THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. KIZZY L.M. JACKSON, Appellant.
No. 91359
Supreme Court of Illinois
April 18, 2002
CONCLUSION
For the foregoing reasons, the judgment of the appellate court is affirmed.
Affirmed.
Daniel D. Yuhas, Deputy Defender, and Martin J. Ryan, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.
James E. Ryan, Attorney General, of Springfield, and
JUSTICE FREEMAN delivered the opinion of the court:
This case once again brings before this court a question involving the Supreme Court‘s decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
Defendant Kizzy Jackson was charged with the Class 3 felony of aggravated battery (
BACKGROUND
In June 1997 the State charged defendant with aggravated battery by information. Specifically, the State alleged that on June 19, 1997, defendant caused great bodily harm to the victim, Rebecca Fanning, during the commission of a battery, by cutting the victim about the body. The information made no mention of the possibility of an extended sentence or of what might have to be proven for an extended sentence to be imposed.
Defendant initially entered a not-guilty plea. However, in October 1997 she pled guilty pursuant to an agreement with the State not to seek an extended-term penalty in her case.
Before accepting defendant‘s plea, the court elicited
The court informed defendant that she had been charged with aggravated battery, a Class 3 felony, which normally carried a penalty of two to five years’ imprisonment in the Department of Corrections. However, the court also told defendant that she could be sentenced to an extended term of 5 to 10 years’ imprisonment in various circumstances. The court specifically noted that one circumstance which might apply in defendant‘s case “would be a finding by the Court that this felony offense was accompanied by exceptionally brutal or heinous behavior, indicative of wanton cruelty.” The court told her that if she pled guilty, the determination by the court whether the offense was subject to an extended term would be made at a sentencing hearing, at which both she and the State would be allowed to call witnesses. Defendant indicated that she understood. The court stated that it was
“explain[ing] all this to you [defendant] in some detail because the Court is not bound by this agreement. The Court may impose a sentence of imprisonment within the range of two to five years in the Department of Corrections. The Court may disregard the State‘s recommendation, high or low. I might place you on probation with various conditions. I might impose an extended term, if the evidence supports it.”
Defendant again indicated her understanding.
The court went on to confirm that defendant understood the rights she was giving up by pleading guilty. The court informed defendant that she was
THE DEFENDANT: Yes, sir.
THE COURT: If you plead guilty you lose all these rights and there won‘t be any trial of any kind. Do you know what a jury trial is?
THE DEFENDANT: Yes, sir.
THE COURT: And let me point out to you, before you can be convicted in a jury trial of 12 people, all 12 people have to agree that that burden‘s been met by the State, proven you guilty beyond a reasonable doubt. And when you plead guilty to this offense, you give up all these rights and there won‘t be any trial. Do you give up the presumption of innocence?
THE DEFENDANT: Yes, sir.
THE COURT: Do you give up the burden of proof on the State to prove you guilty of aggravated battery beyond a reasonable doubt?
THE DEFENDANT: Yes, sir.
THE COURT: And do you give up your right to a trial of any kind?
THE DEFENDANT: Yes, sir.”
Defendant also indicated that she understood and was giving up her rights to the assistance of an attorney, of confrontation and cross-examination of witnesses against her, to subpoena witnesses in her favor, and her right to testify or not to testify in her own behalf.
After finding that defendant‘s guilty plea was knowing, understanding, and voluntary, the court requested the State‘s factual basis. Before this court defendant does not dispute any of the facts underlying her conviction or sentence. In brief, the victim was in a parked car when defendant confronted the victim about defendant‘s boyfriend. Defendant, who had imbibed a large amount of alcohol, parked her car behind the victim‘s, blocking
At the sentencing hearing, the only evidence adduced by the State was photographs of the victim‘s injuries. Defendant called several witnesses who stated that defendant was a good student while she was in school, and she had potential to be a contributing member of society if released. Defendant testified on her own behalf, stating that she was sorry, and she knew that what she had done was wrong. Defendant did admit on cross-examination that she had purchased the box cutter in advance, although she stated that she had obtained it for “protection.” In argument, the State noted that the court had advised defendant that an extended-term sentence was a possibility, but argued that “the maximum sentence under the basic sentencing structure, that five years, is an appropriate sentence.” Defense counsel urged the court to sentence defendant to probation, noting that defendant was young, had no previous felony convictions, and had a young child.
