Appeal from the Circuit Court of Du Page County. No. 78-CF-317 Honorable Perry R. Thompson, Judge, Presiding.
The opinion of the court was delivered by: Justice Byrne
Petitioner, Phillip E. LaPointe, an inmate in the Joliet Correctional Center, appeals the dismissal of his petition for a writ of habeas corpus, in which he alleges that his sentence of natural life imprisonment for first-degree murder violates Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). After petitioner pleaded guilty, the trial court expressly found three aggravating factors that rendered him eligible for the life sentence: (1) the victim was killed during an armed robbery, (2) the crime was exceptionally brutal and heinous, and (3) the crime was cold, calculated, and premeditated. None of the factors were charged, but the armed robbery factor and the "brutal and heinous" factor were included in the admonitions issued under Supreme Court Rule 402(a) (177 Ill. 2d R. 402(a)). Moreover, the armed robbery factor was described in the factual basis for the plea.
On appeal, petitioner argues that (1) Apprendi applies retroactively to his habeas corpus proceeding, (2) he did not waive his constitutional claim when he pleaded guilty to the offense, and (3) he was denied his right under Apprendi to a jury determination beyond a reasonable doubt of all three aggravating factors. Respondent challenges each of these arguments and additionally asserts that, even if petitioner's sentence violates Apprendi, his claim is not cognizable under the Habeas Corpus Act (735 ILCS 5/10--101 et seq. (West 2000)). Pursuant to the recently decided supreme court cases of Hill v. Cowan, No. 90229 (April 18, 2002), and People v. Jackson, No. 91359 (April 18, 2002), we conclude that, when petitioner pleaded guilty, he waived his right to have a jury determine the three aggravating factors. Therefore, we affirm the order dismissing the petition for habeas corpus relief. Because we dispose of the appeal on the merits of the Apprendi claim, we reach no decision on whether a claim under Apprendi is cognizable in a habeas corpus proceeding or whether Apprendi applies retroactively to collateral proceedings.
On March 7, 1978, petitioner fatally shot and robbed a cab driver, and on June 16, 1978, he pleaded guilty to one count of first-degree murder (Ill. Rev. Stat. 1977, ch. 38, par. 9--1(a) (now 720 ILCS 5/9-1(a) (West 2000))). In exchange for the plea, the State dismissed two other charges, but the parties did not agree on a punishment.
The count to which petitioner pleaded guilty alleged that he, "without legal justification, and with the intent to kill Peter Moreno, Jr., performed the acts which caused the death of Peter Moreno, Jr., by shooting him in the head with a gun." At the guilty plea hearing, the trial court recited the charge and admonished petitioner that the offense was punishable by a sentence of 20 to 40 years' imprisonment. Petitioner consented to the prosecutor's factual basis for the plea, which included in part the following information:
"The evidence would indicate that *** defendant *** shot Peter Moreno, Jr. in the head and neck area twice with what turned out to be a .22 caliber revolver with a long barrel and a brownish looking handle.
The evidence would also show that he took from Peter Moreno, Jr. an amount of money and some identification and that he returned later that same morning to David Cichelli at the service station, and told David Cichelli that, 'Well I did it. I killed him,' or words to that effect."
The court admonished petitioner that a sentence of natural life imprisonment could be imposed if:
"the court finds either that the murder [petitioner] committed was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or [petitioner] was 18 years or older at the time of the crime and the person murdered was killed during the course of an armed robbery and was actually killed by [petitioner] and not some other party to the crime or simply as a consequence of that crime, and [petitioner] killed that person intentionally or with the knowledge that the acts which caused the death created a strong probability of death or great bodily harm."
Petitioner stated that he understood that a life sentence was "possible," and the court accepted his plea.
After an evidentiary hearing, the trial judge reviewed the transcript and commented on the aggravating factors in sections 9--1(b) of the Criminal Code of 1961 (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 9--1(b) (now 720 ILCS 5/9--1(b) (West 2000))) and the mitigating factors in section 5--5--3.1 of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005--5--3.1 (now 730 ILCS 5/5--5--3.1 (West 2000))). People v. LaPointe, 88 Ill. 2d 482, 491 (1981). He noted that defendant was 18 years old at the time of the murder and that he had a significant history of prior criminal activity. The judge further found that petitioner committed the murder in the course of another felony, the armed robbery of the victim. See Ill. Rev. Stat. 1977, ch. 38, par. 9--1(b)(6). The judge also found that petitioner's conduct was "brutal and heinous" and "cold and calculated" (see Ill. Rev. Stat., 1978 Supp., ch. 38, pars. 1005--8--1(a)(1), 9--1(b)) and concluded:
" 'So, the Court, in taking into consideration the heinous nature of this crime, its brutality, its cold, calculating, cold-blooded act which is indicative of the wanton cruelty, there was indication it was premeditated and postmeditated, the Court took into consideration the presentence investigation which more or less correlated everything that was in the transcript and the testimony on the hearing in aggravation and mitigation, and the Court has taken into consideration the arguments of counsel at the hearing in aggravation and mitigation, the fact that the defendant was over 18 years of age, and therefore, it shall be the judgment of this court that the defendant be remanded to the custody of the ...