People v. Petrenko

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(2005) (unpublished order under Supreme Court Rule 23).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:

-16-

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.

-22-

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

-23-

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.

-24-

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

-25-

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

-26-

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.

-28-