THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT M. PINKONSLY, Defendant-Appellant, 331 Ill. App. 3d 984

JUSTICE McLAREN delivered the opinion of the court: Defendant, Robert M. Pinkonsly, appeals from the trial court’s order denying his petition to reduce sentence. We affirm in part and vacate in part. In August 1991, defendant was convicted of two counts of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1989, ch. 56h, par. 1401(a)(2)) and one count of narcotics racketeering (Ill. Rev. Stat. 1989, ch. 56V2, par. 1654(a)) and was sentenced to three concurrent terms of 30 years’ imprisonment in the Department of Corrections. This court affirmed defendant’s conviction in People v.

Pinkonsly, No. 2—91—1093 (1993) (unpublished order under Supreme Court Rule 23). In December 1997, defendant filed a pro se petition for relief from judgment pursuant to

section 2 — 1401 of the Civil Practice Law (735 ILCS 5/2 — 1401 (West 1998)). Appointed counsel filed an amended petition to reduce sentence in August 1999. The trial court denied the amended petition on September 9, 1999. This appeal followed.

Section 2 — 1401 provides a method of obtaining relief from a judgment after more than 30 days have elapsed. People v. Madej, 193 Ill. 2d 395, 399-400 (2000). A petition brought under

section 2 — 1401 must be filed “not later than 2 years after the entry of the order or judgment.” 735 ILCS 5/2 — 1401 (West 1998). Relief sought more than two years after the entry of the judgment will not normally be considered absent a clear showing that the petitioner was under a legal disability or duress or that the grounds for relief were fraudulently concealed. People v. Harvey, 196 Ill. 2d 444, 447 (2001). However, this two-year limitations period may be waived by the opposing party. Harvey, 196 Ill. 2d at 447.

Here, the initial petition was filed more than six years after defendant was sentenced and almost five years after the mandate of this court issued in the direct appeal. The State argues that the petition should be considered untimely and the trial court’s denial of the petition should be upheld on that basis. However, the State never raised the limitations period below. Therefore, we conclude that the State has waived the issue of timeliness, and we will not consider that argument on appeal.

Defendant first contends that he received ineffective assistance from counsel at the sentencing, appeal, and petition stages of this case because none of the attorneys raised certain sentencing issues. However, the ineffectiveness of counsel is not appropriate for review in a proceeding under

section 2 — 1401. People v. Smith, 176 Ill. App. 3d 132, 136 (1988); People v. Anderson, 31 Ill. 2d 262, 264 (1964). Thus, any arguments regarding the effectiveness of counsel at the sentencing and appeal stages were not appropriately raised in the

section 2 — 1401 petition and will not be considered here. However, we must address defendant’s contention that counsel appointed to assist him with his

section 2 — 1401 petition was ineffective. To successfully allege the ineffective assistance of counsel, a defendant must demonstrate that (1) counsel’s performance was deficient in that counsel made such serious errors that counsel was not operating as the counsel guaranteed by the sixth amendment to the United States Constitution (U.S. Const., amend. VI), and (2) counsel’s deficient performance substantially prejudiced the defendant in that it is reasonably probable that the result of the proceeding would have been different but for counsel’s unprofessional errors. People v. Flores, 153 Ill. 2d 264, 283 (1992).

Where the ineffectiveness claim can be disposed of on the ground that the defendant did not suffer sufficient prejudice, a court need not determine if counsel provided less than reasonably effective assistance. Flores, 153 Ill. 2d at 283-84. Defendant contends that he received ineffective assistance because counsel did not raise in the petition the argument that the charges of unlawful delivery of a controlled substance were lesser-included offenses of narcotics racketeering and, that, therefore, the convictions of those charges should have been vacated.

Multiple convictions and concurrent sentences cannot stand where a defendant commits multiple acts and is convicted of multiple offenses, some of which are, by definition, lesser-included offenses. See People v. King, 66 Ill. 2d 551, 566 (1977). In such an instance, sentence should be imposed on the more serious offense, and conviction on the less serious offense should be vacated. People v. Milton, 309 Ill. App. 3d 863, 868 (1999). Whether an offense encompasses a lesser-included offense is a matter of law to be reviewed de novo. People v. Landwer, 166 Ill. 2d 475, 486 (1995).

Section 2 — 9 of the Criminal Code of 1961 defines an included offense, in pertinent part, as an offense that “[i]s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.” Ill. Rev. Stat. 1989, ch. 38, par. 2 — 9(a) (now 720 ILCS 5/2 — 9 (West 1998)). Our supreme court has adopted the “charging instrument” approach to determine whether an offense is a lesser-included offense. See People v. McLaurin, 184 Ill. 2d 58, 104 (1998).

