THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAMON PATTERSON, Defendant-Appellant.
No. 1-16-0610
Appellate Court of Illinois, First District, Fifth Division
December 14, 2018
2018 IL App (1st) 160610
JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Rochford and Justice Hoffman concurred in the judgment and opinion.
Appeal from the Circuit Court of Cook County, No. 12-CR-16401; the Hon. Timothy Joseph Joyce, Judge, presiding.
James E. Chadd, Patricia Mysza, and Bradley Jarka, of State Appellate Defender‘s Office, of Chicago, for appellant.
Kimberly M. Foxx, State‘s Attorney, of Chicago (Alan J. Spellberg, Christine Cook, and Clare Wesolik Connolly, Assistant State‘s Attorneys, of counsel), for the People.
¶ 1 In this proceeding under the Post-Conviction Hearing Act (Act) (
¶ 2 We hold that (1) under Class v. United States, 583 U.S. ___, 138 S. Ct. 798 (2018), defendant did not waive his vagueness challenge to the AHC statute by pleading guilty in the circuit court and (2) the circuit court properly dismissed defendant‘s pro se petition at the first stage of the postconviction proceedings because his vagueness challenge to the AHC statute has no arguable basis in the law.
¶ 3 For the reasons that follow, we affirm the judgment of the circuit court.1
I. BACKGROUND
¶ 4 In August 2012, Chicago police officers attempted to pull over a car in which defendant Ramon Patterson was the backseat passenger. However, before the car came to a complete stop, defendant exited the car and fled on foot. As officers chased him, he threw a garbage can in front of the officers’ squad car to prevent them from capturing him. He also threw a silver object over a fence. Eventually, the officers arrested him and recovered the silver object, a .380 caliber handgun loaded with six live rounds.
¶ 5 In September 2012, the State charged defendant in case No. 12 CR 16401 (the 2012 case) with, inter alia, one count of being an AHC (
¶ 7 On December 4, 2013, defendant pled guilty to both the AHC charge in the 2012 case and the reduced offense of possession of a controlled substance in the 2013 case. The court then sentenced him to six years’ and four years’ imprisonment for the 2012 and the 2013 cases, respectively, to be served consecutively.
¶ 8 In March 2014, defendant filed an untimely petition to withdraw his guilty plea and a late pro se notice of appeal, both of which were denied by the trial court. He also filed a petition for relief from judgment under
¶ 9 In May 2014, defendant filed a late notice of appeal of the trial court‘s December 4, 2013, judgment and sentence (case No. 1-14-1267). This court allowed defendant to file that late notice of appeal and consolidated his two 2014 appeals. Thereafter, this court reversed the trial court‘s sua sponte dismissal of defendant‘s 2-1401 petition and corrected his mittimus to reflect his guilty plea in the 2013 case for possession of a controlled substance. People v. Patterson, 2016 IL App (1st) 141267-U.
¶ 10 In December 2015, defendant filed the pro se postconviction petition at issue in this appeal. In his petition, defendant raised several claims, including challenging the AHC statute as unconstitutionally vague as applied to him. In January 2016, the circuit court dismissed his petition as frivolous and patently without merit at the first stage of the postconviction process, and defendant timely appealed.
II. ANALYSIS
¶ 11 Defendant‘s sole argument on appeal is that the circuit court erroneously dismissed his petition as frivolous and patently without merit because he made an arguable claim that the AHC statute is unconstitutionally vague as applied to him. He argues that the AHC statute, by focusing on the number of times that a defendant has previously been convicted, as opposed to the number of convictions, provides inadequate notice that a defendant may face liability as an AHC when he is convicted of two qualifying offenses at the same time. He asserts that the statute‘s failure to sufficiently specify the sequence of qualifying predicate convictions is out of step with the General Assembly‘s purpose in recidivist statutes to target those who have served the terms of their punishment and have nonetheless been proven incorrigible. Defendant contends that his case exemplifies the lack of clarity in the statute because his convictions in two 2008 cases were entered only one time, i.e., simultaneously, and there was no period of time between his conviction of one offense and his commission of the other so that judgments about his likelihood to recidivate could fairly be made. According to defendant, under the facts of his case, the decision of what constitutes convictions entered two or more times, and thus who should be branded an AHC, rests solely with law enforcement and the prosecution and, consequently, the resulting possibility of arbitrary enforcement runs afoul of due process.
¶ 13 For cases not involving the death penalty, the Act sets forth a three-stage process for hearing a petitioner‘s constitutional claims. Harris, 224 Ill. 2d at 125. At the first stage, the circuit court independently reviews the petition and determines whether the petition is frivolous or patently without merit.
