that our discussion of section
5–8–4(a) was incorrect on the merits. In Palmer, the court was faced
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with an extreme and somewhat absurd fact pattern: a defendant who
was ordered to serve seven consecutive natural-life sentences. In
reaction to this set of facts, the court expressed its disapproval of a
statutory sentencing scheme that can produce sentences that no
human being could ever realistically serve. However, this court has
long recognized that the legislature has the power to determine the
appropriate punishment for criminal conduct (People v. Taylor, 102
Ill. 2d 201, 205 (1984)), and the judiciary is bound to fashion
sentences within the parameters set forth by the legislature (People v.
Wooters, 188 Ill. 2d 500, 506 n.1 (1999)). The legislature has
determined that the imposition of consecutive natural-life sentences
serves a legitimate public policy goal, and even if its effect is purely
symbolic, it is within the purview of the legislature to make that
determination.
Our discussion of section 5–8–4(a) in Palmer has resulted in a
series of lower court decisions that go far beyond rectifying the
specific absurdity the court faced in Palmer. See, e.g., People v.
Ramey, 393 Ill. App. 3d 661, 670-71 (2009) (holding that Palmer
prohibits the imposition of any sentence consecutive to a natural-life
term); People v. Williams, 385 Ill. App. 3d 359, 371 (2008) (same);
People v. Waldron, 375 Ill. App. 3d 159, 161 (2007) (same); People
v. Dixon, 366 Ill. App. 3d 848, 856 (2006) (same). This court neither
intended nor envisioned that its decision in Palmer would jeopardize
the enforcement of section 5–8–4(a) in such cases, and we therefore
overrule the portion of Palmer holding that the imposition of
consecutive natural-life sentences is impermissible both under section
5–8–4(a) and under natural law. From this point forward, the courts
of this state are to enforce section 5–8–4(a) as written and without
regard to the practical impossibility of serving the sentences it yields.
Of course, we would be remiss in making this determination without
addressing the doctrine of stare decisis. That doctrine “ ‘ “expresses
the policy of the courts to stand by precedents and not to disturb
settled points.” ’ ” People v. Colon, 225 Ill. 2d 125, 145 (2007),
quoting People v. Caballes, 221 Ill. 2d 282, 313 (2006), quoting Neff
v. George, 364 Ill. 306, 308-09 (1936). However, stare decisis is not
an “inexorable command,” and “[i]f it is clear a court has made a
mistake, it will not decline to correct it.” Colon, 225 Ill. 2d at 146. It
is clear that a mistake was made in Palmer, and we have good cause
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to rectify it in this case.1
CONCLUSION
In sum, we conclude both that the summary dismissal of
defendant’s pro se postconviction petition was proper and that the
imposition of consecutive sentences was not void. The judgment of
the appellate court therefore is affirmed.
Affirmed.
JUSTICE FREEMAN, specially concurring:
I join fully in that section of today’s opinion which addresses the
summary dismissal of defendant’s postconviction petition. Although
I ultimately agree with the court’s resolution of the consecutive-
sentencing issue, I do so for reasons other than those set forth in the
court’s opinion.
In challenging his consecutive sentences, defendant relies on
People v. Palmer, 218 Ill. 2d 148 (2006). Palmer holds that because
the Habitual Criminal Act is a separate sentencing scheme from the
Unified Code of Corrections, the Unified Code’s consecutive-
sentencing provision did not apply to the defendant, who had been
sentenced to multiple natural-life sentences to be served
consecutively. Palmer, 218 Ill. 2d at 163. The court, however, also
went on to discuss the effect of the laws of nature on sentencing in
general. Acknowledging the “impossibility of serving consecutive
natural-life sentences both according to natural law and within the
plain meaning of the ‘consecutive’ sentencing law, section 5–8–4(a)”
of the Unified Code (emphases added) (Palmer, 218 Ill. 2d at 164),
1
In his special concurrence, Justice Freeman states that the Palmer
majority likewise erred in holding that defendants sentenced to natural life
in prison under the Habitual Criminal Act are not subject to the
consecutive-sentencing provisions of the Unified Code of Corrections. This
case, however, does not present an opportunity to pass on that matter
directly, as unlike the defendant in Palmer, defendant here was not
sentenced under the Habitual Criminal Act.
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the court “explicitly” found that the “defendant’s actual sentence is
governed by the laws of nature, regardless of whether a trial judge
imposes his sentence consecutively or concurrently” (emphasis
added) (Palmer, 218 Ill. 2d at 169).
