People v. RobertsPeople v. Roberts
Lead Opinion
delivered the opinion of the court:
Defendant Gerry Roberts (Roberts) was convicted of vehicular hijacking (
We first provide a brief summary of the facts relevant to our decision. At defendant’s trial, the State presented evidence that on April 8, 1995, at approximately 4:10 p.m., defendant hijacked a vehicle at a shopping mall in Chicago. Renee Balderrama, an eyewitness for the State, testified that on that afternoon, she and her sister were shopping at a store. When they left the store, they passed the defendant, who was wearing a purple jogging suit, on his way into the store. Renee testified that as her sister went to a second store, she waited in the driver’s seat of her car in front of the first store. Believing that her sister was coming, she unlocked the passenger-side door. At that point, Roberts opened the door, entered the car, and commanded Renee to drive. When Renee took the keys from the ignition, he grabbed her wrist and they struggled for the keys. Renee testified that Roberts struck her in the face twice and that she was able to open the driver-side door. Finally, defendant said that he “was going to pop her,” so she gave him the keys. After trying to pull her back into the car, he finally pushed her out. Renee’s sister, Lisa Balderrama, testified that she recognized the defendant in a purple jogging suit entering the first store as she and her sister were exiting.
Officer Fowler then testified that, on the day of the offense, he was assigned to work at the shopping mall. At around 4 p.m., he went to get some toothache medication from his personal van, which was in the shopping mall parking lot. He stated that he saw the defendant in a purple jogging suit attempting to enter his van. After seeing Officer Fowler, Roberts tried to get into the van that was parked in the next space. Roberts then pushed Officer Fowler and ran away. Detective Butwinski testified that he conducted a photo lineup for Renee, Lisa, and Officer Fowler, who all identified the defendant and the purple jogging suit.
The defense called Roberts as its only witness. He testified that, on the day of the offense, he was at the Cabrini Green apartment complex from around 2 p.m. until 5 p.m., first fixing a washing machine and then helping fix someone’s car. His uncle, Jerry Robertson (Robertson) (also referred to as Gary Roberts and Gary Robertson), had been with him and then left around 2 p.m., borrowing defendant’s van. Roberts stated that he finally left around 5 p.m. with a friend. Shortly before 7 p.m., on the corner of Ashland and Roosevelt, the defendant and his friend were shot, and Roberts was taken to the hospital. On the stand, Roberts denied taking Renee’s car or hitting her. Roberts also denied asking the detectives at the hospital how he had gotten away after breaking into someone’s van, while his uncle had not.
In rebuttal, the State called Detective Butwinski, who stated that when he interviewed the defendant at the hospital, the defendant asked him how he had gotten away while his uncle, who was seated in the passenger side of the van, had not.
The trial court convicted Roberts of vehicular hijacking, and on May 30, 1996, it sentenced him to 18 years’ imprisonment. On April 29, 1997, Roberts attempted to file a late notice of appeal. However, on June 14, 1997, the trial court denied the motion and stated that the appellate court had jurisdiction over the matter.
On June 15, 1998, defendant filed a petition for postconviction relief, alleging that his constitutional rights were violated by the pretrial identification, defense counsel’s failure to investigate and call Robertson and another woman as alibi witnesses, defense counsel’s failure to file an appeal, defense counsel’s cumulative errors, the trial court’s error in admitting evidence regarding a prior offense between defendant and Officer Fowler, and, finally, that there was insufficient evidence presented at trial to support a finding of guilt.
