Appeal from the Circuit Court of Cook County 00 CR 26997-03 Honorable Joseph G. Kazmierski, Jr., Judge Presiding.
The opinion of the court was delivered by: Presiding Justice McBRIDE
Defendant, Floyd Cummings, appeals from the summary dismissal of his petition for relief under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2004)). He contends that his sentence of natural life imprisonment for armed robbery must be vacated because it violates the proportionate penalties clause of the Illinois Constitution. For the reasons that follow, we affirm.
We have sufficiently detailed the facts of this case in our previous opinion in defendant's direct appeal, People v. Cummings, 351 Ill. App. 3d 343 (2004), and will therefore recite only those facts necessary to dispose of the issues raised here. Following a jury trial in 2002, defendant was found guilty of armed robbery. The evidence adduced at defendant's trial showed that he and two co-defendants robbed a Subway sandwich shop while armed with a baseball bat. During the robbery, defendant used duct tape to bind the hands, legs, and eyes of a store employee, and a co-defendant testified that defendant used the baseball bat to smash the television monitors and videocassette recorder in the store's office. At sentencing, the trial court heard evidence that defendant had previously been convicted of murder in 1967 and armed robbery in 1984. Based on these prior convictions, the trial court adjudged defendant an habitual criminal and sentenced him to a term of natural life imprisonment pursuant to the Habitual Criminal Act. See 720 ILCS 5/33B-1 (West 2000).
On direct appeal, defendant claimed that his sentence for armed robbery was unconstitutional because armed robbery and armed violence predicated on robbery committed with a category III weapon were identical offenses that had disproportionate penalties. Cummings, 351 Ill. App. 3d at 346. Defendant pointed out that armed robbery was a Class X felony punishable by 6 to 30 years' imprisonment (see 720 ILCS 5/18-2(b) (West 2000)), while the identical offense of armed violence predicated on robbery with a category III weapon was a Class 2 felony punishable by three to seven years' imprisonment (see 720 ILCS 5/33A-1(c)(3) (West 2000)). Cummings, 351 Ill. App. 3d at 346. Defendant argued that although he was not charged with or convicted of armed violence, he should be sentenced to three to seven years' imprisonment for the Class 2 offense of armed violence predicated on robbery with a category III weapon. Cummings, 351 Ill. App. 3d at 346.
We disagreed and found that defendant's sentence of natural life imprisonment for armed robbery was not unconstitutionally disproportionate. Cummings, 351 Ill. App. 3d at 349. We initially noted that, unlike the defendants in People v. Christy, 139 Ill. 2d 172 (1990) and People v. Lewis, 175 Ill. 2d 412 (1996), upon which defendant relied, defendant was not charged with the lesser offense of armed violence or robbery but, rather, with the greater offense of armed robbery, and that the State was not required to proceed on a lesser offense when its evidence was sufficient to support conviction on a greater offense. Cummings, 351 Ill. App. 3d at 347-48. We also noted that unlike the defendants in Lewis and Christy, defendant was an habitual offender whose sentence was based not only on the armed robbery conviction but also on his history of committing violent Class X offenses. Cummings, 351 Ill. App. 3d at 348. We pointed to the Supreme Court's decision in Ewing v. California, 538 U.S. 11, 29, 155 L.Ed. 2d 108, 122-23, 123 S.Ct. 1179, 1189-90 (2003), where the Court recognized that where a defendant is punished under a recidivism statute, the defendant's criminal background must be considered when addressing his claim that his sentence is disproportionate. Cummings, 351 Ill. App. 3d at 348-49. We specifically quoted the following section from the opinion in Ewing:
"In weighing the gravity of Ewing's offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature's choice of sanctions. In imposing a three strikes sentence, the State's interest is not merely punishing the offense of conviction, or the 'triggering' offense: '[I]t is in addition the interest ... in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.' [Citations.] To give full effect to the State's choice of this legitimate penological goal, our proportionality review of Ewing's sentence must take that goal into account." Ewing, 538 U.S. at 29, 155 L.Ed. 2d at 122-23, 123 S.Ct. at 1189-90.
Finally, we noted that the State could not charge defendant with armed violence because armed violence could not be predicated upon armed robbery and because the State lacked authority to prosecute defendant for armed violence predicated upon robbery in light of our supreme court's decision in Lewis. Cummings, 351 Ill. App. 3d at 349. Accordingly, we affirmed defendant's conviction and sentence of natural life imprisonment. Cummings, 351 Ill. App. 3d at 353.
