IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS THIRD DIVISION
January 30, 2002
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
GREGORY FIELDS, DEFENDANT-APPELLANT.
Appeal from the Circuit Court of Cook County. No. 94 CR 7911 Honorable Lon Shultz, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Hall
Modified upon denial of rehearing. See opinion filed June 28, 2002.
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
GREGORY FIELDS, DEFENDANT-APPELLANT.
Appeal from the Circuit Court of Cook County. No. 94 CR 7911 Honorable Lon Shultz, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Hall
The defendant, Gregory Fields, appeals from an order of the circuit court of Cook County dismissing his petition for relief pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 1998)). The circuit court dismissed the petition as frivolous and patently without merit.
The defendant appeals the dismissal of his petition, raising the following issues: (1) whether the petition set forth sufficient facts upon which to base a claim of ineffective assistance of counsel; (2) whether the defendant's extended-term sentence is unconstitutional under the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); and (3) whether the provision of the Act permitting the summary dismissal of the defendant's petition is unconstitutional since it was enacted in violation of the single subject rule.
The defendant was indicted and charged with three counts of first-degree murder and one count each of armed robbery, conspiracy to commit first degree murder and residential burglary.
Following a fitness hearing on March 26, 1996, Judge Schultz found the defendant unfit to stand trial. In his March 6, 1996, report to the trial court, Dr. Albert H. Stipes stated that the defendant had marginal contact with reality, showed evidence of a severe depressed mood, suffered from auditory hallucinations and was suicidal. At the defendant's fitness hearing, Dr. Stipes testified that the defendant was receiving Tegritol and Dilantin for epilepsy and Haldol, a psychotropic medication, for his psychiatric condition. The defendant was remanded to the Elgin Mental Health Center, where he was diagnosed with a schizoaffective disorder with depressed features.
On June 13, 1996, the staff at Elgin reported that the defendant had been restored to fitness. In the report prepared by the Elgin staff, Dr. Carreria diagnosed the defendant as malingering and suffering from polysubstance abuse and an anti-social personality disorder.
On July 3, 1996, a second fitness hearing was held. After reviewing his previous reports, the reports from Elgin and interviewing the defendant, Dr. Stipes concluded that the defendant was currently fit for trial and needed no medication. Judge Schultz found the defendant fit to stand trial.
On October 16 and 23, 1996, Judge Brady conducted a hearing on the defendant's motion to suppress his confession. The defendant maintained that his confession was not voluntary because he was suffering from an overdose of asthma medication and that police refused to provide him with medical treatment until he confessed. Judge Brady denied the motion to suppress.
On January 29, 1997, the defendant pleaded guilty to first degree murder, conspiracy to commit murder, armed robbery and residential burglary. Judge Brady denied the State's request to find the defendant eligible for the death penalty. Judge Brady then sentenced the defendant to an extended term of 75 years' imprisonment in the Department of Corrections. Judge Brady admonished the defendant that he had 30 days within which to withdraw his guilty plea.
On September 2, 1999, the defendant filed a motion to withdraw his guilty plea and vacate his sentence. The defendant alleged that his guilty plea was not voluntary because he was ingesting psychotropic medication as the time he pleaded guilty and could not understand the proceedings. The defendant further alleged that his attorney was aware that he was heavily medicated and could not assist with his defense but still allowed him to plead guilty. Finally, the defendant alleged that he had received ineffective assistance of counsel because his attorney failed to present any evidence to the trial court concerning his psychiatric condition and failed to advise the court that the defendant was taking psychotropic medication during the trial proceedings and his guilty plea.
While noting that the motion was untimely filed and did not comply with Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)), Judge Schultz reviewed the merits of the motion and denied it. The defendant did not appeal from the denial of his motion to withdraw his guilty plea.
On November 22, 1999, the defendant filed a pro se post-conviction petition. In his petition, the defendant alleged that his trial counsel coerced him into pleading guilty and that he was heavily medicated at the time of the plea. Judge Schultz dismissed the petition as frivolous and patently without merit. The defendant then filed this timely appeal.