The sentencing issue in this case, as well as how the court goes
about addressing it, requires that we reexamine Palmer. Although the
Act does not operate here, defendant is right to recognize that the
same “impossibility” acknowledged in Palmer occurs here: as a literal
matter, it is impossible to serve a 10-year term consecutively to a
sentence of natural life. This makes the court’s observation about
defendant not being able to point to anything in this court’s
jurisprudence to support his position (slip op. at 10) false. The
support rests squarely with the holding in Palmer that such sentences
are governed by the laws of nature, which is the same part of Palmer
that the court today repeatedly says was a “mistake” (slip op. at 10,
11). “Mistake” is an understatement, but that is beside the point.
The court goes to great lengths to salvage some of Palmer, but I
do not see much worth in the effort. Palmer’s analysis was predicated
on the fact that a majority of this court at that time believed that any
construction of “consecutive” as used in section 5–8–4(a) had to
begin with the recognition that it is theoretically impossible to serve
multiple life sentences. See Palmer, 218 Ill. 2d at 165 (noting
“[p]revious judicial pronouncements have failed to acknowledge the
impossibility of serving and enforcing sentences consecutive to death
or life without parole”); see also People v. Ramey, 393 Ill. App. 3d
661, 670 (2009) (noting that Palmer discussed the “irrationality” of
consecutive life sentences). This marked the first time, in dealing
with the Unified Code, that this court had ever relied upon natural law
to interpret the intent of the legislature. Indeed, until Palmer was
announced, this court had never acknowledged, in any way, the
impossibility of serving multiple life sentences, nor had it ever taken
“judicial notice” of the fact that one has but one life to live. See
People v. Hendricks, 137 Ill. 2d 31 (1990) (upholding four
consecutive life sentences); People v. Caballero, 206 Ill. 2d 65 (2002)
(holding the defendant’s death sentence was not constitutionally
disproportionate to his codefendant’s three consecutive life
sentences). Palmer changed that by holding that, in order for a
sentence to be consistent with the laws of nature, multiple
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consecutive life sentences had to be served concurrently. Palmer, 218
Ill. 2d at 169-70; see also Ramey, 393 Ill. App. 3d 370 (noting that,
“[a]ccording to our supreme court, sentences consecutive to a life
sentence violate natural law and must be modified to be served
concurrently”).
After considering the appellate court cases which have followed
in the wake of Palmer, I believe it was unwise for me to join in an
opinion which elevated, in construing section 5–8–4(a), the
theoretical impossibility of serving such sentences over both the fact
that the General Assembly had specifically authorized such sentences
and the legitimate public policy concerns that previous courts had
identified to uphold those kinds of sentences (see People v. Hattery,
183 Ill. App. 3d 785 (1989); People v. Bush, 103 Ill. App. 3d 5
(1981)). I reach this conclusion for a number of reasons.
First, Palmer’s entire construction of the word “consecutive,” as
it is used in section 5–8–4(a), is based entirely on the fact that it is
impossible to serve more than one life sentence. However, we
overlooked the fact that just as it was self-evident to us that a
defendant has but one life to live, so too was it evident to the
legislature, which nevertheless chose to set punishments in such
fashion, and in so doing indicated its intent in this area.
Second, we failed to recognize how the expansiveness of our
holding would affect the application of other sentencing provisions
in the Unified Code. For example, in People v. Wuebbels, 396 Ill.
App. 3d 763 (2009), the appellate court applied Palmer’s “laws of
nature” analysis to conclude that section 5–8–4(f) of the Unified Code
cannot be applied as written. Section 5–8–4(f) provides that “[a]
sentence of an offender committed to the Department of Corrections
at the time of the commission of the offense shall be served
consecutive to the sentence under which he is held by the Department
of Corrections.” 730 ILCS 5/5–8–4(f) (West 1996). Wuebbels
concerned a defendant who, while serving a natural-life sentence,
stabbed a prison guard with a spear. He was found guilty of attempted
murder and possession of a weapon by a person in the custody of the
Department of Corrections and received maximum sentences of 60
years for the attempted murder and 30 years for the weapon
possession to run consecutively to each other and to the natural-life
term. Based on Palmer, the appellate court modified the sentences to
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run concurrently because “a prison term of years cannot follow a
natural-life sentence as the defendant’s life is over at the end of the
natural-life sentence.” Wuebbels, 396 Ill. App. 3d at 768. In so doing,
the court criticized Palmer’s rationale. Wuebbels, 396 Ill. App. 3d at
768.
