Opinion
No. 1-12-3281 No. 1-12-3523
06-26-2015
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY SMITH, a/k/a Jarvis Alexander, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. Nos. 07 CR 13523 07 CR 22263 07 CR 4615 08 CR 13010 08 CR 9418 Honorable Neera Lall Walsh, Judge Presiding. PRESIDING JUSTICE PALMER delivered the judgment of the court.
Justices McBride and Reyes concurred in the judgment.
ORDER
Held: We affirm defendant's sentence for the offense of attempt first degree murder as People v. White, 2011 IL 109689, does not apply retroactively and defendant's sentence therefore fell within applicable statutory guidelines. We reverse defendant's UUWF conviction where the underlying predicate conviction for Class 4 AUUW is void ab initio pursuant to People v. Aguilar, 2013 IL 112116. 2 ¶ 1 Defendant, Jerry Smith, a/k/a Jarvis Alexander, appeals from an order of the circuit court of Cook County granting in part and dismissing in part his postconviction petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)) (Case No. 1-12-3523) and an order denying his motion to reconsider the dismissal of his petition (Case No. 12-3281). On appeal, defendant asserts the sentence he received as a result of his negotiated guilty plea to attempt first degree murder is void because it did not include the mandatory statutory firearm enhancement, and he should therefore be allowed to withdraw his plea and either plea anew or proceed to trial. Defendant also contends that pursuant to People v. Aguilar, 2013 IL 112116, his guilty plea and conviction for unlawful use of a weapon by a felon (UUWF) should be vacated because the underlying predicate felony was void. ¶ 2 The record reflects that defendant was charged with numerous offenses, but he ultimately pleaded guilty to several charges pursuant to a negotiated plea agreement on September 11, 2008. On that date, defendant entered a plea of guilty to one charge of unlawful use of a weapon by a felon (case no. 07 CR 04615), one charge of attempt first degree murder (case no. 07 CR 13523), and three charges of possession of contraband in a penal institution (case nos. 08 CR 9418, 08 CR 13010, 07 CR 22263). In exchange, the remaining charges were dismissed, including a charge of first degree murder. The trial court sentenced him to concurrent terms of 3 years' imprisonment for the UUWF conviction and 10 years' imprisonment for the attempt first degree murder conviction. He received a sentence of 5 years' imprisonment for each of the 3 possession of contraband convictions, which are to be served consecutively to the attempt murder and UUWF sentences. ¶ 3 As support for the factual basis for the pleas, the State presented the following evidence: concerning the UUWF conviction, the record indicates that on February 9, 2007, while investigating a domestic disturbance, an officer saw defendant in the middle of the street and approached him. Defendant ran away while grabbing his waistband; the police gave chase and observed defendant remove a handgun and throw it in a garbage can during the pursuit. The weapon was a fully loaded 9-millimeter handgun. Defendant stipulated to having a prior felony conviction for aggravated unlawful use of a weapon (AUUW) (case no. 05 CR 09975). With regard to the conviction of attempt first degree murder, the plea hearing evidence showed that on January 7, 2006, defendant and his co-offenders approached a parked vehicle belonging to the victim, who was in the car with two other individuals. Defendant and another co-offender were armed with handguns. Defendant pointed his gun at the car and pulled the trigger, but the gun did not fire because the safety was on. The co-offender fired his handgun and struck all three occupants, one of whom was killed. Defendant later provided a statement to the police admitting to these facts. Lastly, the three convictions of possession of contraband in a penal institution were supported by evidence that on three different occasions, defendant was found to be in possession of a sharpened wood object and/or a sharpened metal object while in a penal institution. ¶ 4 Defendant subsequently moved to withdraw his guilty pleas. The trial court denied the motion following a hearing. Defendant did not appeal his convictions or sentences. ¶ 5 On November 16, 2010, defendant filed a pro se postconviction petition in which he asserted ineffective assistance of plea counsel and failure of the trial court to properly admonish 4 him regarding the fact that his sentence would entail an additional three years due to mandatory supervised release (MSR). Defendant also requested that all his sentences run concurrently. ¶ 