I. Whether the defendant set forth the gist of a meritorious of ineffective assistance of counsel
A. Standard of Review
We review the dismissal of a post-conviction petition de novo. People v. Coleman, 183 Ill. 2d 366, 388-89, 701 N.E.2d 1063, 1075 (1998).
The Illinois Post-Conviction Hearing Act provides a mechanism by which those under criminal sentence in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both. People v. Bates, 323 Ill. App. 3d 77, 80, 751 N.E.2d 180, 184 (2001). The general requirement that a post-conviction petitioner set forth the gist of a meritorious claim means that he must allege sufficient facts from which the circuit court could find a valid claim of deprivation of a constitutional right. Bates, 323 Ill. App. 3d at 80, 751 N.E.2d at 184.
A post-conviction action, however, is not an appeal from an underlying judgment. Rather, it is a collateral attack on a prior conviction and sentence. People v. Towns, 182 Ill. 2d 491, 502, 696 N.E.2d 1128, 1133 (1998). The purpose of the post-conviction proceeding is allow inquiry into constitutional issues involved in the original conviction and sentence that have not been and could not have been adjudicated previously on direct appeal. Towns, 182 Ill. 2d at 502, 696 N.E.2d at 1133-34. Issues that were raised and decided on direct appeal are barred by the doctrine of res judicata; issues that could have been presented on direct appeal, but were not, are waived. Towns, 182 Ill. 2d at 502-03, 696 N.E.2d at 1134. Any claim of substantial denial of constitutional rights not raised in the original or amended petition is waived. Bates, 323 Ill. App. 3d at 80, 751 N.E.2d at 183. Where fundamental fairness so requires, however, strict adherence to the rule of waiver may be avoided. Bates, 323 Ill. App. 3d at 80, 751 N.E.2d at 183.
The State contends that the defendant has waived his right to post-conviction relief because he could have raised his ineffectiveness of counsel argument on direct appeal.
In his post-conviction petition, the defendant alleged, inter alia, that he was forced to lie in pretrial proceedings and that his defense counsel coerced him into plea bargaining while he was on prescribed heavy doses of psychotropic medication.
At the time that the defendant filed his motion to withdraw his guilty plea, the records from the Cermak Health Services of Cook County which detail the medications prescribed for the defendant up to the date of his guilty plea were not part of the record. Therefore, we disagree with the State that the defendant could have raised the issue on direct appeal. See Towns, 182 Ill. 2d at 523, 696 N.E.2d at 1143 (the defendant could not raise defense counsel's ineffectiveness at sentencing because the claim was based upon additional mitigating evidence not part of the record on his direct appeal).
To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) counsel's performance was so seriously deficient as to fall below an objective standard of reasonableness under the prevailing professional norms, and (2) the deficient performance so prejudiced the defendant as to deny him a fair trial. People v. Steppan, 322 Ill. App. 3d 620, 628, 751 N.E.2d 32, 38 (2001). The defendant must establish both prongs of the test in order for the court to find the ineffective assistance of counsel. Steppan, 322 Ill. App. 3d at 630, 751 N.E.2d at 41.
The defendant contends that his counsel was ineffective because she failed to inform the trial court at the second fitness hearing that the defendant was suffering from a mental disorder, specifically, that he was experiencing auditory hallucinations and depression and that he was prescribed and was taking Haldol, a psychotropic medication. He argues that had his defense counsel investigated the Cermak Health Service records of his treatment, she might have chosen to call his treating physicians to contradict Dr. Stipes' testimony or request another fitness hearing.
In Illinois, a defendant is presumed fit to stand trial, to plead and be sentenced. A defendant is unfit if, because of his mental or physical condition, he is unable to understand the nature and the purpose of the proceedings against him or to assist in his defense. 725 ILCS 5/104-10 (West 1996). The fact that a defendant is receiving psychotropic medication does not, by itself, raise a bona fide doubt as to his fitness. Steppan, 322 Ill. App. 3d at 628, 751 N.E.2d at 38-39.
