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People v. De La Paz

May 08, 2003


The opinion of the court was delivered by: Justice Freeman


Docket No. 93208-Agenda 3-January 2003.

Petitioner, Paul De La Paz, is currently serving an extended-term sentence for an armed robbery conviction. He has exhausted his direct appeals and is now before this court on appeal from the dismissal of his petition for post-conviction relief. He argues that he received ineffective assistance of counsel in the post-conviction proceedings and also argues that his extended-term sentence should be reversed because the procedures followed by the circuit court did not comply with the Supreme Court's mandate in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We affirm, finding specifically with respect to the latter claim that Apprendi does not apply retroactively to causes in which the direct appeal process had concluded at the time that Apprendi was decided.


In 1985, a jury in the circuit court of Cook County convicted petitioner of armed robbery, armed violence, home invasion and aggravated battery. A detailed recitation of the circumstances of the crime is not necessary for our analysis, but the facts adduced at trial established that petitioner entered the home of the 77-year-old victim brandishing a hammer and demanding the victim's wallet. After the victim produced his wallet, petitioner hit him on the head with the hammer and began to ransack his home. Petitioner later also hit the victim with a gun, knocking him unconscious. The circuit court sentenced petitioner to a 55-year extended sentence on the armed robbery conviction and a concurrent 5-year sentence for the aggravated battery conviction. The appellate court affirmed petitioner's convictions on direct appeal. People v. De La Paz, No. 1-85-3293 (1989) (unpublished order under Supreme Court Rule 23).

Petitioner first petitioned for post-conviction relief in September 1986, while his direct appeal was still pending. Appointed counsel filed an amended petition in October 1999, and petitioner followed with a supplemental pro se petition. Because the arguments raised on appeal do not involve the arguments raised in the various petitions, we will not recount them in detail. We do note that in petitioner's supplemental pro se petition, he stated that he had "spoken with the Assistant Public Defender In-grid Gill, [p]rior to her filing this Supplemental Petition for Post Conviction relief, whereas she had said in a telephone conversation that she was only going to raise One Issue and that issue being the one she now raised in" the October petition. (Emphasis in original.) Petitioner continued: "Petitioner not only argued with her about this only issue [sic], he filed a complaint with the ARDC Attorney Registration Disciplinary Commission of the Illinois Supreme Court." Petitioner stated that according to his review of the authorities-specifically citing People v. Britz, 174 Ill. 2d 163 (1996)-the issue counsel raised in the amended petition was "worthless."

The State moved to dismiss, and the court granted the State's motion in March 2000. Petitioner appealed, and the appellate court affirmed the dismissal. No. 1-00-0976 (unpublished order under Supreme Court Rule 23).

During the unusual length of time that the petition remained pending in the circuit court, petitioner composed numerous documents complaining of the circumstances that had resulted in his conviction. These included a complaint with the Attorney Registration and Disciplinary Committee (ARDC) against his trial attorney; a letter to the circuit court of Cook County that indicated that he was planning to file a lawsuit against the trial judge, his trial attorney, and the State's Attorney; and a second letter to a deputy clerk of the circuit court of Cook County reiterating that the assistant State's Attorney and petitioner's trial judge were prejudiced against him.

Also, after petitioner filed his post-conviction petition, he filed a "motion for leave to file an original petition for writ of mandamus" and a "petition for writ of mandamus," requesting that his post-conviction petition be heard in another county. This request was based on petitioner's contention that Judge Gillis, who had presided over petitioner's original trial, was prejudiced against him to such an extent that petitioner could not receive a fair hearing on his post-conviction proceeding before Judge Gillis or any other judge in the circuit court of Cook County. The motion was denied. Later, petitioner filed motions for extensions of time to file a "supplemental brief," contending that the assistant public defender assigned to his case was indifferent to his claims. As a result of these allegations, the assistant public defender was permitted to withdraw as counsel in 1987, and petitioner proceeded pro se. However, no further activity occurred in the case until the court granted a motion to reinstate the petition in June 1993, with the matter reassigned to a different judge. In July 1997 petitioner filed a motion for supervisory order, naming as respondents the judge before whom his petition was pending, the public defender, and two assistant public defenders. In that motion petitioner complained that no progress was being made in his case.

