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People v. Applewhite

Court of Appeals of Illinois, First District, Sixth Division

December 9, 2016

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
SAMUEL APPLEWHITE, Defendant-Appellant.

          Rehearing denied January 10, 2017

         Appeal from the Circuit Court of Cook County, No. 01-CR-23489; the Hon. Clayton J. Crane, Judge, presiding.

         Affirmed.

          Michael J. Pelletier, Patricia Mysza, and Elena B. Penick, of State Appellate Defender's Office, of Chicago, for appellant.

          Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and Brian K. Hodes, Assistant State's Attorneys, of counsel), for the People.

          Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justices Rochford and Delort concurred in the judgment and opinion.

          OPINION

          CUNNINGHAM JUSTICE.

         ¶ 1 The defendant, Samuel Applewhite, appeals the dismissal of his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). On appeal, he argues that the trial court erred in dismissing his petition as frivolous and patently without merit when the court held that his 45-year sentence did not violate the eighth amendment (U.S. Const., amend. VIII) or the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). For the reasons that follow, we affirm the judgment of the circuit court of Cook County.

         ¶ 2 In October 2001, the State charged the defendant in case No. 01 CR 23488 with multiple counts of attempted first degree murder (720 ILCS 5/8-4, 9-1(a)(1) (West 2000)), aggravated battery with a firearm (720 ILCS 5/12-4.2 (West 2000)), and armed robbery (720 ILCS 5/18-2(a)(2)-(4) (West 2000)). The indictment alleged that, on July 11, 2001, the defendant (a 17-year-old at the time of the offenses) "shot Lamar Smith about the body" and "took United States currency from the person or presence of Lamar Smith."

         ¶ 3 The State also charged the defendant in case No. 01 CR 23489 with multiple counts of first degree murder (720 ILCS 5/9-1(a)(1)-(3) (West 2000)), attempted first degree murder (720 ILCS 5/8-4, 9-1 (West 2000)), armed robbery (720 ILCS 5/18-2(a)(2), (a)(3) (West 2000)), attempted armed robbery (720 ILCS 5/8-4, 18-2(a)(4) (West 2000)), and aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2000)). These charges stem from a shooting incident that occurred on August 19, 2001, in which the defendant shot and killed Marshall Young.

         ¶ 4 On September 25, 2003, pursuant to a fully negotiated plea agreement, the defendant pled guilty to one count of first degree murder of Marshall Young (case No. 01 CR 23489) and one count of aggravated battery with a firearm of Lamar Smith (case No. 01 CR 23488). The remaining counts were dismissed. Pursuant to the agreement, the trial court imposed the mandatory minimum sentence of 45 years' imprisonment for first degree murder. This sentence consisted of the minimum 20-year sentence for murder (see 730 ILCS 5/5-8-1(a)(1)(a) (West 2002) (providing a range of 20 to 60 years)), plus a minimum 25-year mandatory firearm enhancement (see 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2002) (providing for an add-on of 25 years to natural life)). The court also sentenced the defendant to 12 years' imprisonment for aggravated battery with a firearm (see 730 ILCS 5/5-8-1(a)(3) (West 2002) (providing a range of 6 to 30 years)) to run concurrent with the murder sentence.

         ¶ 5 The defendant did not move to withdraw his pleas or otherwise appeal from the judgment entered on his convictions, though he did file a pro se petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)). He alleged, inter alia, that his plea agreement and concurrent sentences were void because consecutive sentences were required by section 5-8-4(d)(1) of the Unified Code of Corrections (730 ILCS 5/5-8-4(d)(1) (West 2012)). He argued that he should be allowed to withdraw his pleas and go to trial. The State conceded that the sentences were void, as consecutive sentences were required. Nevertheless, the State maintained that it could remedy the illegality by dismissing the aggravated battery with a firearm charge, leaving intact the guilty plea and 45-year sentence for first degree murder.

         ¶ 6 The trial court granted the State's request and vacated the defendant's conviction for aggravated battery with a firearm in case No. 01 CR 23488. As a consequence, the court issued a revised mittimus reflecting a 45-year sentence for first degree murder in case No. 01 CR 23489 and otherwise denied the defendant's petition. The defendant appealed, and this court affirmed the trial court's ruling. People v. Applewhite, No. 1-13-1549 (2014) (unpublished summary order under Supreme Court Rule 23(c)).

         ¶ 7 Thereafter, the defendant filed the instant pro se postconviction petition. In it, he alleges that the mandatory 25-year firearm enhancement, as applied to him, violates the eighth amendment (U.S. Const., amend. VIII) and the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, ยง 11). He contends that the mandatory minimum sentence for first degree murder and the mandatory firearm enhancement, which resulted in his mandatory minimum sentence of 45 years' imprisonment, violate the constitutional principles announced in the United States Supreme ...


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