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People v. Fikara

IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT


October 10, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
SHAKA ALI FIKARA, A/K/A EDDIE ROBINSON, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Lee County. No. 92-CF-120 Honorable John E. Payne, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Hutchinson

UNPUBLISHED

Following a jury trial, defendant, Shaka Ali Fikara, a/k/a Eddie Robinson, was found guilty of two counts of aggravated criminal sexual assault (720 ILCS 5/12--14(b)(1) (West 1992)) and sentenced to consecutive extended terms of 40 years' imprisonment on each count. On direct appeal, this court affirmed defendant's convictions and sentence. See People v. Fikara, No. 2--95--1463 (1997) (unpublished order under Supreme Court Rule 23). On March 20, 1998, defendant filed a pro se petition seeking relief pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122--1 et seq. (West 1998)). Defendant's post-conviction petition survived the trial court's initial review, and the trial court appointed counsel to represent defendant. On October 12, 2000, defendant filed a supplemental petition arguing that his extended-term sentences violated the principles articulated in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

On July 27, 2001, the trial court granted the State's motion to dismiss all issues raised in the post-conviction petition with the exception of the Apprendi issue. The trial court found that defendant's Apprendi issue had merit, vacated defendant's sentence, and scheduled a new sentencing hearing. On October 25, 2001, after a new sentencing hearing, the trial court resentenced defendant to consecutive extended terms of 40 years' imprisonment on each count. Defendant then filed the instant appeal pro se, seeking review of the propriety of the sentencing order entered after the trial court granted the post-conviction petition in part. The defendant also appeals the trial court's order disposing of his post-conviction petition, arguing that the trial court erred in dismissing his non-Apprendi claims. We affirm.

This court's earlier order on the direct appeal adequately summarized the factual background of this case, and we will set forth only those facts relevant to the contentions raised in this appeal. At defendant's trial, the victim, an 11-year-old girl, testified that defendant had committed acts of a sexual nature against her on at least two different occasions. The victim's babysitter, Kerry Bibens, testified that, on June 15, 1992, she observed the victim, wearing only a T-shirt, lying on her back on her bed with her knees up and spread apart. Bibens also observed defendant standing next to the bed, facing the victim, with his pants down to his knees. The victim's sister, E.B., testified that, on another occasion, she witnessed defendant lying on top of the victim on a couch and that his "bottom" was moving. E.B. testified that neither defendant nor the victim was wearing pants. A jury convicted defendant of two counts of aggravated criminal sexual assault. 720 ILCS 5/12--14(b)(1) (West 1992).

In his post-conviction petition, defendant alleged, inter alia, four different constitutional violations. First, defendant alleged that he was deprived of a fair trial when the trial court permitted the victim and E.B. to testify without first conducting a competency hearing. Defendant alleged that both the victim and E.B. suffered from mental impairments and were taking psychotropic medication at the time of their trial testimony. Second, defendant alleged that both his trial and appellate counsel were ineffective because they failed to raise the issue of the victim's and E.B.'s competency to testify. Third, defendant alleged that his trial counsel was ineffective for failing to introduce evidence that allegedly indicated that defendant did not suffer from the sexually transmitted disease known as chlamydia.

Because the victim did suffer from chlamydia, defendant alleged that the evidence would have supported his claim of innocence. Fourth, defendant alleged that his right to a fair trial was violated when the State was permitted to introduce evidence of other, uncharged acts of sexual contact between defendant and the victim. In his supplemental petition, defendant alleged that his extended-term sentences violated Apprendi because they were predicated upon the trial court's conclusion that defendant's conduct resulted in serious harm to the victim and that extended terms were necessary to protect the public and deter others from committing similar conduct. Defendant argued that, under Apprendi, this enhancing factor had to be proved to a jury beyond a reasonable doubt.