6 The trial court advanced defendant's petition to the second stage and counsel was appointed. Counsel did not amend the petition. The State moved to dismiss the pro se postconviction petition on May 21, 2012. ¶ 7 On July 30, 2012, the trial court denied in part and granted in part defendant's pro se petition for postconviction relief. The trial court found that the record demonstrated that his plea counsel properly advised him of the sentences he would receive and that he was properly admonished of his appellate rights. However, the trial court found that defendant was not advised of the three-year MSR term for the attempt murder conviction, even though he was advised that he would be required to serve a two-year MSR term for his remaining convictions. Therefore, the court reduced defendant's sentence for the attempt first degree murder conviction by one year, to nine years' imprisonment. The court dismissed his remaining claims, finding that defendant failed to make a substantial showing that his constitutional rights were violated. The court also denied defendant's request that all his sentences should run concurrently as this was contrary to statute. ¶ 8 Defendant filed a late notice of appeal from this order. Defendant also filed a pro se motion for reconsideration, which the trial court denied on October 11, 2012. Defendant filed a notice of appeal from that order as well. ¶ 9 Pursuant to the Act, a criminal defendant may pursue a three-stage process to collaterally attack his convictions based on substantial violations of his constitutional rights. People v. Boclair, 202 Ill. 2d 89, 99-100 (2002). If a defendant's initial pro se petition withstands the first stage by making out the gist of a constitutional claim, the petition advances to the second stage 5 of review, where the defendant receives the benefit of representation by counsel, who has the opportunity to amend the petition, and the State may respond to the petition or file a motion to dismiss. Id. at 100. "[A] motion to dismiss raises the sole issue of whether the petition being attacked is proper as a matter of law." People v. Domagala, 2013 IL 113688, ¶ 35 (quoting People v. Coleman, 183 Ill. 2d 366, 385 (1998). "[T]he dismissal of a post-conviction petition is warranted only when the petition's allegations of fact—liberally construed in favor of the petitioner and in light of the original trial record—fail to make a substantial showing of imprisonment in violation of the state or federal constitution." Coleman, 183 Ill. 2d at 382. A defendant must support the allegations in the petition with either the record or accompanying affidavits. Id. at 381. The court takes as true all well-pled factual allegations which are not positively rebutted by the record. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). However, the court does not resolve evidentiary questions, engage in fact-finding, or make credibility determinations at this stage. Domagala, 2013 IL 113688, ¶ 35 (quoting Coleman, 183 Ill. 2d at 385). Where the petition and any accompanying exhibits make out a substantial showing of a constitutional violation, the defendant is entitled to a third-stage evidentiary hearing. Coleman, 183 Ill. 2d at 381-82. Generally, we review the circuit court's second-stage dismissal of a postconviction petition de novo. Pendleton, 223 Ill. 2d at 473. ¶ 10 On appeal, defendant argues that because the indictment and factual basis for his guilty plea to attempt first degree murder demonstrated that he was armed with a firearm during the offense, the mandatory statutory enhancement of 15 years should have been added to the minimum 6-year sentence range for attempt first degree murder. Defendant asserts that pursuant to People v. White, 2011 IL 109689, a trial court is required to impose a statutory firearm enhancement where the indictment and factual basis support it. As a result, defendant argues, his 6 9-year sentence is void and must be vacated because it is less than the 21-year minimum compelled by statute. According to defendant, his plea should be withdrawn and the cause should be remanded to allow him to either plea anew or proceed to trial. He further contends that White did not announce a new rule of law exempt from retroactive application because a court is never authorized to impose a sentence that does not comply with statutory guidelines. Although defendant did not raise this issue in his postconviction petition, he contends that a void judgment may be attacked at any time. ¶ 11 The State maintains that this court has already determined that White announced a new rule of law that does not apply retroactively. The State further