No. 2--99--0352	

__________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE		  )	Appeal from the Circuit Court

OF ILLINOIS,                    )  of Carroll County.

	)	 

     Plaintiff-Appellee,	)

						  )

v.						  )  No. 96--CF--25                                                  )      

                                )

GARY L. ARMSTRONG,	)	Honorable

                                )  Richard E. DeMoss,

	Defendant-Appellant. 	)	Judge, Presiding.

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	JUSTICE McLAREN delivered the opinion of the court:

	After a bench trial, defendant, Gary L. Armstrong, was

convicted of aggravated criminal sexual assault (720 ILCS 5/12--

14(b)(1) (West 1994)); aggravated criminal sexual abuse (720 ILCS

5/12--16(c) (West 1994)); and predatory criminal sexual assault of

a child (720 ILCS 5/12--14.1(a)(1) (West 1996)).  He was sentenced

to concurrent prison terms of, respectively, 15 years, 7 years, and

15 years.  On direct appeal, this court affirmed.  People v. Armstrong, 297 Ill. App. 3d 46 (1998).   Defendant filed a pro se petition pursuant to the Post-Conviction Hearing Act (Act) (725

ILCS 5/122--1 et seq. (West 1998)), seeking relief on a variety of grounds.  The trial court dismissed the petition summarily, and

defendant timely appeals. 

	On appeal, defendant argues that the dismissal was erroneous

because he stated valid claims that (1) he  was denied the

effective assistance of trial counsel; and (2) his conviction of predatory criminal sexual assault of a child is void because the

statute creating the offense is unconstitutional.  The State

confesses error on the second issue.

	We hold that (1) the trial court correctly concluded that

defendant did not state the gist of a meritorious claim that his

trial counsel was ineffective; and (2) defendant is correct that

his conviction of predatory criminal sexual assault of a child is

void.  Therefore, we affirm in part, reverse in part, and vacate

the conviction of predatory criminal sexual assault of a child. 

	To avoid the summary dismissal of his pro se petition, defendant must allege sufficient facts to state the gist of a

meritorious claim that he was deprived of a constitutional right. 

People v. Donley, 314 Ill. App. 3d 671, 673-74 (2000).  Our review is de novo.  People v. Coleman, 183 Ill. 2d 366, 389 (1998).

	Defendant argues first that he stated a valid claim that his trial counsel was ineffective.  To prevail on such a claim, a

defendant must show that his trial counsel's performance was

objectively unreasonable and that there is a reasonable probability

that, but for counsel's deficiencies, the outcome of the proceeding

would have been different.  Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984); People v. Cunningham, 309 Ill. App. 3d 824, 828 (1999).  

	Defendant asserts that he sufficiently alleged that his trial

counsel was ineffective in failing to call the minor victim's

social worker.  According to the petition, the social worker would

have testified that she told the victim's mother that, after

several months of counseling, the victim needed no further counseling because she showed no signs of any of the trauma

normally associated with sexual abuse victims.  Defendant's

petition alleges that this failure prejudiced him because, at the

least, the evidence "would have been vital to [the] sentencing

hearing to rebut [the] State's Attorney's *** comments that

defendant may well have killed [the] victim, as defendant has

ruined [the] victim's entire life."  The petition does not support

this claim with any affidavits other than one in which defendant

himself states only that the petition's allegations are true.

	We agree with the trial court that defendant's petition does

not state the gist of a meritorious claim that his counsel was

ineffective. The petition does not plead facts that would establish either unreasonable representation or prejudice.  Crucially, the

petition attaches no affidavit from the would-be witness (or anyone

who may have heard her comment) stating that she would in fact

testify as the petition asserts.  See People v. Lester, 261 Ill. App. 3d 1075, 1078 (1994).  We have only defendant's word that the

social worker said what he claims.  Also, defendant can only

speculate that his sentences might have been different had the

trial court heard the witness repeat her out-of-court comment.