On July 27, 2001, the trial court entered a written order disposing entirely of defendant's post-conviction petition. First, the trial court dismissed the four non-Apprendi allegations contained in defendant's petition. The trial court found that the mere ingestion of psychotropic medication, in and of itself, did not render a witness incompetent to testify. The trial court explained that the issue of the competency of a witness did not present the gist of a meritorious constitutional claim that could form the basis for post-conviction relief. The trial court further found that trial and appellate counsel were not ineffective for failing to raise the competency issue because the report of proceedings from the victim's and E.B.'s testimony did not create a bona fide doubt as to their competency. Regarding the issues surrounding defendant's medical records and chlamydia, the trial court noted that this court had previously held on direct appeal that defendant had not proved that he was prejudiced by his trial counsel's failure to introduce evidence that defendant allegedly did not have chlamydia. See Fikara, slip op. at 19. Similarly, the trial court noted that this court had also found no abuse of discretion in the admission of the other-crimes evidence. Fikara, slip op. at 8.

As to the Apprendi issue raised in defendant's supplemental petition, the trial court found that defendant's extended-term sentence was predicated in part upon factors, besides his criminal history, that were not determined by a jury beyond a reasonable doubt. Therefore, the trial court ruled that fundamental fairness required that defendant's petition be granted in part and that his sentence should be vacated and "a new sentencing hearing held in accordance with the standards of Apprendi addressing only non-Apprendi factors." As noted above, following a new sentencing hearing, the trial court resentenced defendant to two consecutive, extended-term sentences of 40 years. The extended-term sentences were predicated upon defendant's prior Class X felony conviction for armed robbery in 1979. Following the denial of defendant's post-sentencing motions, defendant filed a pro se notice of appeal challenging the trial court's new sentencing order and the trial court's previous order disposing of his post-conviction petition.

On appeal, defendant contends that (1) the trial court erred in denying his request for a new trial on the basis of "newly discovered chlamydia" evidence that completely exonerates him of the charged offenses; (2) the trial court erred in its determination that trial counsel was not ineffective; (3) the trial court erred in resentencing him to an extended term without first granting a new trial as mandated by section 5--5--4 of the Unified Code of Corrections (the Code) (730 ILCS 5/5--5--4 (West 2002)); and (4) the provisions of the Code under which the trial court imposed consecutive sentences and extended terms. (730 ILCS 5/5--5--3.2(b)(1), 5--8--4(a) (West 2000)) violate the state and federal constitutional guarantees against double jeopardy, ex post facto laws, and the separation of powers.

Prior to addressing the merits, we first consider the State's assertion that this court lacks jurisdiction to consider defendant's first two contentions. These two contentions address the propriety of the trial court's July 27, 2001, order dismissing all of the issues raised in defendant's post-conviction petition with the exception of the Apprendi issue. The State argues that, had defendant wished to appeal this dismissal order, he was required by Supreme Court Rule 606(b) (188 Ill. 2d R. 606(b)) to file a notice of appeal within 30 days after entry of the July 27, 2001, order or within 30 days after entry of an order disposing of a timely filed motion directed against the judgment.

Because defendant did not file his notice of appeal until February 27, 2002, which was the day the trial court entered its resentencing order, the State argues that this notice was not effective to preserve review of the July 27, 2001, order dismissing the non-Apprendi contentions in defendant's post-conviction petition.

Section 122--7 of the Act provides that any "final judgment" entered upon a post-conviction petition "shall be reviewed in a manner pursuant to the rules of the Supreme Court." 725 ILCS 5/122--7 (West 2000). Illinois courts have held that an order that disposes entirely of a post-conviction petition is immediately appealable, even if the order does not ultimately dispose of the criminal proceedings against the defendant. See People v. Scott, 194 Ill. 2d 268, 278-79 (2000) (noting that trial court's disposition of the defendant's post-conviction petition was immediately appealable even though trial court determined that the defendant should receive a new sentencing hearing); People v. Joyce, 1 Ill. 2d 225, 227 (1953) (holding that an order disposing of post-conviction petition was immediately appealable by either the State or the defendant even though the trial court determined that the defendant should receive a new trial). Such an order, while not necessarily disposing of the criminal proceeding, nonetheless is a final disposition of the petition under the Act. Joyce, 1 Ill. 2d at 227. As correctly noted by the State, to preserve review of an order entirely disposing of a post-conviction proceeding, Supreme Court Rules 651(d) and 606(b) require the party seeking review to file a notice of appeal within 30 days of the entry of the final order disposing of the petition or within 30 days of the entry of the order disposing of a timely filed motion attacking the judgment. 134 Ill. 2d R. 651(d); 188 Ill. 2d R. 606(b).

