People v. Davis , 2023 IL App (5th) 220420-U ( 2023 )

2023 IL App (5th) 220420-UNOTICE
NOTICE
Decision filed 06/16/23. The
This order was filed under
text of this decision may be NO. 5-22-0420
Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 04-CF-585
)
MATTHEW DAVIS, ) Honorable
) Ronald R. Slemer,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court.
Justices Barberis and Vaughan concurred in the judgment.
ORDER
¶1 Held: Where defendant’s guilty plea waived his right to written notice that the State
intended to seek an enhanced sentence based on the brutal and heinous nature of
defendant’s conduct, the circuit court properly dismissed his postconviction
petition which relied on the State’s alleged failure to provide such notice as its
central claim. As any argument to the contrary would lack merit, we grant
defendant’s appointed counsel on appeal leave to withdraw and affirm the circuit
court’s judgment.
¶2 Defendant, Matthew Davis, appeals the circuit court’s order dismissing his postconviction
petition. His appointed counsel, the Office of the State Appellate Defender (OSAD), has
concluded that there is no reasonably meritorious contention that the court erred in doing so.
Accordingly, it has filed a motion to withdraw as counsel along with a supporting memorandum.
See Pennsylvania v. Finley, 481 U.S. 551 (1987). OSAD has notified defendant of its motion.
This court has provided him with an opportunity to respond and he has filed a response. However,
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after considering the record on appeal, OSAD’s memorandum, and supporting brief, and
defendant’s response, we agree that this appeal presents no reasonably meritorious issues. Thus,
we grant OSAD leave to withdraw and affirm the circuit court’s judgment.
¶3 BACKGROUND
¶4 In March 2004, the State charged defendant with 10 counts of first degree murder and
numerous other offenses resulting from the death of Rachel Hayes. In June 2004, the State filed a
written notice of its intent to seek the death penalty, citing three statutory bases.
¶5 One month later, defendant agreed to plead guilty to count I of the indictment, alleging first
degree murder. In exchange, the State agreed not to seek the death penalty and to dismiss the
remaining counts. Defense counsel further explained the agreement as follows:
“We are agreeing as part of this agreement—as part of this plea agreement that there are
facts sufficient beyond a reasonable doubt to prove brutal and heinous circumstances
indicative of wanton cruelty which would allow the People to ask for either an extended
term or for natural life without the possibility of parole. In exchange for this plea, the
remaining Counts of II through the remainder of the Indictment would be dismissed in this
matter, and we would have a full sentencing hearing in this cause.”
¶6 The court read the statute under which defendant was charged, explained that the potential
sentencing range could be anywhere from 40 years to natural life, and explained the rights
defendant was waiving by entering the plea. Defendant said that he understood and that he wanted
to plead guilty.
¶7 The State’s factual basis provided that Brittany Dotson would testify that she and Hayes
went to several bars in the Alton area on February 28, 2004. They met defendant, who made sexual
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advances toward Hayes. The next day, Dotson tried to call Hayes but got no answer. She went to
Hayes’ house and, after entering through an unlocked door, found Hayes’ body.
¶8 Dr. Raj Nanduri, who conducted Hayes’ autopsy, noted numerous stab wounds to her chest,
neck, left side, and back, and that there were numerous small penetrating lacerations to her chest.
There were knife wounds to her vagina. She concluded that Hayes died from stab wounds to the
neck and chest.
¶9 Defendant admitted that he was drinking with Hayes and Dotson on the night in question
but denied being in Hayes’ home. However, investigators discovered physical evidence tying
defendant to the crime, including items with Hayes’ blood on them in defendant’s bedroom.
Finding a sufficient factual basis and that the plea was voluntary, the court accepted it and
scheduled a sentencing hearing.
¶ 10 At the start of the sentencing hearing, the court stated that the sentencing range was 40
years to natural life and that the defense was stipulating to a finding of heinous and brutal conduct.
