Lucien v. Briley
821 N.E.2d 1148
Ill.
2004
Check Treatment

*1 Boyd, But 181 Ill. at 121. we never mentioned or Shimanovsky spoliation, the central because issue plaintiff’s trial court could dismiss the whether the complaint discovery plaintiffs pre sanction Kuehling Further, of evidence. suit destruction when yet spoken had not with Dardeen. Couch, called she We litigant potential Farm as a decline characterize State point. State Farm owed him Because Dardeen failed to show preserve summary judg- duty Kuehling’s sidewalk, appropriate. ment was

CONCLUSION judgment stated, For the reasons we have appellate judgment and the of the court is reversed court affirmed. circuit

Appellate judgment reversed; court judgment court circuit affirmed. (No. 92922 . Appellee, R. LUCIEN, BRI

RUDOLPH KENNETH Appellant. LEY,Warden, Rehearing denied Opinion December 2004 . filed January *2 Attorney General, Lisa Madigan, of Springfield (Gary Feinerman, General, Solicitor and Linda D. and Woloshin Jay Hoffmann, Paul Attorneys General, Assistant of Chicago, counsel), of appellant. for Block, Butler, Rubin,

Steven A. of Saltarelli & Boyd, L.L.E, and A. Cherney James A. Gregory Sager, of Watkins, L.L.E, Latham & all Chicago, appellee. opinion delivered JUSTICE GARMAN court:

Plaintiff, Lucien, Rudolph sought an order Briley, R. warden of the State- naming Kenneth corpus, ILCS Facility, ville Correctional defendant. See 735 (West 2000). Plaintiff seq. alleged et 5/10 —101 Ap extended-term sentence was unconstitutional under L. Ed. Jersey, v. New prendi and he therefore entitled to S. Ct. 2348 he the maximum immediate release because had served he sentenced. nonextended term which could have been held the statute autho County The circuit court Will unconstitutional rizing Lucien’s extended-term sentence and issued the habeas order. directly pursuant to this court appealed Defendant 302(a) (134 302(a)). Ill. 2d R. Rule

BACKGROUND to concurrent 1980, plaintiff was sentenced robbery of 60 each for armed years extended terms appeal, arguments On armed violence. direct sentences, on challenge to the extended-term included *3 any of sentencing judge the the did not find ground that appel the listed in the statute. The aggravating factors reasoning the argument, rejected late court to recite the facts sentencing judge required was not term was the extended upon, imposing relied and that the record supported of discretion because not an abuse “ the ‘the offense an term under factor that extended or heinous accompanied by exceptionally brutal ” Lucien, v. cruelty.’ People indicative wanton behavior 412, (1982), Ill. Rev. Stat. quoting 419-20 App. 109 Ill. 3d 5—3.2(b)(2), codified as 730 38, now 1979, ch. par. 1005— (West 2002). 5—3.2(b)(2) court appellate The ILCS 5/5 — had threat repeatedly plaintiff the record showed noted severely life a knife and the female victim’s with ened Lu pregnant. though told him she was beat her even she Ill. cien, App. 109

343 order, 2001, sought argu plaintiff corpus habeas Ap extended-term were invalid under ing sentences (West 2000). prendi. seq. 735 ILCS et The See 5/10—101 dismiss, circuit denied motion to but court defendant’s interlocutory question appeal certified the whether cognizable pro claim in a habeas corpus ceeding. 155 Ill. 2d 308. The court declined appellate R. court the question. review circuit found that authorizing the extended-term sentence was granted unconstitutional relief. The denied court defendant’s motion for stay of as did pending appeal, enforcement of order Accordingly, Department court. of Corrections 18, discharged appeal on December 2001. This followed.