contends, relying on People v. Young, 2013 IL App (1st) 11173, ¶ 36, that defendant should be estopped from raising a belated challenge to his plea agreement because the error was to his benefit in that he received a lower sentence, both parties benefited from the plea agreement, the underlying offense occurred some time ago in 2006, and this delay would harm the State's ability to prosecute the case. ¶ 12 Although claims not raised in a postconviction petition generally cannot be argued for the first time on appeal (People v. Jones, 213 Ill. 2d 498, 505-08 (2004)), a void judgment may be attacked at any time, whether directly or collaterally (People v. Thompson, 209 Ill. 2d 19, 25 (2004)). Whether a judgment is void presents a question of law subject to review de novo. People v. Donelson, 2011 IL App (1st) 092594, ¶ 7. ¶ 13 Attempt first degree murder is a Class X felony with a sentence of not less than 6 years but not more than 30 years' imprisonment. 720 ILCS 5/8-4(c)(1) (West 2006); 730 ILCS 5/5-8-1(a)(3) (West 2006). However, if a defendant is armed with a firearm while committing the offense, then the attempt to commit first degree murder "is a Class X felony for which 15 years shall be added to the term of imprisonment imposed by the court[.]" 720 ILCS 5/8-4(c)(1) (West 7 2006). The parties do not dispute that this mandatory 15-year statutory enhancement was triggered by the indictment and factual basis for the plea, which indicated that defendant was in possession of a firearm and attempted to discharge it at the victims. As a result, defendant potentially faced a minimum sentence of 21 years' imprisonment for attempt first degree murder. Because the actual sentence imposed of 10 years (and, after the postconviction amendment, 9 years) fell outside of this range, defendant contends that his sentence is void. See People v. Arna, 168 Ill. 2d 107, 113 (1995) (A sentence is void where it fails to conform to a statutory requirement). ¶ 14 In White, 2011 IL 109689, ¶¶ 23, 26, our supreme court held that a sentence entered as a result of a plea agreement to first degree murder was void because it failed to include the mandatory statutory 15-year firearm enhancement where such enhancement was supported by the factual basis for the plea. The State and trial court did not have discretion to fashion a sentence that did not include the mandatory enhancement as such a sentence would not be authorized by law. Id. The parties in the instant case dispute on appeal whether the 2011 decision in White should apply retroactively to defendant's case, as White was decided after defendant's convictions became final in 2008. ¶ 15 Our supreme court's recent decision in People v. Smith, 2015 IL 116572, which was issued after the parties filed their briefs in the present case, controls the outcome here. In Smith, our supreme court determined that White did not apply retroactively to convictions which were final at the time White was decided. Smith, 2015 IL 116572, ¶¶ 1, 34. The Smith court reasoned that the decision in White constituted the pronouncement of a "new rule" pursuant to the United States Supreme Court's guidance in Teague v. Lane, 489 U.S. 288 (1989), under which a judicial decision that establishes a new rule is applicable to all pending criminal cases that are on direct 8 review, but "will not apply retroactively to convictions that are already final at the time the new rule is announced." Smith, 2015 IL 116572, ¶ 24 (citing Teague, 489 U.S. 288). As the court in Smith observed, a decision establishes a new rule where "it breaks new ground or imposes a new obligation on the states or federal government." Id. ¶ 25. In deciding that White pronounced a new rule, the Smith court noted that "for the first time in White, we held that a circuit court may not disregard a fact that requires the imposition of a statutory sentencing enhancement if that fact is included in the factual basis accepted by the court." Id. ¶ 27. The Smith court observed that: "it was uncertain, prior to White, whether the circuit court was required to give effect to a fact contained in the factual basis which would necessitate the imposition of a sentencing enhancement, such as the use of a firearm, if the parties had not agreed to the enhancement. A circuit court could have reasoned that the factual basis did not reflect the true intent of the parties to the plea agreement and, since the factual basis could have been altered by the State in any event, the court could permissibly disregard the presence of the firearm. In this way, the sentence would conform to statutory requirements. White, however, rejected this view and held that once the factual basis was accepted and made of record, the presence of the firearm could not be disregarded by the circuit court. To do so, White held, would render the legislature's intent in enacting the enhancement provision meaningless." Id. ¶ 29 (citing White, 2011 IL 109616, ¶ 29). ¶ 16 Our supreme court in Smith further determined that neither of the two Teague exceptions to the bar against retroactive application of a new rule to final convictions applied to White, that is, the rule announced in White did not legalize primary, private individual conduct and it did not present a "watershed" rule of criminal procedure. Smith, 2015 IL 116572, ¶ 32. 