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04/20/95 PEOPLE STATE ILLINOIS v. PAUL DUNIGAN

April 20, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
PAUL DUNIGAN, APPELLANT.



Chief Justice Bilandic delivered the opinion of the court: Justice Heiple, concurring in part and dissenting in part:

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

The defendant, Paul Dunigan, was convicted following a jury trial, in the circuit court of Cook County, of criminal sexual assault. Prior to the sentencing hearing, the State filed a motion to sentence the defendant as a habitual criminal. (Ill. Rev. Stat. 1989, ch. 38, par. 33B-1.) At sentencing, the State presented evidence that the defendant had twice been convicted of and incarcerated for rape, Class X felonies. At the conclusion of the sentencing hearing, the sentencing court adjudged the defendant to be a habitual criminal and sentenced him to natural life imprisonment. The appellate court affirmed the defendant's conviction and sentence. (263 Ill. App. 3d 83.)

Page 239

We allowed the defendant's petition for leave to appeal (145 Ill. 2d R. 315).

The defendant does not challenge his conviction for criminal sexual assault. The defendant likewise does not challenge the trial court's conclusion that the defendant's three Class X felony convictions rendered him eligible for sentencing as a habitual criminal under the Habitual Criminal Act (the Act). Rather, the defendant raises four separate constitutional challenges to the Act (Ill. Rev. Stat. 1989, ch. 38, par. 33B-1 et seq.). The defendant claims that the Act: (1) violates the ex post facto and double jeopardy prohibitions of the State and Federal Constitutions; (2) violates article I, section 11, of the Illinois Constitution of 1970, the due process clauses of the State and Federal Constitutions and the eighth amendment to the Federal Constitution, because it requires imposition of a natural life term without regard to mitigating factors justifying a lesser sentence; (3) violates the separation of powers doctrine of the State constitution because it grants the judiciary's sentencing power to the prosecutor; and (4) was passed in violation of the "three-readings" and "single-subject" requirements of the State constitution.

I. PREFATORY NOTE

Before addressing the defendant's constitutional challenges, we initially note that Illinois enacted its first habitual criminal statute in 1883. (1883 Ill. Laws 76; People v. Yarsitis (1950), 406 Ill. 99, 92 N.E.2d 161.) In 1963, the legislature repealed the Act, which remained dormant for 15 years. In 1978, the legislature re-enacted the Act. Under the 1978 statute, only Illinois felony convictions that occurred after the February 1, 1978, effective date of the statute could be used to trigger application of the Act. In 1980, however, the legislature amended the Act to broaden the types of felony convictions that could trigger the Act to include convictions that occurred prior to 1978 and convictions from other jurisdictions. The amended Act, which is the subject of this appeal, provides in part:

"Every person who has been twice convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class X felony, criminal sexual assault or first degree murder, and is thereafter convicted of a Class X felony, criminal sexual assault or first degree murder, committed after the 2 prior convictions, shall be adjudged an habitual criminal." (Ill. Rev. Stat. 1989, ch. 38, par. 33B-1.)

The third offense must be committed after the July 3, 1980, effective date of the Act, and within 20 years of the date that judgment was entered on the first conviction, not including time spent in custody. The third offense must have been committed after conviction on the second offense; and the second offense must have been committed after conviction on the first offense. Ill. Rev. Stat. 1989, ch. 38, par. 33B-1.

As stated, the defendant concedes that his three felony convictions rendered him eligible to be sentenced under the Act. The defendant committed his third offense (criminal sexual assault) on May 10, 1991, which is within 20 years of his first Class X felony (rape) conviction in 1972. The third offense was committed after the second Class X felony (rape) conviction in 1979; and the second offense was committed after the first conviction. As stated, however, the defendant raises several constitutional challenges to the Act.

II. ANALYSIS

A. Ex Post Facto and Double Jeopardy Challenges

The defendant first contends that the Act violates the ex post facto and double jeopardy clauses of the Federal and State Constitutions. In support of his ex post facto claim, the defendant asserts that the statute punishes him, in part, for the 1972 rape offense that he committed prior to the effective date of the Act. The defendant argues that a mandatory sentence of life imprisonment is imposed under the Act as punishment for all three of his felony convictions. He argues that the Act punishes persons "possessing the status of a habitual criminal," and that all three of his felony convictions are considered in declaring this status. He argues, therefore, that the Act punishes him, in part, for conduct he committed prior to the effective date of the Act, in violation of the ex post facto clause. The defendant claims that the Act, as originally enacted, avoided the ex post facto problem by expressly providing that only those convictions that occurred after the February 1, 1978, effective date of the Act could trigger a habitual criminal hearing. He argues that the 1980 amendment introduced the ex post facto problem into the statute, by broadening those felonies that could be used under the Act to include convictions that occurred prior to 1978.