A defendant may be competent to participate at trial even though his mind is otherwise unsound. People v. Damico, 309 Ill. App. 3d 203, 210, 722 N.E.2d 194, 201 (1999). Fitness speaks only to a person's ability to function within the context of a trial; it does not refer to competence in other areas. Damico, 309 Ill. App. 3d at 210, 722 N.E.2d at 201. No single factor in and of itself raises a bona fide doubt of a defendant's fitness to stand trial; the fact that the defendant suffers a mental disturbance or requires psychiatric treatment does not necessarily raise a bona fide doubt. Damico, 309 Ill. App. 3d at 210, 722 N.E.2d at 201.
The facts that the defendant was being housed in the residential treatment unit (RTU) of the jail, that he suffering from auditory hallucinations and that he was receiving Haldol do not raise a bona fide doubt as to his fitness to stand trial. In the June 13, 1996, fitness evaluation, which was prepared by Dr. Carreira and the Elgin staff, the defendant was diagnosed as malingering as well as suffering from polysubstance abuse and an anti-social personality disorder. As to the issue of fitness, the report stated as follows:
"Mr. Fields demonstrates his ability to understand the fundamentals of fitness when he discusses possible outcomes in his case, knows his charges and can give an account of circumstances surrounding his arrest. He understands the role functions of the court officers and is satisfied with his public defender. He is capable of cooperating with counsel if motivated. His response to treatment and current level of functioning indicates that he is FIT TO STAND TRIAL." *fn1
Moreover, following his restoration to fitness, the defendant testified on his own behalf on his motion to suppress his confession and participated in guilty plea proceedings in this case. He never exhibited any irrational behavior or in any way indicated that he did not understand the proceedings. He specially denied that anyone had threatened him in order to force him to plead guilty.
The cases relied on by the defendant are factually distinguishable. In People v. Howard, 74 Ill. App. 3d 138, 392 N.E.2d 775 (1979), the defendant was found fit to stand trial based upon the report of the court-appointed psychiatrist who was not aware of the defendant's psychiatric history. After the defendant was convicted, the probation officer obtained the defendant's hospitalization records, which contradicted the findings in the court-appointed psychiatrist's report. The reviewing court concluded that had these records been available, the outcome of the fitness hearing might have been different, and given that the defendant had mentioned a prior commitment at her fitness hearing and that the records were readily discoverable by the probation officer, defense counsel's failure to discover and present the defendant's psychiatric records was ineffective assistance of counsel.
In People v. Murphy, 160 Ill. App. 3d 781, 513 N.E.2d 904 (1987), the defendant alleged that defense counsel was ineffective for failing to investigate his mental condition or to obtain records of his prior hospitalizations for mental problems. The defendant maintained that the fact that he was housed in the RTU should have put defense counsel on notice that he was suffering potentially serious mental problems.
The reviewing court held that the defendant had received ineffective assistance of counsel, since the defense counsel acknowledged to the trial court that he thought it important that the defendant was housed in the residential treatment unit and that he had difficulty communicating with the defendant. Such information required that defense counsel investigate the nature of the defendant's problems and, if warranted, to investigate his psychiatric history. However, the court refused to hold that the defendant's assignment to the RTU, by itself, imposed a duty to investigate the defendant's psychiatric history. Murphy, 160 Ill. App. 3d at 790, 513 N.E.2d at 910.
In the present case, therefore, the fact that the defendant was housed in the RTU did not require defense counsel to investigate the reasons the defendant was assigned to that unit. The defendant had just been examined and declared fit for trial. The defendant had also been characterized as a "malingerer." Even if defense counsel was aware that the defendant was still taking Haldol and was experiencing hallucinations, the defendant's ability to testify on his own behalf at the motion to suppress his confession and his behavior during the guilty plea proceedings belied any indication that either the medication or the hallucinations were causing him to be unfit.
We conclude that defense counsel in this case was not ineffective for failing to investigate the defendant's psychiatric records after he was released from Elgin. In addition, unlike both Murphy and Howard, we further conclude having access to the Cermak Health Services records of the defendant's treatment would not have changed the outcome of the fitness hearing or prompted a third fitness hearing, as no bona fide doubt existed as to the defendant's fitness to stand trial in this case.
