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People v. Ford

August 26, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JIMMIE FORD, DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of Cook County. Honorable Michael P. Toomin, Judge Presiding.

[7] The opinion of the court was delivered by: Presiding Justice Quinn

[8]  Defendant Jimmie Ford appeals from an order of the circuit court summarily dismissing his third pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2002)). He contends, for the first time, that his extended prison term of 60 years for attempted first degree murder, based on the trial court's finding that the offense was accompanied by heinous and brutal conduct indicative of wanton cruelty, violates the proportionate penalties clause of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 11). Defendant also contends that the trial court erred in dismissing his petition because he presented a constitutional claim that his extended-term sentence was imposed in violation of the ruling in Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed. 2d 435, 120 S.Ct. 2348 (2000). For the following reasons, we affirm.

[9]  An extensive recitation of the facts of this case is found in People v. Ford, No. 1-91-3782 (1994) (unpublished order under Supreme Court Rule 23). Therefore, we relate only those facts that are pertinent to the issues before us.

[10]   Following a jury trial, defendant was found guilty of attempted first degree murder and aggravated battery. The evidence at trial established that in the early morning hours of June 17, 1990, the victims, Connor Fennessy and Amy Dossett, were in the park area near the beach at 62nd Street and Lake Shore Drive in Chicago after their motorcycle broke down, when defendant approached them, brandishing a sawed-off shotgun. Words were exchanged and Fennessy grabbed the gun and began struggling with defendant. Fennessy succeeded in wrestling the gun away from defendant. Fennessy then ejected the shell and threw the gun as far as he could, attempting to toss it in the lake. Fennessy and Dossett got on their motorcycle and attempted to drive away, but their motorcycle stalled after approximately 50 feet and would not start again. While Fennessy and Dossett were attempting to drive away, defendant retrieved the gun and ran back toward them. Defendant approached Fennessy and shot him in the abdomen at close range. Defendant grabbed Dossett, and while dragging her across Lake Shore Drive, he hit her with the gun. Defendant then suddenly released Dossett and fled from the area. The police arrived and apprehended defendant shortly thereafter. He was positively identified at the scene, as was the shotgun he used. Fennessy survived the incident, but suffered a disabling injury that required several surgeries.

[11]   In sentencing defendant, the trial court imposed an extended prison term of 60 years for attempted first degree murder based on its finding that defendant's conduct was "heinous, brutal [and] indicative of wanton cruelty." Defendant was also sentenced to a consecutive five-year prison term for aggravated battery.

[12]   On direct appeal, defendant asserted that the trial court erred in imposing an extended-term sentence on the attempted first degree murder conviction. This court affirmed defendant's convictions and sentences. People v. Ford, No. 1-91-3782 (1994) (unpublished order under Supreme Court Rule 23). On October 6, 1994, the Illinois Supreme Court denied defendant's petition for leave to appeal. People v. Ford, 157 Ill. 2d 511 (1994).

[13]   On June 1, 1995, defendant filed a pro se post-conviction petition, alleging that the trial court erred in imposing an extended-term sentence for attempted first degree murder and that the State failed to prove him guilty beyond a reasonable doubt. On August 3, 1995, in a seven-page written order, the post-conviction court summarily dismissed defendant's petition as frivolous and patently without merit.

[14]   On appeal of that dismissal, defendant's appointed counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551, 95 L.Ed. 2d 539, 107 S.Ct. 1990 (1987), based on counsel's conclusion that there were no meritorious issues to be raised. After considering the record in this case and the brief filed by counsel, this court allowed counsel to withdraw and affirmed the judgment of the circuit court. People v. Ford, No. 1-95-3360 (1997) (unpublished order under Supreme Court Rule 23).

[15]   On May 12, 1998, defendant filed a second pro se post-conviction petition, alleging that his constitutional rights were violated where the trial court failed to consider appropriate factors in mitigation, resulting in the imposition of an excessive sentence. On June 23, 1998, in an eight-page written order, the post-conviction court summarily dismissed defendant's second petition as frivolous and patently without merit.

[16]   On appeal of that dismissal, this court again allowed appointed counsel to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551, 95 L.Ed. 2d 539, 107 S.Ct. 1990 (1987), and affirmed the judgment of the circuit court. People v. Ford, No. 1-98-2782 (1999) (unpublished order under Supreme Court Rule 23).

[17]   On March 28, 2002, defendant filed his third pro se post-conviction petition, alleging that his extended-term sentence was imposed in violation of Apprendi because the aggravating factor warranting the extended penalty was not pled in his indictment or proved to a jury beyond a reasonable doubt. On June 6, 2002, in a written order, the post-conviction court determined that Apprendi did not apply retroactively to cases on collateral review under the Post-Conviction Hearing Act and summarily dismissed defendant's petition as frivolous and patently without merit.

[18]   In this appeal, defendant contends for the first time that his extended-term sentence of 60 years for attempted first degree murder, based on a finding of brutal and heinous behavior under section 5-5-3.2(b) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3.2(b)), violates the proportionate penalties clause of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 11). In support of this argument, he compares that offense with second degree murder when enhanced by the same finding of brutal or heinous behavior indicative of wanton cruelty. This comparison, defendant maintains, reveals that the extended-term sentencing statute (Ill. Rev. Stat. 1989, ch. 38, par. 8-4(c)(1), 1005-8-2(a)(3)) punishes the less serious crime of attempted first degree murder more severely than the other, more serious crime of second degree murder.

[19]   The State initially responds that defendant has waived this issue by failing to raise it on direct appeal or include it in any of his pro se post-conviction petitions. While defendant's latest claim regarding his extended-term sentence was not raised in this post-conviction petition, the unconstitutionality of a statute may be raised at any time, and, we, therefore, will review defendant's claim. People v. Wagener, 196 Ill. 2d 269, 279-80 (2001).

[20]   Initially, we note that a court has the duty to affirm a statute's constitutionality and validity if reasonably possible. People v. Lee, 167 Ill. 2d 140, 144 (1995). Furthermore, a person challenging a statute bears the ...


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