People v. Kelley , 304 Ill. Dec. 74 ( 2006 )


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  •                                                                       SIXTH DIVISION
    JUNE 23, 2006
    1-04-2600
    THE PEOPLE OF THE STATE OF ILLINOIS,                  )       Appeal from the
    )       Circuit Court of
    Plaintiff-Appellee,                    )       Cook County.
    )
    v.                                             )       No. 80 C 3999 & 83 C 11761
    )
    ANDRE KELLEY,                                         )
    )       Honorable
    Defendant-Appellant.                   )       Eddie A. Stephens,
    )       Judge Presiding
    JUSTICE TULLY delivered the opinion of the court:
    Defendant, Andre Kelley appeals the second-stage dismissal of his postconviction
    petition in which he alleged that his life sentence is void in light of the United States Supreme
    Court's decision in Apprendi v. New Jersey, 
    530 U.S. 466
    , 
    147 L. Ed. 2d 435
    , 
    120 S. Ct. 2348
    (2000). Plaintiff, the People of the State of Illinois (the State), moved for dismissal of
    defendant's petition and on August 6, 2004, the circuit court granted the State's motion to
    dismiss. On appeal, defendant argues that the circuit court erred in dismissing his post-
    conviction petition because Apprendi applies retroactively to defendant's petition. For the
    reasons below, we affirm.
    FACTS
    At defendant's jury trial, the State presented evidence confirming that at approximately
    2:30 a.m. on June 3, 1980, defendant entered the backseat of a taxi driven by Charles Lawson
    (the victim). Defendant instructed the victim to drive the taxi into an alley, at which time
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    defendant placed a gun to the back of the victim's head and stated, "this is a stickup." Defendant
    observed another car blinking its headlights at the victim's taxi and he instructed the victim to
    drive the taxi farther into the alley. After the victim drove the taxi to the end of the alley,
    defendant instructed him to turn left. When the victim refused to turn left, defendant shot him in
    the back of his head. The victim died as a result of the gunshot wound he sustained to the back
    of his head. A jury found defendant guilty of murder and attempted armed robbery, and the
    circuit court sentenced defendant to a term of natural life imprisonment.
    Defendant appealed his conviction and argued, inter alia, that he was prejudiced when the
    trial judge stated to potential jurors that he believed the evidence at trial would show that
    defendant killed and attempted to rob the victim. On this basis, this court reversed defendant's
    convictions and remanded the case for a new trial. People v. Kelley, 
    113 Ill. App. 3d 761
    (1983).
    A second jury trial commenced and defendant was again found guilty of murder and
    attempted armed robbery. The circuit court found that defendant qualified for a sentence of life
    imprisonment under both section 5--8--1 of the Unified Code of Corrections (Ill. Rev. Stat. 1983,
    ch. 38, par. 1005--8--1(a)(1)), which permits a life sentence if the murder was accompanied by
    exceptionally brutal or heinous behavior indicative of wanton cruelty, and section 9--1(b)(6) of
    the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9--1(b)(6)), which permits a
    sentence of death if the murder was committed in the course of another felony. As such, the
    circuit court sentenced defendant to life imprisonment for the murder and to a concurrent term of
    14 years for the attempted armed robbery.
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    Defendant filed a direct appeal of this conviction. On December 10, 1986, we affirmed
    defendant's convictions and sentence. People v. Kelley, 1--85--2571 (1986) (unpublished order
    under Supreme Court Rule 23).
    On December 31, 1991, defendant filed a postconviction petition alleging that he was
    deprived of his sixth amendment right to effective assistance of counsel. The circuit court
    concluded that defendant's petition was frivolous and without merit and denied his post-
    conviction petition. On January 23, 1994, we affirmed the circuit court's dismissal of defendant's
    postconviction petition. People v. Kelley, 1--92--0897 (1994) (unpublished order under
    Supreme Court Rule 23).
    On October 4, defendant filed a "Supplemental Petition for Post-Conviction Relief." In
    his petition, defendant argued that his life sentence violated the United State Supreme Court's
    decision in Apprendi v. New Jersey, 
    530 U.S. 466
    , 
    147 L. Ed. 2d 435
    , 
    120 S. Ct. 2348
    (2000).
    On January 10, 2003, the counsel appointed to represent defendant filed a "Second Supplemental
    Petition for Post-Conviction Relief," in which he expanded defendant's Apprendi arguments. On
    February 7, 2003, the State filed an amended motion to dismiss, and on August 6, 2004, the trial
    court granted to State's motion to dismiss. The dismissal of this "Second Supplemental Petition
    for Post-Conviction Relief" is the subject of defendant's timely appeal.
    DISCUSSION
    On appeal, defendant argues that his sentence of life imprisonment is unlawful under
    Apprendi v. New Jersey 
    530 U.S. 466
    , 
    147 L. Ed. 2d 435
    , 
    120 S. Ct. 2348
    (2000) because the