The court recognized that defendant‘s age and lack of a prior record were mitigating factors, as was the fact that she pled guilty. However, the court noted that according to the presentence report defendant had been on probation for a battery committed as a juvenile, and that probation had been revoked. The court noted that defendant had received services from more than 20 social services agencies, but stated that it was “clear from reading this presentence investigation that she‘s been out of control for years and years.” The court also commented
Defendant‘s motion to reconsider sentence was denied. Defendant appealed, but the appellate court remanded because counsel had not complied with Supreme Court Rule 604(d). On remand, defendant‘s motion to reconsider sentence was again denied. Defendant again appealed, this time raising the argument that her extended-term sentence violated her due process rights, as set forth in the Supreme Court‘s opinion in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The appellate court affirmed, finding that defendant‘s guilty plea waived her sentencing challenge. 319 Ill. App. 3d 110. After the appellate court denied defendant‘s motion to reconsider, defendant filed a timely petition for leave to appeal with this court.
ANALYSIS
Before this court, defendant‘s sole contention is that her extended-term sentence must be vacated because it was imposed in violation of the requirements set out by
The State responds that the case is moot, because defendant has already been paroled from prison. Alternatively, the State argues that the appellate court was correct in concluding that defendant‘s sentencing challenge was waived by her guilty plea. The State contends that if we do reach the merits of defendant‘s constitutional challenge, we should uphold her sentence, because (1) the extended-term sentencing statutes are not inconsistent with Apprendi; or (2) even if the statutes are unconstitutional, any error was harmless beyond a reasonable doubt because no jury would have failed to find that defendant‘s attack was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. As a final alternative, the State contends that Apprendi was wrongly decided.
Defendant responds that the case is not moot, because she is on parole and will so remain until June 1, 2002. Moreover, she contends that even if the case were moot, it should be reviewed under the “public interest” exception to the mootness doctrine. She further responds that her guilty plea should not operate as a waiver of her sentencing challenge, because Apprendi itself concerned a guilty plea and because she was not specifically admonished that by pleading guilty she would waive her
To the extent necessary, we shall address these arguments in turn.
I. Mootness
The first question is whether the case is moot. We find it is not. A case becomes moot where the occurrence of events since filing of the appeal makes it impossible for the reviewing court to render effectual relief. Berlin v. Sarah Bush Lincoln Health Center, 179 Ill. 2d 1, 7 (1997). Conversely, an appeal remains viable where a decision “‘could have a direct impact on the rights and duties of the parties.‘” Berlin, 179 Ill. 2d at 8, quoting People ex rel. Bernardi v. City of Highland Park, 121 Ill. 2d 1, 6-7 (1988). In this case, although she has been released from prison, defendant remains on mandatory supervised release. And, as she notes, whether her sentence was 5 or 10 years would affect how long she could be reincarcerated for a violation of the conditions of her release. See
II. Waiver
The next question is whether defendant waived her
Our analysis here must begin with a precise understanding of defendant‘s argument. We turn first to Apprendi. There, the Court held that a New Jersey “hate crime” statute ran afoul of the due process clause of the fourteenth amendment (
A clear understanding of Apprendi explains why defendant‘s guilty plea waived her Apprendi-based argument. The underlying lesson of Apprendi is, “[p]ut simply, facts that expose a defendant to a punishment
Defendant complains that she was not explicitly informed that because of the extended-term sentence, the fact that the crime was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty (see
Defendant protests that we should consider her argument because Apprendi itself concerned an appeal from a sentence imposed after a guilty plea entered pursuant to a plea agreement with the State. See Apprendi, 530 U.S. at 469-70, 147 L. Ed. 2d at 442-43, 120 S. Ct. at 2352. Indeed, defendant argues, the case against waiver is more compelling here than in Apprendi, because part of the plea agreement in the instant case was that the State would not seek an extended sentence, whereas in Apprendi the State explicitly reserved the right to request the court to impose an enhanced sentence. See Apprendi, 530 U.S. at 470, 147 L. Ed. 2d at 443, 120 S. Ct. at 2352.
