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The People of the State of Illinois v. Anthony Gay

November 18, 2011


Appeal from Circuit Court of Livingston County No. 03CF172 Honorable Robert M. Travers, Judge Presiding.

The opinion of the court was delivered by: Justice Cook

JUSTICE COOK delivered the judgment of the court, with opinion.

Presiding Justice Knecht and Justice McCullough concurred in the judgment and opinion.


¶ 1 In December 2009, the trial court dismissed defendant Anthony Gay's amended post-conviction petition following a second-stage nonevidentiary hearing, finding defendant failed to make a substantial showing that his constitutional rights were violated. Defendant appeals, arguing he made substantial showings that (1) his aggregate sentence in this and other unconsolidated cases violates the constitutional prohibition against cruel and unusual punishments; (2) the State subverted his constitutional rights to due process and a speedy trial by engaging in tactical preindictment delay; (3) he received ineffective assistance of counsel when his counsel on direct appeal did not argue the court erred by ordering a fitness examination and thereby circumventing defendant's speedy-trial request; and (4) the Department of Corrections (DOC) citation issued to defendant for his conduct that gave rise to this aggravated-battery conviction insufficiently advised him that the same conduct also exposed him to possible criminal prosecution. We disagree with defendant and affirm.


¶ 3 On August 25, 2000, while an inmate at Pontiac Correctional Center, defendant threw a liquid substance having a urine-like odor at a corrections officer, striking him in the face with it. DOC cited defendant for a violation of offense No. 102, "ASSAULTING ANY PERSON." See 20 Ill. Adm. Code 504 app. A (2003) (enumerating and defining DOC offenses). On July 1, 2003, for the same incident, the State charged defendant with aggravated battery in this case, Livingston County case No. 03-CF-172 (case No. 172). 720 ILCS 5/12-4(b)(6) (West 2000). At that time, criminal charges were pending against defendant in five other Livingston County cases. After an August 30, 2005, trial, a jury found defendant guilty as charged. On October 28, 2005, the trial court sentenced defendant to an extended term of six years' imprisonment. See 730 ILCS 5/5-5-3.2(b)(1), 5-8-2(a)(5) (West 2004). This sentence was to run consecutively to sentences defendant had received in other cases. See 730 ILCS 5/5-8-4(f) (West 2004). This court affirmed on direct appeal. People v. Gay, 376 Ill. App. 3d 796, 803, 878 N.E.2d 805, 811 (2007).

¶ 4 On July 19, 2007, defendant filed a post-conviction petition in this case pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-8 (West 2006)). By that time, defendant had accumulated 16 aggravated-battery convictions, including his conviction in case No. 172, stemming from defendant's behavior toward corrections employees in Pontiac from 2000 to 2001. His convictions had resulted in 97 years of consecutive sentences.

Defendant waived the appointment of post-conviction counsel. See 725 ILCS 5/122-4 (West 2006). On June 24, 2008, according to the trial court's docket sheet, defendant was given leave to file amended post-conviction petitions in this and other cases. The court noted, "The defendant is admonished to list case numbers on all of his pleadings."

¶ 5 On December 26, 2008, defendant filed his amended post-conviction petition in this case. No other case number was indicated in the caption of defendant's petition. Four of defendant's claims of constitutional violations are relevant to this appeal, and the lengthy and detailed factual assertions related to these claims will be discussed as necessary in our analysis.

¶ 6 The State was granted a series of continuances to file an answer or motion to dismiss. See 725 ILCS 5/122-5 (West 2006). The deadline for filing passed. On October 13, 2009, the trial court held a second-stage hearing on defendant's amended post-conviction petition. The court denied the State's motion to file its motion to dismiss instanter but allowed the State to enter a general denial. It heard arguments and took the matter under advisement.

¶ 7 In a December 10, 2009, written order, the trial court dismissed defendant's amended petition, finding he made no substantial showing of a constitutional violation.

¶ 8 This appeal followed.


¶ 10 A. Standard of Review

¶ 11 We review the trial court's dismissal of a post-conviction petition without an evidentiary hearing de novo. People v. Hall, 217 Ill. 2d 324, 334, 841 N.E.2d 913, 920 (2005). Dismissal is warranted at the second stage where the defendant's claims, liberally construed in light of the trial record, fail to make a substantial showing of a constitutional violation. Id. At that stage, the defendant's factual allegations not rebutted by the trial record are taken as true. Id.

¶ 12 B. Cruel and Unusual Punishment

¶ 13 First, defendant argues that he made a substantial showing that his aggregated sentence from this and 15 other unconsolidated criminal cases amounts to cruel and unusual punishment. We disagree.

¶ 14 The eighth amendment to the United States Constitution states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const., amend. VIII. The cruel and unusual punishments clause has been interpreted to embody two distinct propositions. One "prohibits the imposition of inherently barbaric punishments under all circumstances." Graham v. Florida, 560 U.S. ___, ___, 130 S. Ct. 2011, 2021 (2010). The other embodies a "narrow proportionality principle," which "forbids *** extreme sentences that are grossly disproportionate to the crime." (Internal quotation marks omitted.) Graham, 560 U.S. at ___, 130 S. Ct. at 2021.

ΒΆ 15 Cases challenging the proportionality of a sentence to the crime committed were, until Graham was decided in 2010, divided into two discrete categories: those involving a termof-years sentence and those involving the death penalty. Graham, 560 U.S. at ___, 130 S. Ct. at 2021. In cases challenging a term-of-years sentence, a court would initially engage in a case-by-case proportionality evaluation comparing the "gravity of the offense" to the "severity of the sentence." Graham, 560 U.S. at ___, 130 S. Ct. at 2022. If the sentence was grossly disproportionate, the court would compare the sentence to "the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions." Graham, 560 U.S. at ___, 130 S. ...

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