    sentence was based on factors that were not proven to a jury beyond a reasonable doubt.
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    Defendant asserts that his sentence should be reduced to the maximum penalty authorized by the
    jury's verdict, which was 40 years. The State asserts that Apprendi does not apply retroactively
    to convictions that were final prior to the issuance of Apprendi by the United States Supreme
    Court. We agree with the State.
    At defendant's 1985 jury trial, the jury returned a general guilty verdict for first degree
    murder and found defendant guilty of attempted armed robbery. At the time of the offense,
    Illinois law provided that an offender could be sentenced for first degree murder to a term of
    imprisonment of not less than 20 years but not more than 40 years (Ill. Rev. Stat. 1983, ch. 38,
    par. 1005 --8--1 (a)(1)), and the State did not seek imposition of the death penalty.
    The jury's verdict authorized a maximum penalty of 40 years' imprisonment. The judge,
    relying on both section 5--8--1 of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38,
    par. 1005--8--1(a)(1)), which permits a life sentence if the murder was accompanied by
    exceptionally brutal or heinous behavior indicative of wanton cruelty, and section 9--1(b)(6) of
    the Criminal Code (Ill. Rev. Stat. 1983, ch. 38, par. 9--1(b)(6)), which permits a sentence of
    death if the murder was committed in the course of another felony, sentenced defendant to life
    imprisonment for the murder and sentenced defendant to a concurrent term of 14 years'
    imprisonment for the attempted armed robbery.
    On appeal, the State does not challenge defendant's contention that the death penalty
    could not be the prescribed statutory maximum sentence because the case was not a capital case
    and the trial judge did not make a valid death-eligibility finding under section 9--1(b)(6) of the
    Criminal Code. Ill. Rev. Stat. 1983, ch. 38, par. 9--1(b)(6). Therefore, the only issue on appeal is
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    whether Apprendi should apply retroactively to defendant's case because the aggravating factors
    considered by the judge in concluding defendant was eligible for enhanced sentencing were not
    submitted to the jury and proved beyond a reasonable doubt.
    As stated, defendant asserts that his extended-term sentence violated the United States
    Supreme Court's decision in Apprendi v. New 
    Jersey, 530 U.S. at 490
    , 147 L. Ed. 2d at 455, 120
    S.Ct. At 2362-63.. In Apprendi, the United States Supreme Court held that the constitutional
    due-process and jury-trial guarantees required that "[o]ther than the fact of a prior conviction,
    any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be
    submitted to a jury, and proved beyond a reasonable doubt." 
    Apprendi, 530 U.S. at 490
    , 147 L.
    Ed. 2d at 
    455, 120 S. Ct. at 2362-63
    . Defendant asserts that the aggravating factors upon which
    his extended-term sentence was based were not proven beyond a reasonable doubt in violation of
    Apprendi.
    In assessing defendant's argument that his extended-term sentence violated Apprendi, we
    must first addresses whether Apprendi applies retroactively to defendant, whose direct appeals
    had been exhausted well before the United States Supreme Court decided Apprendi in June
    2000. The Illinois Supreme Court has adopted the United States Supreme Court's decision in
    Teague v. Lane, 
    489 U.S. 288
    , 
    103 L. Ed. 2d 334
    , 
    109 S. Ct. 1060
    (1989) (plurality op.) as the
    appropriate test for determining when a new rule should apply retroactively. See People v.
    Flowers, 
    138 Ill. 2d 218
    (1990). According to Teague, in general, new rules do not apply
    retroactively to cases on collateral review. 
    Flowers, 138 Ill. 2d at 239
    . As an exception to the
    general rule barring retroactive application, retroactivity is appropriate when:
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    " 'the new rule either (1) places certain kinds of primary, private individual conduct
    beyond the power of the criminal law making authority to proscribe, or (2) requires the
    observance of those procedures that are implicit in the concept of ordered liberty.' "
    People v. De La Paz, 
    204 Ill. 2d 426
    , 434 (2003), quoting 
    Flowers, 138 Ill. 2d at 237
    ,
    citing 
    Teague, 489 U.S. at 307
    , 103 L. Ed. 2d at 
    353, 109 S. Ct. at 1073
    (plurality op.).
    In People v. De La Paz, 
    204 Ill. 2d 426
    , our supreme court applied Teague and assessed
    whether Apprendi applies retroactively. While defendant acknowledges that De La Paz was
    correctly decided, defendant contends that De La Paz is distinguishable and, as such, does not
    serve as a barrier to retroactive application of Apprendi in his case. We disagree.
    In De La Paz, the defendant was convicted of armed robbery, armed violence, home
    invasion, and aggravated battery. De La 
    Paz, 204 Ill. 2d at 429
    . The defendant was sentenced to
    a 55-year extended sentence for armed robbery and a concurrent 5-year sentence for aggravated
    battery. De La 
    Paz, 204 Ill. 2d at 429
    . The defendant argued that his extended sentence should
    have been reversed because the trial court did not comply with Apprendi in sentencing him. De
    La 
    Paz, 204 Ill. 2d at 431
