THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FLOYD CUMMINGS, Defendant-Appellant.
No. 1-05-2058
First District (1st Division)
August 6, 2007
375 Ill. App. 3d 513
Richard A. Devine, State‘s Attorney, of Chicago (James E. Fitzgerald, William Toffenetti, Yulia Nikolaevskaya, Assistant State‘s Attorneys, of counsel), for the People.
PRESIDING JUSTICE McBRIDE delivered the opinion of the court:
Defendant, Floyd Cummings, appeals from the summary dismissal of his petition for relief under the Post-Conviction Hearing Act (the Act) (
On direct appeal, defendant claimed that his sentence for armеd robbery was unconstitutional because armed robbery and armed violence predicated on robbery committed with a category III weapon were identical offenses that had disproportionate penalties. Cummings, 351 Ill. App. 3d at 346. Defendant pointed out that armed robbery was a Class X felony punishable by 6 to 30 years’ imprisonment (see
We disagreed and found that defendant‘s sentence of natural life imprisonment for armed robbery was not unconstitutionally disproportionate. Cummings, 351 Ill. App. 3d at 349. We initially noted that, unlike the defendants in People v. Christy, 139 Ill. 2d 172 (1990), and People v. Lewis, 175 Ill. 2d 412 (1996), upon which defendant relied, defendant was not charged with the lesser offense of armed violence or robbery but, rather, with the greater offense of armed robbery, and that the State was not required to proceed on a lesser offense when its evidence was sufficient to support conviction on a greater offense. Cummings, 351 Ill. App. 3d at 347-48. We also noted that unlike the defendants in Lewis and Christy, defendant was an habitual offender whose sentence was based not only on the armed robbery conviction
“In weighing the gravity of Ewing‘s offense, we must place on the scales not only his сurrent felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature‘s choice of sanctions. In imposing a three strikes sentence, the State‘s interest is not merely punishing the offense of conviction, or the ‘triggering’ offense: ‘[I]t is in addition the interest... in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.’ [Citations.] To give full effect to the State‘s choice of this legitimate penological goal, our proportionality review of Ewing‘s sentence must take that goal into account.” Ewing, 538 U.S. at 29, 155 L. Ed. 2d at 122-23, 123 S. Ct. at 1189-90.
Finally, we noted that the State could not charge defendant with armed violence because armed violence could not be predicated upon armed robbery and because the State lacked authority to prosecute defendant for armed violence predicated upon robbery in light of our supreme court‘s decision in Lewis. Cummings, 351 Ill. App. 3d at 349. Accordingly, we affirmed defendant‘s conviction and sentence of natural life imprisonment. Cummings, 351 Ill. App. 3d at 353.
On March 15, 2005, defendant filed a pro se рetition for postconviction relief alleging that the Habitual Criminal Act was unconstitutional as applied to the facts of his case. Specifically, defendant claimed that the court improperly considered his 1967 murder conviction when sentencing him to life imprisonment as an habitual offender. Defendant asserted that the court was precluded from considering offenses committed between 1963 and 1978 when sentencing him as an habitual criminal because the Habitual Criminal Act was repealed in 1963 and remained dormant until it was reenacted in 1978. Defendant also alleged in his petition that when he рled guilty to murder in 1967, he was not given notice that his conviction could be used to sentence him as an habitual offender. Finally, defendant alleged that the trial court had discretion to sentence him as an habitual offender and that
Defendant then filed a motion to reconsider the dismissal of his postconviction petition. Defendant reiterated the arguments raised in his petition, and also claimed that his trial counsel was ineffective for failing to object to defendant‘s eligibility to be sentenced as an habitual criminаl and that appellate counsel was ineffective for failing to raise trial counsel‘s ineffectiveness on direct appeal. The circuit court denied defendant‘s motion for reconsideration. This appeal followed.
The Post-Conviction Hearing Act provides a mechanism by which a defendant may assert that his conviction or sentence resulted from a substantial denial of his constitutional rights.