Defendant‘s recitation of the facts of Apprendi is accurate, as far as it goes. However, it fails to come to grips with the salient feature distinguishing this case from Apprendi. There, at the time that he entered his guilty plea, the defendant “reserved the right to challenge the hate crime sentence enhancement on the ground that it violates the United States Constitution.” (Emphasis added.) Apprendi, 530 U.S. at 470, 147 L. Ed. 2d at 443, 120 S. Ct. at 2352. He then did challenge the constitutionality of the hate crime statute in the trial court, after receiving an enhanced sentence pursuant thereto. Apprendi, 530 U.S. at 471, 147 L. Ed. 2d at 443, 120 S. Ct. at 2352. In
Defendant further contends that “acceptance of the State‘s guilty-plea-as-waiver theory would eviscerate the concept of a knowing waiver.” She bases this argument on the facts that (1) the charging instrument did not mention an extended term or any specific fact which could give rise to an extended term; (2) there was no admission of “exceptionally brutal or heinous behavior, etc.,” in the factual basis for the guilty plea; and (3) the plea agreement precluded the State from proving that defendant was eligible for an extended term. Addressing these arguments in turn, first, as we recently noted (see People v. Ford, 198 Ill. 2d 68 (2001)), any discussion of the charging instrument in Apprendi was dictum, as that case specifically disavowed any holding regarding the indictment. See Apprendi, 530 U.S. at 477 n.3, 147 L. Ed. 2d at 447 n.3, 120 S. Ct. at 2355 n.3. Nor did the failure to mention in the charging instrument the possibility of an extended sentence or the factual predicate which might underlie such a sentence “eviscerate” defendant‘s knowing waiver, in that the trial court took specific pains to inform defendant of this possibility.
With respect to defendant‘s point regarding the factual basis for the guilty plea,
“the quantum of proof necessary to establish a factual basis for the plea is less than that necessary to sustain a conviction after a full trial. [Citations.] All that is required to appear on the record is a basis from which the judge
could reasonably reach the conclusion that the defendant actually committed the acts with the intent (if any) required to constitute the offense to which the defendant is pleading guilty.” Barker, 83 Ill. 2d at 327-28.
In this case, in reciting the factual basis for the guilty plea, the State mentioned that “defendant, without any justification, cut [the victim] about the head, apparently with a box cutter-type instrument, causing a number of cuts, requiring literally hundreds of stitches to close them.” We believe that these facts, coupled with the photographs of the victim, form a sufficient basis for the trial court to conclude that “the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty” (see
Defendant‘s final argument as to how the result we reach would “eviscerate the concept of a knowing waiver” derives from the fact that the plea agreement precluded the State from seeking—and thus, defendant argues, proving the basis for—an extended term. We have already disposed of this issue by our earlier observation that by the guilty plea the State was absolved of its burden of proving any elements of the crime.
Defendant contends that we should reach the merits of her claim notwithstanding waiver, however. She relies on two legal principles. First, defendant notes that this court has previously allowed sentencing challenges on appeal from guilty pleas, where the argument concerned the court‘s power to impose the sentence in question. See, e.g., People v. Williams, 179 Ill. 2d 331, 332-33 (1997). She contends that her Apprendi challenge fits within this rule. Defendant also notes the rule that a challenge to the constitutionality of a statute may be raised at any time. See, e.g., People v. Wright, 194 Ill. 2d 1, 23-24 (2000). According to either of these rules, defendant argues, we should reach the merits of her Apprendi challenge notwithstanding her guilty plea.
Petitioner also argues that, although the statutory scheme may have permitted the sentence in question, that scheme was unconstitutional. This is the same, she contends, as her sentence having been imposed without any statutory authority, as unconstitutional statutes are void ab initio. But this line of reasoning also falls short, not because of procedural default (see People v. Wagener, 196 Ill. 2d 269, 279 (2001) (constitutionality of a criminal statute may be assailed at any time); People v. Wright, 194 Ill. 2d 1, 23-24 (2000) (same)), but on its merits.