    . As in defendant's present appeal, the issue before our supreme court
    was whether Apprendi applied retroactively to criminal cases in which direct appeals were
    exhausted before Apprendi was decided. De la 
    Paz, 204 Ill. 2d at 433
    .
    Applying the test for retroactivity provided by the United States Supreme Court in
    Teague, our supreme court held that Apprendi does not apply retroactively to criminal cases in
    which direct appeals were exhausted before Apprendi was decided. De La 
    Paz, 204 Ill. 2d at 439
    .
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    1-04-2600
    In reaching its decision in De La Paz, our supreme court stated that the defendant did not argue
    that retroactive application of Apprendi was appropriate under the first Teague exception and
    noted that such an argument would not be persuasive if made. De La 
    Paz, 204 Ill. 2d at 434
    .
    Our supreme court reasoned that retroactive application of Apprendi was not appropriate under
    the first Teague exception because "Apprendi did not 'decriminalize' [citation] any conduct." De
    La 
    Paz, 204 Ill. 2d at 434
    . In an effort to clarify that the first Teague exception did not apply to
    cases in which appeals had been exhausted prior to the date on which Apprendi was decided, our
    supreme court stated that "if Apprendi is to be applied retroactively, it can only be because the
    rule announced in that case falls within the second Teague exception." De La 
    Paz, 204 Ill. 2d at 434
    .
    After confirming that Apprendi should not be applied retroactively pursuant to the first
    Teague exception, our supreme court then discussed whether Apprendi should be applied
    retroactively pursuant to the second Teague exception. De La 
    Paz, 204 Ill. 2d at 434
    . Our
    supreme court concluded that, like the first Teague exception, the second Teague exception does
    not warrant retroactive application of Apprendi because an Apprendi violation does not involve
    "such constitutional 'bedrock' as to require retroactive application, [since] such error is
    potentially harmless." De La 
    Paz, 204 Ill. 2d at 437
    .
    Defendant contends that De La Paz is distinguishable because our supreme court's
    holding in that case was limited to the conclusion that Apprendi does not apply retroactively
    pursuant to the second Teague exception in that Apprendi did not represent a procedure that was
    " 'implicit in the concept of ordered liberty.' " De La 
    Paz, 204 Ill. 2d at 434
    , quoting Flowers, 138
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    1-04-2600
    Ill. 2d at 237, citing 
    Teague, 489 U.S. at 307
    , 103 L. Ed. 2d at 
    353, 109 S. Ct. at 1073
    (plurality
    op.). Hence, defendant asserts that De La Paz did not address whether the first Teague exception
    should operate to provide retroactive application of Apprendi to cases such as defendant's.
    Contrary to defendant's contention that the holding in De La Paz was limited only to a
    conclusion that retroactive application of Apprendi was not appropriate under the second Teague
    exception, our supreme court's opinion in De La Paz stated that the broad issue before the court
    was "whether Apprendi should be applied retroactively to criminal cases in which direct appeals
    were exhausted before Apprendi was decided." De La 
    Paz, 204 Ill. 2d at 433
    . The court
    concluded that "Apprendi should not be taken outside the general rule barring retroactivity." De
    La 
    Paz, 204 Ill. 2d at 434
    . Furthermore, the court specifically stated that "if Apprendi is to be
    applied retroactively, it can only be because the rule announced in that case falls within the
    second Teague exception." De La 
    Paz, 204 Ill. 2d at 434
    . In light of our supreme court's opinion
    in De La Paz, we cannot agree with defendant's contention that the holding in that case was
    limited to a conclusion that Apprendi does not apply retroactively pursuant exclusively to
    Teague's second exception. On the contrary, we believe that our supreme court's decision in De
    La Paz stands for the proposition that Apprendi should not be applied retroactively to any
    criminal cases in which direct appeals were exhausted before Apprendi was decided.
    In addition to defendant's efforts to distinguish his case from our supreme court's decision
    in De La Paz, defendant also asserts that retroactive application of Apprendi to his case is
    appropriate pursuant to the United States Supreme Court's decision in Schriro v. Summerlin, 
    542 U.S. 348
    , 
    159 L. Ed. 2d 442
    , 
    124 S. Ct. 2519
    . (2004). Specifically, defendant asserts that while
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    1-04-2600
    the United States Supreme Court held in Summerlin that Apprendi's effect on Arizona's capital
    sentencing scheme was procedural, and therefore not subject to retroactive application of
    Apprendi, the fact that Illinois's aggravating factors did not need to be proven beyond a
    reasonable doubt at the time Apprendi was decided makes the effect on Illinois law substantive,
    and therefore subject to retroactive application of Apprendi. We disagree.
    The United States Supreme Court in Summerlin was faced with the issue of whether its
    interpretation of Apprendi in its decision in Ring v. Arizona, 
    536 U.S. 584
    , 
    153 L. Ed. 2d 556
    ,
    