The postconviction court then analyzed each claim individually. First, the court found that the claim of impropriety in the photo array was unsupported by the record where the record revealed that the methods the police used were not unnecessarily suggestive or unreliable. Therefore, the court found that claim to be without merit. The court also found that there were no affidavits attached to the petition supporting the claim that defense counsel was ineffective for failing to call alibi witnesses and, therefore, there was no merit to that claim. With regard to counsel’s failure to file an appeal, the court found that Roberts failed to establish that counsel was retained for an appeal. Additionally, he was informed of his right to appeal following sentencing, and he waived his right through his inaction. Consequently, the court felt that there was no cumulative effect of the errors because trial counsel had not been held ineffective on any of the counts. Moreover, the court found that the failure to exclude prior crimes was not in error and that the events were sufficiently related in time and location to identify defendant as the offender. In viewing the evidence in the light most favorable to the prosecution, the court also found that defendant was found guilty beyond a reasonable doubt. Based on the postconviction court’s review of each allegation, it dismissed the petition as frivolous and patently without merit.
On October 6, 2000, defendant filed supplemental authority regarding violations of the United States Supreme Court’s decision in Apprendi v. New Jersey,
We first address defendant’s Apprendi concerns. In No. 95 CR 14600, the trial court found Roberts guilty of the Class 1 offense of vehicular hijacking (
The Class X sentencing provision at issue,
It is undisputed that the State is not required to give the defendant notice if it intends to sentence him as a Class X offender. People v. Jameson,
In Apprendi, the United States Supreme Court held that “ ‘under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penally for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.’ ” Apprendi,
In People v. Clifton,
Before reaching the merits of Roberts’ Apprendi claim, however, we must first contemplate whether it applies to cases on collateral review. In Clifton, the defendant filed a direct appeal from the judgment of his conviction, and under the United States Supreme Court’s decision in Griffith v. Kentucky,
In dicta, the court in Clifton aligned itself with the argument that new constitutional rules of criminal procedure do not apply retroactively to postconviction proceedings. Clifton,
The support for this argument arises from a line of cases where the courts have declined to retroactively apply other newly adopted constitutional rules in postconviction proceedings while acknowledging the ability and propriety of a reviewing court to retroactively apply them in cases on direct appeal. For example, in People v. Dean,
“The defendant here contends that the appellate court erred by failing to apply this court’s decision in Fitzpatrick to his case. Our Fitzpatrick opinion was filed on February 17, 1994, after the defendant was convicted and while his direct appeal was pending before the appellate court. We must therefore determine whether our decision in Fitzpatrick applies retroactively to the defendant’s case.
The standard for applying judicial opinions retroactively was set forth in People v. Erickson,117 Ill. 2d 271 [,513 N.E.2d 367 ] (1987). In Erickson, this court held that judicial opinions announcing new constitutional rules applicable to criminal cases are retroactive to all cases pending on direct review at the time the new constitutional rule is declared. Erickson,117 Ill. 2d at 288 , citing Griffith v. Kentucky,479 U.S. 314 , 328,93 L. Ed. 2d 649 , 661,107 S. Ct. 708 , 716 (1987). More specifically, retroactivity is triggered when two factors are present: (1) the case to which the new rule is to be applied was not final or was pending on direct review when the rule was declared, and (2) the rule to be applied retroactively is of constitutional dimension. Erickson,117 Ill. 2d at 289 ; see also People v. Gersch,135 Ill. 2d 384 , 393[,553 N.E.2d 281 ] (1990); People v. Shields,143 Ill. 2d 435 , 442[,575 N.E.2d 538 ] (1991). Both of these factors are present in the instant case. The defendant’s case was pending on direct review before the appellate court when this court rendered its decision in Fitzpatrick. Second, this court’s ruling in Fitzpatrick is clearly a new rule of constitutional dimension. Although the 1970 Illinois Constitution’s confrontation clause included the language ‘face to face,’ this court in Fitzpatrick first announced that a defendant was deprived of his right to confrontation when he was unable to confront witnesses face to face. Thus, pursuant to the above standard, we hold that the Fitzpatrick decision applies retroactively to the defendant’s case.