The charging instrument approach looks to the facts alleged in the charging instrument in identifying a lesser-included offense. Under this approach, an offense is deemed to be a lesser-included offense if the instrument charging the greater offense sets out the main outline of the included offense. McLaurin, 184 Ill. 2d at 104-05.

The indictment for narcotics racketeering charges: “That between the dates of December 4, 1989 and December 12, 1989, in McHenry County, State of Illinois, [defendant] committed the offense of Narcotics Racketeering, in that the said defendant received income knowing that such income was derived directly from a pattern of narcotics activity in which he participated, in violation of Ch. 56V2,

Section 1654(

a) of the Illinois Revised Statutes [now 725 ILCS 175/4(a) (West 1998)].” Under the Narcotics Profit Forfeiture Act (the Act), “Pattern of narcotics activity” is defined as “2 or more acts of narcotics activity of which at least 2 such acts were committed within 5 years of each other. At least one of those acts of narcotics activity must have been committed after the effective date of this Act and at least one of such acts [of narcotics activity] shall be or shall have been punishable as a Class X, Class 1 or Class 2 felony.” Ill. Rev.

Stat. 1989, ch. 56½, par. 1653(a)(2) (now 725 ILCS 175/3(b) (West 1998)). “Narcotics activity” is defined as “conduct punishable as a felony under the Cannabis Control Act or Illinois Controlled Substances Act.” Ill. Rev. Stat. 1989, ch. 56½, par. 1653(a)(1) (now 725 ILCS 175/3(a) (West 1998)). Count I of the indictment charged “[t]hat on or about December 4, 1989, in McHenry County, State of Illinois, [defendant] committed the offense of unlawful delivery of controlled substance, in that said defendant knowingly and unlawfully delivered *** cocaine” in violation of

section 401(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2) (now 720 ILCS 570/401(a)(2)(A) (West 1998)) (between 15 and 100 grams of cocaine). Count II contained the same allegations as count I except that the date was December 12, 1989. The narcotics racketeering count contained an allegation that defendant participated in a pattern of narcotics activity. That allegation necessarily implied that defendant committed two Class 2, 1, or X felonies under the Cannabis Control Act (Ill. Rev.

Stat. 1989, ch. 56½, par. 701 et seq. (now 720 ILCS 550/1 et seq. (West 1998))) or the Illinois Controlled Substances Act. Counts I and II alleged that defendant committed two Class X felonies under the Illinois Controlled Substances Act. Accordingly, the statutory elements of narcotics racketeering were implicitly contained in the unlawful-delivery-of-cocaine counts, a fact that renders the unlawful-delivery-of-cocaine counts lesser-included offenses. See People v. Callaway, 185 Ill. App. 3d 136 (1989).

Thus, the convictions of and sentences for both counts of unlawful delivery of a controlled substance must be vacated. Our analysis here is supported by Callaway, 185 Ill. App. 3d 136, in which the Appellate Court, Fourth District, found that charges of unlawful delivery of illegal narcotics were lesser-included offenses of narcotics racketeering. In Callaway, the defendant was convicted of seven counts of unlawful delivery of cocaine, one count of unlawful delivery of cannabis, and narcotics racketeering.

All of the delivery charges, which were the basis for the racketeering charge, were Class' 1, 2, or 3 felonies. Using the charging instrument approach, the appellate court concluded that “all of the elements of unlawful delivery of illegal narcotics are included within the offense of narcotics racketeering.” Callaway, 185 Ill. App. 3d at 147. Therefore, the court vacated all of the unlawful-delivery convictions and sentences.

We recognize that, unlike Callaway, the included offenses here, the unlawful delivery of between 15 and 100 grams of cocaine, are classified as more serious offenses; the unlawful delivery offenses are classified as Class X felonies, while the narcotics racketeering offense is classified as a Class 1 felony. However, that does not mean that all of the convictions and sentences can stand. See People v. Smith, 295 Ill.

App. 3d 405 (1998) (the Appellate Court, Fifth District, vacated a Class X possession of a controlled substance (cocaine) with intent to deliver, stating that it was a lesser-included offense of narcotics racketeering). Therefore, in the case before us, counsel was ineffective for failing to raise this issue in the

section 2 — 1401 petition, as defendant would have prevailed on the issue. Thus, the convictions of and sentences for unlawful delivery must be vacated and the conviction of and sentence for narcotics racketeering must stand. The dissent cites to People v. Bryant, 128 Ill. 2d 448 (1989) (Bryant II), to support its determination that the Class X felony is a separate offense rather than a lesser-included offense. 331 Ill. App. 3d at 993. The dissent concludes that through a scheme of penalties the legislature did not intend that a Class X delivery is a lesser-included offense of narcotics racketeering.