    122 S. Ct. 2428
    (2002), should apply retroactively to cases in which a defendant's conviction and
    sentence had become final on direct review before Apprendi was decided. 
    Summerlin, 542 U.S. at 351
    , 159 L. Ed. 2d at 
    448, 124 S. Ct. at 2522
    . In Ring, the Court had decided Apprendi did
    not permit a judge, sitting without a jury, to find an aggravating circumstance necessary for
    imposition of the death penalty. 
    Ring, 536 U.S. at 609
    , 153 L. Ed. 2d at 
    576-77, 122 S. Ct. at 2443
    .
    The Court in Summerlin held that its interpretation of Apprendi in Ring should not be
    given retroactive effect to criminal cases in which direct appeals had been exhausted before Ring
    was decided. 
    Summerlin, 542 U.S. at 358
    , 159 L. Ed. 2d at 
    453, 124 S. Ct. at 2526
    . In so doing,
    the Court reasoned that the fact that the judge, rather than the jury, had found the existence of
    aggravating factors beyond a reasonable doubt such that the death penalty was appropriate was
    not a situation in which there was an alteration of the range of conduct Arizona law subjected to
    the death penalty. 
    Summerlin, 542 U.S. at 354
    , 159 L. Ed. 2d at 
    450, 124 S. Ct. at 2524
    . Rather,
    the Court opined that having the judge rather than the jury assess the aggravating factors merely
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    altered the range of permissible methods for determining whether a defendant's conduct was
    punishable by death. 
    Summerlin, 542 U.S. at 355-56
    , 159 L. Ed. 2d at 
    451, 124 S. Ct. at 2525
    .
    The Court stated that the issue was "whether judicial factfinding so 'seriously diminishe[s]'
    accuracy that there is an ' "impermissibly large risk" ' of punishing conduct the law does not
    reach." (Emphasis in original.) 
    Summerlin, 542 U.S. at 355-56
    , 159 L. Ed. 2d at 
    451, 124 S. Ct. at 2525
    , quoting 
    Teague, 489 U.S. at 312-13
    , 103 L. Ed. 2d at 
    357, 109 S. Ct. at 1076
    quoting
    Desist v. United States, 
    394 U.S. 244
    , 262, 
    22 L. Ed. 2d 248
    , 263, 
    89 S. Ct. 1030
    , 1041(1969)
    (Harlan, J., dissenting). The Court held that there was legitimate disagreement over whether
    juries were better fact finders than judges and, therefore, the Court could not confidently state
    that judicial fact finding seriously diminished accuracy such that retroactive application of
    Apprendi was appropriate. 
    Summerlin, 542 U.S. at 355-58
    , 159 L. Ed. 2d at 
    451, 124 S. Ct. at 2525
    .
    Here, defendant argues that while the United States Supreme Court's decision in
    Summerlin held that Apprendi's effect on Arizona's capital sentencing scheme was procedural
    and, therefore, not subject to retroactive application of Apprendi under Teague, the effect of
    Apprendi on Illinois's sentencing scheme was substantive and, therefore, Apprendi should apply
    retroactively to defendant's case. Specifically, defendant emphasizes that under Arizona's
    sentencing scheme, the judge had to decide that the defendant was eligible for the death penalty
    by finding that the aggravating factors were present by a standard of "beyond a reasonable
    doubt," while in Illinois, defendant contends that the judge could enter an extended-term
    sentence if he found the existence of aggravating factors by a finding less than "beyond a
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    1-04-2600
    reasonable doubt." We cannot agree with defendant's assertion that Summerlin calls for
    retroactive application of Apprendi to defendant's case.
    First, we note that the actual holding of Summerlin was that Apprendi and Ring
    announced new procedural rules that do "not apply retroactively to cases already final on direct
    review." 
    Summerlin, 542 U.S. at 358
    , 159 L. Ed. 2d at 
    453, 124 S. Ct. at 2526
    . Also, we note
    that the holding in Summerlin was reached by addressing the constitutionality of Arizona's
    sentencing scheme and assessing whether Apprendi should apply retroactively to cases in which
    a judge rather than a jury made a decision regarding the existence of aggravating factors, the
    existence of which determined whether a defendant was eligible for the death penalty.
    