On March 15, 2005, defendant filed a pro se petition for post-conviction relief alleging that the Habitual Criminal Act was unconstitutional as applied to the facts of his case. Specifically, defendant claimed that the court improperly considered his 1967 murder conviction when sentencing him to life imprisonment as an habitual offender. Defendant asserted that the court was precluded from considering offenses committed between 1963 and 1978 when sentencing him as an habitual criminal because the Habitual Criminal Act was repealed in 1963 and remained dormant until it was reenacted in 1978. Defendant also alleged in his petition that when he pled guilty to murder in 1967, he was not given notice that his conviction could be used to sentence him as an habitual offender. Finally, defendant alleged that the trial court had discretion to sentence him as an habitual offender and that the Habitual Criminal Act violated the prohibition against ex post facto laws. The circuit court dismissed defendant's petition as frivolous and patently without merit.
Defendant then filed a motion to reconsider the dismissal of his post-conviction petition. Defendant reiterated the arguments raised in his petition, and also claimed that his trial counsel was ineffective for failing to object to defendant's eligibility to be sentenced as an habitual criminal, and that appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness on direct appeal. The circuit court denied defendant's motion for reconsideration. This appeal followed.
The Post-Conviction Hearing Act provides a mechanism by which a defendant may assert that his conviction or sentence resulted from a substantial denial of his constitutional rights. 725 ILCS 5/122-1 et seq. (West 2004); People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). The Act established a three-stage process for adjudication of a post-conviction petition. At the first stage, the circuit court determines whether defendant's allegations sufficiently demonstrate a constitutional violation that would necessitate relief, and the court may summarily dismiss a petition upon finding that it is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2004); Coleman, 183 Ill. 2d at 380. A post-conviction petition is frivolous or patently without merit where its allegations, taken as true, fail to state the gist of a meritorious constitutional claim. People v. Boclair, 202 Ill. 2d 89, 99 (2002). We review the circuit court's dismissal of a post-conviction petition at the first stage of proceedings de novo. Coleman, 183 Ill. 2d at 388-89.
On appeal, defendant again contends that his sentence for armed robbery is unconstitutional because it violates the proportionate penalties clause of the Illinois Constitution. The proportionate penalties clause provides that "[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." Ill. Const. 1970, art. I, §11. In analyzing an alleged proportionate penalties violation, our ultimate inquiry is whether the penalty at issue has been set by the legislature according to the seriousness of the offense. People v. Sharpe, 216 Ill. 2d 481, 487 (2005). There are two ways to determine whether a penalty violates the proportionate penalties clause: (1) whether the penalty is cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community; and (2) whether offenses with identical elements are given different sentences. Sharpe, 216 Ill. 2d at 517.
As he did on direct appeal, defendant asserts that under the identical elements test, his sentence for armed robbery is unconstitutionally disproportionate because armed robbery and armed violence predicated on armed robbery committed with a category III weapon are identical offenses that have disproportionate penalties. Defendant points out that armed robbery, for which he was convicted, is a Class X felony punishable by 6 to 30 years' imprisonment (see 720 ILCS 5/18-2(b) (West 2000)), while the identical offense of armed violence predicated on robbery with a category III weapon is a Class 2 felony punishable by three to seven years' imprisonment (see 720 ILCS 5/33A-1(c)(3) (West 2000)).
We observe, however, that defendant did not raise this issue in his post-conviction petition. Our supreme court has clearly stated that "[t]he question raised in an appeal from an order dismissing a post-conviction petition is whether the allegations in the petition, liberally construed and taken as true, are sufficient to invoke relief under the Act." (Emphasis added.) People v. Coleman, 183 Ill. 2d 366, 388 (1998). Moreover, section 122-3 of the Act provides that "[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 2004). In light of the prevailing standard of review and the plain language of section 122-3 of the Act, our supreme court has held that a claim not raised in a post-conviction petition may not be asserted for the first time on appeal. People v. Jones, 213 Ill. 2d 498, 505 (2004) (Jones II); People v. Jones, 211 Ill. 2d 140, 148 (2004) (Jones I).
Here, because the claim that defendant seeks to raise on appeal was not included in his post-conviction petition, it may not be considered. Defendant acknowledges that this claim was not included in his petition, but argues that the issue can be raised on appeal because an ...