Wuebbels demonstrates the problem inherent with Palmer’s
recognition that criminal sentences are “governed by the laws of
nature.” Palmer, 218 Ill. 2d at 169. After Palmer, all consecutive
sentences imposed must be assessed by reviewing courts to ensure
that they are consistent with the laws of nature. Should these laws of
nature take into account the age or health of an individual? Take for
example, a 55-year-old, terminally ill defendant convicted of murder,
aggravated criminal sexual assault, and armed robbery. Assume that
this hypothetical defendant receives 60 years for the murder, 30 years
for the sexual assault, and 25 years for the armed robbery to run
consecutively to each other. The consecutive sentences for the sexual
assault and the armed robbery would be just as theoretically
impossible to serve as multiple life sentences are. Natural law would
thus preclude any number of sentences given their length and the
relative health or age of the defendant. Does natural law require a
judge to consult actuarial tables before imposing consecutive
sentences? The holding in Palmer thus has the potential to wreak
havoc with numerous sentencing provisions and thwarts the purposes
behind differentiating between concurrent and consecutive
sentencing.
In light of the above, I believe that Palmer’s statutory
construction analysis was badly reasoned and shortsighted from the
start. Although the Act does establish a separate sentencing scheme
from the Unified Code, the reference to the Act in the Unified Code
demonstrates that the two schemes can be read together. And more
importantly, the majority in Palmer–myself included–should never
have invoked the “laws of nature” to decide what was a fairly routine
case of statutory interpretation. By introducing the concept of natural
law to consecutive and concurrent sentences in such expansive terms,
we have, in essence, isolated our decision from legislative correction.
In fact, we went so far in Palmer as to identify the harshest penalty
short of death: “concurrent natural-life sentences.” Palmer, 218 Ill. 2d
at 169. Thus, even if the General Assembly were to disagree and
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enact legislation to the contrary, as is its prerogative, that legislation
could never trump a judicial ruling based on natural law. It is
therefore not surprising that there has been no legislative action
subsequent to Palmer that would call into question what Palmer said
about legislative intent. Palmer’s “explicit finding” (Palmer, 218 Ill.
2d at 164) that natural law governs criminal sentences places
sentencing considerations for this case beyond the mere actions of the
General Assembly, as I have already noted. Indeed, how can the
General Assembly act in the face of such higher power?
Nor is it surprising that the appellate court has faithfully applied
Palmer. As that court noted in both Ramey and Wuebbels, it is bound
to follow our decision until this court says otherwise. Today’s case
provides the opportunity, our first since Palmer was filed, to do just
that.
Stare decisis is, as the United States Supreme Court has
recognized, “essential to the respect accorded to the judgments of [a
reviewing court] and to the stability of the law.” Lawrence v. Texas,
539 U.S. 558, 577, 156 L. Ed 2d 508, 525, 123 S. Ct. 2472, 2483
(2003). What it is not, however, is a “mechanical formula of
adherence to the latest decision” (Helvering v. Hallock, 309 U.S. 106,
119, 84 L. Ed. 2d 604, 612, 60 S. Ct. 444, 451 (1940)), as the dissent
would have it. The doctrine certainly does not compel us to follow a
past decision when its rationale no longer withstands “careful
analysis.” Lawrence, 539 U.S. at 577, 156 L. Ed. 2d at 525, 123 S. Ct.
at 2483. I further acknowledge that prior decisions should not be
overruled absent “good cause.” Moehle v. Chrysler Motors Corp., 93
Ill. 2d 299, 304 (1982). But whether the rationale in a case no longer
withstands careful analysis or whether good cause exists for a
departure from stare decisis in any given case is a question upon
which reasonable minds may sometimes differ. In re Commitment of
Simons, 213 Ill. 2d 523, 546 (2004) (Freeman, J., dissenting, joined
by Kilbride, J.). Recently, this court has unanimously acknowledged
that good cause exists when governing decisions are “badly
reasoned.” People v. Colon, 225 Ill. 2d 125, 146 (2007). That
description fits Palmer to a tee, and the case should be flatly
overruled.
JUSTICE BURKE, concurring in part and dissenting in part:
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I agree with the majority that summary dismissal of defendant’s
pro se postconviction petition was proper. I disagree, however, with
the majority’s conclusion that defendant’s consecutive sentences are
not void.
In the case at bar, defendant was sentenced to one term of natural
life and a consecutive term of 10 years in prison. On appeal,
defendant argues that his consecutive sentences are void under People
v. Palmer, 218 Ill. 2d 148 (2006), and that his sentences should be
concurrent.
