THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOUGLAS K. WHITE, Defendant-Appellant.
No. 5-14-0002
APPELLATE COURT OF ILLINOIS FIFTH DISTRICT
November 28, 2016
2016 IL App (5th) 140002-U
Appeal from the Circuit Court of Madison County. No. 88-CF-776. Honorable Keith Jensen, Judge, presiding. JUSTICE WELCH delivered the judgment of the court. Justices Stewart and Moore concurred in the judgment.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
ORDER
¶ 1 Held: The circuit court did not err in dismissing the defendant‘s combined petitions for postconviction relief and for relief from judgment, for these petitions were, in effect, petitions for postconviction relief only, and the defendant failed to make a substantial showing of a constitutional violation in the proceedings that resulted in his conviction.
¶ 2 This case is before this court for the third time. The defendant, Douglas K. White, appeals from a judgment of the circuit court dismissing his combined petitions for postconviction relief and for relief from judgment. He has represented himself in this appeal. The defendant‘s combined petitions are, in effect, petitions for postconviction relief only; none of them can properly be construed as a petition for relief from judgment.
¶ 3 BACKGROUND
¶ 4 Conviction and Direct Appeal
¶ 5 In 1988, the defendant was charged with two counts of first-degree murder (
¶ 6 In this appeal, little needs to be said about the evidence adduced at the defendant‘s trial. However, a discussion of one small portion of the State‘s evidence is necessary. One witness for the State was the defendant‘s brother, Craig White, who had been charged with the same three offenses as the defendant and who was being held on those charges. In his testimony at the defendant‘s trial, Craig described how he and the defendant, acting in concert, killed Vallerius and Pieper and dumped Pieper‘s body into a lake, all for the purpose of ensuring that they would inherit money from Vallerius, their grandmother. Craig also testified that he, through his attorney, had negotiated a plea agreement with the State. According to Craig, he had agreed to plead guilty to the first-degree murder of Pieper and to be sentenced to 35 years of imprisonment for that offense; Craig would testify truthfully at the defendant‘s trial; the defendant, if convicted, would
¶ 7 The jury found the defendant guilty on all three counts. The circuit court later sentenced the defendant to natural life imprisonment for each of the two first-degree murders and five years of imprisonment for the concealment of a homicidal death. This court affirmed the judgment of conviction in People v. White, 209 Ill. App. 3d 844 (1991). The opinion in that appeal includes a detailed summary of the trial evidence.
¶ 8 The Defendant‘s First Collateral Attack
¶ 9 on the Judgment of Conviction
¶ 10 In July 2001, the defendant filed with the circuit clerk a pro se petition for relief under the Post-Conviction Hearing Act (
¶ 11 The Defendant‘s Second Collateral Attack
¶ 12 on the Judgment of Conviction, Part 1
¶ 14 With the appointment of the public defender in October 2002, the procedural history of this case became even more convoluted. The full history need not be recounted, but a few highlights need to be mentioned. On April 22, 2003, the defendant filed, by an assistant public defender, a third amended combined petition for postconviction relief and for relief from judgment. On December 22, 2005, the defendant
¶ 15 The defendant‘s supplemental combined petition presented eight claims, only one of which needs to be described briefly here. In claim 3 of the supplemental combined petition, the defendant claimed that the statute under which he had been sentenced to mandatory natural life imprisonment–section 5-8-1(a)(1)(c) of the Criminal Code of 1961 (
¶ 16 On March 30, 2007, the State filed an amended motion to dismiss the defendant‘s combined petition for postconviction relief and for relief from judgment. The motion did not include any explicit reference to the third amended combined petition or to the supplemental combined petition. On May 1, 2007, the court heard arguments on the State‘s amended motion to dismiss. By that time, the defendant was represented by a different appointed attorney, one who did not file a certificate of compliance with
¶ 17 This court treated the State‘s amended motion to dismiss the combined petition as a motion to dismiss the third amended combined petition in particular, and treated the court‘s dismissal order as an order dismissing that same petition. Furthermore, this court treated the third amended combined petition as a postconviction petition solely, after concluding that none of the petition‘s claims implicated section 2-1401 of the Procedure Code. This court reversed the judgment dismissing the third amended combined petition. The basis for reversal was a lack of evidence that the attorney who represented the defendant at the hearing on the State‘s amended motion to dismiss had fulfilled his responsibilities under Supreme Court Rule 651(c) (eff. Dec. 1, 1984). This court remanded the cause to the circuit court “for the purpose of demonstrating appointed counsel‘s compliance” with the rule. People v. White, No. 5-07-0359 (Mar. 10, 2010) (unpublished order under Supreme Court Rule 23).
