Appeal from the Circuit Court of Cook County. No. 85 C 2138 Honorable Kenneth J. Wadas, Judge Presiding.
The opinion of the court was delivered by: Justice Reid
Following the entry of a final judgment and dismissal of a post-conviction petition, Angelo Rivera (Rivera) filed the present appeal challenging the propriety of the summary dismissal of his petition for post-conviction relief. Rivera has been tried and convicted twice for murdering Zelia Simmons. A detailed statement of the facts surrounding the murder may be found in People v. Rivera, 166 Ill. 2d 279 (1995). We now confine ourselves to those facts necessary to dispose of the issues brought before us. For the reasons that follow, we affirm the dismissal of the post-conviction petition.
Angelo Rivera was originally tried, convicted and sentenced to 60 years in prison for the murder. That sentence was based on the law as it attached to this defendant at the time of his original trial and a finding that the defendant's behavior was exceptionally brutal and heinous, indicative of wanton cruelty. On direct appeal from the original conviction, we affirmed the conviction and sentence. People v. Rivera, 165 Ill. App. 3d 1158 (1988) (unpublished order under Supreme Court Rule 23). While incarcerated, Rivera filed a habeas corpus petition in federal court. The Seventh Circuit vacated the judgment against Rivera and ordered a new trial. Rivera v. Department of Corrections, 915 F.2d 280 (7th Cir. 1990). Rivera thereafter was tried for the murder for the second time. "Following a second trial in the circuit court of Cook County, a jury convicted defendant, Angelo Rivera, of the first degree murder of Zelia Simmons. Defendant was subsequently sentenced to an extended term of 80 years' imprisonment." People v. Rivera, 166 Ill. 2d 279, 281 (1995). The trial court again found that the crime was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Additionally, the trial court considered the fact that Rivera had been convicted while incarcerated of weapons violations in jail. "The appellate court affirmed the circuit court's judgment * * *." Rivera, 166 Ill. 2d at 281, citing People v. Rivera, No. 1-92-1613 (February 28, 1994). The Illinois Supreme Court thereafter agreed to take the case and, in 1995, affirmed both the conviction and the enhanced sentence, holding that the trial court could properly increase defendant's sentence based on defendant's weapons violations occurring subsequent to his original sentencing. Rivera, 166 Ill. 2d at 294. At the time of this ruling by the Illinois Supreme Court, a finding of the trial court of exceptional brutality or heinous behavior indicative of wanton cruelty did not have to be charged in the indictment and proven beyond a reasonable doubt. Such a finding could be made by the trial court. The Illinois Supreme Court's ruling became law of the case, closing all the doors to Rivera and terminating his litigation related to that crime. Or, rather, that is what everyone would have thought because that is what normally happens.
In 2000, the United States Supreme Court issued its landmark opinion in Apprendi v. New Jersey, 530 U. S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). On April 23, 2001, armed with the Apprendi decision, and based on the trial court's specific finding that the crime was committed with exceptional brutality and heinous behavior indicative of wanton cruelty, Rivera filed the instant post-conviction petition. In his petition, he argued that the prescribed sentencing range for a murder committed in 1985 was between 20 and 40 years. He argues that both the original and subsequent enhanced sentences were beyond the then-statutory maximum. In light of the Apprendi ruling, Rivera argues that such an extended-term sentence, imposed without proof of the aggravating factors beyond a reasonable doubt, is improper. Based on the concept of res judicata, an Apprendi argument was the only door open to Rivera. Rivera asked the trial court to reduce his sentence to 40 years, to make it in line with the statute in effect at the time of the commission of the murder. The trial court, acknowledging that Apprendi prohibits the imposition of an extended-term sentence based solely upon the heinous and brutal nature of the crime when the sentence imposed is beyond the statutory maximum and the brutality finding is not charged in the indictment, dismissed the post-conviction petition as frivolous and patently without merit. The trial court's decision was based, in part, on the notion that Apprendi could not be applied retroactively to post-conviction claims.
The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2000)) provides a remedy for a criminal defendant who can establish a substantial deprivation of his constitutional rights at trial. People v. Tomasello, 329 Ill. App. 3d 1053, 1056 (2002), citing People v. Brisbon, 164 Ill. 2d 236, 242 (1995). A court may summarily dismiss the petition without appointing counsel if it determines that the petition is frivolous or patently without merit. Tomasello, 329 Ill. App. 3d at 1056; 725 ILCS 5/122-2.1 (West 2000). In determining whether the summary dismissal was correct, we review the allegations in the petition de novo. Tomasello, 329 Ill. App. 3d at 1056, citing People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).
A post-conviction proceeding is not an appeal of the underlying judgment but, rather, a collateral proceeding where the defendant may challenge a conviction or sentence for violations of constitutional rights. People v. Johnson, 183 Ill. 2d 176, 186 (1998). Any claim of substantial denial of constitutional rights that was not raised in the original or in an amended petition is waived. 725 ILCS 5/122-3 (West 2000). In addition, the court's ruling on a post-conviction petition has res judicata effect as to all claims raised in the petition as well as those that could have been raised. People v. Flores, 153 Ill. 2d 264, 274 (1992). The operation of waiver and res judicata has generally contributed to the finality of criminal litigation. Where a defendant has previously taken a direct appeal from a judgment of conviction, the judgment of the reviewing court is res judicata as to all issues actually decided by the court, and any other claims that could have been presented to the reviewing court, if not presented, are waived. People v. Neal, 142 Ill. 2d 140, 146 (1990); Johnson, 183 Ill. 2d at 186.
Apprendi stands for the proposition that "'"It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt."'" People v. Beachem, 317 Ill. App. 3d 693, 698 (2000), quoting Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2363, quoting Jones v. United States, 526 U.S. 227, 252-53, 143 L. Ed. 2d 311, 332, 119 S. Ct. 1215, 1228-29 (1999) (Stevens, J., concurring). As a basis for the ruling, the United States Supreme Court explained as follows:
"'[T]o guard against a spirit of oppression and tyranny on the part of our rulers,' and 'as the great bulwark of [our] civil and political liberties,' 2 J. Story, Commentaries on the Constitution of the United States 540-541 (4th ed. 1873), trial by jury has been understood to require that 'the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant's] equals and neighbours....' 4 W. Blackstone, Commentaries on the Laws of England 343 (1769)." (Emphasis omitted.) Apprendi, 530 U.S. at 477, 147 L. Ed. 2d at 447, 120 S. Ct. at 2356.
Apprendi only implicates those facts that increase the penalty for a crime beyond the prescribed statutory maximum:
"We should be clear that nothing * * * suggests that it is impermissible for judges to exercise discretion--taking into consideration various factors relating both to offense and offender--in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case." (Emphasis in original.) Apprendi, 530 U. S. at 481, 147 L. Ed. 2d at 449, 120 S. Ct. at 2358.
Rivera argues in this post-conviction petition that the Apprendi case so changed the bedrock principles of criminal trials that its mandate must be applied retroactively to defendants in his situation. He also argues that the applicable statute in effect at the time of his original trial and conviction must limit his sentence for murder to 20-to-40 years. Since the enhanced sentence was imposed without proof ...