In Palmer, we reversed the circuit court’s imposition of the
defendant’s consecutive natural-life sentences and modified the
sentences to run concurrently. Palmer, 218 Ill. 2d at 169-70. We
offered two reasons for doing so. First, we held that, because
defendant was sentenced under the Habitual Criminal Act (720 ILCS
5/33B–1 (West 2002)), he was not subject to consecutive sentencing.
Palmer, 218 Ill. 2d at 163. Second, and “more importantly,” we held
that it was impossible to serve consecutive natural-life sentences,
“both according to natural law and within the plain meaning of the
‘consecutive’ sentencing law, section 5–8–4(a).” Palmer, 218 Ill. 2d
at 164. Because of the relevance of this second, alternative holding to
the present case, I quote our discussion in Palmer at length:
“Perhaps more importantly, we recognize the
impossibility of serving consecutive natural-life sentences
both according to natural law and within the plain meaning of
the ‘consecutive’ sentencing law, section 5–8–4(a). 730 ILCS
5/5–8–4(a) (West 2002). This impossibility is based on the
critical distinction between a term of natural-life
imprisonment and that of a term of years, namely, the
particular sentences’ potential for release of defendant. Unlike
a term of years, the Code provides that ‘[n]o person serving
a term of natural life imprisonment may be paroled or
released except through executive clemency.’ 730 ILCS
5/3–3–3(d) (West 2002). With the unavailability of parole or
release for defendant in mind, we examine section 5–8–4(a)
of the Code (730 ILCS 5/5–8–4(a) (West 2002)). It provides:
‘Concurrent and Consecutive Terms of Imprisonment.
(a) When multiple sentences of imprisonment are
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imposed on a defendant at the same time, *** the
sentences shall run concurrently or consecutively as
determined by the court. *** The court shall not impose
consecutive sentences for offenses which were committed
as part of a single course of conduct during which there
was no substantial change in the nature of the criminal
objective, unless:
(i) one of the offenses for which defendant was
convicted was first degree murder or a Class X or
Class 1 felony and the defendant inflicted severe
bodily injury, ***
***
in which event the court shall enter sentences to run
consecutively.[’] 730 ILCS 5/5–8–4(a)(i) (West
2002).
All of the offenses committed by defendant were Class X
offenses, and there is no dispute that defendant inflicted
severe bodily injury to both M.J. and D.J. However, we hold
that section 5–8–4(a) does not apply here, based on the plain
meaning of the word ‘consecutive.’
The necessity of this holding is foreshadowed in our case
law. Previous judicial pronouncements have failed to
acknowledge the impossibility of serving and enforcing
sentences consecutive to death or life without parole. ***
***
Here, we attempt to relieve this judicial uneasiness by
acknowledging the elephant in the room and the plain
meaning of the word ‘consecutive.’ ‘Consecutive’ has been
defined as ‘following esp. in a series: one right after the other
often with small intervening intervals.’ Webster’s Third New
International Dictionary 482 (1993). Additionally,
‘consecutive sentences’ are ‘two or more sentences of jail
time to be served in sequence. For example, if a defendant
receives consecutive sentences of 20 years and five years, the
total amount of jail time is 25 years.’ Black’s Law Dictionary
1393-94 (8th ed. 2004). It belabors the obvious to state that at
the conclusion of a defendant’s first natural-life sentence, his
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life is over. Further, the Department of Corrections cannot
enforce an order imposing another natural-life sentence
consecutive to it. Thus, consecutive natural-life sentences
cannot follow in a series right after one another. Defendant
cannot serve two natural-life sentences in sequence, nor will
the total amount of two or more natural-life sentences ever be
more than defendant’s one life. There is only one way in
which a defendant can serve the sentences, with his one life.
Therefore, the sentences may not be consecutive, but must be
concurrent because concurrent sentences are sentences which
operate simultaneously. Black’s Law Dictionary 1393 (8th ed.
2004).
***
*** We explicitly find, as these aforementioned courts
also did implicitly, that defendant’s actual sentence is
governed by the laws of nature, regardless of whether a trial
judge imposes his sentence consecutively or concurrently.
Because defendant may only serve these sentences
concurrently, we reverse the circuit court’s imposition of
consecutive natural-life sentences on the five remaining
convictions. Accordingly, under Supreme Court Rule
615(b)(4) [citation], we change the defendant’s sentence to
five concurrent sentences of natural-life imprisonment.”
(Emphasis added.) Palmer, 218 Ill. 2d at 164-65, 167-68,
169-70.