ANALYSIS We must decide by whether the circuit court erred applying Apprendi a case in retroactively to which the process direct appeal long had been concluded. Whether Apprendi applies retroactively law, a question de novo. Illinois, review See Schmidt v. Ameritech (2002) 1020, 329 Ill. 3d App. 1027 (reviewing the circuit postjudgment application court’s an appellate court tort). decision recognizing a new adopted This court has the test announced United States Supreme Teague Court Lane v. determine the retroactivity of new constitutional rules. People Paz, (2003), v. De La Ill. 2d citing Lane, Teague L. Ed. U.S. 2d 109 S. (1989) Ct. (plurality op.). Applying held Teague, we in De La Paz that Apprendi apply retroactively does not is a procedural rule, because it it among is not “ ‘those procedures that are implicit concept ” liberty.’ ordered 204 Ill. 2d at quoting Flowers, Ill. citing *4 307, Teague, 353, 489 U.S. at 103 L. Ed. S. Ct. case, (plurality op.). ap- at 1073 In this direct 1985, in peal years Apprendi concluded some 15 before grounds on that De was decided. Plaintiff several argument La Paz does not control. We address each turn.

First, plaintiff rendered the statute argues Apprendi ah initio. authorizing his extended-term sentence void Ill. People Gersch, 2d Plaintiff cites judicial a proposition that when decision the initio, process requires renders a statute void ab due the applied retroactively. decision must be A initio a statute is void ab new constitutional rule, only if new the such rule renders Apprendi, Jackson, 199 facially statute unconstitutional. (2002). facially A unconstitu Ill. it if are no circumstances could be tional there Thurow, 203 Ill. 2d validly applied. People v. right held a criminal defendant has of a any fact, prior insist that other than fact to conviction, beyond increases punishment jury, be to a statutory maximum “must submitted beyond Apprendi, a proved reasonable doubt.” L. Ed. 2d at 120 S. Ct. at 2363. received his extended-term plaintiff statute under which violation; give it did not sentences allowed beyond a jury on a right proof insist However, nothing in the statute doubt. reasonable said, In Thurow we prohibited compliance Apprendi. with the find statute, respect sentencing to another with the defendant’s extended term that was the basis for ing the evidence. preponderance “could made a upon beyond a However, proof it be made based also could Apprendi, finding, based on a doubt. Under reasonable evidence, aggravating [the fact of the preponderance sentence. form the for an enhanced exists] could not basis *** if However, no this determination there is violation latter, doubt. Because beyond made reasonable *5 345 constitutionally procedure correct by [the is allowed statute], it cannot be said that there is no set of circum stances under which the statute would be valid. [Citation.] [The statute] is not unconstitutional on its face. Accord ingly, reject defendant’s contention [it] is void ab Thurow, initio.” 203 Ill. 2d at 368. words, other a statute permits Apprendi viola tions, but permits also compliance, is not facially unconstitutional and thus is not void ab initio. Indeed, the statute authorizing extended term based on a judge’s finding that the crime was committed in a brutal or heinous fashion has been applied compliance with Apprendi and thus is not ab Jackson, void initio. 199 Ill. 2d at 300-01, citing People Ford, 198 Ill. 2d 68 (2001). It follows that the statute authorizing plaintiffs extended terms was not facially unconstitutional hence not void ab initio.

Plaintiff responds by suggesting Thurow and all similarly reasoned cases have been overruled Blakely 542 Washington, L. Ed. 2d U.S._, S. Ct. argues that, He contrary to this court’s reasoning Thurow, Blakely struck down a sentencing statute because it did not mandate Apprendi compliance. disagree. We

Blakely involved the State of Washington’s sentenc- ing guidelines. The defendant pled guilty to second degree kidnapping involving domestic violence and the use of a firearm. In Washington, degree second kidnap- ping is a Class B felony and the maximum penalty for a B felony Class is 10 years’ However, incarceration. Washington’s sentencing guidelines the conduct admit- ted part of the guilty maximum plea carries a only 53 months. The trial judge sentenced the defendant to 90 months, based on his finding the crime was committed with deliberate cruelty. The question presented was whether the maximum, purposes applying Ap- prendi, years, was 10 the maximum for a B felony, Class Blakely, See 159 L. Ed.