¶ 18 The Defendant‘s Second Collateral Attack
¶ 19 on the Judgment of Conviction, Part 2
¶ 20 Upon remand to the circuit court, the defendant filed on August 9, 2010, a pro se motion for leave to file pro se a sixth amended combined petition for postconviction relief and for relief from judgment under section 2-1401. The sixth amended combined petition raised 13 claims and was accompanied by a prodigious appendix. The instant
¶ 21 The key factual allegations in the sixth amended combined petition concerned an alleged conspiracy between three people, viz.: the defendant‘s brother, Craig White; the prosecutor at the defendant‘s trial, assistant State‘s attorney Robert Trone; and the judge who presided at the defendant‘s trial, the Honorable Charles Romani, Jr. The defendant alleged that Craig‘s plea agreement with the State (described supra) had included a “secret” provision that Craig would be eligible to apply for a 5-year reduction in his agreed-upon 35-year prison sentence after he had served 10 years of that sentence, and that he would receive the 5-year reduction if he had maintained a clean record in prison. The defendant further alleged that Craig, assistant State‘s attorney Trone, and Judge Romani had conspired to prevent the defendant and the jury at the defendant‘s trial from learning about this secret sentence-reduction provision in Craig‘s plea agreement, in an effort to enhance Craig‘s credibility as a State‘s witness at the defendant‘s trial. Finally, the defendant alleged that in 1999, Judge Romani reduced Craig‘s prison sentence by five years, in accordance with the secret provision and in order to prevent Craig from becoming disgruntled and revealing the existence of the conspiracy.
¶ 22 The petition‘s appendix included five documents intended to support the allegations of a conspiracy: (1) A transcript of a June 6, 1989, hearing in the case of People v. Craig White, Madison County case number 88-CF-777. At the hearing, Craig‘s public defender informed the court that the parties had agreed that Craig would plead guilty to the first-degree murder of Pieper and would be sentenced to imprisonment for
¶ 23 Of the 13 claims presented in the sixth amended combined petition, 7 of them–specifically, claims 1, 2, 6, 8, 11, 12, and 13–depended on the above-described allegations of a conspiracy between Craig White, assistant State‘s attorney Trone, and Judge Romani. Those seven conspiracy-dependent claims were as follows.
¶ 24 In claim 1 of the sixth amended combined petition, which was titled “judicial disqualification” and was brought pursuant to the Post-Conviction Hearing Act, the defendant claimed that he had been deprived of due process when Judge Romani, a member of the conspiracy, failed to recuse himself from the defendant‘s case. The defendant sought vacatur of his convictions and dismissal of the indictment. In claim 2, titled “Lack of Proof Beyond a Reasonable Doubt” and brought pursuant to the Post-Conviction Hearing Act, the defendant alleged that but for the alleged conspiracy, the State‘s evidence would have been insufficient to prove the defendant guilty of any of the three charged offenses. The defendant sought dismissal of the charges against him. In claim 6, titled “Brady Violation” and brought pursuant to the Post-Conviction Hearing Act, the defendant claimed that he was deprived of due process when the State failed to disclose, prior to his trial, that Craig‘s plea agreement included a secret provision allowing for a 5-year reduction in Craig‘s 35-year prison sentence. The defendant sought vacatur of his convictions and dismissal of the indictment. In claim 8, titled “Intentional Use of Perjury False Argument and Fabricated Documentary Evidence, Substantive Due Process Violation Requiring Dismissal” and brought pursuant to the Post-Conviction
¶ 25 As for the six other claims in the sixth amended combined petition, i.e., the six claims that did not depend on the allegations of a conspiracy between Craig White, assistant State‘s attorney Trone, and Judge Romani, they can be summarized as follows.
¶ 27 On November 16, 2011, the defendant‘s appointed postconviction counsel filed a certificate of compliance with Supreme Court Rule 651(c) (eff. Dec. 1, 1984). Counsel certified that he had consulted with the defendant in person in order to ascertain his contentions of deprivation of constitutional rights, had examined the record of the proceedings at trial, and had made any amendments to the petition filed pro se that were necessary for an adequate presentation of the defendant‘s contentions. At a hearing that same day, counsel informed the court that he had chosen not to amend the defendant‘s pro se pleadings because, in his estimation, they were satisfactory as written. Counsel also indicated that he adopted the defendant‘s pro se motion for leave to file the sixth amended combined petition.
¶ 28 On November 15, 2013, the court held a hearing on the State‘s motion to dismiss, at which the defendant appeared with counsel. The court queried counsel about the
¶ 29 On December 16, 2013, the circuit court entered a written order stating that “[the] third amended post-conviction petition, along with all subsequent amendments are hereby dismissed.” From that judgment, the defendant now appeals.