9 ¶ 17 We conclude, therefore, that pursuant to Smith, the decision in White is inapplicable to defendant's case as his conviction was final at the time White was decided, and the new rule announced in White does not apply retroactively to his case. Accordingly, the trial court properly sentenced defendant pursuant to the plea agreement to 10 years' imprisonment (and subsequently, 9 years), which fell within the appropriate statutory range. Therefore, defendant's sentence is not void. Having resolved the issue on this basis, we need not consider the State's alternative argument that defendant is estopped from challenging his sentence. ¶ 18 Defendant also challenges his guilty plea UUWF conviction on appeal, arguing that it should be vacated in light of People v. Aguilar, 2013 IL 112116, because it was predicated on his prior conviction of AUUW under 720 ILCS 5/24-1.6(a)(1) (West 2006), a provision which was found facially unconstitutional in Aguilar. Defendant urges that the Second Division of this court in People v. McFadden, 2014 IL App (1st) 102939, appeal allowed, No. 117424, 380 Ill. Dec. 509, (Ill. May 28, 2014), vacated the defendant's UUW conviction where it was predicated on a conviction for AUUW, as this prior conviction was based on the statutory provision pronounced unconstitutional in Aguilar. ¶ 19 The State argues that because defendant failed to raise this issue in his postconviction petition, it has been waived for review on appeal. The State additionally complains that this court lacks jurisdiction to review the legitimacy of the underlying AUUW conviction. The State also asserts that defendant failed to allege that he was deprived of a constitutional right and his argument essentially amounts to an attack on the sufficiency of the evidence supporting his UUWF conviction, and, as such, his claim does not fall within the purview of the Act. Even if this court were to review his claim, the State contends, it should affirm his conviction because at the time defendant possessed a firearm on February 9, 2007, his prior conviction for AUUW was 10 still valid, and this prior underlying conviction has never been vacated, expunged, or attacked collaterally. ¶ 20 The record reflects that defendant was charged with two counts of UUWF by indictment, which alleged that he was previously convicted of AUUW in case number 05 CR 09975. Defendant pleaded guilty to one count of Class 2 UUWF. At the plea hearing, the factual basis showed that he had a prior felony conviction for AUUW in case number 05 CR 09975. Defendant attaches to his brief on appeal a copy of the conviction in case number 05 CR 09975 from May 16, 2005, which indicates that he was convicted of the Class 4 felony of "AGG UNLAWFUL USE OF WEAPON/VEH," and it sets forth the statutory cite "720-5/24-1.6(a)(1)." He also attaches a copy of an indictment in case number 05 CR 09975 which recites that he was charged pursuant to "720 ACT 5 SECTION 24-1.6(a)(1)/(3)(A)." Although a copy of the sentence or indictment from this underlying conviction was not included in the lower court record, we note that the State has not disputed that the predicate felony underlying defendant's UUWF conviction was a Class 4 AUUW. ¶ 21 Although defendant did not raise this challenge on direct appeal or in his postconviction petition in the lower court, he filed his pro se postconviction petition in 2010, three years before the Aguilar decision was issued in 2013. The trial court dismissed his petition in 2012, also before Aguilar was decided. His appeal from the dismissal of his postconviction petition, filed November 9, 2012, was pending when Aguilar was announced on September 12, 2013, and modified on December 19, 2013. We do not find that defendant's failure to raise this issue until his appeal from the dismissal of his postconviction petition precludes our review. "[A] challenge to the constitutionality of a criminal statute may be raised at any time and is subject to de novo review." People v. Henderson, 2013 IL