or 53 months. U.S. at_, The held 53 months is 124 S. Ct. at 2537. Court maximum, is the maximum the relevant because finding have judge imposed could without sentence guilty plea. in the any beyond facts those admitted Blakely, 542 U.S. L. 2d at 124 S. Ct. Ed. at_, that, “[b]ecause concluded at 2537-38. Court comply sentencing did not with procedure State’s is invalid.” Amendment, Sixth sentence plaintiff’s Blakely, 159 L. 124 S. Ct. Ed. at_, suggestion, Blakely does Contrary at 2538. Apprendi compli- to require not hold a statute’s failure facially ance it invalid. renders *6 in Gersch does not aid opinion plaintiff This court’s Gersch, to statutory right a either. In the State exercised pending, was jury appeal insist trial. While direct on in the Illinois Constitution we held another case exclusively to trial to defendants. grants right jury the Daley Joyce, ex rel. Ill. 2d “retroactively,” applied Joyce Gersch Then in because initio rule of statu ab the ignore to do otherwise “would Gersch, Gersch, 135 Ill. 2d at 401. tory invalidation.” at bar because however, distinguishable from the case is Gersch Moreover, pos there were no appeal. a direct was in the issue circumstances statute sible Gersch could validly applied. gave The statute According cases. right to a trial certain jury State the Joyce, gave right to the Illinois Constitution Thus, of the every application exclusively to defendants. Joyce. Gersch’s conclusion that statute would violate void ab initio with the principle, consistent statute was Jackson, lacking Thurow only from statutes facially are invalid any possible application valid initio. We conclude claim that ab plaintiff’s void initio extended terms was void ab authorizing his is without merit.

Second, plaintiff De La inapplicable Paz is to case, because he raised the equivalent an claim on direct appeal. argued Plaintiff on direct appeal that his extended-term sentence was invalid because the sentencing judge failed to make the requisite finding that an aggravating factor present. To claim the judge never found an factor is aggravating equivalent not to an claim. gravamen of an Apprendi claim found, is that an aggravating factor was but not by a jury beyond a plaintiff reasonable doubt. We conclude did not an Apprendi raise claim on direct appeal.

Furthermore, we fail to see how claim that plaintiff argued on direct appeal could affect whether De La Paz applies this case. De La Paz applied the test from Teague conclude that Apprendi apply does not retroactively. Paz, 204 Ill. 2d at 439. Under Teague, retroactivity on depends whether failure to apply a new procedural rule would “undermine the fundamental fair ness that must underlie a conviction or seriously dimin ish the likelihood of obtaining an accurate conviction.” Teague, 489 U.S. at 103 L. Ed. 2d at 109 S. Ct. at 1078. De La Paz reasoned that Apprendi does not ap ply retroactively because an Apprendi violation does not necessarily any render particular trial unfair. De La 204 Ill. 2d at 438-39. particular Whether raised an Apprendi claim appeal on dif fundamentally ferent from the question whether of the absence *7 procedures required by Apprendi necessarily amounts to unfairness or at inaccuracy trial or sentencing.

Third, plaintiff a statement in Blakely implies Apprendi’s holding procedural is not a Therefore, rule. plaintiff argues, De La Paz was incorrectly decided and should be overruled. that Blakely states the sixth amend- ment right by jury, to trial which Apprendi interprets, is “no procedural mere formality, but a fundamental power reservation of in our constitutional structure. Just 348 in the suffrage people’s