At the conclusion of the hearing, the court sentenced defendant to natural life imprisonment.
¶ 11 Defendant timely moved to withdraw his plea and reconsider the sentence. The former
motion alleged that plea counsel was ineffective in that they (1) did not review discovery with him,
(2) did not inform him of several motions they filed on his behalf, (3) failed to hire expert witnesses
or test DNA evidence, and (4) did not communicate with him. The latter motion alleged the court
erred in allowing two victim impact statements to be read, the prosecutor erred in referring to
suppressed statements at the sentencing hearing, and the prosecutor erred in referring to rape and
sexual assault during its closing argument although there was no evidence of those offenses.
¶ 12 The circuit court denied both motions. On direct appeal, defendant’s appointed counsel
moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). We granted the motion
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and affirmed. People v. Davis, No. 5-07-0607 (2009) (unpublished order under Supreme Court
Rule 23). We first found that defendant’s allegations of ineffective assistance had been refuted by
the testimony of his attorneys, which the circuit court found more credible. Id., slip order at 5.
¶ 13 We further found that the court properly denied the motion to reconsider the sentence,
noting that its allegations were either legally untenable or contradicted by the record. Id., slip
order at 5-7. We specifically noted that defendant
“stipulated in his guilty plea that there was sufficient evidence to prove that the murder had
been accompanied by brutal and heinous circumstances indicative of wanton cruelty, thus
permitting the imposition of a natural-life sentence. The evidence at the sentencing hearing
was that the victim had been stabbed or cut 25 times, including two wounds inside the
vagina.” Id., slip order at 7.
¶ 14 Our mandate issued on February 19, 2009. More than 11 years later, in 2020, defendant
filed a postconviction petition. In it, he contended that (1) his natural life sentence was statutorily
prohibited because his indictment did not specifically allege that the offense was accompanied by
brutal and heinous conduct; (2) counsel was ineffective for failing to advise him how to handle the
PSI process; (3) counsel was ineffective for advising him to accept a plea that was statutorily
prohibited; (4) counsel was ineffective for failing to adequately represent him at sentencing;
(5) postplea counsel was ineffective for failing to comply with Illinois Supreme Court Rule 604(d)
(eff. July 1, 2017); (6) appellate counsel was ineffective for moving to withdraw when there were
meritorious issues to raise on direct appeal; and (7) the circuit court erred in failing to properly
admonish him pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 2012). After the court
granted defendant’s motion to proceed pro se, he filed an amended petition adding a claim that the
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court erred in considering the brutal and heinous nature of the offense to enhance his sentence
when the State never alleged that element in the indictment.
¶ 15 In an answer to the petition, the State argued that defendant stipulated as part of the plea
negotiations that the offense was accompanied by brutal and heinous conduct. The State argued
that the “negotiations were made between the parties to avoid the Defendant facing a sentence of
death, which the State was actively pursuing prior to the plea.”
¶ 16 The State also moved to dismiss the petition. The State noted that the petition was filed 11
years after the direct appeal was decided, that our order stated that we had examined the entire
record and found no issue meriting relief, and that the issues raised in the petition could have been
raised on direct appeal.
¶ 17 At a hearing, defendant argued that his issues were not waived because he claimed that
counsel on direct appeal was ineffective for failing to raise them. The State responded that
defendant was not raising anything new that would justify filing the petition more than three years
after the disposition of the direct appeal. During the hearing, defendant conceded that, if his
sentence did conform to the statute, his petition raised no meritorious claims.
¶ 18 The court granted the motion to dismiss. Defendant timely appealed.
¶ 19 ANALYSIS
¶ 20 OSAD concludes that there is no reasonably meritorious argument that the circuit court
erred in dismissing defendant’s postconviction petition. OSAD observes, as defendant himself
conceded, that defendant’s claims in the petition essentially turn on the overarching contention
that the court imposed an unauthorized sentence. OSAD concludes, however, that defendant’s
voluntary guilty plea waived this contention, and we agree.