Therefore, the defendant has failed to set forth the gist of a meritorious claim of ineffective assistance of counsel.
II. Whether the defendant's extended-term sentence is unconstitutional under Apprendi
A. Standard of Review
The court reviews the constitutionality of a statute de novo. People v. Givens, 319 Ill. App. 3d 910, 912, 747 N.E.2d 436, 438 (2001).
At the outset and despite the State's lengthy argument to the contrary, we elect not to abandon or reconsider our position that Apprendi applies to a defendant's initial post-conviction proceeding. See People v. Beachem, 317 Ill. App. 3d 693, 740 N.E.2d 389 (2000). We note that the second division of this court has reached the opposite conclusion. People v. Stewart, No. 1-99-3621 (December 18, 2001); People v. Kizer, 318 Ill. App. 3d 238, 741 N.E.2d 1103 (2000) (holding that Apprendi does not apply to cases on collateral review). Nevertheless, we are still persuaded by Justice Wolfson's exhaustive research and thoughtful analysis in Beacham, and we continue to adhere to the holding in that case. *fn2
Next, the State maintains that the defendant's failure to raise an Apprendi challenge to his sentence in his post-conviction petition waives said challenge. See 725 ILCS 5/122-3 (West 1998) (failure to specify error in post-conviction petition waives consideration of the error). However, the decision in Apprendi was not issued until June 1, 2000, while the defendant's post-conviction petition had been filed and already denied by December 22, 1999. In any event, the constitutional dimension of the question permits this court to address the issue regardless of the defendant's failure to raise it before the circuit court. See Beachem, 317 Ill. App. 3d at 706, 740 N.E.2d at 397-98.
The State then contends that the defendant may not raise an Apprendi challenge since he pleaded guilty to the charges in this case.
Relying on People v. Evans, 174 Ill. 2d 320, 673 N.E.2d 244 (1996), the State argues, first, that the defendant is estopped from raising an issue as to his sentence since his 75- year sentence was the direct result of a negotiated agreement with the State. While the record reflects that there was a conference pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402), there is no indication that the defendant's plea was a negotiated one. *fn3 The defendant pleaded guilty to all counts of the indictment, and the trial court imposed the extended-term sentence of 75 years without any reference to an agreement as to the sentence. See Evans, 174 Ill. 2d at 332, 673 N.E.2d at 250 (where a defendant pleads guilty without receiving any promises from the State, the trial court exercises its discretion in imposing a sentence, and a defendant is permitted to challenge his sentence on appeal without moving to vacate his plea of guilty). Therefore, we do not agree that the policy considerations set forth in Evans estop the defendant from challenging his sentence.
The State then relies on the well-established rule that a voluntary plea of guilty waives all errors, defects and irregularities in the proceedings that are not jurisdictional, including constitutional error. People v. Jackson, 319 Ill. App. 3d 110, 113, 744 N.E.2d 1275, 1278 (2001), appeal allowed, 195 Ill. 2d 564, 754 N.E.2d 1289 (2001).
While Apprendi itself arose from a sentence imposed following a plea of guilty, two recent Illinois cases have determined that Apprendi does not apply to guilty pleas. In Jackson, the Appellate Court, Fourth District, distinguished Apprendi on the basis that, in that case, both the State and the defendant had reserved their respective rights to seek or challenge the imposition of a higher sentence. Jackson, 319 Ill. App. 3d at 113, 744 N.E.2d at 214. In Jackson, however, the defendant had been admonished as to the possibility of an extended-term sentence and still persisted in her plea of guilty. Jackson, 319 Ill. App. 3d at 113, 744 N.E.2d at 214.
In People v. Chandler, 321 Ill. App. 3d 292, 748 N.E.2d 685 (2001), the Appellate Court, Second District, also determined that Apprendi did not apply to a sentence imposed after a plea of guilty. However, Chandler involved consecutive sentences which the trial court imposed as the result of finding that the defendant posed a danger to the victim. Our supreme court has now held that Apprendi does not apply to consecutive sentences. See People v. Wagener, 196 Ill. 2d 269, 752 N.E.2d 430 (2001). Nonetheless, Chandler is helpful to our analysis.