A new assistant public defender, In-grid Gill, filed an appearance in the case in May 1999. Soon thereafter, petitioner filed a complaint against her with the ARDC, which the ARDC found to be "unfounded."

The matter was set for hearing in March 2000. At that time, counsel filed a certificate of compliance with Rule 651(c). Counsel then summarized for the court's benefit the course of proceedings until that point, including the fact that in addition to the filings above, petitioner had also filed lawsuits in federal court against the police and Cermak Hospital, which had been dismissed. The court dismissed the post-conviction petition, the appellate court affirmed, and we granted petitioner leave to appeal. 177 Ill. 2d R. 315(a).


Before this court, petitioner raises two issues. He contends that (1) his sentence should be reversed because the circuit court did not comply with the procedures required by Apprendi in sentencing him, and (2) his post-conviction counsel was ineffective in failing to request a hearing on petitioner's competency to participate in post-conviction proceedings.

I. Apprendi

We first address petitioner's argument that his 55-year sentence for armed robbery must be vacated and the cause remanded for resentencing because the circuit court entered that sentence without following the procedures required by the Supreme Court in Apprendi.

Initially, we note that petitioner failed to present this argument in his post-conviction petition. A petition under the Post-Conviction Hearing Act must, inter alia, "clearly set forth the respects in which petitioner's constitutional rights were violated." 725 ILCS 5/122-2 (West 1994). Just as the legislature has set forth what must be contained in a petition, it has specified the consequences of omitting a claim: "[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived." 725 ILCS 5/122-3 (West 1994). "Waiver" is a well-established term of art in the legal field. This court has long recognized that we may, in appropriate cases, reach issues notwithstanding their waiver. At least as long ago as 1957, this court had held that

"the general rule is that where a question is not raised or reserved in the trial court, or where, though raised in the lower court, it is not urged or argued on appeal, it will not be considered and will be deemed to have been waived. However, this is a rule of administration and not of jurisdiction or power, and it will not operate to deprive an accused of his constitutional rights of due process. `The court may, as a matter of grace, in a case involving deprivation of life or liberty, take notice of errors appearing upon the record which deprived the accused of substantial means of enjoying a fair and impartial trial, although no exceptions were preserved or the question is imperfectly presented.' " People v. Burson, 11 Ill. 2d 360, 370-71 (1957), quoting 3 Am. Jur. Appeal & Error §248, at 33 (1936). See also Flynn v. Ryan, 199 Ill. 2d 430, 438 n.1 (2002) (waiver is an admonition to the parties, not a limitation upon the powers of this court); Hux v. Raben, 38 Ill. 2d 223, 225 (1967) (this court has "the responsibility *** for a just result and for the maintenance of a sound and uniform body of precedent [that] may sometimes override the considerations of waiver that stem from the adversary character of our system").

" `Where statutes are enacted after judicial opinions are published, it must be presumed that the legislature acted with knowledge of the prevailing case law.' " Burrell v. Southern Truss, 176 Ill. 2d 171, 176 (1997), quoting People v. Hickman, 163 Ill. 2d 250, 262 (1994). We may thus assume that the legislature understood the legal ramifications of the term "waiver"-including the fact that reviewing courts may overlook waiver in appropriate circumstances-when it enacted section 122-3 in 1964.

In view of the principles noted above, this court has never considered section 122-3 to be jurisdictional in nature. Indeed, we have consistently rejected any notion that section 122-3 stands as an "ironclad" bar to attempts to litigate claims not raised in the original or an amended petition. People v. Free, 122 Ill. 2d 367, 376 (1988). To that end, we have relaxed the "procedural bar of waiver" established by section 122-3 in the context of successive as well as original petitions. People v. Pitsonbarger, No. 89368 (May 23, 2002). In those rare situations that merit it, this court will exercise its discretion to set waiver aside and address issues that were not raised in the original or an amended petition. See People v. Rogers, 197 Ill. 2d 216, 224 (2001). In Rogers, as here, we were confronted with an Apprendi challenge first raised on appeal from the dismissal of a post-conviction petition. This court addressed the merits of the petitioner's Apprendi argument, rather than holding it waived. See also, e.g., People v. Boclair, 202 Ill. 2d 89, 103, 108 (2002) (addressing vagueness argument raised for the first time on appeal); People v. Hickey, No. 87286 (September 27, 2001) (addressing retroactivity of newly promulgated supreme court rules for the first time on appeal); People v. Britz, 174 Ill. 2d 163, 194-95 (1996) (addressing applicability of case law for the first time on appeal), overruled on other grounds, People v. Mitchell, 189 Ill. 2d 312 (2000).