Here, the trial court's July 27, 2001, order disposed of defendant's post-conviction petition entirely. After finding that defendant's extended-term sentences violated Apprendi, the trial court granted the post-conviction petition in part, vacated defendant's sentence, and scheduled a new sentencing hearing. Pursuant to the State's motion, the trial court dismissed defendant's remaining allegations in the petition. The entry of this order resolved all issues raised in the post-conviction petition and was a final disposition of the petition under the Act. As such, the order was immediately appealable, and Rule 606(b) required that a notice of appeal be filed within 30 days by any party seeking review of the order or within 30 days of the disposition of a timely filed motion attacking the judgment. See Joyce, 1 Ill. 2d at 227. Defendant failed to file either a notice of appeal or a motion directed against the order within 30 days of the entry of the July 27, 2001, order. As noted above, defendant did not file a notice of appeal until February 27, 2002, and his notice of appeal made no mention of the post-conviction proceedings or the July 27, 2001, order. Defendant's failure to timely file a notice of appeal deprives this court of jurisdiction to consider those issues relating to the dismissed allegations of his post-conviction petition. Additionally, we note that defendant did not seek leave to file a late notice of appeal or argue that his trial counsel's failure to file a timely notice of appeal constituted the ineffective assistance of counsel. See 188 Ill. 2d R. 606(c). Accordingly, we lack jurisdiction to consider the first two contentions raised by defendant on appeal.

Defendant's third contention on appeal is that, following the grant of post-conviction relief, the trial court abused its discretion in resentencing him to an extended term without first granting him a new trial as mandated by section 5--5--4 of the Code (730 ILCS 5/5--5--4 (West 2002)). Defendant argues that section 5--5--4 required the trial court to grant him a new trial following the vacating of his sentence due to an Apprendi violation and upon the State's notice of its intent to again seek an extended-term sentence. Therefore, defendant requests that we vacate his sentence and remand the case for further proceedings in compliance with section 5--5--4 of the Code.

In Apprendi, the United States Supreme Court held that, "[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. In response to Apprendi, our legislature amended section 5--5--4 of the Code. See People v. Askew, 341 Ill. App. 3d 548, 578-79 (2003). That section provides, in relevant part, as follows:

"If a sentence is vacated on appeal or on collateral attack due to the failure of the trier of fact at trial to determine beyond a reasonable doubt the existence of a fact (other than a prior conviction) necessary to increase the punishment for the offense beyond the statutory maximum otherwise applicable, either the defendant may be re-sentenced to a term within the range otherwise provided or, if the State files notice of its intention to again seek the extended sentence, the defendant shall be afforded a new trial." 730 ILCS 5/5--5--4 (West 2002).

As defendant correctly notes, the cardinal rule of statutory construction is to ascertain and give effect to the intent and meaning of the legislature. People v. Patterson, 308 Ill. App. 3d 943, 947 (1999). The language used in the statute is the primary source of legislative intent. People v. Juris, 189 Ill. App. 3d 934, 935 (1989). Where the statutory language is clear and unambiguous, the function of the court is to enforce the statute as enacted. Patterson, 308 Ill. App. 3d at 948. Any ambiguities in a penal statute, especially in the case of enhancement provisions, must be resolved in the defendant's favor. Juris, 189 Ill. App. 3d at 935.

We agree with defendant that the statutory language of section 5--5--4 unambiguously requires that a defendant be afforded a new trial in an instance where his sentence has been vacated on a collateral attack due to an Apprendi violation and where the State indicates its intent to again seek an extended-term sentence. 730 ILCS 5/5--5--4 (West 2002). Here, the trial court vacated defendant's sentence on collateral attack because the trial court had previously imposed an extended- term sentence predicated in part upon factors that were not found by a jury beyond a reasonable doubt. According to section 5--5--4 of the Code, defendant would therefore be entitled to a new trial in the event that the State filed a notice of its intent to again seek an extended-term sentence.