The Chandler court noted that the defendant, having waived his right to a jury trial on all issues, could not claim that he was entitled to have a jury determine the issue of his future dangerousness beyond a reasonable doubt. In distinguishing Apprendi, the court stated as follows:
"Although Apprendi itself was an appeal following a guilty plea, the defendant there expressly reserved the right to challenge on appeal the constitutionality of the sentence-enhancement statute. [Citation.] Moreover, the indictment did not allege that Apprendi committed the crimes with an improper purpose; therefore, his guilty plea did not waive a jury trial as to that element. [Citation.]" (Emphasis added.) Chandler, 321 Ill. App. 3d at 297, 748 N.E.2d at 690.
As the Supreme Court recognized in Apprendi, there is no distinction between an element of a felony offense and a so-called "sentencing factor," and therefore, a defendant is entitled to a jury determination of guilt beyond a reasonable doubt on every element of the charged offense. Beachem, 317 Ill. App. 3d at 697, 740 N.E.2d at 391. If the defendant is sentenced to a term greater than the maximum based upon a trial court's finding of a sentencing factor, once the defendant serves the prescribed maximum sentence, the effect is that he or she remains in prison on a charge never made or proved. See Beachem, 317 Ill. App. 3d at 702, 740 N.E.2d at 394-95.
In this case, the trial court did not specifically articulate its reason for imposing the extended-term sentence. However, prior to imposing sentence, Judge Brady commented that it was one of the most heinous crimes he could remember.
A trial court may impose an extended-term sentence where the offense is accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. See 730 ILCS 5/5-5-3.2(b)(2) (West 1994). However, the indictment in this case did not charge that the offenses in this case were accompanied by brutal and heinous behavior. Because the element used to enhance his sentence was never charged in the indictment, the defendant cannot be said to have waived his right to have the jury determine that element beyond a reasonable doubt. Chandler, 321 Ill. App. 3d at 297, 748 N.E.2d at 690.
Therefore, we conclude that a defendant's plea of guilty does not waive his right to have any sentencing factor, other than a prior conviction, not charged in the indictment and which extends his sentence beyond the maximum allowed by statute determined beyond a reasonable doubt.
The State then contends that the 75-year sentence imposed in this case was not beyond the statutory prescribed maximum. The State maintains that the maximum penalty for murder in Illinois is death, and therefore, the defendant's sentence in this case does not offend Apprendi. We considered and rejected that argument in Beachem. See Beachem, 317 Ill. App. 3d at 706-08, 740 N.E.2d at 398-99.
Under specific circumstances and upon specific findings, a defendant convicted of first-degree murder can be sentenced to death (720 ILCS 5/9-1(b) (West 1998)) or life imprisonment (730 ILCS 5/5-8-1(a)(1)(b), (a)(1)(c) (West 1998)).
In Beachem, the defendant was found eligible for the death penalty but was sentenced under section 5-8-2(a) (730 ILCS 5/5-8-2(a) (West 1996)) of the Unified Code of Corrections (the Code) which provides for a maximum sentence of 60 years for first-degree murder. Under that section, the trial court could not impose a longer sentence unless it found the existence of the factors listed in section 5-5-3.2(b) (730 ILCS 5/5-5-3.2(b) (West 1996)). Therefore, this court determined that 60 years was the prescribed maximum sentence for murder in Illinois. Beachem, 317 Ill. App. 3d at 708, 740 N.E.2d at 399.
Our determination in Beachem that the maximum penalty for first-degree murder was 60 years was recently called into question by our supreme court's decision in People v. Ford, No. 90083 (October 18, 2001). In that case, the court held that where a defendant has been found to be eligible for the death penalty by proof beyond a reasonable doubt, the imposition of an extended-term sentence complies with the rule announced in Apprendi. Ford, slip op. at 5.