    Summerlin, 542 U.S. at 350
    , 159 L. Ed. 2d at 
    447, 124 S. Ct. at 2521
    . In his efforts to adapt the
    Summerlin opinion to the facts of his case, defendant fails to recognize that nothing in the
    Summerlin opinion suggests that the United States Supreme Court would have decided that case
    differently if the Arizona sentencing statute called for the judge to find the existence of the
    aggravating factors by some standard less than "beyond a reasonable doubt." In the absence of
    some suggestion in the Court's Summerlin opinion that the outcome would have been different if
    the statute at issue in that case had called for a finding of the aggravating factors by a standard
    less than "beyond a reasonable doubt," we are left only with our supreme court's opinion in De
    La Paz to guide our efforts to address defendant's petition for retroactive application of
    Apprendi.
    Second, our conclusion that De La Paz controls this case is strengthened by our supreme
    court's decision in Lucien v. Briley, 
    213 Ill. 2d 340
    (2004), which was decided after Summerlin
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    and in which our supreme court clearly stated that Apprendi was a procedural rule that "does not
    apply retroactively to cases in which the direct appeal process had concluded when Apprendi
    was decided." 
    Lucien, 213 Ill. 2d at 349
    . In light of both De La Paz and Lucien, we cannot
    accept defendant's argument that the United States Supreme Court's holding in Summerlin
    warrants retroactive application of Apprendi to Illinois's extended-sentencing scheme.
    In sum, we confirm that the rule in Illinois is that "Apprendi does not apply retroactively
    to cases in which the direct appeal process had concluded when Apprendi was decided." 
    Lucien, 213 Ill. 2d at 349
    , see also De La Paz, 
    204 Ill. 2d 426
    . In this case, defendant's direct appeals
    were exhausted before Apprendi was decided and, therefore, Apprendi does not apply
    retroactively to defendant's case. Accordingly, we affirm the circuit court's dismissal of
    defendant's postconviction petition.
    McNULTY, P.J., and FITZGERALD SMITH, J., concur.
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Document Info

Docket Number: 1-04-2600 Rel

Citation Numbers: 366 Ill. App. 3d 676, 304 Ill. Dec. 74, 852 N.E.2d 324, 2006 Ill. App. LEXIS 536

Judges: Tully

Filed Date: 6/23/2006

Precedential Status: Precedential

Modified Date: 11/8/2024