On appeal, defendant again contends that his sentence for armed robbery is unconstitutional because it violates the proportionate penaltiеs clause of the Illinois Constitution. The proportionate penalties clause provides that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”
As he did on direct appeal, defendant asserts that under the identical elements test, his sentence for armed robbery is unconstitutionally
We observe, however, that defendant did not raise this issue in his postconviction petition. Our supreme court has clearly stated that “[t]he question raised in an appeal from an order dismissing a post-conviction petition is whether the allegations in the petition, liberally construed and taken as truе, are sufficient to invoke relief under the Act.” (Emphasis added.) People v. Coleman, 183 Ill. 2d 366, 388 (1998). Moreover, section 122-3 of the Act provides that “[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.”
Here, because the claim that defendant seeks to raise on appeal was not included in his postconviction petition, it mаy not be considered. Defendant acknowledges that this claim was not included in his petition, but argues that the issue can be raised on appeal because an unconstitutional statute is void and may be attacked in any court at any time.
While it is true that an unconstitutional statute is void and may be challenged at any time (see People v. Thompson, 209 Ill. 2d 19, 25 (2004)), the grounds upon which defendant now asserts that his sentence is unconstitutionally disproportionate were already raised and decided on direct appeal. As previously noted, defendant argued on direct appeal that his sentence for armed robbеry was unconstitutional because armed robbery and armed violence predicated on robbery committed with a category III weapon were identical offenses that had disproportionate penalties. Cummings, 351 Ill. App. 3d at 346. We rejected defendant‘s argument and affirmed his conviction and sentence of natural life imprisonment. Cummings, 351 Ill. App. 3d at 349. Defendant now advances the identical disproportionate sentencing argument on appeal from the dismissal of his postconviction petition.
Here, because the claim that defendant raises was previously considered and decidеd on direct appeal, it is barred by the doctrine of res judicata. Blair, 215 Ill. 2d at 443-44. Defendant acknowledges that this issue was raised and ruled upon in his direct appeal, but argues that fundamental fairness dictates that res judicata not bar consideration of his claim because the law has developed and changed since the filing of his direct appeal and postconviction petition. Specifically, defendant asserts that in People v. Harvey, 366 Ill. App. 3d 119 (2006), appeal allowed, 221 Ill. 2d 654 (2006), People v. Hampton, 363 Ill. App. 3d 293 (2006), vacated in part, 225 Ill. 2d 238 (2007), and People v. Andrews, 364 Ill. App. 3d 253 (2006), this court “conceded that its decision in Cummings was erroneous, and that, with respect to the identical elements challenge, its reasoning was faulty and unpersuasive.”
Whilе we agree with defendant that principles of res judicata will not bar relitigation of a claim in a postconviction proceeding where fundamental fairness so requires, we do not find this to be such a case. The cases relied upon by defendant to invoke the fundamental fairness exception involved situations where res judicata was relaxed because our supreme court issued a decision after the defendant‘s conviction and sentence were affirmed on direct appeal which either recognized the right that the defendant relied upon or indicated that the defendant‘s direct appeal had been wrongly decided.
For example, in People v. Perruquet, 181 Ill. App. 3d 660, 661 (1989), the petitioner argued on direct appeal that he was improperly given an extended-term sentence for aggravated kidnapping. The appellate court rejected that argument and affirmed petitioner‘s conviction and sentence. Perruquet, 181 Ill. App. 3d at 662. However, our supreme court issued an opinion one year after petitioner‘s direct appeal which “indicated that [the appellate court] had been wrong and that petitioner had been correct about how the extended-term statute should be interpreted.” Perruquet, 181 Ill. App. 3d at 662. Petitioner subsequently appealed the dismissal of his postconviction petition and
Similarly, in People v. Cowherd, 114 Ill. App. 3d 894, 896 (1983), the defendant argued on direct apрeal that improper testimony was allowed at his trial regarding statements he made during plea negotiations. The appellate court rejected that argument and affirmed defendant‘s conviction. Our supreme court subsequently issued a decision which recognized the validity of the argument defendant raised on appeal and was “directly contrary to the basis of [the appellate court‘s] rejection of defendant‘s contention on his direct appeal.” Cowherd, 114 Ill. App. 3d at 898. Defendant advanced the same argument regarding improper testimony in a postconviction petition, which thе trial court dismissed after finding that defendant‘s argument had been raised and decided on direct appeal. Cowherd, 114 Ill. App. 3d at 898. On appeal, the court rejected the State‘s argument that res judicata barred defendant from raising an issue regarding the improper testimony, and found that because “the basis of defendant‘s claim [was] predicated upon case law which developed after affirmance of his conviction on direct appeal, fundamental fairness under the circumstances [required] relaxation of the doctrine of res judicata.” Cowherd, 114 Ill. App. 3d at 898.