As noted above, the State did file a notice of its intent to again seek an extended-term sentence. However, the State's notice indicated that it would seek the imposition of an extended term only on the basis of defendant's past felony conviction, rather than the other enhancing factors relied upon by the trial court in imposing the original extended-term sentence. Because the use of a defendant's past criminal history as an enhancing factor is a specific exception to the rule established in Apprendi, we believe that this case falls outside section 5--5--4's requirement that defendant be granted a new trial. Apprendi does not require that a defendant's past criminal history be found by a jury beyond a reasonable doubt before such history can be the basis for a sentencing enhancement. See People v. Watson, 322 Ill. App. 3d 164, 167-69 (2001). Therefore, no purpose would be served in conducting a new trial, and such an exercise is not constitutionally required. See Watson, 322 Ill. App. 3d at 168-69.

We therefore read section 5--5--4's requirement of a new trial to apply only in those instances where the State files a notice of its intent to seek an extended-term sentence based on enhancing factors other than a defendant's prior conviction. While we recognize that the plain language of the statute does not specifically exempt from its new trial requirement instances where the State intends to seek an extended term based solely on a defendant's prior conviction, we believe that this was nonetheless the legislature's intent based on a reading of the statute in its entirety. The initial portion of section 5--5--4's statutory language states that the statute applies to sentences that are vacated on collateral attack due to the failure of the jury "to determine beyond a reasonable doubt the existence of a fact (other than a prior conviction) necessary to increase the punishment for the offense beyond the statutory maximum." (Emphasis added.) 730 ILCS 5/5--5--4 (West 2002). Using such language, the legislature stated its intention that the statute apply only to those cases where the sentencing enhancement was based on a factor other than a prior conviction. Such language parallels the United States Supreme Court's language in Apprendi, which is quoted above. We therefore do not believe that the legislature intended to grant a defendant the right to a new trial in instances where the State seeks an extended-term sentence based solely upon a defendant's prior convictions. See Askew, 341 Ill. App. 3d at 580-81 (noting that the legislature's amendments to the Code following Apprendi were intended in part to codify Apprendi's exemption of prior convictions from the category of facts that must be charged in an indictment, submitted to the jury, and proved beyond a reasonable doubt).

Statutes are to be construed as a whole and significance and effect should be given every paragraph, sentence, phrase, and word of a statute. People v. Brown, 157 Ill. App. 3d 61, 64 (1987). A statute should be construed so that no sentence, clause, or word is rendered superfluous or meaningless. Brown, 157 Ill. App. 3d at 64. Additionally, although criminal statutes are to be construed in favor of the accused, such construction must not be so rigid as to defeat the intent of the legislature. Askew, 341 Ill. App. 3d at 580. After viewing the statutory language in its entirety, and giving consideration to the fact that the statutory language was adopted in response to Apprendi, we conclude that section 5--5--4 of the Code does not require the trial court to conduct a new trial in instances where the State intends to seek an extended-term sentence based solely on the existence of a defendant's prior conviction. This interpretation harmonizes with the constitutional principles articulated in Apprendi and the other Illinois authorities noted above. See Askew, 341 Ill. App. 3d at 580. We therefore hold that the trial court did not abuse its discretion or err as a matter of law when it resentenced defendant to an extended term based on his prior criminal convictions without first granting a new trial.

Defendant's final contention on appeal is that the consecutive sentence and extended-term provisions of the Code under which he was sentenced following the grant of post-conviction relief (730 ILCS 5/5--5--3.2(b)(1), 5--8--4(a) (West 2000)) violate the constitutional guarantees against double jeopardy, ex post facto laws, and the separation of powers. Although defendant's contention is confusing and unfocused, he appears to argue that he cannot constitutionally be sentenced to consecutive extended terms of imprisonment based on his previous felony conviction. We find that each of the constitutional arguments raised by defendant in his final contention lacks merit. We will briefly address each of these points below.

Defendant first argues that the trial court's imposition of consecutive sentences under section 5--8--4(a) of the Code violated his due process rights under Apprendi as it permitted the trial court, rather than a jury, to determine the factors warranting the imposition of a consecutive sentence. This argument was rejected in People v. Carney, 196 Ill. 2d 518, 536 (2001), wherein our supreme court held that consecutive sentences imposed under section 5--8--4(a) do not violate due process and that Apprendi does not apply to the imposition of consecutive sentences.