The dissent disregards that the issue in Bryant was that of disproportionate penalties and not that of multiple convictions based on lesser-included offenses. The dissent misrepresents the Bryant decision when it states that our supreme court in Bryant departed from the “strict adherence to the charging instrument approach” to determine whether multiple convictions were based on lesser- and greater-included offenses. 331 Ill. App. 3d at 993. The Bryant court makes no mention of the charging instrument approach because the Bryant court did not have a factual issue relating to a charging instrument before it.

The issue raised in Bryant was that of disproportionate penalties, and the court confined its analysis to disproportionality because the facts were limited to that issue. The theft offense, which was the basis of Byrant’s argument, was not charged. Bryant, 128 Ill. 2d at 456. Thus, the Bryant court compared the elements of the offenses at issue, but abstractly. Here, we decide whether defendant was improperly convicted of multiple offenses based on the same conduct of defendant. In these situations, the charging instrument approach is the only valid analysis. See People v. Novak, 163 Ill. 2d 93, 112 (1994).

The dissent ignores the fact that our supreme court has repeatedly and consistently reaffirmed its preference for the charging instrument approach over the abstract elements approach in identifying lesser-included offenses when discussing the prohibition against multiple convictions. See, e.g., People v. McLaurin, 184 Ill. 2d 58, 104-05 (1998); People v. Hamilton, 179 Ill. 2d 319, 326-27 (1997); Novak, 163 Ill. 2d at 112. In Novak, the court explained that it preferred the charging instrument approach because: “This approach tempers harsh mechanical theory with the facts of a particular case.

The charging instrument approach results in a broader range of possible lesser included offenses, based on the allegations in the charging instrument. This supports the goal of more accurately conforming punishment to the crime actually committed. Further, since the charging instrument provides to the parties a closed set of facts, both sides have notice of all possible lesser included offenses and can plan their trial strategies accordingly.” Novak, 163 Ill. 2d at 113.

Since Novak, there has been no doubt that, in cases not involving disproportionate penalties, the charging instrument approach is the only proper way to identify lesser-included offenses. Therefore, Bryant is not applicable here, legally or factually. Further, our failure to apply the disproportionate penalties analysis is not “ironic,” as the dissent states. 331 Ill. App. 3d at 994. Both the State and defendant in this case recognize that an examination of the charging instruments is the proper approach here.

The parties do not raise the issue of disproportionate penalties, and we see no reason to raise it sua sponte, particularly when Bryant is both factually and legally distinct from the case before us. Defendant also argues that counsel was ineffective because she failed to argue that defendant was improperly sentenced to an extended term of 30 years’ imprisonment on the narcotics racketeering conviction. Narcotics racketeering, as a Class 1 felony, is punishable by a term in prison of 4 to 15 years. See Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1 (now 730 ILCS 5/5 — 8—1(a)(4) (West 1998)).

If the court finds it appropriate, a defendant may be sentenced to an extended term of up to 30 years’ incarceration. See Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—2 (now 730 ILCS 5/5—8—2(b)(3) (West 1998)). A trial court may impose an extended term for a felony conviction if the defendant has been previously convicted in Illinois of the same or greater class felony, the conviction has occurred within 10 years of the prior conviction, and the charges arose out of different series of acts and were separately brought and charged. See Ill. Rev.

Stat. 1989, ch. 38, par. 1005—5—3.2(b)(1) (now 730 ILCS 5/5—5—3.2(b)(1) (West 1998)). A trial court must set forth on the record its consideration of the requisite aggravating factors in imposing an extended-term sentence. People v. Wilson, 303 Ill. App. 3d 1035, 1046 (1999). However, the court need not recite or assign a value to each fact it used as a basis for the sentence. The absence of specific findings will not result in a remand where the sentence is justified by the record. People v. Pugh, 325 Ill. App. 336, 347 (2001). Here, the record indicates the basis of the extended-term sentence.

During the sentencing hearing, the State made reference to a Class 1 felony conviction of “possession with intent to deliver” in May 1989. Although the trial court did not state that this was the basis for the imposition of an extended term, we can presume that this is the basis for the sentence, since this factor was presented to the court. See People v. Watkins, 325 Ill. App. 3d 13, 21 (2001). Unlike People v. McGhee, 238 Ill. App. 3d 864 (1992), cited by defendant, the aggravating factor in this case has a basis in the record.

In McGhee, the factor that could have applied, that of wanton cruelty, was expressly rejected by the trial court. Thus, McGhee is not applicable here. Since defendant cannot establish that he was prejudiced by counsel’s failure to raise this issue, we affirm defendant’s extended-term sentence of 30 years’ imprisonment for narcotics racketeering. The judgment of the circuit court of McHenry County is affirmed in part and vacated in part. Affirmed in part and vacated in part. BOWMAN, J., concurs.