Our holding in Palmer regarding the plain meaning of the word
“consecutive” applies to defendant’s consecutive sentences here. Just
as it was impossible for the defendant in Palmer to serve more than
one consecutive natural-life term, so too is it impossible for defendant
to serve a term of years consecutively to a term of natural life.
Further, as the majority acknowledges, a sentence which is in conflict
with statutory guidelines is void and may be challenged at any time.
Slip op. at 9, citing Palmer, 218 Ill. 2d at 163. Thus the appellate
court in this case erred when it concluded that defendant’s sentences
were not void.
Nevertheless, the majority finds that “defendant’s reliance on
Palmer is misplaced.” Slip op. at 9. The majority states that Palmer
“stands simply for the proposition that defendants sentenced to
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natural life in prison under the Habitual Criminal Act are not subject
to the consecutive-sentencing provisions of the Unified Code of
Corrections.” Slip op. at 9. Because the defendant in the instant case
was not sentenced under the Habitual Criminal Act, the majority
concludes, “Palmer’s prohibition on consecutive sentencing has no
application to this case.” Slip op. at 10.
The majority reaches this result by reading out of Palmer our
holding regarding the plain meaning of the word “consecutive.” The
majority finds that, once the Palmer court declared that the defendant
was not eligible for consecutive sentencing because he was sentenced
under the Habitual Criminal Act, anything the court “went on to say
about the impossibility of serving consecutive natural-life sentences
could in no way affect the outcome of that case” and, thus, was “not
essential to the disposition of the cause.” Slip op. at 10. From this, the
majority concludes that our holding in Palmer regarding the plain
meaning of the word “consecutive” was “advisory.” Slip op. at 10. In
the majority’s view, our holding was not truly a holding, but was
something less: a “ ‘holding’ ” with quotation marks around the
word.2 It was, in short, a “mistake.” Slip op. at 10.
The majority’s conclusion that our holding in Palmer regarding
the plain meaning of the word “consecutive” was a “mistake” because
it was “not essential to the disposition of the cause” (slip op. at 10) is
illogical. Consider what would occur if either one of the two
alternative holdings were removed from Palmer. Under either holding
standing alone, the defendant could not receive consecutive natural-
life sentences. Because either holding may be removed from Palmer
without affecting the result, neither holding is “essential to the
disposition of the cause.” Both holdings, therefore, are “mistakes” if
the majority’s reasoning is applied. This cannot be correct.
Further, what if the order in which the holdings appeared in
Palmer had been reversed? If such were the case, under the majority’s
reasoning, one would be forced to conclude that Palmer’s holding
2
Statements in a judicial opinion that are something less than a holding
are, of course, dicta. Thus, although the majority avoids using the word, it
is clear that the majority views our discussion in Palmer regarding the plain
meaning of the word “consecutive” as dicta.
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about the impossibility of serving consecutive natural-life sentences
was the only holding, and the finding that the defendant was not
statutorily eligible for consecutive sentencing under the Habitual
Criminal Act was a “mistake” because it was not “essential” to our
decision. Surely, the precedential value of holdings in an opinion
should not depend on the order in which they happen to be arranged.
The fact is that neither of our alternative holdings in Palmer was
“advisory” or a “mistake.” This is a black letter rule of appellate law.
As the United States Supreme Court has explained:
“But it is urged that what we have described as ruled [in a
previous case] was obiter dictum and should be disregarded,
because the Court there gave a second ground for its decision
which was broad enough to sustain it independently of the
first ground. The premise of the contention is right but the
conclusion is wrong; for where there are two grounds, upon
either of which an appellate court may rest its decision, and it
adopts both, ‘the ruling on neither is obiter, but each is the
judgment of the court and of equal validity with the other.’ ”
United States v. Title Insurance & Trust Co., 265 U.S. 472,
486, 68 L. Ed. 1110, 1114, 44 S. Ct. 621, 623 (1924), quoting
Union Pacific R.R. Co. v. Mason City & Fort Dodge R.R. Co.,
199 U.S. 160, 166, 50 L. Ed. 134, 137, 26 S. Ct. 19, 20
(1905).
We recently reaffirmed this rule ourselves, in Lebron v. Gottlieb
Memorial Hospital, Nos. 105741, 105745 cons., slip op. at 13
(February 4, 2010), citing Woods v. Interstate Realty Co., 337 U.S.
535, 537, 93 L. Ed. 1524, 1526, 69 S. Ct. 1235, 1237 (1949) (“where
a decision rests on two or more grounds, none can be relegated to the
category of obiter dictum”).