In this case, unlike in Perruquet and Cowherd, our supreme court has not issued a decision since the affirmance of defendant‘s conviction and sentence on direct appeal that either recognized the validity of defendant‘s argument or indicated that defendant‘s direct appeal was wrongly decided. Defendant instead points our attention to other appellate court decisions that were issued after his direct appeal was decided. However, appellate court opinions are not binding on other branches of the appellate court, and a court is not bound to follow a decision of an equal or inferior court. Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 393 n.2 (2005). ” ‘[S]tarе decisis requires courts to follow the decisions of higher courts, but does not bind courts to follow decisions of equal or inferior courts.’ ” Gillen, 215 Ill. 2d at 393 n.2, quoting Schiffner v. Motorola, Inc., 297 Ill. App. 3d 1099, 1102 (1998). Additionally, only our supreme court may reverse or overrule a decision of the appellate court, and decisions of intermediate appellate courts are the law of the state or jurisdiction until such decisions are reversed or overruled by the court
In any event, dеfendant overstates the relevance of these cases, which are distinguishable from the present case and do not indicate that this court has conceded that its decision in defendant‘s direct appeal was erroneous. We first note that Hampton provides no support for defendant‘s argument because our supreme court vacated the relevant portion of that decision. See People v. Hampton, 225 Ill. 2d 238 (2007). Moreover, Andrews is a decision of the Second District of this court and Harvey is a decision of the third division of the First District of this court, and therefore neither case indicates that this division has conceded that defendant‘s direct appeal was wrongly decided. Finally, both Harvey and Andrews are factually distinguishable from the present case. In Harvey, 366 Ill. App. 3d at 130, the third division of the First District of this court found that the 25-year mandatory add-on penalty for armed robbery/discharging a firearm and causing great bodily harm violated the proportionate penalties clause because the penalty for that offense was more severe than the penalty for the identical offense of a armed violence predicated on robbery with a category I or category II weapon. In Andrews, 364 Ill. App. 3d at 275, the Second District of this court found that the penalty for aggravated vehicular hijacking while carrying a firearm was unconstitutionally disproportionate to thе penalty for the identical offense of armed violence with a category I weapon predicated upon the offense of vehicular hijacking.
Unlike the present case, neither Harvey nor Andrews involved a defendant who was adjudged an habitual criminal based on the commission of three Class X offenses and who was therefore given a mandatory sentence of life imprisonment pursuant to the Habitual Criminal Act. As we noted on direct appeal, in this case defendant‘s natural life sentence is constitutionally proportionate when considered in context of his history as a violent offender. See Cummings, 351 Ill. App. 3d at 348-49. Because neither Harvey nor Andrews was decided by this division, аnd because neither of those cases involved the circumstances presented in defendant‘s case, we find that these cases are distinguishable and that they do not indicate that defendant‘s direct appeal was wrongly decided. Accordingly, fundamental fairness does not require us to consider defendant‘s contention on appeal, which we find to be barred by res judicata. See Blair, 215 Ill. 2d at 443-44.
