People v. Douglas

2017 IL App (4th) 120617

82 N.E.3d 227

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Shamere L. DOUGLAS, Defendant-Appellant.

NO. 4-12-0617

Appellate Court of Illinois, Fourth District.

July 27, 2017

Michael J. Pelletier, Karen Munoz, and Jacqueline L. Bullard, of State Appellate Defender's Office, of Springfield, for appellant.

Julia R. Rietz, State's Attorney, of Urbana (Patrick J. Delfino, David J. Robinson, and Allison P. Brooks, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

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

¶ 1 In March 2009, defendant, Shamere L. Douglas, pleaded guilty to the offense of aggravated battery. In April 2009, the trial court sentenced him to 10 years in prison. On direct appeal, this court affirmed in part, vacated in part, and remanded with directions to amend the sentencing judgment to eliminate credit for time served that was awarded in error. People v. Douglas, 2011 IL App (4th) 100368-U, 2011 WL 10481904. In March 2012, defendant filed a pro sepetition for postconviction relief, which the trial court dismissed after finding it frivolous and patently without merit. In July 2014, this court affirmed the summary dismissal of defendant's postconviction petition but vacated his Class X sentence and remanded with directions to resentence defendant to a term between 3 and 10 years in prison. People v. Douglas, 2014 IL App (4th) 120617, 382 Ill.Dec. 977, 13 N.E.3d 390. The State filed a petition for leave to appeal with the Supreme Court of Illinois.

¶ 2 On March 29, 2017, the supreme court denied the State's petition for leave to appeal but issued a supervisory order ( People v. Douglas, No. 118184, 414 Ill.Dec. 271, 80 N.E.3d 4 (Ill. Mar. 29, 2017) (nonprecedential supervisory order on denial of petition for leave to appeal)) directing this court to vacate our prior judgment and reconsider our decision in light of People v. Castleberry, 2015 IL 116916, 398 Ill.Dec. 22, 43 N.E.3d 932, People v. Price, 2016 IL 118613, 412 Ill.Dec. 782, 76 N.E.3d 1240, and People v. Smith, 2016 IL 119659, 412 Ill.Dec. 793, 76 N.E.3d 1251.

¶ 3 In accordance with the supreme court's directive, we vacate our earlier judgment. After reconsidering this case in light of Castleberry, Price, and Smith, we find a different result is warranted. Accordingly, we now affirm.

¶ 4 I. BACKGROUND

¶ 5 In October 2008, a grand jury indicted defendant on single counts of unlawful possession with intent to deliver a controlled substance, a Class 1 felony ( 720 ILCS 570/401(c)(2) (West 2008)); aggravated battery ( 720 ILCS 5/12-4(b)(18), (e)(2) (West 2008)), a Class 2 felony; and resisting a peace officer, a Class 4 felony ( 720 ILCS 5/31-1(a-7) (West 2008)). Because of defendant's prior convictions, he was subject to Class X sentencing pursuant to section 5-5-3(c)(8) of the Unified Code of Corrections (Corrections Code) ( 730 ILCS 5/5-5-3(c)(8) (West 2008) (now 730 ILCS 5/5-4.5-95 (West 2012) ), so long as he met the other qualifying factors of the statute.

¶ 6 In March 2009, defendant and the State entered into a negotiated plea agreement. Defendant agreed to plead guilty to aggravated battery, and the State agreed to dismiss the remaining two charges and cap its sentencing recommendation at 10 years in prison. In April 2009, the trial court sentenced defendant to 10 years in prison, to be served consecutively with his sentence in Champaign County case No. 07-CF-2074. In May 2009, defendant filed a pro semotion for a reduction of sentence, which the trial court denied.

¶ 7 Defendant appealed, arguing he was entitled to a $5-per-day credit against his fines. In January 2011, this court found the trial court erred by awarding defendant 188 days of sentence credit, remanded with directions, and otherwise affirmed defendant's conviction and sentence. Douglas, 2011 IL App (4th) 100368-U.

¶ 8 In March 2012, defendant filed a pro sepetition for postconviction relief under the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 to 122-8 (West 2012)). Defendant argued (1) he was denied the effective assistance of counsel, (2) section 5-5-3(c)(8) of the Corrections Code was unconstitutional because it disproportionately punished Class 2 offenders, and (3) his consecutive sentence was void. On June 5, 2012, the trial court dismissed the petition, finding the claims raised by defendant were frivolous and patently without merit. On the same day, the court sent a letter to the warden of the prison where defendant was incarcerated, informing the warden of the court's finding and pointing specifically to section 3-6-3(d) of the Corrections Code ( 730 ILCS 5/3-6-3(d) (West 2012)). The letter stated: "Enclosed please find an Order on a Petition for Post-Judgment Relief which was determined to be frivolous and patently without merit. I am informing you of this pursuant to 730 ILS 5/3-6-3(d) [sic] with regard to the inmate's good conduct credits."

¶ 9 This appeal followed.