To be sure, there is always a measure of judicial discretion that is
exercised when drafting a judicial opinion and, during the drafting
process, judges may disagree over whether to include one or more
alternative holdings. However, once an issue is considered by the
court and an alternative holding is rendered, it is binding law. The
holding cannot subsequently be evaded by calling it “advisory” or
“not essential” or a “mistake.” This is particularly true here, where the
holding which the majority wishes to circumvent was not only
expressly denominated as a holding by this court but was labeled the
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“more important” of the holdings in the case.
Finally, the majority fails to justify or even acknowledge the
sweeping scope of its decision: every alternative holding that is
second in sequence, in every opinion filed by a court in this state, has
now been declared “advisory” and a “mistake” because it is “not
essential to the disposition of the cause.” Slip op. at 10. This is a
highly destabilizing ruling which will cause no end of confusion.
There is no justification for this result.
After concluding that Palmer’s holding regarding the plain
meaning of the word “consecutive” was a “mistake” because it was
“not essential,” the majority then goes on to offer an alternative
reason for rejecting that holding: it was “incorrect on the merits” and
therefore not subject to the constraints of stare decisis. Slip op. at 10-
11. Of course, this second, alternative rationale is not essential to the
majority’s decision in this case. It is therefore “advisory,” a
“mistake,” and may be disregarded on this ground alone.3
Moreover, the majority’s conclusion that Palmer’s holding with
respect to the plain meaning of the word “consecutive” is not subject
to the constraints of stare decisis is incorrect.
“The doctrine of stare decisis ‘ “expresses the policy of
the courts to stand by precedents and not to disturb settled
points.” ’ People v. Caballes, 221 Ill. 2d 282, 313 (2006),
quoting Neff v. George, 364 Ill. 306, 308-09 (1936), overruled
on other grounds by Tuthill v. Rendelman, 387 Ill. 321
(1944). In other words, ‘ “a question once deliberately
examined and decided should be considered as settled and
closed to further argument” ’ (Wakulich v. Mraz, 203 Ill. 2d
223, 230 (2003), quoting Prall v. Burckhartt, 299 Ill. 19, 41
(1921)), so that the law will not change erratically, but will
develop in a principled, intelligible fashion (People v.
Mitchell, 189 Ill. 2d 312, 338 (2000)).” People v. Colon, 225
Ill. 2d 125, 145-46 (2007).
While the doctrine of stare decisis is not absolute, any departure
3
That the majority fails to apply its “alternative-holdings-are-a-mistake”
rule in the very opinion in which it is adopted is a further indication that the
rule is unwise.
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from prior decisions must be “ ‘specially justified.’ ” People v.
Suarez, 224 Ill. 2d 37, 50 (2007), quoting People v. Sharpe, 216 Ill.
2d 481, 520 (2005). Prior decisions may be overturned “only on the
showing of good cause.” Heimgaertner v. Benjamin Electric
Manufacturing Co., 6 Ill. 2d 152, 167 (1955); Colon, 225 Ill. 2d at
146.
In this case, the majority identifies two reasons that it believes
constitute good cause for overturning Palmer. First, the majority
states that, in Palmer, this court “expressed its disapproval” of a
sentencing scheme that results in sentences that cannot actually be
served. Slip op. at 11. This was error, the majority concludes, because
“[t]he legislature has determined that the imposition of consecutive
natural-life sentences serves a legitimate public policy goal, and even
if its effect is purely symbolic, it is within the purview of the
legislature to make that determination.” Slip op. at 11.
The majority mischaracterizes Palmer. The court in Palmer did
not “express its disapproval” of a sentencing scheme as if it were
engaged in a dispute with the legislature over a question of public
policy. Rather, as the lengthy quotation set forth above makes clear,
the court attempted to discern legislative intent by applying a plain-
language analysis to the consecutive-sentencing statute. Citing to
Webster’s and Black’s Law Dictionary, the court concluded that the
word “consecutive” means to follow in a series, one right after the
other. The court then took judicial notice of a fact of natural law:
human beings only have one life. Given the plain meaning of the
word “consecutive,” and given that the General Assembly was
undoubtedly aware of human mortality when drafting the Code, the
court in Palmer concluded that the legislature could not have
intended for the consecutive sentencing scheme to apply when a
defendant receives a natural-life sentence. Whether one agrees with
this analysis or not, it cannot now be dismissed as nothing more than
an “expression of disapproval” of a policy decision.
Further, the point raised by the majority here–that the legislature
intended to allow the imposition of consecutive natural-life
sentences–is the identical argument made by the dissenting justices
in Palmer. See Palmer, 218 Ill. 2d at 174 (Garman, J., concurring in
part and dissenting in part, joined by Thomas, C.J., and Karmeier, J.)