¶ 30 ANALYSIS
¶ 31 This appeal is from a judgment dismissing the defendant‘s third amended combined petition and “all subsequent amendments.” The “subsequent amendments” were two in number, viz.: the supplemental combined petition and the sixth amended combined petition. The sixth amended combined petition, which was the last-filed of all
¶ 32 Furthermore, none of the claims presented in the defendant‘s petitions implicates section 2-1401 of the Procedure Code. Section 2-1401 serves as a means by which to correct errors of fact, unknown to the petitioner and the court at the time of the judgment, that would have prevented the rendition of the judgment had they been known. People v. Pinkonsly, 207 Ill. 2d 555, 565-66 (2003). None of the defendant‘s claims alleged errors of that type, and therefore none of his petitions was cognizable as a section 2-1401 petition for relief from judgment. Hence, this appeal is essentially an appeal from the dismissal of petitions for postconviction relief only.
¶ 33 The Post-Conviction Hearing Act sets forth a procedural mechanism through which a defendant can claim that “in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both.”
¶ 34 In the instant case, the defendant‘s petitions were advanced to the second stage of postconviction proceedings and then dismissed on the State‘s motion. For the reasons that follow, this court concludes that the defendant failed to make a substantial showing of a constitutional violation and therefore the circuit court did not err in dismissing his petitions.
¶ 35 As discussed supra, 7 of the 13 claims presented in the sixth amended combined petition–specifically, claims 1, 2, 6, 8, 11, 12, and 13–depended on the allegation of a conspiracy between Craig White, the assistant State‘s attorney at the defendant‘s trial, and the judge at the defendant‘s trial, to hide from the defendant and from the defendant‘s jury the alleged secret provision in Craig‘s plea agreement allowing for a potential 5-year reduction in Craig‘s 35-year prison sentence. The defendant attempted to support his conspiracy allegation with various documents included in the appendix to his sixth amended combined petition, documents that were described in detail supra. However, as
¶ 36 As for the six claims in the sixth amended combined petition that did not depend upon the conspiracy allegations, i.e., claims 3, 4, 5, 7, 9, and 10, detailed supra, the defendant also failed to make a substantial showing of a constitutional violation.
¶ 37 In claim 3, the defendant stated that he had learned of several non-Caucasians who had committed multiple murders in Illinois but had been sentenced to imprisonment for terms of years, not for the remainder of their natural lives as required under section 5-8-1(a)(1)(c) of the Criminal Code of 1961. On that basis, the defendant, a Caucasian, sought vacatur of his natural life sentences and resentencing. Even if the defendant‘s allegations are true, and several non-Caucasians who should have been sentenced to
¶ 38 Claims 4 and 5 of the sixth amended combined petition depended on the defendant‘s assertion that section 5-8-1(a)(1) of the Criminal Code of 1961 contained materially conflicting sections–specifically, that subsection 5-8-1(a)(1)(c) made a natural life sentence mandatory for any multiple murderer who was sentenced to prison while subsection 5-8-1(a)(1)(b) made a natural life sentence discretionary with the sentencing court. This selfsame argument has been rejected by Illinois courts of review on several occasions. See, e.g., People v. Creque, 214 Ill. App. 3d 587, 599-601 (1991). The argument has not improved with age. Subsection 5-8-1(a)(1)(c) specifically and unambiguously required that any prison sentence for a defendant “found guilty of murdering more than one victim” had to be a natural life sentence.
¶ 39 In claim 7, the defendant alleged that subsection 5-8-1(a)(1)(c) was void because it was enacted in violation of the Illinois constitutional rule that “[a] bill expressly amending a law shall set forth completely the sections amended.”
¶ 40 In claim 9 of the sixth amended combined petition, the defendant alleged that first-degree murder was a Class 4 felony, and he sought resentencing accordingly. This claim may be the most ridiculous of all the defendant‘s claims. First-degree murder was (and remains) in a felony class by itself. In the words of section 5-5-1(b) of the Criminal Code of 1961, first-degree murder was “a separate class of felony” for sentencing purposes.
¶ 41 In claim 10 of the sixth amended combined petition, the defendant claimed that his two natural life sentences were impermissibly disparate to the 30-year sentence imposed upon his brother and partner-in-crime Craig White. Craig pleaded guilty to one count of first-degree murder as part of a plea agreement; his sentence cannot validly be compared to the defendant‘s natural life sentences, which were imposed after a jury found him guilty of two first-degree murders. See, e.g., People v. Brown, 267 Ill. App. 3d 482, 487 (1994) (sentence imposed on a codefendant who pleaded guilty as part of a plea
¶ 42 Finally, in claim 3 of the supplemental combined petition, the defendant claimed that section 5-8-1(a)(1)(c) of the Criminal Code of 1961, pursuant to which he was sentenced to mandatory natural life imprisonment, was void ab initio because the legislation that created it, Public Act 81-1118, was enacted in violation of article IV, section 9(e), of the Illinois Constitution. That provision authorizes the Governor to “return a bill together with specific recommendations for change to the house in which it originated.”
¶ 43 CONCLUSION
¶ 44 The defendant presented many claims, but he failed to make a substantial showing of any constitutional violation in the proceedings that resulted in his conviction. The circuit court did not err in dismissing his petitions, and the judgment must be affirmed.
¶ 45 Affirmed.