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U.S. EX REL. WHITE v. BRILEY

April 27, 2004.

UNITED STATES OF AMERICA, ex rel LAWRENCE WHITE, Plaintiff,
v.
KENNETH BRILEY, Warden, Defendant



The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge

MEMORANDUM OPINION AND ORDER

Lawrence White (hereinafter, "White") is incarcerated at Stateville Correctional Center, serving a ninety-five-year sentence for first degree murder, attempted murder, armed robbery, and residential burglary. After an unsuccessful direct appeal, White filed this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, asserting that the state trial court violated his Fifth, Sixth, and Fourteenth Amendment rights to Due Process, Notice, and Trial by Jury upon proof beyond a reasonable doubt by basing his sentence on factual findings made by the trial court, but never alleged in the indictment, submitted to a jury, or proven beyond a reasonable doubt. For the following reasons, the petition is denied.

I. BACKGROUND

  White was indicted for murder in the stabbing death of Charles Cole. In the Circuit Court of Cook County on December 4, 1996, petitioner White entered an open plea of guilty to first degree murder, residential burglary, armed robbery, home invasion, armed violence, aggravated battery, aggravated unlawful restraint, and unlawful restraint. To establish a factual basis for the plea, the parties stipulated that a witness, Valerie Drain, would testify that on November 26, 1994, she was present in an apartment with Charles Cole when the petitioner and two other men forcefully entered. The three men proceeded to tie up Drain and Cole, then ransacked the apartment taking money, jewelry, and a color television set that was removed from the apartment. A short time later, White returned to the apartment and plunged a knife into Drain's back with sufficient force to cause the knife handle to break. White then grabbed Cole by the hair, lifted his head from the floor and fatally slit his throat with a knife. Dr. An, a pathologist, testified that he performed an autopsy on the deceased, Cole, and found numerous stab wounds about the neck area. The deceased died as a result of multiple stab wounds to the neck that lacerated Cole's jugular vein and carotid artery.

  The trial court entered the guilty plea, then held a death penalty hearing. During the hearing, Detective John R. Duckhorn testified that he found the deceased face down in a large pool of blood "hog tied" with telephone wires with his legs and arms behind him. There were huge gash wounds and gaping holes in his neck. The court admitted victim impact statements and evidence of petitioner's prior convictions for possession of a stolen motor vehicle and theft. Dr. Michael E. Stone, a licensed clinical psychologist, testified that based on his investigations he concluded that the petitioner was suffering from chronic post-traumatic stress disorder, dependent disorder, lifestyle depression, very severe cocaine dependence, alcohol dependence, and an avoidant personality disorder. In his opinion, petitioner was suffering from these conditions at the time of the crime, and he would benefit from a structured environment and psychotropic medications. Dr. Stone said he believed that petitioner would be "productive" if confined for a very long period of time, and that petitioner understood the seriousness of what had happened, was remorseful, and was taking steps to improve his situation.

  The court found petitioner eligible for the death penalty, but found that the murder was committed while defendant was under the influence of extreme mental or emotional disturbance, and that there was sufficient mitigation to preclude the death sentence or life in prison. In considering the sentence to be imposed, the court regarded petitioner's cocaine addiction a mitigating factor, but determined that an extended term sentence was warranted because of the heinous and brutal conduct of defendant.

  The circuit court sentenced petitioner to an extended 80-year prison term for the murder of Charles Cole. The court also sentenced petitioner to a 15-year prison term for the attempted murder of Valerie Drain, for armed robbery and residential burglary; these sentences were to be served concurrently to each other, but consecutively to petitioner's 80-year sentence for first degree murder, for an aggregate term of 95 years. The court determined that the remaining counts merged with the other convictions.

  This case has a somewhat complicated appellate history. An initial appeal resulted in the Illinois Court of Appeals remanding the case to the trial court due to improper admonishment at the sentencing hearing. (The trial judge described the crime as one of the most brutal and heinous he had heard, and denied petitioner's pro se motion to reconsider the sentences.) In a second appeal, petitioner claimed that the trial court abused its discretion in not reducing his sentence by failing to consider adequately mitigating factors. The petitioner's arguments were found unpersuasive and the judgment of the circuit court was affirmed by the Illinois Court of Appeals on June 23, 2000.

  Just three days later, the U.S. Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proven beyond a reasonable doubt. The Court stated that "[w]hen a judge's finding based on a mere preponderance of the evidence authorizes an increase in the maximum punishment, it is appropriately characterized as `a tail which wags the dog of the substantive offense.'" Id. at 495, quoting McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986).

  At the time of petitioner's trial, one convicted of first degree murder in Illinois was subject to a term of imprisonment of not less than 20 and not more than 60 years. 730 ILCS 5/5-8-l(a)(1)(a) (West 1996). However, an extended term of not less than 60 and not more than 100 years could be imposed if the court found by a preponderance of the evidence that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. 730 ILCS 5/5-8-2(a)(1) (West 1996); 730 ILCS 5/5-5-3.2(b)(2) (West 1996); see People v. Swift, 781 N.E.2d 292, 296-98 (Ill. 2002).

  Similarly, if the trial court found that a defendant acted during a "single course of conduct during which there was no substantial change in the nature of the criminal objective," and that the defendant inflicted "severe bodily injury" during the commission of a Class X or Class 1 felony, the sentences must run consecutively. 730 ILCS 5/5-8-4(a)(West 1996).

  In light of Apprendi, White filed a petition for rehearing on July 14, 2000, arguing that the statutory provisions under which he was sentenced to an extended term and consecutive sentences were constitutionally invalid. White claimed that his sentence should be struck down or reduced because the statutes under which he was sentenced did not require that he be given notice of the facts that subjected him to the increased penalties he received, nor did they require a determination that those facts existed upon proof beyond a reasonable doubt. The petitioner did not specifically contest the finding of brutal and heinous behavior at trial.

  The Illinois First District Appellate Court subsequently vacated the trial court's extended 80-year term for petitioner's murder conviction, as well as the consecutive sentences, and ordered the petitioner's sentence reduced to a 60-year term, the maximum allowable penalty for first degree murder in Illinois absent additional findings of fact. Upon appeal, the Illinois State Supreme Court issued a Supervisory Order directing the appellate court to reconsider its previous opinion in light of that Court's decision in People v. Jackson, 769 N.E.2d 21 (Ill. 2002).

  In Jackson, the Illinois Supreme Court confronted a case where the defendant had been sentenced under the same statutes as petitioner White, i.e., 730 ILCS 5/5-5-3.2(b)(2), 5-8-2(a) (West 1996). Id. at 25. After a plea of guilty was entered, the trial court found the defendant's crimes to be exceptionally brutal behavior indicative of wanton cruelty, a finding on which the burden of proof was merely a preponderance of the evidence. Id. On appeal, the Illinois Supreme Court acknowledged that according to Apprendi, "[e]very fact necessary to establish the range within which a defendant may be sentenced is an element of the crime and thus falls within the constitutional rights of a jury trial and proof beyond a reasonable doubt, made applicable to the states by the due process clause of the fourteenth amendment." Id. at 27. But by pleading guilty, the Jackson Court explained, a defendant is explicitly giving up the right to a jury trial and proof beyond a ...


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