THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERRY ROBERTS, Defendant-Appellant.
No. 1-98-3642
First District (5th Division)
December 29, 2000
719 N.E.2d 719
Michael J. Pelletier and Bonnie Kim, both of State Appellate Defender‘s Office, of Chicago, for appellant.
Richard A. Devine, State‘s Attorney, of Chicago (Renee Goldfarb, Janet Powers Doyle, and Eileen N. O‘Neill, Assistant State‘s Attorneys, of counsel), for the People.
JUSTICE GREIMAN 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 Robert
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
On October 6, 2000, defendant filed supplemental authority regarding violations of the United States Supreme Court‘s decision in Apprendi, and the single subject clause of the Illinois Constitution (
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, section 5-5-3(c)(8) of the Unified Code of Corrections (
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, 162 Ill. 2d 282, 292 (1994). It is further uncontested that section 5-5-3(c)(8) contains no provision for a jury determination of whether the required facts exist to charge a defendant under that section. Put another way, proof beyond a reasonable doubt of the qualifying convictions is not required for a court to impose a Class X sentence on a defendant convicted of a Class 1 or Class 2 offense. People v. Williams, 149 Ill. 2d 467, 492 (1992).
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 penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.‘” Apprendi, 530 U.S. at 476, 147
In People v. Clifton, 321 Ill. App. 3d 707, 727 (2000), this court recently determined that section 5-8-4(a) of the Unified Code of Corrections (
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, 479 U.S. 314, 328 (1987), new constitutional rules of criminal procedure, like Apprendi, apply retroactively to all cases—state or federal—pending on direct review or not yet final. Accordingly, the Clifton court retroactively applied the prescripts of Apprendi to that case. In the present case, however, Roberts appealed from the dismissal of his postconviction petition. Currently, the First District is in a state of flux as to whether new constitutional rules of criminal procedure should be applied retroactively to collateral proceedings.
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, 321 Ill. App. 3d at 725 n.3, citing Teague v. Lane, 489 U.S. 288 (1989); People v. Flowers, 138 Ill. 2d 218 (1990). In People v. Kizer, 318 Ill. App. 3d 238, 252 (2000), this court recently confirmed that rule and held that Apprendi is not applicable to postconviction petitions.
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, 175 Ill. 2d 244 (1997), the Illinois Supreme Court decided whether its decision in People v. Fitzpatrick, 158 Ill. 2d 360 (1994) (striking down section 106 B-1 of the Code of Criminal Procedure of 1963 (the Child Shield Act) (
“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 (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 (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 (1990); People v. Shields, 143 Ill. 2d 435, 442 (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 deci
sion 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, 143 Ill. 2d 435, 442 (1991), the supreme court decided whether its decision in People v. Reddick, 123 Ill. 2d 184 (1988) (holding as erroneous the then-existing Illinois pattern jury instructions for murder and voluntary manslaughter when given together) should be applied retroactively:
“[O]ur decision in People v. Erickson (1987), 117 Ill. 2d 271, 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 Reddick 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, 138 Ill. 2d 218, 240 (1990), the court declined to apply Reddick to cases pending on collateral review. It held that actions pursuant to our Post-Conviction Hearing Act are similar to habeas corpus proceedings and, therefore, that the court should adopt the reasoning of Teague. Teague specifically held that decisions establishing new constitutional rules of criminal procedure are not to be applied retroactively to cases pending on collateral review unless the new rule either (1) places “certain kinds of primary, private individual conduct beyond the power of criminal law-making authority to proscribe” or (2) “requires the observance of ‘those procedures that ... “are implicit in the concept of ordered liberty [citations].“‘” Teague, 489 U.S. at 311. Finding the first exception irrelevant, the Flowers court concluded that, in narrowly construing the second exception as required under Teague, the Reddick rule did not establish “such a component of basic due process so as to fall within it.” Flowers, 138 Ill. 2d at 242.
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, 317 Ill. App. 3d 693, 704-06 (2000), found that the supreme court‘s holding in Flowers can be distinguished from the facts in an Apprendi situation:
“In Flowers, the Illinois Supreme Court held that People v. Reddick, 123 Ill. 2d 184 (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 (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. 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, quoting Winship, 397 U.S. at 361-62. Our jury tradition is ‘an indispensable part of our criminal justice system.’ Apprendi, 530 U.S. at 497. 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.
“[A]s Jones made crystal clear, 526 U.S. at 248-249, 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; see also id., at 243 (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 (emphasizing the ‘fact that recidivism “does not relate to the commission of the offense ...” ‘); Jones, 526 U.S. at 249-250, 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.
While the Apprendi majority stated that “it is arguable that Almendarez-Torres was incorrectly decided” (Apprendi, 530 U.S. at 489), the Court was clear that it was not overruling its prior decision. We find language from a case in the federal District Court for the Eastern District of Pennsylvania to be on point:
“[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,
535 (1983) (per curiam); see also Hutto v. Davis, 454 U.S. 370 (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, 174 Ill. 2d 410, 418 (1996). In the first stage, the trial court examines the petition and determines whether the petition “is frivolous or patently without merit.” Gaultney, 174 Ill. 2d at 418;
Defendant‘s postconviction petition was dismissed by the trial court as frivolous and patently without merit at the first stage. Section 122-2.1 of the Post-Conviction Hearing Act, which provides for stage one dismissals, became effective with the enactment of Public Act 83-942, effective November 23, 1983. However, defendant contends that the enactment of Public Act 83-942 violated the single subject clause of the Illinois Constitution.