Parenthetically, we note that Fitzpatrick should also be applied retroactively to cases pending on direct appeal given its determination that the Child Shield Act was unconstitutional. In People v. Gersch,135 Ill. 2d 384 (1990), this court addressed whether a decision finding a statute unconstitutional should be applied retroactively to a case that was pending on direct review. We stated: ‘To hold that a judicial decision that declares a statute unconstitutional is not retroactive would forever prevent those injured under the unconstitutional legislative act from receiving a remedy for the deprivation of a guaranteed right.’ Gersch,135 Ill. 2d at 397 . We agree with and adopt this rationale in the present case.” Dean,175 Ill. 2d at 252-54 .
Likewise, in People v. Shields,
“[0]ur decision in People v. Erickson (1987),117 Ill. 2d 271 , [513 N.E.2d 367 ,] requires that a constitutional holding be applied retroactively to cases pending on direct review at the time the decision was announced. Because the holding in Reddick is of constitutional dimension, and because the appeals now before us were pending on direct review when Reddick was decided, the Red-dick decision applies retroactively to the defendants in these cases. Erickson,117 Ill. 2d at 289 .” Shields,143 Ill. 2d at 445 .
However, in People v. Flowers,
This argument stresses that the court in Flowers recognized that Reddick changed the law with regard to the burden of proof and the elements of the offense of voluntary manslaughter, yet still held that Reddick was not applicable to cases pending on collateral review. In narrowly construing the second exception under Teague, therefore, the argument follows that this court also should not apply Apprendi to appeals of postconviction petitions.
It is precisely at this point that those who believe that Apprendi should be applied retroactively to collateral proceedings disagree. In the recently modified opinion on denial of petition for rehearing, this court in People v. Beachem,
“In Flowers, the Illinois Supreme Court held that People v. Red-dick,123 Ill. 2d 184 ,526 N.E.2d 141 (1988), did not apply to cases on collateral review. The Reddick court had found unconstitutional jury instructions which erroneously stated the burden of proof for voluntary manslaughter mitigating mental states. The Flowers court recognized Reddick involved a ‘grave’ jury instruction error ‘of constitutional dimension’ (Flowers,138 Ill. 2d at 236-37 ), but declined to place a Reddick error within Teague’s second exception: ‘This exception must be narrowly construed and we do not believe that the Reddick rule established such a component of basic due process so as to fall within it.’ Flowers,138 Ill. 2d at 242 .
Reddick discussed the constitutional obligation of the jury to follow the trial judge’s instructions (see People v. Jenkins,69 Ill. 2d 61 , 66-67,370 N.E.2d 532 (1977)), but, unlike *** Apprendi,[1 ] it did not implicate the right to a jury verdict beyond a reasonable doubt and, consequently, the fundamental fairness and accuracy concerns inherent in the Teague exception.
Apprendi tells us we deal.with ‘constitutional protections of surpassing importance.’ Apprendi,530 U.S. at 476 ,147 L. Ed. 2d at 447 ,120 S. Ct. at 2355 . The reasonable doubt standard ‘reflect[s] a profound judgment about the way in which law should be enforced and justice administered.’ Apprendi,530 U.S. at 478 ,147 L. Ed. 2d at 447-48 ,120 S. Ct. at 2356 , quoting Winship,397 U.S. at 361-62 ,25 L. Ed. 2d at 374 ,90 S. Ct. at 1071 . Our jury tradition 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 . How, then, could we say that we do not deal with procedures that are implicit in the concept of ordered liberty? Have we not reached ‘bedrock’?” Beachem,317 Ill. App. 3d at 704-06 .