Defendant next argues that the trial court erred in receiving evidence at the resentencing hearing beyond the evidence of his prior felony conviction. Defendant claims that, under Apprendi, the trial court could not consider any evidence aside from his prior conviction. However, defendant cites no authority in support of his proposition that Apprendi limits the type of evidence that may be introduced during a sentencing hearing. As the State notes, the ordinary rules of evidence that apply during the guilt phase of a trial are not applicable during a sentencing hearing. People v. Bilski, 333 Ill. App. 3d 808, 818 (2002). Rather, the decision to admit particular types and sources of evidence during a sentencing hearing is within the discretion of the sentencing judge. Bilski, 333 Ill. App. 3d at 818. Here, although the trial court may have received evidence at sentencing relating to the commission of the crimes alleged to have been committed by defendant in this case, the record demonstrates that the trial court considered only the fact of defendant's prior felony conviction in making its decision to impose an extended-term sentence. Therefore, we find no violation of Apprendi.

Defendant also argues that his extended-term sentence violated the state and federal constitutional guarantees against double jeopardy and ex post facto laws. Defendant contends that his extended-term sentences imposed under section 5--5--3.2(b)(1) constitute additional punishment for his prior 1979 felony conviction, which sentence he has already served. Defendant's argument misses the mark. An ex post facto law is one that is retrospective, affects substantial rights, and disadvantages the defendant. Miller v. Florida, 482 U.S. 423, 430, 96 L. Ed. 2d 351, 360, 107 S. Ct. 2446, 2451 (1987). Defendant has not argued that the extended-term sentencing provisions of section 5--5--3.2(b)(1) were not in effect at the time of the crimes charged in this case. Therefore, defendant has not presented a true ex post facto argument, i.e., that he was not resentenced according to the law in the effect at the time of the offense. See People v. O'Quinn, 339 Ill. App. 3d 347, 361-62 (2003). However, even if defendant had shown that a new sentencing law had been retroactively applied to his case, Illinois courts have previously held that legislative amendments to the provisions governing extended-term sentences merely affect a mode of procedure and do not violate constitutional ex post facto principles. See O'Quinn, 339 Ill. App. 3d at 362; People v. McClain, No. 1--01--1936 (September 18, 2003).

Additionally, defendant has not presented a meritorious double jeopardy argument. That defendant has received an extended-term sentence in this case because of his prior conviction does not support defendant's assertion that he has been tried and sentenced a second time for his 1979 conviction. Rather, as noted by the State, defendant's sentences for his two aggravated criminal sexual assault convictions in this case were extended because he is a recidivist. The aim of recidivist statutes is to impose harsher sentences on offenders whose repeated convictions have shown their resistance to correction. People v. Lemons, 191 Ill. 2d 155, 160 (2000). Defendant has not provided a single authority holding that the State is constitutionally prohibited from considering a defendant's criminal history as a sentencing enhancement. Rather, as noted above, the Apprendi Court recognized recidivism as an exception to the requirement that the State must establish beyond a reasonable doubt every fact used to increase a defendant's sentence beyond the maximum term. Here, defendant does not deny the existence of his prior felony conviction or that the prior conviction was entered in a fair proceeding in which he was afforded due process. For all of these reasons, we conclude that defendant's extended-term sentences did not violate his constitutional guarantee against double jeopardy.

Defendant next argues that "the sentencing scheme excluded the judiciary from the sentencing function and violate[d] the separation of powers." However, defendant fails to recognize that the legislature has the authority to set the nature and extent of criminal penalties, and the courts are without authority to interfere with such legislation unless the challenged penalty is clearly in excess of the broad and general constitutional limitations. People v. Thomas, 171 Ill. 2d 207, 221 (1996). Finally, defendant argues that the statutes under which he was sentenced did not require the State to provide notice in the charging instrument of the facts allegedly qualifying him for an enhanced sentence. As noted above, when the State intends to rely on a prior conviction in seeking the imposition of an extended-term sentence, the State is not obligated to allege the prior conviction in the charging instrument and prove the conviction to a jury beyond a reasonable doubt. See Askew, 341 Ill. App. 3d at 581. For all of these reasons, we reject defendant's broad constitutional challenges to sections 5--5--3.2(b)(1) and 5--8--4(a) of the Code.

For the foregoing reasons, we affirm the judgment of the circuit court of Lee County.

Affirmed.

GROMETER and KAPALA, JJ., concur.

20031010

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