Appeal from the Circuit Court of Cook County. No. 95 CR 14600 and 95 CR 14601, cons. Honorable Lon William Shultz, Judge Presiding.
The opinion of the court was delivered by: Justice Greiman
Defendant Gerry Roberts (Roberts) was convicted of vehicular hijacking (720 ILCS 5/18-3(a) (West 1994)) in a bench trial on April 8, 1995. On May 13, 1997, the court sentenced him to 18 years' imprisonment. On September 5, 1997, Roberts pled guilty to burglary (720 ILCS 5/19-1(a) (West 1996)) and was sentenced to six years imprisonment. On June 15, 1998, Roberts filed a pro se petition for post-conviction relief under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 1998)) for case number 95 CR 14601, where he pled guilty to the burglary. However, he raised issues that only concerned his vehicular hijacking case, 95 CR 14600. Acknowledging that Roberts' petition was intended to address issues from the hijacking case, the lower court reviewed his petition and then dismissed it for failing to raise issues of merit. Defendant now appeals, arguing that the trial court erred in dismissing his post-conviction petition as frivolous and without merit and that violations of the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. __, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and the single subject clause of the Illinois Constitution (Ill. Const. 1970, art. IV, § 8(d)) occurred. For the reasons that follow, we affirm.
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 4:00 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 line-up 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 2:00 p.m. until 5:00 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 2:00 p.m., borrowing defendant's van. Roberts stated that he finally left around 5:00 with a friend. Shortly before 7:00 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 post-conviction 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 post-conviction 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 post-conviction court's review of each allegation, it dismissed the petition as frivolous and patently without merit. [Non-publishable material removed under Supreme Court Rule 23. (166 Ill. 2d R. 23).]
On October 6, 2000, defendant filed supplemental authority regarding violations of the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. __, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and the single subject clause of the Illinois Constitution (Ill. Const. 1970, art. IV, § 8(d)). For the reasons that follow, we affirm the trial court's dismissal of defendant's post-conviction motion.
We first address defendant's Apprendi concerns. In 95 CR 14600, the trial court found Roberts guilty of the Class 1 offense of vehicular hijacking (720 ILCS 5/18-3(a) (West 1994)). The sentencing range for a Class 1 offense is 4 to 15 years. 730 ILCS 5/5-8-1(a)(4) (West 1994). The trial court, however, determined that it should sentence him as a Class X offender due to the timing, degree, and sequence of his prior convictions. The statutory sentencing range for Class X felons is 6 to 30 years (730 ILCS 5/5-5-3(c)(8) (West 1994)), and defendant was ultimately sentenced to 18 years.
The Class X sentencing provision at issue, section 5-5-3(c)(8) of the Unified Code of Corrections (730 ILCS 5/5-5-3(c)(8) (West 1994)), provides that when a defendant over the age of 21 in convicted of a Class 1 or Class 2 felony, after having been convicted twice of a Class 1 or Class 2 felony in Illinois, and such charges are separately tried and arise out of different series of acts, the court is required to sentence the defendant as a Class X offender if: the first felony was committed after the effective date of the amendatory act; the second felony was committed after conviction of the first; and the third felony was committed after conviction of the second.
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 __, 147 L. Ed. 2d at 446, 120 S. Ct. at 2355, quoting Jones v. United States, 526 U.S. 227, 243, n.6, 143 L. Ed. 2d 311, 326, n.6, 119 S. Ct. 1215, 1224, n.6 (1999). Using this reasoning, defendant argues that because the statute pursuant to which he was sentenced increased the maximum penalty to which he was subject for vehicular hijacking without any requirement of notice of the facts that subjected him to that increased penalty and a jury determination of whether those facts exist upon proof of a reasonable doubt, his Class X sentence should be vacated and the cause remanded for resentencing under the Class 1 guidelines. The constitutionality of a statute is a question of law which is reviewed de novo. People v. Fisher, 184 Ill. 2d 441, 448 (1998).
In People v. Clifton, Nos. 1-98-2126, 1-98-2384 cons., slip op. at 55 (September 29, 2000), this court recently determined that section 5-8-4(a) of the Unified Code of Corrections (730 ILCS 5/5-8-4(a) (West 1998)), which permits the trial court to impose consecutive sentences, is unconstitutional under Apprendi. In its reasoning, the Clifton court found that the effect of section 5-8-4(a) is to enlarge the maximum sentence to which a defendant may be exposed for his conduct and that, "[i]f consecutive sentences are to be imposed pursuant to a factual finding that severe bodily injury occurred, then severe bodily injury will have to be submitted to a jury and proved beyond a reasonable doubt." Clifton, slip op. at 55. Based on this finding, the Clifton court vacated defendant's consecutive sentences and ordered them to run concurrently.
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, 93 L. Ed. 2d 649, 661, 107 S. Ct. 708, 716 (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 post-conviction 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 post-conviction proceedings. Clifton, slip op. at 51, n.3, citing Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989); People v. Flowers, 138 Ill. 2d 218 (1990). In People v. Frederick Kizer, No. 1-99-0733, slip op. at 20 (December 26, 2000), this court recently confirmed that rule and held that Apprendi is not applicable to post-conviction 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 post-conviction 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 ...