We acknowledge that cases such as Rogers, Boclair, Hickey, and Britz represent the exception, rather than the rule. In most cases this court has declined to reach issues which were not included in the original or an amended petition. See, e.g., People v. McNeal, 194 Ill. 2d 135, 147 (2000); People v. Gaultney, 174 Ill. 2d 410, 423 (1996); People v. Orange, 168 Ill. 2d 138, 154-55 (1995); People v. Guest, 166 Ill. 2d 381, 405 (1995); People v. Brisbon, 164 Ill. 2d 236, 258 (1995). There is a wealth of authority in accordance with these few cases, but they serve amply to demonstrate the general rule that waiver will be enforced against a petitioner. Only in exceptional cases will this court exercise its discretion to reach issues notwithstanding waiver. There is, of course, no inconsistency in exercising our discretion to reach waived issues in some cases but not in others. It is only appropriate rarely to exercise our discretion to reach issues not raised in the original or an amended petition, in light of the legislative directive that such issues are waived. See 725 ILCS 5/122-3 (West 1994).

The circumstances clearly reveal this to be an appropriate case for relaxing waiver and addressing the issue of whether Apprendi applies retroactively. The status of this issue in our appellate court may charitably be described as "in turmoil." Not only is the appellate court divided on the issue, *fn1 the First District is internally divided by division. *fn2 Different panels of the Fifth District have also reached different conclusions on the issue. *fn3 The appellate court conflict also makes the job of our trial judges all the more daunting, as they attempt to sort out the controlling legal authority. This court has " `the responsibility *** for a just result and for the maintenance of a sound and uniform body of precedent [that] may sometimes override the considerations of waiver that stem from the adversary character of our system.' " Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 251 (1994), quoting Hux v. Raben, 38 Ill. 2d 223, 225 (1967). The schism in our appellate court is one clear indication that this is just such a case. Further, no less than 54 petitions for leave to appeal to this court are currently being held for our disposition of the Apprendi retroactivity issue in this case. Finally, our decision to address the issue of retroactivity in this case is further buttressed by the fact that the State has not made any argument based on defendant's waiver of the issue. It is well established that the State may waive waiver. See, e.g., People v. Williams, 193 Ill. 2d 306, 347 (2000); Fagan v. Washington, 942 F.2d 1155, 1157 (7th Cir. 1991).

Accordingly, we find this to be an appropriate case in which to exercise our discretion to lift "the procedural bar of waiver" (Pitsonbarger, No. 89368 (May 23, 2002)) and address the waived issue on the merits. See Boclair, 202 Ill. 2d at 103, 108; Rogers, 197 Ill. 2d at 224.

The State also suggests that instead of reaching the retroactivity issue, we could resolve the case on the basis that the underlying Apprendi issue is without merit. See Rogers, 197 Ill. 2d at 224 n.3. We decline to resolve the case on this alternate argument. Rogers did not purport to hold that retroactivity may only be considered if the underlying issue is meritorious. *fn4 Indeed, only a few months after Rogers was announced, this court held that Teague did not mandate retroactive application of our new rules concerning capital cases. See Hickey, No. 87286. Not only was the retroactivity issue not raised in the post-conviction petition the dismissal of which was the basis for the appeal, it was decided without first having found the underlying argument to be meritorious. We see no reason not to address the issue of whether Apprendi applies retroactively, in the instant case. *fn5

These preliminary concerns aside, we now turn to the question whether Apprendi should be applied retroactively to criminal cases in which direct appeals were exhausted before Apprendi was decided.

In general, new rules do not apply retroactively to cases on collateral review. People v. Moore, 177 Ill. 2d 421, 430 (1997); Flowers, 138 Ill. 2d at 239. However, this court has adopted the test the Supreme Court promulgated in Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989) (plurality op.), to determine when, in derogation of the default rule, ...

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