The void ab initio doctrine only applies to facially unconstitutional statutes. People v. Gersch, 135 Ill. 2d 384, 399 (1990) (“‘When a statute is held unconstitutional in its entirety, it is void ab initio‘” (emphasis added)), quoting People v. Manuel, 94 Ill. 2d 242, 244-45 (1983). The statutes involved in this case—sections
Thus defendant cannot characterize her challenge as one which goes to the trial court‘s authority to impose the sentence in question, and the sentencing scheme pursuant to which her sentence was imposed is not facially unconstitutional. Accordingly, she is left with what has been the true nature of her challenge all along—that the statutory scheme was unconstitutional as applied to her, i.e., that she was denied procedural due process. This is the essence of the Apprendi challenge—a complaint that one or more of the elements of the crime of which the defendant was convicted and for which he was sentenced, were not proven to a jury beyond a reasonable doubt. And for the reasons we previously discussed, it is clear that such a claim cannot be raised on appeal from a guilty plea. An Apprendi challenge raised in the wake of a guilty plea is an argument that a defendant was deprived of due process when he did not get a jury trial after waiving his right to a jury trial. Simply to state the argument reveals why it cannot be heard.
The dissent‘s view to the contrary notwithstanding, we are not creating a “new set of waiver rules” by holding that by entering a voluntary, knowing guilty plea, a defendant waives the rights to a jury trial and to proof beyond a reasonable doubt.
To conclude, defendant did knowingly waive the rights at issue in Apprendi. This is so because Apprendi did not deal with novel constitutional rights. Rather, the Court was concerned with the applicability and reach of the well-established constitutional rights to a jury trial and proof beyond a reasonable doubt, rights which a guilty plea is specifically designed to waive.
Because defendant waived her Apprendi challenge, we need not reach the merits of this argument, nor need we address the State‘s arguments that any Apprendi error was harmless, or that Apprendi was wrongly decided.
CONCLUSION
For the reasons above stated, we affirm the judgment of the appellate court, which affirmed the judgment of the circuit court.
Affirmed.
CHIEF JUSTICE HARRISON, dissenting:
During the pendency of this appeal, our appellate court has had numerous opportunities to consider the validity of Illinois’ extended-term sentencing provisions in light of the United States Supreme Court‘s decision in
This case falls squarely within the Apprendi rule. Jackson‘s extended-term sentence was imposed in accordance with a sentencing procedure which did not require the State to prove the existence of the aggravating factor beyond a reasonable doubt and did not afford Jackson the right to have the existence of the aggravating factor decided by a jury. Under Apprendi, the extended-term portion of her sentence therefore violates due process and cannot stand.
Our court has recently concluded that no Apprendi violation occurs when a defendant who has been found guilty of first degree murder and is eligible for the death penalty receives an extended term of imprisonment rather than death (People v. Ford, 198 Ill. 2d 68, 73-75 (2001)), but those circumstances are not present in this case. Jackson did not commit murder, she was not death eligible, and her sentence was clearly in excess of the normal statutory maximum.
Although Apprendi was not decided until after Jackson was convicted and sentenced, she is not fore-
The majority‘s assertion that Jackson waived her right to challenge the extended-term portion of her sentence when she pleaded guilty is contrary to settled principles of law. In Illinois, a statute found to be unconstitutional is considered void ab initio. It is as if the law never existed. People v. Gersch, 135 Ill. 2d 384, 399 (1990). That being so, there was no statutory authority for the extended-term portion of Jackson‘s sentence. Where, as here, a sentence is void because it was beyond the trial court‘s statutory authority to impose, the sentence may be corrected at any time. People v. Arna, 168 Ill. 2d 107, 113 (1995). A defendant is not foreclosed from challenging it because he or she has pleaded guilty. Indeed, under Illinois law, a defendant challenging his sentence as void may not only do so despite having pleaded guilty. He may do so without first moving for withdrawal of the plea as would normally be required. People v. Wagener, 196 Ill. 2d 269, 280 (2001); People v. Wilson, 181 Ill. 2d 409, 413 (1998); People v. Williams, 179 Ill. 2d 331, 333 (1997).
The majority‘s attempt to avoid these principles on the theory that they are limited to situations where a sentencing scheme is declared unconstitutional on its face is untenable. Our court specifically rejected that theory when it was advanced by the State in People v. Wagener, 196 Ill. 2d at 279-80, decided just nine months ago.