¶ 10 II. ANALYSIS

¶ 11 The Act "provides a mechanism for criminal defendants to challenge their convictions or sentences based on a substantial violation of their rights under the federal or state constitutions." People v. Morris, 236 Ill. 2d 345, 354, 338 Ill.Dec. 863, 925 N.E.2d 1069, 1075 (2010). A proceeding under the Act is a collateral proceeding and not an appeal from the defendant's conviction and sentence. People v. English, 2013 IL 112890, ¶ 21, 369 Ill.Dec. 744, 987 N.E.2d 371. The defendant must show he suffered a substantial deprivation of his federal or state constitutional rights. People v. Caballero, 228 Ill. 2d 79, 83, 319 Ill.Dec. 364, 885 N.E.2d 1044, 1046 (2008).

¶ 12 The Act establishes a three-stage process for adjudicating a postconviction petition. English, 2013 IL 112890, ¶ 23, 369 Ill.Dec. 744, 987 N.E.2d 371. Here, defendant's petition was dismissed at the first stage. At the first stage, the trial court must review the postconviction petition and determine whether "the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2012). To survive dismissal at this initial stage, the postconviction petition "need only present the gist of a constitutional claim," which is "a low threshold," requiring the petition to contain only "a limited amount of detail." People v. Gaultney, 174 Ill. 2d 410, 418, 221 Ill.Dec. 195, 675 N.E.2d 102, 106 (1996). Our supreme court has held "a pro sepetition seeking postconviction relief under the Act for a denial of constitutional rights may be summarily dismissed as frivolous or patently without merit only if the petition has no arguable basis either in law or in fact." People v. Hodges, 234 Ill. 2d 1, 11-12, 332 Ill.Dec. 318, 912 N.E.2d 1204, 1209 (2009). A petition lacks an arguable legal basis when it is based on an indisputably meritless legal theory, such as one completely contradicted by the record. Hodges, 234 Ill. 2d at 16, 332 Ill.Dec. 318, 912 N.E.2d at 1212. A petition lacks an arguable factual basis when it is based on a fanciful factual allegation or is clearly baseless, fantastic, or delusional. Hodges, 234 Ill. 2d at 16-17, 332 Ill.Dec. 318, 912 N.E.2d at 1212. "In considering a petition pursuant to [section 122-2.1 of the Act], the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding." 725 ILCS 5/122-2.1(c) (West 2012); see also People v. Brown, 236 Ill. 2d 175, 184, 337 Ill.Dec. 897, 923 N.E.2d 748, 754 (2010). Our review of the first-stage dismissal of a postconviction petition is de novo. People v. Dunlap, 2011 IL App (4th) 100595, ¶ 20, 357 Ill.Dec. 441, 963 N.E.2d 394.

¶ 13 On appeal, defendant argues his Class X sentence, pursuant to section 5-5-3(c)(8) of the Corrections Code ( 730 ILCS 5/5-5-3(c)(8) (West 2008)), is void because he was only 20 years old at the time he committed the offense and was charged. Defendant argues, in the alternative, his sentence is void because section 5-5-3(c)(8) is unconstitutional as applied to defendants who are under 21 years old at the time of an offense, violating the ex post facto, due process, and equal protection clauses of the Illinois and United States Constitutions.

¶ 14 Defendant did not raise these issues in his postconviction petition. He acknowledges claims cannot be raised for the first time on appeal from postconviction proceedings. People v. Jones, 213 Ill. 2d 498, 505, 290 Ill.Dec. 519, 821 N.E.2d 1093, 1097 (2004). However, defendant urges a void judgment may be attacked at any time. See People v. Arna, 168 Ill. 2d 107, 113, 212 Ill.Dec. 963, 658 N.E.2d 445, 448 (1995) ("A sentence which does not conform to a statutory requirement is void," and the appellate court may correct a void sentence at anytime.).

¶ 15 We note, after we issued our initial decision in this case, our supreme court issued Castleberry on November 19, 2015, in which it abolished the void sentence rule established in Arna. The Castleberry court held a sentence is not void, but merely voidable, where it does not conform to a statutory requirement and was entered by a court with jurisdiction. Castleberry, 2015 IL 116916, ¶ 19, 398 Ill.Dec. 22, 43 N.E.3d 932. Thus, whether defendant has forfeited these issues depends on whether Castleberry applies to him.

¶ 16 More recently, our supreme court issued Price. In Price, the defendant's section 2-1401 ( 735 ILCS 5/2-1401 (West 2010) ) petition challenging his conviction as void was pending in the appellate court when Castleberry was decided. Price, 2016 IL 118613, ¶ 27, 412 Ill.Dec. 782, 76 N.E.3d 1240. The Price court explained Castleberry established a sentence that does not conform to statute is merely voidable, not void, and therefore subject to procedural rules and restraints such as forfeiture. Price, 2016 IL 118613, ¶ 17, 412 Ill.Dec. 782, 76 N.E.3d 1240. The court stated, "a defendant may no longer rely on...