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¶ 21 Initially, we note that defendant’s claims come too late. The Post-Conviction Hearing Act
(Act) (725 ILCS 5/122-1 et seq. (West 2020)) provides a mechanism by which a criminal
defendant may assert that his conviction resulted from a substantial denial of his constitutional
rights. Id. § 122-1(a); People v. Delton, 227 Ill. 2d 247, 253 (2008). Proceedings under the Act
must be commenced, at the latest, within “3 years from the date of conviction, unless the petitioner
alleges facts showing that the delay was not due to his or her culpable negligence.” 725 ILCS
5/122-1(c) (West 2020). Moreover, issues that could have been raised on direct appeal, but were
not, are forfeited for purposes of postconviction review. People v. Edwards, 2012 IL 111711,
¶ 21.
¶ 22 Here, defendant was sentenced in 2004. His direct appeal was decided in 2009, but he did
not file his petition until 11 years later. Further, the statute he cited existed prior to his plea and
thus he could have raised the issue on direct appeal. Although he argued that counsel on direct
appeal was ineffective for failing to raise the issue, this does not explain his own failure to raise it
until 11 years after the direct appeal was decided. The State argued, and the trial court expressly
found, that the issues could have been raised on direct appeal. Thus, dismissal was proper on that
basis. In any event, however, defendant’s issues are without merit.
¶ 23 Defendant pled guilty to count I of the indictment, alleging first degree murder under
section 9-1(a)(1) of the Criminal Code of 1961, which provided:
“(a) A person who kills an individual without lawful justification commits first
degree murder if, in performing the acts which cause the death:
(1) he either intends to kill or do great bodily harm to that individual or
another, or knows that such acts will cause death to that individual or another[.]”
720 ILCS 5/9-1(a)(1) (West 2004).
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¶ 24 At the time of the defendant’s sentencing, the nonextended sentence for first degree murder
ranged from 20 to 60 years’ imprisonment. 730 ILCS 5/5-8-1(a)(1)(a) (West 2004). However, if
a trier of fact found beyond a reasonable doubt “that the murder was accompanied by exceptionally
brutal or heinous behavior indicative of wanton cruelty,” a defendant could be sentenced to natural-
life imprisonment. 720 ILCS 5/9-1 (West 2004); 730 ILCS 5/5-8-1(b) (West 2004).
¶ 25 Section 111-3(c-5) of the Code of Criminal Procedure of 1963 provides in relevant part:
“Notwithstanding any other provision of law, in all cases in which the imposition of the
death penalty is not a possibility, if an alleged fact (other than the fact of a prior conviction)
is not an element of an offense but is sought to be used to increase the range of penalties
for the offense beyond the statutory maximum that could otherwise be imposed for the
offense, the alleged fact must be included in the charging instrument or otherwise provided
to the defendant through a written notification before trial, submitted to a trier of fact as an
aggravating factor, and proved beyond a reasonable doubt.” 725 ILCS 5/111-3(c-5) (West
2004).
¶ 26 The legislature added section 111-3(c-5) in 2001 (Pub. Act 91-953 (eff. Feb. 23, 2001)) in
response to the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). In
Apprendi, the Court held 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. Section 111-3(c-5) “brought the
Criminal Code into conformity with Apprendi.” People v. Jones, 2016 IL 119391, ¶ 14.
¶ 27 The central premise of defendant’s petition was that the State did not allege in the
indictment that it intended to seek a natural-life sentence on the basis that the murder was
accompanied by exceptionally brutal and heinous conduct. He spun this basic contention into
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several related claims: that the sentence was unauthorized by statute, that his various attorneys
were ineffective for failing to realize that the sentence was unauthorized and object to it on that
basis, that the court erred in admonishing him that he was eligible for a natural-life sentence, and
that counsel’s Rule 604(d) certificate was inaccurate because counsel had not made necessary
amendments to his motions to raise this claim. See Ill. S. Ct. R. 604(d) (eff. July 1, 2017).