	Defendant next argues that his conviction of predatory criminal sexual assault of a child is void and must be vacated. 

The State confesses error, and we agree.  The offense of criminal

predatory criminal sexual assault of a child was created by Public

Act 89--428.  See Pub. Act 89--428, art. 2, §265, eff. December 13,

1995.  In Johnson v. Edgar, 176 Ill. 2d 499 (1997), the supreme court held that this statute was void.  Thus, in People v. Tellez- Valencia, 188 Ill. 2d 523 (1999), the court held that an indictment, a conviction, and a sentence  based on Public Act 89--

428 are all void.  Defendant's conviction of predatory criminal

sexual assault is void and must be vacated.

	We must still decide precisely what relief to grant defendant. 

Defendant asks us to reverse the summary dismissal of his petition

and remand the cause so that the trial court may appoint counsel

for defendant and conduct further proceedings on the petition as a

whole, including his claim that his trial counsel was ineffective. 

Defendant relies on People v. Rivera, 315 Ill. App. 3d 454 (2000), appeal allowed, 191 Ill. 2d 553 (2000), and People v. Noel, 291 Ill. App. 3d 541 (1997), two Third District opinions holding that

the Act does not allow the trial court to grant partial dismissals

of postconviction petitions.  The State responds that, although the

trial court may not be authorized to enter a partial summary

dismissal of a postconviction petition, a court of review may grant

partial relief on an appeal from the dismissal of a postconviction

petition in toto.  The State urges that, in the interests of judicial economy, we reverse the judgment in part and vacate

defendant's invalid conviction without remanding the cause.  We

agree with the State.

	We shall not examine the soundness of the Noel-Rivera rule, an issue now before our supreme court.  We believe that these opinions

do not require us to remand this cause for further proceedings on

a postconviction petition that raises one or more patently

frivolous contentions and one contention that is clearly correct as

a matter of law.  We agree with Rivera's statement that neither Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) nor any other

rule allows an immediate appeal from an order that dismissed part

of a postconviction petition but allowed the rest of the petition

to proceed to the next stage in the hearing process.  See Rivera, 315 Ill. App. 3d at 458.  However, whether the Act allows the trial

court to enter such an order in the first place is a question we do

not answer now.  The order here dismissed the postconviction

petition entirely.  

	We see no reason why this court may not affirm the trial court

in part, reverse the trial court in part, and enter the relief to

which defendant is entitled as a matter of law.  See 134 Ill. 2d R.

615(b).  Considerations of judicial economy obviously militate in

favor of doing so; there is no reason to remand the cause for a

foregone conclusion.  As defendant suggests, our resolution of this

appeal, like a partial dismissal at the trial level, does deprive defendant of an opportunity to obtain counsel to redraft the part

of the petition that the trial court properly ruled was patently

frivolous.  See Rivera, 315 Ill. App. 3d at 457-58.  All that defendant "loses" is the proverbial second bite at the apple. 

Fairness does not entitle him to a second chance to present an

argument that his pro se petition could not shape into the gist of a valid claim at the first stage of the proceeding.  Even if the

Act does not allow the trial court to enter a partial dismissal of

a postconviction petition, there is no reason this court may not

partly affirm and partly deny the dismissal in toto of a postconviction petition.

	We affirm the judgment of the circuit court of Carroll County

insofar as it summarily dismissed the claim that defendant's

counsel was ineffective.  We reverse the judgment's summary

dismissal of the petition insofar as the petition asserts that

defendant's conviction of predatory criminal sexual assault of a

child is void.  As that conviction is void, we vacate defendant's

conviction of predatory criminal sexual assault of a child.  We

note that double jeopardy does not attach to the alleged

transaction that we now vacate.  See People v. Tellez-Valencia, 295 iLLIll. App. 23ed 122, at 1128 (1998).

	Affirmed in part and reversed in part; underlying judgment

vacated in part.

	GEIGER and HUTCHINSON, JJ., concur.