Defendant argued that the sentences were merged, so that the completion of the felony sentence would extinguish any remaining time on the misdemeanor sentence. The trial court denied the petition on December 1, 1994. That same day, defendant filed a motion for diminution of sentence, which was also denied. Defendant appealed from the denial of the petition and the motion for diminution. His motion to file a late notice of appeal was granted, and the appeal was consolidated with the other timely appeal.
Defendant presents a single issue for review.
He argues that he was denied equal protection and due process of the law because he is required to serve more prison time than someone who had received the same sentences for the same conduct, but already happened to be serving the misdemeanor sentence. As an initial matter, we note that defendant raises his constitutional challenge to the merger provision for the first time on appeal. Defendant has not waived the issue by failing to raise it in the trial court, however, as a constitutional challenge to a statute may be raised at any time, including on appeal. We turn first to the statutory scheme defendant complains of in order to understand his contentions. Thus, merger occurs only when the offender is already serving his or her misdemeanor sentence, and not when the offender is simultaneously sentenced to felony and misdemeanor sentences.