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CRIMINAL/POST CONVICTION PROCEEDINGS/Sentencing, Apprendi

People v. De La Paz, No. 93208 (May 8, 2003) Appeal, 1st Dist.
Affirmed, (unpublished order under Supreme Court Rule 23). Opinion by
FREEMAN, J. THOMAS, J., specially concurring KILBRIDE, J., concurring in
part and dissenting in part.

Because Apprendi does not apply retroactively to convictions in which
the direct appeal process had concluded at the time that it was decided,
and because defense counsel's refusal to believe that her angry and
difficult client was not unfit to participate in post conviction
proceedings does not constitute ineffective assistance of counsel, trial
and appellate court properly dismissed defendant's post conviction
petition.

In 1984, a 77-year-old man was beaten and robbed in his apartment at
8351 South Burley in Chicago. In 1985, a Cook County circuit judge
imposed sentence on the convictions which resulted from the defendant's
jury trial for these offenses. An extended term of 55 years for armed
robbery was imposed, along with a concurrent sentence of 5 years for
aggravated battery. The defendant's direct appeal concluded in 1989,
when the appellate court affirmed.

Meanwhile, the defendant had initiated postconviction proceedings in
1986, and they were resolved adversely to him in 2000 when the circuit
court dismissed his petition. That dismissal was affirmed by the
appellate court in 2002. He appealed to the Illinois Supreme Court.
New principles governing sentence imposition were announced by the
United States Supreme Court in the year 2000 in the decision of Apprendi
v. New Jersey . The offender complained that his sentencing had not been
in compliance with this. The supreme court elected to address this issue
even though it had not been initially asserted in the postconviction
petition, but the court held that Apprendi is not retroactive to causes
in which the direct appeal process had been concluded at the time that
Apprendi was decided. Postconviction is a collateral, rather than a
direct, proceeding.

The petitioner also claimed that counsel had been ineffective in failing
to raise the issue of whether he had been fit for postconviction
proceedings. The supreme court found that the record indicated his
ability to communicate with counsel and that petitioner had failed to
overcome the presumption of his fitness.
The circuit court's dismissal of the petition was affirmed.

People v. Jackson 319 Ill. App. 3d 110.
Opinion by FREEMAN, J. HARRISON, C.J., joined by KILBRIDE, J.,
dissenting. Opinion filed April 18, 2002, Illinois Supreme Court

The defendant challenged her extended term as having been imposed in
violation of Apprendi, but, in this decision, the Illinois Supreme Court
approved the appellate court's rejection of this argument on the basis
of the waiver inherent in the guilty plea. 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.

This Morgan County defendant had just turned 18 in 1997 when, in a
dispute about a boyfriend, she confronted another woman in a McDonald's
parking lot and slashed her face with a box cutter. The victim became
legally blind in one eye. The defendant pled guilty to the Class 3
felony of aggravated battery in return for the prosecutor's promise not
to seek a penalty beyond the normal statutory range of three to five
years. However, at sentencing, the circuit court found "exceptionally
brutal or heinous behavior indicative of wanton cruelty" and imposed an
extended term of 10 years.

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 Supreme Court in Apprendi. Defendant notes that the extended term
was based on a factual finding by the trial court that the offense was
accompanied by exceptionally brutal or heinous behavior indicative of
wanton cruelty, a finding on which the burden of proof was merely a
preponderance of the evidence. See 730 ILCS 5/5-5-3.2(b)(2), 5-8-2(a)
(West 1996). She further notes that this fact was not alleged in the
indictment.

She further argued 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 right to require the State to prove beyond a
reasonable doubt any facts forming the basis for an extended-term
sentence. Moreover, she contends waiver is inapplicable where, as here,
an argument is based on a contention that the court did not have the
power to impose the sentence it did because the statute underlying her
sentence is unconstitutional. She contends that her sentence did violate
Apprendi, argues that this error is not subject to harmless error
analysis, and finally rejects as irrelevant the State's argument that
Apprendi was wrongly decided.

In the United States Supreme Court's recent decision in Apprendi v. New
Jersey, it was held that facts used to extend a sentence beyond the
statutory range must be proved beyond a reasonable doubt.

There, the Court held that a New Jersey "hate crime" statute ran afoul
of the due process clause of the fourteenth amendment (U.S. Const.,
amend. XIV), because it permitted the trial court to impose an extended
term of imprisonment based on a finding by the court, by a preponderance
of the evidence, regarding a defendant's motives. The Court held that
due process did not permit such a procedure, based on "constitutional
protections of surpassing importance": a criminal defendant's
"indisputabl[e] entitle[ment] *** to 'a jury determination that [he] is
guilty of every element of the crime with which he is charged, beyond a
reasonable doubt.' " Apprendi, 530 U.S. at 476-77, 147 L. Ed. 2d at 447,
120 S. Ct. at 2355-56, quoting United States v. Gaudin, 515 U.S. 506,
510, 132 L. Ed. 2d 444, 449, 115 S. Ct. 2310, 2313 (1995). Based on this
principle, the Court found that as a component of due process, a
criminal defendant is entitled to require the State to prove to a jury,
beyond a reasonable doubt, all facts necessary to establish the range of
penalties potentially applicable to the defendant.

Defendant's recitation of the facts of Apprendi 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
this case, by contrast, defendant was clearly apprised that the court
could impose an extended-term sentence, the agreement between defendant
and the State notwithstanding. After indicating her understanding of
this possibility, defendant unequivocally and without reservation waived
her right to a jury trial at which the State would have been put to its
proof beyond a reasonable doubt. She never objected to the statute or
this manner of proceeding in any way. The petitioner in Apprendi
preserved his argument; defendant did not.

SENTENCING/APPRENDI

On February 23, Governor Ryan signed into law House Bill 1511, effective immediately, which requires proof beyond a reasonable doubt of factors in a criminal case that could indicate imposition of extended prison sentences. The legislation purports to place the state's enhanced sentencing laws in line with the decision last June by the U.S. Supreme Court in Apprendi v. New Jersey, 530 U.S., 120 S.Ct. 2348 (2000). (Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt)

The bill provides that if a sentence is vacated on appeal because of the Apprendi opinion, the defendant may be either re-sentenced to a term within the range otherwise provided, or granted a new trial if the state files notice of intention to seek an extended sentence again.

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