The court‘s sudden turnabout is inexplicable. It is also unsound. For purposes of applying waiver rules, there is no principled basis for granting relief where a sentencing statute is facially invalid, but denying relief
I note, moreover, that while the extended-term sentencing scheme contained in sections
The majority‘s approach is flawed for another reason as well. In holding that a sentencing scheme must be incapable of any valid application before waiver rules will be relaxed, the majority overlooks an entire line of cases dealing with sentences that are not unconstitutional, but are invalid because they are not authorized by statute. In those cases, the reason the sentence is invalid is not because of any inherent deficiency in the sentencing statute. It is because the sentencing statute did not permit the disposition ordered by the trial court under the particular facts present in that case. See, e.g., People v. Arna, 168 Ill. 2d 107 (1995) (order imposing concurrent terms was void where the statutory requirements for mandatory consecutive sentences were established at trial).
To hold that a sentence is void because it is not authorized by statute under the facts of the case is no different, analytically, from holding that it is void because it is unconstitutional as applied. In the former situation, we allow the defendant to protest his sentence even where he has pleaded guilty and has not first moved to have his guilty plea withdrawn. Williams, 179 Ill. 2d at 333; Wilson, 181 Ill. 2d at 413 (challenge to a trial court‘s statutory authority to impose a particular sentence not
It is no answer to say, as the majority does, that under the governing statutes, the circuit court had the power to impose an extended term when the defendant in this case was sentenced. The circuit court had no such power. The statutory extended-term sentencing scheme was just as invalid at the time of sentencing as it was when the United States Supreme Court announced its decision in Apprendi. Under the reasoning of Apprendi, the circuit court never had the power to increase the sentence beyond the maximum permitted by statute without requiring the State to prove the requisite aggravating factor beyond a reasonable doubt and without affording the defendant the right to have the existence of the aggravating factor determined by a jury. Due process prohibited it.
The majority‘s argument would make sense only if Apprendi were limited in its application to sentencing proceedings conducted after the decision was announced. The United States Supreme Court, however, has imposed no such limitation. To the contrary, in Apprendi itself the Court applied the new rule retroactively to invalidate a sentence imposed before the rule was announced. Furthermore, as noted earlier in this dissent, this court specifically held in Ford, 198 Ill. 2d at 72-73, that the decision in Apprendi applies retroactively to all cases which were still pending on direct review, as this one was, when the decision was issued.
I must also take issue with the majority‘s assertion that ”Apprendi did not deal with novel constitutional
When the defendant in this case pleaded guilty, neither she nor the trial court knew that this watershed change would be implemented by the United States Supreme Court. That being so, the defendant could not possibly have made a knowing and intelligent waiver of her constitutional rights as Apprendi defined them. To hold otherwise, as my colleagues do today, makes the concept of knowing and intelligent waiver farcical.
The majority attempts to justify its position by relying on appellate court decisions in People v. Rhoades, 323 Ill. App. 3d 644 (2001), and People v. Chandler, 321 Ill. App. 3d 292 (2001), but those cases offer scant support. Chandler involved consecutive sentences to which Apprendi is inapplicable (People v. Wagener, 196 Ill. 2d 269 (2001)), while Rhoades is based on the same appellate decision from which the defendant in this case was granted leave to appeal.
I note, moreover, that the appellate court has not spoken with a single voice on this matter. People v. Kidd, 327 Ill. App. 3d 973 (2002), decided after Chandler and Rhoades, reached a contrary conclusion. It correctly held that a defendant‘s plea of guilty did not waive his right to raise an Apprendi challenge to his extended-term sentence where, as in the case before us today, the element used to enhance his sentence was never charged in the indictment.
In considering whether waiver rules should be relaxed, the importance of the rights at issue is a critical factor. Few rights are as more worthy of consideration than those present here. At stake are constitutional protections which the United States Supreme Court has characterized as being “of surpassing importance.” Apprendi, 530 U.S. at 476, 147 L. Ed. 2d at 447, 120 S. Ct. at 2355. To turn Jackson‘s claims aside based on waiver denigrates these core values and elevates technical formalities above basic justice.
No less than the procedure challenged in Apprendi, the extended-term sentencing provisions under which Jackson was sentenced constitute “an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.” Apprendi, 530 U.S. at 497, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366. Under these circumstances, and for all of the foregoing reasons, I would hold that Jackson‘s challenge to her extended-term sentence was not barred by her decision to plead guilty and is meritorious. Accordingly, I would reverse the judgments of the circuit and appellate courts and vacate the extended-term portion of Jackson‘s sentence. I therefore dissent.
JUSTICE KILBRIDE joins in this dissent.