¶ 28 As OSAD correctly points out, however, a voluntary guilty plea waives all
nonjurisdictional defenses and defects. People v. Mueller, 2013 IL App (5th) 120566, ¶ 12. This
rule applies to Apprendi claims. People v. Jackson, 199 Ill. 2d 286, 295 (2002).
¶ 29 Defendant acknowledges that under Jackson he waived his right to have the State prove
the enhancing factors beyond a reasonable doubt, but he insists that this is not an Apprendi claim.
He argues that section 111-3(c-5) contains an additional requirement not found in Apprendi,
namely that the State allege in the indictment or provide written notice that it intends to seek an
enhanced sentence. He contends that his guilty plea did not waive this claim.
¶ 30 Jackson is broader than defendant’s reading of it. Jackson held that “by a guilty plea a
criminal defendant does waive Apprendi-based sentencing objections on appeal.” Id. Jackson
thus stands for the proposition that a guilty plea waives any challenge to a sentence based on the
principles of Apprendi. Defendant’s challenge is clearly aimed at his sentence. He did not seek a
written notice of the State’s intent to seek an enhanced sentence. He wanted to have his natural-
life sentence vacated. Thus, it is a “challenge to a sentence” that was waived by his guilty plea.
¶ 31 This conclusion is consistent with earlier cases, in which the supreme court held that, given
that circuit courts’ jurisdiction is conferred by the state constitution, defects in a charging
instrument do not deprive the court of jurisdiction. People v. Hughes, 2012 IL 112817. Because
defects in a charging instrument are not jurisdictional, they are covered by the rule that a guilty
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plea waives all nonjurisdictional issues. In People v. Myrieckes, 315 Ill. App. 3d 478, 485 (2000),
the court held that the defendant’s guilty plea waived objections to the charging instrument. The
court further noted that “it is not unlawful for the State and a defendant to bargain for a plea of
guilty to even a nonexistent crime if the defendant receives a benefit.” Id.¶ 32 Defendant’s argument comes down to one that the State failed to specifically notify him in
writing that it intended to seek a natural-life sentence, despite the fact that its intention to do so
was an integral part of the plea negotiations from the beginning. Defendant fails to explain why
his guilty plea waived the fundamental right to have the State prove the aggravating factors beyond
a reasonable doubt but did not waive the relatively formalistic right (at least under the facts here)
to have the State provide written notice of its intent to prove the aggravating factors. Nor could
he plausibly claim that he was prejudiced in any way by the State’s alleged failure to provide
formal notice.
¶ 33 Here, the State filed early in the case a written notice of intent to seek the death penalty.
Two of the bases alleged in the notice were that “the murder was committed in a cold, calculated
and premeditated manner” (720 ILCS 5/9-1(b)(11) (West 2004)) and that “the murder was
intentional and involved the infliction of torture” (id. § 9-1(b)(14)). These two allegations would
encompass the broader standard that defendant’s conduct was brutal and heinous. Thus, the State
did provide written notice that it intended to seek an enhanced sentence due to the nature of
defendant’s conduct.
¶ 34 Moreover, the State’s ability to seek an extended term based on the brutal and heinous
nature of the offense was an express condition of the State’s taking the death penalty off the table.
Consistent with the agreement, at the plea hearing, defense counsel, in defendant’s presence,
stipulated to the brutal and heinous nature of the offense. The court admonished defendant that
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the possible sentences included natural-life imprisonment. Defendant said that he understood.
Again, at the sentencing hearing, the court stated that the possible sentences included natural-life
imprisonment based on the defense stipulation that defendant’s conduct was brutal and heinous.