Whether Apprendi violations may be addressed in a collateral, postconviction proceeding is something we need not decide in this case. For even if we determined that we were able to address the constitutionality concerns defendant raises regarding the trial court’s consideration of his past convictions, we find that his petition still does not fall within the pale of Apprendi relief. As previously stated, Apprendi held that the United States Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. Apprendi,
“[A]s Jones made crystal clear,526 U.S. at 248-249 , [143 L. Ed. 2d at 329 ,119 S. Ct. at 1226-27 ,] our conclusion in Almendarez-Torres turned heavily upon the fact that the additional sentence to which the defendant was subject was ‘the prior commission of a serious crime.’523 U.S. at 230 [,140 L. Ed. 2d at 359 ,118 S. Ct. at 1224 ]; see also id., at 243[,140 L. Ed. 2d at 368 ,118 S. Ct. at 1230 ] (explaining that ‘recidivism ... is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence’); id. at 244[,140 L. Ed. 2d at 368 ,118 S. Ct. at 1231 ] (emphasizing the ‘fact that recidivism “does not relate to the commission of the offense ...” ’); Jones,526 U.S. at 249-250 , n,10[,143 L. Ed. 2d at 330 n.10,119 S. Ct. at 1227, n.10 ] (‘The majority and the dissenters in Almendarez-Torres disagreed over the legitimacy of the Court’s decision to restrict its holding to recidivism, but both sides agreed that the Court had done just that’).” Apprendi,530 U.S. at 488 ,147 L. Ed. 2d at 454 ,120 S. Ct. at 2361-62 .
While the Apprendi majority stated that “it is arguable that Almendarez-Torres was incorrectly decided” (Apprendi,
“[D]espite the Court’s reservations about its continuing validity, the [Apprendi] Court chose not to overrule Almendarez-Torres. ‘Needless to say, only [the Supreme Court] may overrule one of its precedents. Until that occurs [.Almendarez-Torres] is the law.’ Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd.,460 U.S. 533 ,103 S. Ct. 1343 ,75 L. Ed. 2d 260 (1983) (per curiam); see also Hutto v. Davis,454 U.S. 370 ,102 S. Ct. 703 ,70 L. Ed. 2d 556 (1982) (per curiam) (‘But unless we wish anarchy to prevail within the federal judicial system, a precedent of this court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.’). Since Almendarez-Torres was plainly addressed, but not overruled by the Supreme Court in Apprendi, the court is obligated to apply it in this case.” United States v. Powell,109 F. Supp. 2d 381 , 383 (E.D. Pa. 2000).
Because Almendarez-Torres is still good law, we reject defendant’s assertion that Apprendi renders recidivist provisions unconstitutional.
We next address defendant’s single subject constitutionality concerns. The Post-Conviction Hearing Act creates a three-step process for adjudicating claims of constitutional deprivation following a criminal conviction. People v. Gaultney,
Defendant’s postconviction petition was dismissed by the trial court as frivolous and patently without merit at the first stage.
Public Act 83 — 942, entitled “An Act in relation to criminal justice and correctional facilities,” contains five subsections which amend provisions of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 1 — 1 et seq. (now
“This court conducts de novo review of a circuit court’s holding that a statute is unconstitutional. Russell v. Department of Natural Resources,
“The principles applied in analyzing a single subject challenge have long been established in Illinois jurisprudence. An enactment satisfies the single subject requirement so long as the matters included within it have a natural and logical connection. E.g., People v. Reedy,186 Ill. 2d 1 , 9[,708 N.E.2d 1114 ] (1999); Johnson v. Edgar,176 Ill. 2d 499 , 515[,680 N.E.2d 1372 ] (1997); Cutinello v. Whitley,161 Ill. 2d 409 , 423-24[,641 N.E.2d 360 ] (1994); People ex rel. Ogilvie v. Lewis,49 Ill. 2d 476 , 487[,274 N.E.2d 87 ] (1971). The term ‘subject’ as set forth in the constitution is liberally construed in favor of upholding the legislation. Johnson,176 Ill. 2d at 515 .
