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People v. McGee

April 08, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
RICKEY MCGEE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 83--CF--95 Honorable Christopher C. Starck, Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer

Released for publication May 1, 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
RICKEY MCGEE, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Lake County. No. 83--CF--95 Honorable Christopher C. Starck, Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer

PUBLISHED

 Following a jury trial in the circuit court of Lake County, defendant, Rickey McGee, was found guilty of attempted murder, armed violence, and aggravated battery. The trial court sentenced defendant to concurrent, extended-term sentences of 40 years' imprisonment on the attempted murder and armed violence convictions. On appeal, this court vacated defendant's conviction for armed violence but affirmed defendant's conviction and sentence for attempted murder. People v. McGee, 121 Ill. App. 3d 1086 (1984). On more than one occasion, defendant has sought relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2000)). The present appeal follows the dismissal of defendant's most recent post-conviction petition. Defendant claims that the trial court erred in dismissing his post-conviction petition because it raised a valid claim that his extended-term sentence is unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). For the reasons that follow, we affirm.

I. BACKGROUND

On February 17, 1983, defendant was charged by information with attempted murder (Ill. Rev. Stat. 1981, ch. 38, pars. 8--4(a), 9--1(a)(1)), armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A--2), and aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12--4(a)). Prior to trial, the court informed defendant of the sentencing range for each offense as well as the possibility of extended-term sentences. Notably, the trial court advised defendant that a conviction of either attempted murder or armed violence could result in an enhanced sentence of up to 60 years' imprisonment if the court determined that the crimes were committed "with wanton cruelty[] or heinousness."

The cause proceeded to a jury trial. On April 12, 1983, the jury returned a verdict finding defendant guilty of all three offenses. The court entered judgment only on the attempted murder and armed violence convictions. On May 13, 1983, following the denial of defendant's posttrial motion, the trial court sentenced defendant to concurrent, extended-term sentences of 40 years' imprisonment on the attempted murder and armed violence convictions. The court imposed extended-term sentences on the basis that defendant's actions were "exceptionally brutal and heineous [sic], and indicative of wanton cruelty." See Ill. Rev. Stat. 1981, ch. 38, par. 1005--5--3.2(b)(2) (now 730 ILCS 5/5--5--3.2(b)(2) (West 2000)). On February 22, 1984, this court vacated defendant's armed violence conviction but affirmed the judgment of conviction of and sentence for attempted murder. McGee, 121 Ill. App. 3d at 1091. On October 2, 1984, the supreme court denied defendant's petition for leave to appeal.

In February 1988, defendant filed a pro se motion that was captioned as a motion for reduction of sentence. In the motion, defendant argued that his sentence was "totally excessive." The trial court denied defendant's motion, noting that it "raise[d] no constitutional issues" and that "to the extent that [the motion was] to be construed as a motion for reduction of sentence, [it was] untimely."

In August 1991, defendant filed pro se a petition for post-conviction relief. Defendant raised various allegations of ineffective assistance of trial counsel. Defendant also challenged the propriety of his extended-term sentence. The trial court appointed counsel to represent defendant. Counsel consulted with defendant and opted not to make any changes or amendments to defendant's petition. The State then filed a motion to dismiss the petition. The State argued that defendant had not shown that counsel was ineffective and that the sentencing issue was argued and decided on direct appeal. The trial court granted the State's motion and dismissed defendant's post-conviction petition. This court affirmed. People v. McGee, No. 2--92--0181 (1993) (unpublished order under Supreme Court Rule 23).

Subsequently, on June 26, 2000, the Supreme Court decided Apprendi. Apprendi held that under the due process clause and the jury trial guarantees of the United States Constitution, "[o]ther 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." Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.

Following the release of Apprendi, defendant filed a second pro se post-conviction petition. The petition, dated December 15, 2000, is file stamped December 26, 2000. In the petition, defendant claimed that his extended-term sentence was unconstitutional under the holding in Apprendi. On February 16, 2001, the trial court summarily dismissed defendant's petition. In its dismissal order, the court found that "[a]ll points in the petition were or could have been raised on appeal." The court also noted that the petition was successive and untimely. On the merits, the court ruled that Apprendi does not apply ...


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