as ensures the ultimate control branches, jury and trial meant to legislative executive is judiciary.” Blakely, ensure in the their control 415, 124 at This 159 L. Ed. 2d at S. Ct. 2538-39. at_, general importance is a statement philosophical about of juries power judicial of as a check on the of branch nothing specific legal It has to government. do with procedural, as to question opposed whether is substantive, retroactivity. Retroactivity purposes in Blakely. was not at issue Summerlin, In day v. decided the same Schriro Summerlin, retroactivity at Blakely, issue. Schriro 542 159 L. Ed. 2d 124 S. Ct. 2519 U.S._, Arizona, U.S. concerned Ring Summerlin whether 2d applies L. Ed. S. Ct. 2428 that did retroactively. Ring permit had held not jury, find an judge, sitting aggravating without to necessary for the death imposition circumstance 576-77, at 153 L. Ed. at penalty. Ring, U.S. jury Ring’s 122 S. at 2443. first held Ct. Summerlin not it does not requirement is a substantive rule because range may punished affect conduct death; only affects who decides whether such Ring Summerlin, 542 L. Ed. conduct occurred. U.S. at_, held Secondly, 124 S. Ct. at 2523. Summerlin accuracy to not to fairness Ring is so essential Summerlin, 542 at U.S. require application. retroactive 451, 124 Because L. Ed. 2d at Ct. S. _, conclusion Ring simply application Apprendi, applies Apprendi not as well. Ring retroactive De Thus, La Paz was contrary suggestion, correctly decided. sum, La controls case. The circuit De Paz relief was errone- granting

court’s order disposition, we ous must be Because of our reversed. argument need alternative not address defendant’s *8 cognizable Apprendi in a habeas claim is not proceeding. plaintiff, the order that released we reverse

Because regarding questions presents the remainder this case plaintiffs alleges his conduct Plaintiff sentence. liberty He he is rehabilitated. at establishes that while requires that criminal notes the Illinois Constitution penalties objective restoring “the take into account citizenship.” Ill. art. offender to useful Const. provision requires §I, 11. He this constitutional suggests public reincarcerated. He also that he not be policy reincarcerating person a rehabilitated forbids acknowledges public expense. record Plaintiff further regarding allegation that he is rehabilitated. is silent requests remand the cause to the circuit court He that we hearing to hold a to determine whether with instructions he is rehabilitated. parties plaintiffs claim, but it is have addressed insufficiently developed it,

clear the record is resolve legal to ad- even if it has merit. We therefore choose not express opinion it, and no about its merit. dress we Instead, remand this cause to the circuit court proceedings. further

CONCLUSION Apprendi procedural in does The new rule announced retroactively ap- apply in the direct not to cases which peal process was decided. had concluded when granted Therefore, court erred when it circuit corpus relief, and its order is reversed circuit court for further and the cause is remanded to the proceedings.

Reversed and remanded. dissenting: KILBRIDE, JUSTICE my People v. in dissent in For the reasons set forth (2003) (Kilbride, J., 454-55 204 Ill. Lee, dissenting), my dissent 207 Ill. 2d (2003) (Kilbride, J., dissenting), disagree I with the majority’s conclusion that the United Supreme States holding Court not apply retroactively does cases where the direct had appeal process concluded *9 when was announced. Ill. 2d at I do not dispute underlying guilt defendant’s of the offenses robbery Rather, of armed and armed I simply violence. disagree with enhancement of defendant’s sentence sentencing based on a factor that was not to the proved jury beyond a reasonable doubt. It is axiomatic that all guilt to the essential elements must be submitted trier a reasonable doubt. See fact, proof beyond (Kilbride, J., 204 Ill. 2d at 455 dissenting), citing re Winship, 358, 361, 368, 373-74, 25 L. Ed. 2d (the (1970) “beyond 90 S. Ct. a reasonable “ accepted persua doubt” standard is the ‘measure of all the prosecution [prove] sion must es ” McCormick, guilt,’ quoting sential elements C. (1954)). § Evidence at 681-82 I continue to believe basic tenet of comply failure with this injurious constitutional law is an error to fundamental so no violation of Ap liberty imposed civil sentence prendi Swift, upheld. should be See 202 Ill. 2d (2002) (an extended-term sentence on the based trial that defendant’s crime judge’s finding factual and could not brutal and heinous violated (2003) Thurow, People v. stand); 203 Ill. 2d 375-78 dissenting); People Crespo, (Kilbride, J., 203 Ill. 2d (2001) (Kilbride, J., Here, dissenting). the circuit ap County appropriately recognized court of Will Apprendi, ruling holding and its plicability unconstitu authorizing Lucien’s extended-term sentence I upheld. Accordingly, respectfully tional dis should sent.