The defendant's double jeopardy challenge is likewise based upon the claim that the Act imposes a mandatory sentence of life imprisonment as punishment for all three of his Class X felony convictions. The defendant points out that he has already been punished once for his 1972 and 1979 rape convictions. He argues that the Act violates the proscriptions against double jeopardy by punishing him a second time for these same offenses.

We reject the defendant's claims that the Act violates the ex post facto and double jeopardy clauses of the Federal and State Constitutions. The defendant's challenge to the Act fails because it rests upon an erroneous interpretation of that statute. The defendant mistakenly believes that the Act imposes a mandatory life sentence as punishment for all three of his felony convictions. The defendant also mistakenly believes that the Act creates a new substantive criminal offense. The defendant assumes that a defendant who has three felony convictions that fall within the requirements of the Act is found guilty of a criminal offense, namely, of possessing the status of a "habitual criminal."

The United States Supreme Court and our court have repeatedly recognized, however, that habitual criminal statutes do not define a new or independent criminal offense. (See, e.g., Gryger v. Burke (1948), 334 U.S. 728, 92 L. Ed. 1683, 68 S. Ct. 1256; People v. Williams (1967), 36 Ill. 2d 505, 224 N.E.2d 225; People v. Lawrence (1945), 390 Ill. 499, 61 N.E.2d 361; People v. Hanke (1945), 389 Ill. 602, 60 N.E.2d 395; People v. Atkinson (1941), 376 Ill. 623, 35 N.E.2d 58.) Rather, such statutes simply prescribe the circumstances under which a defendant found guilty of a specific crime may be more severely punished because that defendant has a history of prior convictions. The punishment imposed under the Act is for the most recent offense only. The penalty is made heavier because the person convicted is a habitual criminal. The Act does not punish a defendant again for his prior felony convictions, nor are those convictions elements of the most recent felony offense. Instead, they simply aggravate or enhance the penalty imposed for the third and most recent offense. Gryger v. Burke (1948), 334 U.S. 728, 92 L. Ed. 1683, 68 S. Ct. 1256; People v. Manning (1947), 397 Ill. 358, 74 N.E.2d 494; People v. Turner (1947), 396 Ill. 221, 71 N.E.2d 66; People v. Lawrence (1945), 390 Ill. 499, 61 N.E.2d 361; People v. Hanke (1945), 389 Ill. 602, 60 N.E.2d 395; People v. Atkinson (1941), 376 Ill. 623, 35 N.E.2d 58; see also People ex rel. Carey v. Chrastka (1980), 83 Ill. 2d 67, 74-75, 46 Ill. Dec. 156, 413 N.E.2d 1269 (rejecting similar challenges to the juvenile habitual offender statute).

The defendant acknowledges that the United States Supreme Court and this court have repeatedly rejected claims that habitual criminal legislation violates ex post facto and double jeopardy proscriptions of the Federal and State Constitutions. He argues, however, that these cases are not relevant to this appeal, because this Act, unlike other habitual offender legislation, makes the "status of habitual criminality" a substantive criminal offense and imposes a mandatory life sentence as punishment for all three felony convictions. The only support that the defendant offers for his claim that Act creates a substantive offense is the fact that the Act appears in a chapter of the Criminal Code of 1961 entitled "Specific Offenses," rather than in the Unified Code of Corrections, where sentencing provisions are found.

We are not persuaded by the defendant's attempt to distinguish the Act from habitual criminal legislation previously upheld both in this court and in the United States Supreme Court. This court has suggested, on a number of occasions, that the Act is comparable to our prior habitual criminal statutes. See, e.g., People v. Levin (1993), 157 Ill. 2d 138, 149, 191 Ill. Dec. 72, 623 N.E.2d 317 ("habitual-offender legislation neither creates a separate offense nor directly involves the prior crimes. The prior-conviction evidence *** is merely a matter of aggravation going solely to the punishment to be imposed"); People v. Palmer (1984), 104 Ill. 2d 340, 348, 84 Ill. Dec. 658, 472 N.E.2d 795 (Act deals exclusively with sentencing and simply enhances the penalty for the underlying offense).

We conclude that the legislature devised a separate sentencing scheme for criminal defendants who have demonstrated a propensity to commit violent crimes. Under the Act, the defendant received a mandatory sentence of life imprisonment as punishment for his third serious felony offense. The Act does not punish the defendant for conduct that occurred prior to the effective date of the Act; it punishes him solely for the criminal sexual assault he committed in 1991. The defendant's prior offenses are considered for the purpose of establishing matters in aggravation to support the ...


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