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Schlemm v. Cowen

July 05, 2001

JIMMIE LEE SCHLEMM, PETITIONER-APPELLANT,
v.
ROGER D. COWEN, WARDEN, MENARD CORRECTIONAL CENTER, RESPONDENT-APPELLEE.



Appeal from Circuit Court of Menard County Nos. 78CF17; 78CF18 Honorable M. Carol Pope, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Steigmann

UNPUBLISHED

In July 2000, petitioner, Jimmie Lee Schlemm, filed a pro se petition for writ of habeas corpus (735 ILCS 5/10-101 through 10-137 (West 1998)), alleging that his imprisonment was unlawful and seeking his release from the Illinois Department of Corrections. The trial court later denied the petition. Petitioner appeals, and we affirm.

I. BACKGROUND

In December 1978, a jury convicted petitioner of two counts of murder (Ill. Rev. Stat. 1977, ch. 38, par. 9-1) and two counts of concealment of a homicide (Ill. Rev. Stat. 1977, ch. 38, par. 9-3.1). The trial court later sentenced him to 38 years in prison on each murder conviction and 10 years in prison on each concealment conviction, with all sentences to run consecutively. Petitioner appealed, arguing, in part, that the court erred by (1) imposing consecutive sentences, and (2) imposing extended prison terms on the two concealment convictions. People v. Schlemm, 82 Ill. App. 3d 639, 641, 402 N.E.2d 810, 812 (1980). This court affirmed petitioner's convictions but reduced the 10-year extended prison terms to 5-year prison terms on each concealment conviction. Schlemm, 82 Ill. App. 3d at 651, 402 N.E.2d at 819.

In July 2000, petitioner filed a pro se petition for writ of habeas corpus, alleging that (1) the consecutive sentences imposed on the murder and concealment of a homicide convictions were unlawful because those crimes were committed against the same person, and (2) the consecutive sentences imposed on all of petitioner's convictions were unlawful because the murders and the concealing of those murders arose out of the same course of conduct. The trial court subsequently denied the petition upon determining that (1) if the petition was considered as a petition for post-conviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through 122-8 (West 1998)), it was not timely filed, and (2) petitioner was not entitled to habeas corpus relief, pursuant to section 10-124 of the Code of Civil Procedure (Code) (735 ILCS 5/10-124 (West 1998)).

This appeal followed.

II. THE TRIAL COURT'S DENIAL OF THE PETITION FOR WRIT OF HABEAS CORPUS

Petitioner argues that the trial court erred by denying his petition for writ of habeas corpus. Specifically, he contends that (1) his consecutive sentences were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000), because they were based on the following factors, which were never presented to the jury for its determination: (a) the witnessing of one victim's murder by the other victim, and (b) defendant's exceptionally brutal or heinous behavior indicative of wanton cruelty; (2) consecutive sentences were improperly imposed on (a) his convictions for concealment of a homicide, and (b) all of his convictions because the murders and the concealing of those murders arose out of the same course of conduct; and (3) on direct appeal, this court wrongly concluded that the sentences imposed on the concealment convictions should run consecutively to the sentences imposed on the murder convictions. We disagree.

Habeas corpus relief is limited solely to the grounds specified in section 10-124 of the Code (735 ILCS 5/10-124 (West 1998)). Barney v. Prisoner Review Board, 184 Ill. 2d 428, 430, 704 N.E.2d 350, 351 (1998). That section provides as follows:

"If it appears that the prisoner is in custody by virtue of process from any court legally constituted, he or she may be discharged only for one or more of the following causes:

1. Where the court has exceeded the limit of its jurisdiction, either as to the matter, place, sum[,] or person.

2. Where, though the original imprisonment was lawful, nevertheless, by some act, omission[,] or event which has subsequently taken place, the ...


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