¶ 14 But defendants still “must set forth some facts which can be corroborated and are objective in nature or contain some explanation as to why those facts are absent” (People v. Delton, 227 Ill. 2d 247, 255 (2008)) and must also attach affidavits, records, or other supporting evidence to the petition (
A. Waiver
¶ 15 First, we address the State‘s argument that defendant‘s challenge to the AHC statute as unconstitutionally vague is barred because his voluntary guilty plea waived all nonjurisdictional errors, including constitutional errors. To support this proposition, the State cites Tollett v. Henderson, 411 U.S. 258, 266 (1973) (defendants who plead guilty on advice of counsel may not raise independent claims relating to the deprivation of constitutional rights that occurred before the entry of the plea, like infirmities in the grand jury selection process, but may only challenge the voluntary and intelligent character of the guilty plea by showing that counsel‘s advice was not within the range of competence required of attorneys in criminal cases), People v. Townsell, 209 Ill. 2d 543, 545 (2004) (by pleading guilty, the defendant waived his Apprendi challenge to the extended-term portion of his sentence based on the aggravating factor of brutal, heinous behavior), and People v. Wendt, 283 Ill. App. 3d 947, 957 (1996) (a defendant who pled guilty generally may not challenge the sentence to which he explicitly agreed absent some structural defect in the plea proceeding itself, i.e.,
¶ 16 Recently, the United States Supreme Court held in Class, 583 U.S. at ___, 138 S. Ct. at 803, that a guilty plea does not by itself bar a federal criminal defendant from challenging on direct appeal the constitutionality of a statute serving as the basis for the defendant‘s conviction. In Class, the defendant, who had a firearm in his locked vehicle that was parked in a lot on the grounds of the United States Capitol, pled guilty to possession of a firearm on the grounds of the United States Capitol building. Id. at ___, 138 S. Ct. at 802. The defendant then appealed, arguing that the statute under which he was convicted violated the second amendment and due process clause because it failed to give fair notice of which areas fall within the Capitol grounds where firearms were banned. Id. at ___, 138 S. Ct. at 802. The defendant‘s written plea agreement included express waivers of particular claims on appeal—like a sentence at or below the sentencing guideline range and most collateral attacks on the conviction and sentences—and enumerated categories of claims that could be raised on appeal—like claims based on ineffective assistance of counsel and certain statutes providing for sentence reductions. Id. at ___, 138 S. Ct. at 802. The agreement, however, did not contain an express waiver of the defendant‘s right to challenge the constitutionality of the statute of conviction on direct appeal. Id. at ___, 138 S. Ct. at 802.
¶ 17 The Court reviewed its holdings about the nature of guilty pleas, which “stretche[d] back nearly 150 years” and reflected, in broad outline, an understanding that “a guilty plea does not bar a claim on appeal ‘where on the face of the record the court had no power to enter the conviction or impose the sentence.‘” Id. at ___, 138 S. Ct. at 804 (quoting United States v. Broce, 488 U.S. 563, 569 (1989)). However, if “the defendants could not ‘prove their claim’ *** ‘without contradicting [their] indictments’ [then] their claims were ‘foreclosed by the admissions inherent in their guilty pleas.‘” Id. at ___, 138 S. Ct. at 804 (quoting Broce, 488 U.S. at 576).
¶ 18 Here, defendant‘s constitutional claim, as we understand it, does not contradict the terms of the indictment or his plea agreement and does not focus upon case-related constitutional defects that occurred prior to the entry of his guilty plea. Instead, defendant challenges the State‘s power to prosecute his admitted conduct and thereby questions the State‘s power to constitutionally prosecute him. Accordingly, we hold that defendant‘s guilty plea does not bar his appeal in these circumstances.
B. Vagueness Challenge
¶ 19 Defendant challenges the AHC statute as unconstitutionally vague as applied to him. The AHC statute provides in relevant part:
“(a) A person commits the offense of being an armed habitual criminal if he or she receives, sells, possesses, or transfers any firearm after having been convicted a total of 2 or more times of any combination of the following offenses:
* * *
(3) any violation of the Illinois Controlled Substances Act or the Cannabis Control Act that is punishable as a Class 3 felony or higher.”
720 ILCS 5/24-1.7(a) (West 2010).
¶ 21 First, defendant argues that it is impossible for a person of ordinary intelligence to know whether two prior convictions constitute valid predicates for an AHC conviction when those predicate convictions were entered at the same time. Defendant alleged in his pro se petition that his 2008 predicate convictions involving controlled substances were “a direct result of the same series of acts” because the police were conducting an ongoing investigation of a street gang for a drug conspiracy. However, when the affidavits for the warrants for audio and video surveillance were deemed insufficient, the State decided to charge the individual members of the alleged conspiracy, including defendant, separately. Accordingly, both 2008 cases were arraigned on March 28, 2008, defendant pled guilty in both cases on July 18, 2008, and the trial court sentenced him to two concurrent terms of three years in prison on July 18, 2008.