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 (
“This court conducts de novo review of a circuit court‘s holding that a statute is unconstitutional. Russell v. Department of Natural Resources, 183 Ill. 2d 434, 441 (1998). All statutes carry a strong presumption of constitutionality. Russell, 183 Ill. 2d at 441. The party challenging the constitutionality of a statute bears the burden of rebutting this presumption and clearly establishing a constitutional violation. Russell, 183 Ill. 2d at 441.” Arangold Corp. v. Zehnder, 187 Ill. 2d 341, 351 (1999). The Illinois Constitution limits the General Assembly‘s power to enact legislation by providing, in relevant part, that “[b]ills, except bills for appropriation and for the codification, revision or rearrangement of laws, shall be confined to one subject.”
“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 (1999); Johnson v. Edgar, 176 Ill. 2d 499, 515 (1997); Cutinello v. Whitley, 161 Ill. 2d 409, 423-24 (1994); People ex rel. Ogilvie v. Lewis, 49 Ill. 2d 476, 487 (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 (1953), quoting People ex rel. City of Chicago v. Board of County Commissioners, 355 Ill. 244, 247 (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, 189 Ill. 2d at 84, quoting Reedy, 186 Ill. 2d at 9. “As the supreme court recently reiterated in Premier Property Management, Inc. v. Chavez, 191 Ill. 2d 101 (2000) (Chavez), this ‘natural and logical connection’ test does not require that the various provisions within an enactment be related to each other, but merely must relate to a single subject. Chavez, 191 Ill. 2d at 112.” People v. Vazquez, 315 Ill. App. 3d 1131, 1135 (2000). A brief summary of each section of the Act follows.
Section 1 of the act amended section 12-9 of the Criminal Code by adding threats against a variety of local government officeholders to the offense of threatening public officials.
Section 1A amended section 122-2.1 of the Code of Criminal Procedure and required trial judges to review and dismiss postconviction petitions deemed frivolous or patently without merit. It further amended section 122-4 by limiting the appointment of counsel to indigent petitioners requesting representation only where their petitions were not dismissed pursuant to the new dismissal procedure.
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
Section 2 also added subsection (b) to section 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
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 facil
On the other hand, the inclusion of new local officeholders to the list of individuals protected by section 12-9 of the Criminal Code and a trial court‘s dismissal of a postconviction petition prior to the appointment of counsel may be related to the topic of criminal justice, but they are not related to the subject of correctional facilities. Ultimately, Roberts concludes that while “criminal justice and correctional facilities” might be a permissible subject to unite various provisions of a public act under many circumstances, it cannot, by the addition of a conjunction between the two subjects, transform a series of topics so disparate as those in Public Act 83-942 into a single subject. Further, he claims, no other single topic exists that is broad enough to encompass these provisions yet narrow enough to render the single subject clause meaningless. See, e.g., Johnson, 176 Ill. 2d at 517-18 (“public safety” too broad a subject to encompass topics as diverse as child sex offenders, employer eavesdropping, and environmental impact fees).
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, 193 Ill. 2d 413 (2000), the Illinois Supreme Court rejected a single subject challenge to Public Act 89-8, effective March 21, 1995, entitled “An Act in relation to criminal and correctional matters, amending named Acts,” which amended 13 different acts. Although these amendments were not related to one another and included several objectives or purposes, the court held that examination of the enactment illustrated that these changes were related to the single subject of “crime and correctional matters.” Malchow, 193 Ill. 2d at 428. In citing People v. Wooters, 188 Ill. 2d 500 (1999), the court noted that it had already determined that “the legislature could pass legisla
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, 193 Ill. 2d at 427. Accordingly, in construing the term “subject” in favor of the legislature (Reedy, 186 Ill. 2d at 8-9), we need only find that each amendment has a natural and logical connection to the single subject of “criminal and correctional matters.” Per defendant‘s own argument, sections 1 and 1A have a natural connection to criminal matters, and sections 2 through 5 have a logical relation to correctional matters. Consequently, we find that defendant has failed to meet his burden of demonstrating that the provisions of Public Act 83-942 bear no natural or logical connection to this subject.
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., 158 Ill. 2d 76, 81 (1994); Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990). The words of a statute are given their plain and commonly understood meanings. Forest City Erectors v. Industrial Comm‘n, 264 Ill. App. 3d 436, 439 (1994). Only when the meaning of the enactment is unclear from the statutory language will the court look beyond the language and resort to aids for construction. Solich, 158 Ill. 2d at 81.‘” Panhandle Eastern Pipe Line Co. v. Environmental Protection Agency, 314 Ill. App. 3d 296, 301 (2000), quoting R.L. Polk & Co. v. Ryan, 296 Ill. App. 3d 132, 139-41 (1998).
For the foregoing reasons, we affirm the result of the trial court in dismissing Roberts’ petition.
Affirmed.
THEIS, J., concurs.
I concur with the holding that defendant‘s petition “does not fall within the pale of Apprendi relief.” 318 Ill. App. 3d at 728. I write separately to say that I believe we should have reached this conclusion for the additional reason that Apprendi does not apply retroactively to cases on collateral review under the Post-Conviction Hearing Act (
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.