¶ 35 Defendant filed motions to withdraw the plea and reconsider the sentence. He pursued a
direct appeal. At no time did he claim that he was not aware that the State intended to seek an
enhanced sentence. Under these circumstances, defendant was well aware that the State was
seeking an enhanced sentence and the State’s failure to file a written notice to that effect was a
mere formality that defendant waived by pleading guilty.
¶ 36 Defendant seems to take the position that “brutal and heinous murder” is a distinct offense
such that his guilty plea to “ordinary” first degree murder did not constitute a plea to this offense.
As noted, a defendant can plead guilty to even a nonexistent offense and the plea will be valid as
long as he receives some consideration. Here, the State agreed not to seek the death penalty and
to dismiss 17 additional charges. Thus, defendant received consideration and his plea was valid
even though the indictment did not contain all the information he would now prefer.
¶ 37 In addition, this court has rejected the contention that seeking an enhanced sentence on the
basis of brutal and heinous conduct adds an additional element to the offense. In People v.
Crutchfield, 353 Ill. App. 3d 1014, 1024 (2004), we found that the State’s notice to the defendant
that it intended to prove the brutal-and-heinous enhancement factor at trial did not convert that
sentencing factor into an element of the charge. Thus, we have already rejected defendant’s
argument that the inclusion of this enhancement factor somehow created a new offense.
¶ 38 Our conclusion that defendant’s sentence was proper essentially disposes of the issues
raised in his petition. OSAD discusses individually some issues that arguably do not implicate the
State’s alleged failure to comply with section 111-3(c-5).
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¶ 39 Defendant claimed in his petition that plea counsel failed to stress the importance of
meeting with the probation department interviewer in person, and that he only refused to meet with
the interviewer because jail staff required him to wear restraints and a spit mask without
justification. “ ‘To establish that a defendant was deprived of effective assistance of counsel, he
must establish both that his attorney’s performance was deficient and that the defendant suffered
prejudice as a result.’ ” People v. Manning, 227 Ill. 2d 403, 412 (2008) (quoting People v. Pugh,
157 Ill. 2d 1, 14 (1993)).
¶ 40 We rejected this precise claim on direct appeal and thus it is barred by res judicata.
Edwards, 2012 IL 111711, ¶ 21. In any event, the record does not show that plea counsel failed
to advise defendant of the importance of the PSI process. Plea counsel testified that he met with
defendant several times, as well as talked to him on the phone and wrote him letters, and that he
felt as prepared as possible for the sentencing hearing. Additionally, there was evidence at the
sentencing hearing that defendant had a history of uncooperative and potentially violent behavior
toward jail staff, and there was at least some justification for the restraints of which defendant
complained.
¶ 41 In his response, defendant contends that jail officials lied about his alleged violent
behavior, but the record contains no evidence of this. A postconviction petition “shall have
attached thereto affidavits, records, or other evidence supporting its allegations or shall state why
the same are not attached.” 725 ILCS 5/122-2 (West 2020); People v. Collins, 202 Ill. 2d 59, 67
(2002). Defendant mentions a federal civil case, Davis v. Madison County, but the record does
not contain a judgment or any other documents from that case conclusively proving defendant’s
allegations that jail personnel lied about his disruptive behavior.
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¶ 42 Defendant’s claim in his response that defense counsel “abandoned” him at a critical stage
of the proceedings appears to be largely a rehash of his previously rejected claims that counsel
were ineffective for failing to advise him that it was important to cooperate with the PSI process.
¶ 43 Defendant’s remaining claims, that the court considered an improper factor at sentencing,
that the court did not properly admonish him per Rule 402, and that defense counsel’s Rule 604(d)
certificate was faulty, are all based on the premise that a natural-life sentence was improper
because the State did not provide him with a redundant notice of its intent to seek such a sentence,
and we reject them for that reason.
¶ 44 CONCLUSION
¶ 45 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and
affirm the circuit court’s judgment.
¶ 46 Motion granted; judgment affirmed.
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