(“The legislature has apparently determined that the imposition of
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consecutive life sentences is meaningful, if only symbolically, and
this court must give effect to the legislature’s clear intent”). To hold
that the dissent’s reasoning in Palmer now constitutes good cause for
overruling that decision is directly at odds with the principle that “ ‘a
question once deliberately examined and decided should be
considered as settled and closed to further argument.’ ” Wakulich v.
Mraz, 203 Ill. 2d 223, 230 (2003), quoting Prall v. Burckhartt, 299
Ill. 19, 41 (1921); see also People v. Lopez, 207 Ill. 2d 449, 459
(2003) (this court “ ‘will not depart from precedent “merely because
the court is of the opinion that it might decide otherwise were the
question a new one” ’ ”), quoting People v. Robinson, 187 Ill. 2d 461,
464 (1999). Indeed, by holding that the same reasoning found in the
dissent in Palmer provides good cause for overruling the decision, the
majority openly invites litigants to repeatedly re-argue points that
have been expressly rejected by this court.
The majority also concludes that good cause exists to overrule
Palmer because this court “neither intended nor envisioned” that its
holding regarding the plain meaning of the word “consecutive” would
be applied to a natural-life sentence consecutively to a term of years.
Slip op. at 11. The problem with this reasoning is that the majority
does not support it with anything that was actually said in Palmer.
The majority makes no attempt to distinguish Palmer from this case
and, thus, concedes that the language and reasoning in Palmer do, in
fact, apply to a natural-life sentence consecutive to a term of years.
Accordingly, when the majority now states that the court in Palmer
did not intend for its holding to apply to a natural-life sentence
consecutive to a term of years, the majority is saying: “We did not
mean what our words in Palmer actually say.” This is plainly
inappropriate.
What this court “intends or envisions” is found in the words
contained in our opinions. If this court can simply state, after an
opinion is filed, that the words in the opinion do not mean what they
say–that there is another intention behind the words, unknown to the
public–then we should not bother to write opinions. The majority’s
determination that we may disregard Palmer by baldly asserting
“that’s not what we meant”–without ever bothering to examine the
actual language of the opinion–is not only contrary to the doctrine of
stare decisis, but undermines the rule of law itself.
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Moreover, consider the nature of the two reasons offered by the
majority for overruling Palmer: “The dissent was right” and “We did
not mean what we said.” These rationales can be applied to every
decision of this court in which a dissent has been filed. Again, this is
completely contrary to the doctrine of stare decisis, which requires
something different, some “special justification,” for overturning a
prior decision of this court. Suarez, 224 Ill. 2d at 50.
Justice Freeman, specially concurring, also attempts to justify
overturning Palmer. The special concurrence reads Palmer as having
announced a broad, free-standing rule, requiring that “all consecutive
sentences imposed must be assessed by reviewing courts to ensure
that they are consistent with the laws of nature.” Slip op. at 15
(Freeman, J., specially concurring). According to the special
concurrence, this broad ruling was error, and Palmer “should never
have invoked the ‘laws of nature’ to decide what was a fairly routine
case of statutory interpretation.” Slip op. at 15 (Freeman, J., specially
concurring). Thus, in the view of the special concurrence, Palmer was
badly reasoned, and good cause exists to depart from the principles
of stare decisis. Slip op. at 16 (Freeman, J., specially concurring).
Like the majority, the special concurrence mischaracterizes Palmer.
The holding of Palmer was expressly stated:
“[W]e hold that section 5–8–4(a) does not apply here, based
on the plain meaning of the word ‘consecutive.’ ” Palmer,
218 Ill. 2d at 165.
See also Palmer, 218 Ill. 2d at 167 (“Here, we attempt to relieve this
judicial uneasiness by acknowledging the elephant in the room and
the plain meaning of the word ‘consecutive’ ”); Palmer, 218 Ill. 2d at
166 (noting that previous decisions have not “mentioned the plain
meaning of the word ‘consecutive’ and the impossibility of serving
any term of years consecutive to a death sentence”). As noted, the
court in Palmer determined that the plain and ordinary meaning of the
word “consecutive” means to follow in a series, one right after the
other. Palmer then took judicial notice of one–and only one–law, or
fact, of nature: that human beings have just one life. Palmer, 218 Ill.