¶ 22 Defendant contends that his two convictions in 2008 cannot be used as predicates under the AHC statute because those convictions were entered on the same day based on plea agreements that were reached on the same day and, consequently, he was convicted only one time of two separate offenses. According to defendant, his conduct is not covered by the plain language of the AHC statute because it requires the priors to have been entered a total of two or more times but his convictions occurred on the same day and thus only one time. To support this proposition, defendant cites a definition of “time” as a “point in or period of duration at or during which something is alleged to have occurred.” See Black‘s Law Dictionary 1491 (7th ed. 1999).
¶ 23 There is a strong presumption that all statutes are constitutional. People v. Sharpe, 216 Ill. 2d 481, 487 (2005). In deciding whether a statute is unconstitutionally vague, courts apply the traditional rules of statutory construction and begin the inquiry by analyzing the plain language of the statute in light of its common understanding and practice. Wilson v. County of Cook, 2012 IL 112026, ¶ 24. The primary objective of statutory construction is to ascertain and give effect to the intent of the legislature. People v. Dupree, 2018 IL 122307, ¶ 31. And the best evidence of legislative intent is the statutory text. Id. Therefore, courts assume statutory words have their ordinary and popularly understood meanings absent clear legislative intent to the contrary. People v. Schwartz, 64 Ill. 2d 275, 280 (1976). And if the statutory language is clear and unambiguous, “the court is not free to depart from the plain
¶ 24 We do not agree with defendant‘s contention that the plain meaning of the term “times” indicates that the predicate convictions must occur, i.e., be entered, on separate days. Furthermore, defendant‘s argument adds the term “entered” to the statutory language to support his assertion that the AHC statute requires the predicate convictions to have been entered two or more times. However, the term “entered” does not appear in the plain language of the AHC statute, which requires only that a person have been convicted of certain offenses two or more times.
¶ 25 “‘Conviction’ means a judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense, rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury.”
¶ 26 Nevertheless, defendant argues that the AHC is unconstitutionally vague because his conduct does not fall within the purpose of recidivist statutes to impose harsher sentences on offenders who have shown their resistance to correction by being convicted of a subsequent offense after serving a term of imprisonment for a previous conviction. Specifically, defendant cites certain provisions of the Unified Code of Corrections regarding the adjudication and sentencing of defendants as habitual criminals and Class X offenders (see
¶ 27 We reject defendant‘s argument that the AHC statute should be construed like certain sentencing provisions of the Unified Code of Corrections to require sequential and separate convictions. As discussed above, we need not look beyond the clear and unambiguous language in the AHC statute, which does not require sequential and separately entered convictions. Woodard, 175 Ill. 2d at 443 (the court may not read exceptions or conditions into the statute that the legislature did not express). Because the legislature included the
¶ 28 Finally, defendant argues that the AHC statute allows for arbitrary enforcement because prosecutors can take advantage of its vague language to brand someone like him as a recidivist despite the fact that he meets none of the policy considerations generally animating recidivism statutory provisions in Illinois. Defendant asserts that he was not arrested when he committed his first offense in 2007 because the police were trying to build strong evidence on each person involved with the Traveling Vice-Lord street gang. According to defendant, the State should not have been able to use its failure to secure what would have been one conspiracy conviction, or one set of convictions arising out of the same indictment, to charge him under the AHC statute. Defendant complains that the ambiguity of the AHC statute creates an incentive for the State to take multiple acts of possession or delivery, split them up into separate indictments, and obtain separate judgments instead of charging the acts in one indictment and obtaining one judgment. Defendant asserts that the ambiguous AHC statute allows the State to obtain the result it obtained here—an AHC conviction based on convictions for separate offenses that were entered at one time.
¶ 29 We conclude that defendant‘s argument regarding the possibility of arbitrary enforcement of the AHC statute lacks an arguable basis in law and fact. As discussed above, the statute is not vague because its plain language clearly defines the unlawful conduct, which does not contain any limiting language regarding the sequence or separate entry of the predicate convictions. Furthermore, the circumstances of defendant‘s conviction under the AHC do not show any arbitrary enforcement because he was convicted of two separate offenses in two separate cases stemming from his actions in two separate incidents that occurred over one month apart.
III. CONCLUSION
¶ 30 After reviewing defendant‘s petition, the supporting record, and the clear and unambiguous language of the AHC statute, we conclude that his vagueness claim is frivolous and patently without merit because it has no arguable basis in law or fact. The scope of the AHC statute is not undefined, and there is no uncertainty regarding whether it applies to these circumstances when a defendant has been convicted of two separate qualifying offenses. No person of ordinary intelligence is forced to speculate about the meaning of the statutory language involved here. Thus, we affirm the circuit court‘s stage-one dismissal of defendant‘s postconviction petition.
¶ 31 Affirmed.
JUSTICE LAMPKIN
APPELLATE COURT JUDGE