Defendant also asserts that this court should consider the issue raised on appeal in the interest of judicial economy. Defendant relies
Notwithstanding these procedural shortcomings, defendant‘s disproportionate sentencing argument fails on the merits. Defendant does not dispute our holding in his direct appeal that the State was not required to proceed on the lesser offense of armed violence predicated on robbery with a category III weapon when its evidencе was sufficient to support conviction on the greater offense of armed robbery. See Cummings, 351 Ill. App. 3d at 347-48 (“The State is not required to proceed on a lesser offense when its evidence is sufficient to support conviction on a greater offense, i.e., armed robbery“). Moreover, defendant does not dispute that his actions amounted to armed robbery, which is categorized as a Class X offense. Rather, defendant contends that his sentence for armed robbery violates the proportionate penalties clause of the Illinois Constitution because it is disproportionate to thе penalty for the identical offense of armed violence predicated on robbery with a category III weapon. Defendant points out that armed robbery is a Class X felony punishable by 6 to 30 years’ imprisonment (see
However, contrary to this assumption, defendant was not sen-
As the foregoing makes clear, defendant‘s comparison of the sentences for armed robbery and armed violence predicated on robbery with a category III weapon is inapplicable in this case because defendant was not given the corresponding Class X sentence for armed robbery. Moreover, a compаrison of armed robbery to the identical offense of armed violence predicated on robbery with a category III weapon is inappropriate in this case because defendant was not sentenced for his armed robbery conviction, but rather, defendant was adjudged an habitual criminal and sentenced to life imprisonment based upon his convictions for three violent Class X offenses, including his current armed robbery conviction as well as his previous convictions for murder and armed robbery. Moreover, defendant has not cited any authority in which being adjudged an habitual offendеr was compared to an offense such as armed violence for purposes of an identical elements challenge under the proportionate penalties clause and, under the circumstances presented here, we find no basis to make such a comparison. Accordingly, we reject defendant‘s conten-
We finally note that, while defendant‘s appeal from the dismissal of his postconviction petition was pending, our supreme court issued its decision in People v. Hauschild, 226 Ill. 2d 63 (2007). After reviewing this case, we do not believe that Hauschild compels us to conclude that defendant‘s sentence of natural life imprisonment is unconstitutionally disproportionate.
In Hauschild, defendant was charged with, among other things, armed robbery while armed with a firearm (
The court compared the penaltiеs for the identical offenses of armed robbery while armed with a firearm and armed violence predicated on robbery with a category I or category II weapon. The court noted that a violation of the armed robbery statute, with the “add-on penalty” of 15 years, carried a sentence of between 21 and 45 years’ imprisonment, while a violation of section 33A-2(a) of the armed violence statute was punishable by a sentence ranging from 15 to 30 years’ imprisonment. Hauschild, 226 Ill. 2d at 86. The court then found that defendant‘s sentence for armed robbery while armed with a firearm violated the proportionate penalties clause because the penalty for that offense was more severe than the penalty for the identical offense of armed violence predicated on robbery with a category I or category II weapon. Hauschild, 226 Ill. 2d at 86-87.
The court went on to affirm the principle that “the State is not required to proceed on a lesser offense when there is evidence sufficient to convict of a greater offense,” but noted that the penalty for that greater offense was still subject to the constitutional prohibition
We believe that Hauschild supports our conclusion that defendant‘s sentence of natural life imprisonment is not unconstitutionally disproportionate. In Hauschild, by remanding for resentencing on the armed robbery conviction rather than reversing that conviction, our supreme court reaffirmed that the State may proceed with the greater offense where two offenses contain identical elements but are punished disproportionately, and that a subsequent conviction for the greater offense is proper even when that offense contains a sentence that is greater than an offense containing identical elements. Accordingly, in this case, defendant‘s conviction for the Class X offense of armed robbery was entirely proper, notwithstanding that armed robbery is punished more severely than the identical offense of armed violence predicated on robbery with a category III weapon. Moreover, the court in Hauschild remanded for resentencing because defendant was sentenced for armed robbery and the penalty for that offense was greater than the penalty for the identical offense of armed violence predicated on robbery with a category I or category II weapon. Here, unlike in Hauschild, defendant was not given the corresponding Class X sentence for the greater offense of armed robbery but, rather, as noted, was given a natural life sentence because his third Class X conviction required him to be adjudged an habitual criminal and given a sentence of natural life pursuant to the Habitual Criminal Act. In light of the foregoing, we believe that defendant‘s sentence is consistent with the decision in Hauschild and is not unconstitutionally disproportionate.
For the reasons stated, we affirm the judgment of the circuit court of Cook County.
Affirmed.
CAHILL and R. GORDON, JJ., concur.