‘ “ ‘The term “subject” is comprehensive in its scope and may be as broad as the legislature chooses, so long as the matters included have a natural or logical connection. An act may include all matters germane to a general subject, including the means reasonably necessary or appropriate to the accomplishment of a legislative purpose. Nor is the constitutional provision a limitation on the comprehensiveness of the subject; rather, it prohibits the inclusion of “discordant provisions that by no fair intendment can be considered as having any legitimate relation to each other.” [Citation.]’ ” ’ Ogilvie,49 Ill. 2d at 487 , quoting People ex rel. Gutknecht v. City of Chicago,414 Ill. 600 , 607-08[, Ill N.E.2d 626] (1953), quoting People ex rel. City of Chicago v. Board of County Commissioners,355 Ill. 244 , 247[,189 N.E. 26 ] (1934).” Arangold,187 Ill. 2d at 351-52 .
Thus, an act “violates the single subject rule when the General Assembly ‘includes within one bill unrelated provisions that by no fair interpretation have any legitimate relation to one another.’ ” Cervantes,
Section 1 of the act amended
Section 1A amended
Section 2 of the act amended a few provisions in the Unified Code of Corrections. The “Powers and Duties of the Department” set forth in section 3 — 2—2 (now
Section 2 also amended the portion of the Unified Code of Corrections regarding “Records and Reports” by creating section 3 — 5—3.1 (now
Section 2 also added subsection (b) to séction 3 — 7—2 (now
Section 2 also amended the Unified Code of Corrections as it related to “Institutional Safety and Sanitation,” by deleting the requirement that each institution provide a minimum of 50 square feet of floor space per inmate as previously set forth in section 3 — 7—3, and precluded the DOC from mandating minimum square footage requirements in local jails pursuant to its authority under section 3 — 15—2 (now 730 ILCS.5/3 — 15—2 (West 1998)).
Section 2 concluded with amendments to the provisions of section 5 — 10—1 (now
Section 3 of the act amended the Illinois Municipal Code (now
Section 4 made a similar amendment to the Industrial Building Revenue Bond Act (now
Section 6 provided that the act become effective upon becoming law, which occurred November 23, 1983.
Roberts argues that the relationship between the provisions enacted in Public Act 83 — 942 is insufficient to unite the amendments under any subject sufficiently narrow to pass constitutional muster. He further argues that the legislature purposefully included two subjects in the title of the act— criminal justice and correctional fácilities — because some provisions are related only to criminal justice while others are related to correctional facilities. For example, he states, “while facilitating the construction of new prisons is clearly related to the topic of ‘correctional facilities,’ an insufficient nexus exists between that construction and the subject of ‘criminal justice’ for purposes of single subject analysis.” See Cervantes,
On the other hand, the inclusion of new local officeholders to the fist of individuals protected by
The Illinois Supreme Court has already determined the topic of “criminal and correctional matters” to be an appropriately narrow subject to withstand a single subject challenge. In People v. Malchow,
In the present case, even though Public Act 83 — 942 involved amendments to many different codes, the single subject rule does not require that an act’s provisions all be within the same code in determining whether the matters in the bill have a natural and logical connection. Malchow,
Because we find that the plain and ordinary meaning of Public Act 83 — 942 makes clear that there is no single subject violation, we need not examine its procedural history to sustain its constitutionality. “ ‘The cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc.,
For the foregoing reasons, we affirm the result of the trial court in dismissing Roberts’ petition.
Affirmed.
THEIS, J., concurs.
Notes
The Beachem court also analyzed several federal Circuit Court of Appeals cases that have considered the retroactivity of Victor v. Nebraska,
Concurrence Opinion
specially concurring:
I concur with the holding that defendant’s petition “does not fall within the pale of Apprendi relief.”
I agree with the Kizer court that the holding in Flowers indicates how narrowly our supreme court interprets any exceptions to the Teague doctrine. Consequently, I also agree with the Kizer court that Apprendi should not be applied retroactively to cases on collateral review. As of the date of this concurrence, December 27, 2000, a search has turned up no case other than People v. Beachem, in which a court of appeals (state or federal) or state supreme court has held that Apprendi should be applied retroactively. As I believe that Apprendi should not be applied retroactively to collateral proceedings or review of the same, I concur in the holding in the instant case.