App (1st) 113294¶ 11 (citing People v. Coleman, 409 Ill. 11 App. 3d 869, 877 (2011)). "A statute declared unconstitutional on its face is void ab initio; that is, 'was constitutionally infirm from the moment of its enactment and, therefore, is unenforceable.' " People v. Claxton, 2014 IL App (1st) 132681, ¶ 16 (quoting People v. Davis, 2014 IL 115595, ¶ 25). See also People v. Tellez-Valencia, 188 Ill. 2d 523, 526 (1999). "A void order may be attacked at any time or in any court, either directly or collaterally. An argument that an order or judgment is void is not subject to waiver" and it "does not depend for its viability on his postconviction petition," that is, where a defendant failed to raise the issue in a motion to withdraw guilty plea or in a postconviction petition. Thompson, 209 Ill. 2d at 23-24, 27. "[C]ourts have an independent duty to vacate void orders and may sua sponte declare an order void." Id. Further, "[a] trial court is without jurisdiction to enter a conviction against a defendant based upon actions that do not constitute a criminal offense." People v. Kayer, 2013 IL App (4th) 120028, ¶ 9 (citing People v. McCarty, 94 Ill. 2d 28, 38 (1983)). "There can be no doubt that jurisdiction is lacking where the circumstances alleged do not constitute the offense charged as it is defined in the statute and nothing short of alleging entirely different facts could cure the defect." McCarty, 94 Ill. 2d at 38. Additionally, we observe that the doctrine of waiver is a limitation on the parties, and not this court's ability to consider an issue. People v. Woods, 214 Ill. 2d 455, 470 (2005). Accordingly, we review the merits of defendant's claim. ¶ 22 In Aguilar, the Illinois Supreme Court held that the Class 4 form of the AUUW offense (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)) was facially unconstitutional because it violated the second amendment right to keep and bear arms as recently construed by the United States Supreme Court. Aguilar, 2013 IL 112116, ¶¶ 18-20, 22 (citing District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742 (2010)). The Illinois Supreme Court found persuasive the Seventh Circuit's decision in Moore v. Madigan, 702 F.3d 12 933 (7 CA 2012), which held that the right to keep and bear arms extends beyond the home and includes bearing arms for self-defense. Id. ¶¶ 19-20. As determined by the supreme court in Aguilar, the Class 4 form of AUUW imposed a comprehensive ban in contravention of the right to keep and bear arms which categorically prohibited the possession and use of an operable firearm for self-defense outside the home. Id. ¶ 21. Accordingly, the court reversed the defendant's AUUW conviction in Aguilar and remanded for sentencing on a separate conviction. Id. ¶¶ 7, 30. In modifying its decision upon denial of rehearing, the supreme court clarified that its decision was limited to the Class 4 form of AUUW. Id. ¶ 22 n. 3. ¶ 23 Following the Aguilar decision, our appellate court has addressed its ramifications several times and has consistently held that, where a conviction is based on the statutory provision found unconstitutional and void ab initio in Aguilar, that conviction cannot serve as a predicate offense for a defendant's subsequent conviction of an offense which requires proof of a prior felony conviction as an element, and in such cases, we have reversed the latter conviction. See People v. McFadden, 2014 IL App (1st) 102939, petition for leave to appeal allowed May 28, 2014 (in the defendant's direct appeal of his UUWF conviction, the court held that the defendant's prior Class 4 AUUW conviction could not serve as the predicate offense of his subsequent UUWF conviction, and vacated the UUWF conviction); People v. Claxton, 2014 IL App (1st) 132681 (in the defendant's direct appeal of his UUWF conviction, the court held that his prior Class 4 AUUW conviction was void ab initio and could not serve as an element of his UUWF conviction, and it vacated his UUWF conviction); People v. Fields, 2014 IL App (1st) 110311 (vacating the defendant's armed habitual criminal conviction as it was based on a prior Class 4 AUUW conviction); People v. Cowart, 2015 IL App (1st) 113085 (prior conviction of 13 AUUW could not stand as predicate offense for later conviction of armed habitual criminal, and the court reversed the armed habitual criminal conviction). ¶ 24 Notably, McFadden and Claxton both involved convictions of UUWF predicated on prior convictions of the Class 4 form of AUUW, and the court in both instances found that the UUWF convictions must be vacated in light of Aguilar as the prior Class 4 AUUW convictions were void ab initio and