After the decision in Ford was announced, the Second District Appellate Court issued its opinion in People v. Rivera, No. 2-98-1662 (December 5, 2001). In that case, the defendant was convicted of murder. However, the State did not seek the death penalty, and the defendant was sentenced to natural life imprisonment. On appeal, the defendant argued that his sentence violated Apprendi because the trial court's finding of brutal and heinous behavior was used to increase his sentence above the 60-year maximum for first degree murder, and the State had failed to plead or submit that factor to the jury.
In determining that the defendant's sentence did not violate Apprendi, the court stated as follows:
"In the present case, the State declined to seek the death penalty, and the cause proceeded to a jury trial. Following deliberations, the jury specifically found, inter alia, that defendant had committed first-degree murder during the course of a felony, that is, an aggravated criminal sexual assault [citation]. Pursuant to the principles enunciated in Ford and based exclusively upon the evidence presented to the jury, defendant was confronted at that point with the possibility that he was eligible to receive a prescribed statutory maximum sentence of natural life imprisonment. [Citation.]" Rivera, slip op. at 27. *fn4
In the present case, the defendant's extended-term sentence was imposed under section 5-8-2(a). *fn5 The State had requested that the trial court find the defendant eligible for the death penalty based upon the evidence that the trial court heard as the factual basis for the guilty plea. The defendant had argued in response that the evidence was insufficient for such a finding. The trial court stated that it did not feel that the death penalty was appropriate and sentenced the defendant to an extended term of imprisonment. Clearly, the trial court never made the finding requested by the State that the defendant was eligible for the death penalty.
However, the indictment in this case charged the defendant with committing the murder during an armed robbery. Pursuant to section 5-8-1(a)(1)(b), the trial court can impose a sentence of natural life imprisonment when a murder occurs in the course of another felony if: the defendant actually killed the victim, the defendant acted with the intent to kill the victim or with the knowledge that his acts created a strong probability of death or great bodily harm and the other felony was amongst those listed in section 9-1(b)(6)(c) of the Criminal Code of 1961. See 720 ILCS 5/9-1(b)(6) (West 1994).
In this case, the defendant pleaded guilty to three counts of first-degree murder, which included the allegations that he and his co-defendant intentionally killed the victim, inflicted a beating on her that created the strong probability of death or great bodily harm and that the murder occurred during an armed robbery, one of the enumerated felonies in section 9-1(b)(6)(c). Finally, the factual basis for the guilty plea established that the defendant himself inflicted the blows that killed the victim.
Therefore, by his plea of guilty to the charges in this case, the defendant admitted the facts alleged in those charges making him eligible to be sentenced to natural life imprisonment under section 5-8-1(a)(1)(b) of the Code. Since the maximum sentence the defendant could receive based upon his plea of guilty to the charges in this case was natural life imprisonment, his extended-term sentence complied with the rule announced in Apprendi. See Rivera, slip op. at 28.
In light of the decision in Ford and our agreement with the analysis in Rivera, we no longer adhere to the holding in Beachem that the maximum penalty for first-degree murder is 60 years in a case where a defendant pleads guilty to an indictment which alleges facts making the defendant eligible for natural life imprisonment and that defendant is then sentenced to natural life imprisonment or an extended term of years.
III. Constitutionality of Public Act 83-942
The defendant contends that Public Act 83-942 (Pub. Act 83-942, eff. November 23, 1983), which amended the Act to provide for the summary dismissal of a post-conviction petition, violates the single subject rule of article IV, section 8, of the Illinois Constitution (Ill. Const. 1970, art. IV, §8).
This court has already addressed and rejected the argument that Public Act 83-942 violates the single subject rule. See People v. Roberts, 318 Ill. App. 3d 719, 733-34, 742 N.E.2d 1025 (2000). Moreover, this argument has been rejected by every other district of the appellate court except for the Fifth District, which apparently has not yet addressed the issue. See Stewart, slip op. at 9-10. *fn6
Since we agree with the reasoning and the result in those cases, we continue to hold that Public Act 83-942 does not violate the single subject rule.
The judgment of the circuit court is affirmed.
CERDA and WOLFSON, JJ., concur.