2d at 167 (“It belabors the obvious to state that at the conclusion of
a defendant’s first natural-life sentence, his life is over”). It is, of
course, not possible for a defendant to serve a “consecutive” sentence,
in the plain and ordinary meaning of that word, once the defendant is
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dead. Accordingly, given the plain meaning of the word
“consecutive,” Palmer concluded that the General Assembly could
not have intended for the consecutive sentencing scheme to apply to
a defendant who receives a natural-life sentence.
The dissenting justices in Palmer disagreed with this conclusion,
but not because they disputed the plain meaning of the word
consecutive. Rather, according to the dissenting justices, the
controlling indication of legislative intent was found in the language
of section 5–8–4(a), which states that the sentences for certain
“triggering” felonies must be served consecutively when severe
bodily injury is inflicted. Based on this language, the dissenting
justices concluded “[t]he legislature has apparently determined that
the imposition of consecutive life sentences is meaningful, if only
symbolically, and this court must give effect to the legislature’s clear
intent.” Palmer, 218 Ill. 2d at 174 (Garman, J., concurring in part and
dissenting in part, joined by Thomas, C.J., and Karmeier, J.)
Palmer thus involved nothing more than a disagreement over
legislative intent. The majority in Palmer found the controlling
indication of legislative intent in the plain meaning of the word
consecutive, while the dissenting justices found it in other language
in the statute. Whatever one’s view of this disagreement and the
Palmer majority’s position in it, the decision in Palmer was clearly
not, as the special concurrence states, an announcement of some type
of broad, free-standing rule of “natural law.”
The special concurrence’s mischaracterization of Palmer leads to
further error. According to the special concurrence, Palmer must be
overturned because, “[b]y introducing the concept of natural law to
consecutive and concurrent sentences in such expansive terms, [the
court], in essence, isolated [its] decision from legislative correction.”
Slip op. at 15 (Freeman, J., specially concurring). In the view of the
special concurrence, the legislature “could never trump a ruling based
on natural law” and, thus, the court in Palmer placed its decision
“beyond the mere actions of the General Assembly” to respond to in
any manner. Slip op. at 15-16 (Freeman, J., specially concurring). In
this way, according to the special concurrence, the court exceeded its
proper institutional role.
Again, the decision in Palmer was expressly based on the
legislature’s intent, as found in the plain and ordinary meaning of the
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word “consecutive.” Palmer, 218 Ill. 2d at 165 (“we hold that section
5–8–4(a) does not apply here, based on the plain meaning of the word
‘consecutive’ ”). What this means is that the decision in Palmer was
not based on some “higher power” (slip op. at 16 (Freeman, J.,
specially concurring)) that precludes legislative action. If the
legislature desired, it could alter, via statute, the definition of the
word “consecutive” and declare that it is the public policy of this state
to allow consecutive natural-life sentences. If it did so, then the logic
of Palmer would no longer apply. Thus, contrary to the special
concurrence’s assertions, the court in Palmer in no way overstepped
its bounds or in some manner “isolated [its] decision from legislative
correction.” Slip op. at 15 (Freeman, J., specially concurring).
The fact that the court must labor so hard to find reasons for
overturning Palmer points to one conclusion: there is no justification
for overturning it. The holding in Palmer, though disagreed with by
members of the court, rested on a conventional plain-meaning
analysis of the word “consecutive,” coupled with judicial notice of an
indisputable fact: human mortality. There has been no subsequent
legislative activity, such as a change to the definition of the word
“consecutive,” that would call Palmer’s determination of legislative
intent into question. Nor has there been any confusion in applying
Palmer, as even the State has conceded that it applies to a natural-life
sentence consecutive to a term of years. See People v. Dixon, 366 Ill.
App. 3d 848, 856 (2006). Indeed, the only reason the present case is
before us is not because there is any disagreement as to whether
Palmer applies to a natural-life sentence consecutive to a term of
years, but because the appellate court held that defendant had
forfeited his Palmer argument. And even this point is hardly a source
of confusion, as the majority correctly rejects the appellate court’s
holding in four sentences. Slip op. at 8-9.
“Once a majority of this court has established a principle of law,
stare decisis dictates that the principle should not be disregarded
simply because some members of the court disagree or have changed
their minds.” People v. Fuller, 187 Ill. 2d 1, 23 (1999) (Bilandic, J.,
dissenting); People v. Mitchell, 189 Ill. 2d 312, 338 (2000). The
majority’s decision to overrule Palmer disregards this principle and
reduces the doctrine of stare decisis to “nothing more than a pious
cliche.” People v. Lewis, 88 Ill. 2d 129, 167 (1981) (Ryan, J.,
-27-
concurring). Accordingly, I would modify defendant’s consecutive
sentences to run concurrently.
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