therefore could not serve as the elemental predicate felonies for the current UUWF convictions that were on appeal. With respect to the current case, we conclude that the clear effect of Aguilar, in particular in light of McFadden and Claxton, is that defendant's prior predicate conviction of AUUW is unconstitutional and void ab initio and cannot serve as the elemental predicate felony for defendant's current UUWF conviction. While we acknowledge that the posture of the above cited cases were all on direct appeal, it follows that as the underlying conviction in this matter is void ab initio, then the circumstances alleged in the UUWF indictment do not constitute a criminal offense as defined in the statute without alleging entirely different facts. McCarty, 94 Ill. 2d at 38. Accordingly, we must reverse the UUWF conviction. ¶ 25 The State, as it has in previous cases, argues against this outcome based on Lewis v. United States, 445 U.S. 55 (1980), and other federal cases in asserting that the status of a defendant's prior felony conviction at the time he possessed the firearm controls, regardless of whether this prior conviction is later invalidated, that this court lacks jurisdiction to review his claim, and that reversal of defendant's UUWF conviction and adherence to cases like McFadden would create uncertainty as the prosecution would be prevented from proving a prior conviction if, after the defendant possessed a firearm, that prior conviction is later reversed on appeal for any reason. 14 ¶ 26 However, as this court has previously noted, Lewis is distinguishable from the present circumstances as it did not involve a predicate felony conviction that was based on an unconstitutional provision in a statute. Cowart, 2015 IL App (1st) 113085, ¶ 48. We decline to give legal effect to the facially unconstitutional provisions of the AUUW statute and we proceed as if the statute was "constitutionally infirm from the moment of its enactment and, therefore, is unenforceable.' " Claxton, 2014 IL App (1st) 132681, ¶ 16 (quoting Davis, 2014 IL 115595, ¶ 25). Also, as this court observed in Claxton, "federal cases interpreting federal statutes are not binding upon us as we interpret Illinois statutes but are merely persuasive authority" and the federal cases cited by the State "are based fundamentally on an assertion—that the distinction between a conviction that is 'invalid' and one that is 'void from its inception' depends too much on semantics" ' (Internal quotation marks omitted.) Claxton, 2014 IL App (1st) 132681, ¶ 19. As the Claxton court stated, "Illinois courts have maintained the distinction between void and voidable judgments, and we shall not abandon it now." Id. ¶ 27 Further, this court in Claxton, Fields, and McFadden rejected the State's argument that this court lacks jurisdiction to consider the validity of prior AUUW convictions. The court in Claxton pointed out that the defendant was "timely and directly appealing his UUWF conviction on the contention that it cannot stand if the predicate felony, his AUUW conviction, is void ab initio. *** We followed this principle in Fields and McFadden, finding that we could consider the effect of the prior or predicate conviction on the presently-appealed conviction while refusing to grant relief upon the prior conviction itself. We find that the clear effect of Aguilar in light of Davis (void ab initio ) and Walker (predicate felony as element of UUWF) is that a conviction for UUW or AUUW unconstitutional under Aguilar is 15 void ab initio and cannot serve as the elemental predicate felony for UUWF so that this court both has jurisdiction to and must reverse the UUWF conviction for the absence of an element. In sum, we agree with Fields and McFadden." Claxton, 2014 IL App (1st) 132681, ¶ 16. As in Claxton, Fields, and McFadden, defendant here is not asking this court to exercise jurisdiction over his predicate AUUW conviction, he is not collaterally attacking his prior AUUW conviction itself, and he is not requesting this court to vacate that conviction or grant relief upon that prior conviction. Rather, and as defendant points out, he is challenging his current UUWF conviction on grounds that it cannot stand if the predicate AUUW conviction is void ab initio pursuant to Aguilar. Claxton, 2014 IL App (1st) 132681, ¶ 16; McFadden, 2014 IL App (1st) 102939, ¶¶ 41, 44; Fields, 2014 IL App (1st) 110311, ¶ 45. ¶ 28 For the reasons discussed, we affirm the dismissal of defendant's postconviction petition with regard to his conviction and sentence for attempt murder, and we vacate his UUWF conviction and sentence only. ¶ 29 Affirmed in part and vacated in part.