People v. Lapointe

2018 IL App (2d) 160903

127 N.E.3d 131

430 Ill.Dec. 895

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

v.Phillip E. LAPOINTE, Defendant-Appellant.

No. 2-16-0903

Appellate Court of Illinois, Second District.

Filed August 24, 2018

James E. Chadd and Thomas A. Lilien, of State Appellate Defender’s Office, of Elgin, and Paul J. Glaser, of Enka, North Carolina, for appellant.

Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman, Assistant State’s Attorney, of counsel), for the People.

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

¶ 1 Defendant, Phillip E. LaPointe, appeals a judgment denying him leave to file a successive petition under the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2016) ). See id. § 122-1(f). Defendant's proposed petition claimed that his life sentence for murder ( Ill. Rev. Stat. 1977, ch. 38, § 9-1(a) ) violated both the eighth amendment of the United States Constitution ( U.S. Const., amend. VIII ) and the proportionate-penalties clause of the Illinois Constitution ( Ill. Const. 1970, art. I, § 11 ). He contends that the trial court erred in ruling that he did not establish cause for his failure to raise his claims in his first petition under the Act and prejudice as a result of the omission (see 725 ILCS 5/122-1(f) (West 2016) ). We affirm.

¶ 2 On March 7, 1978, Peter Moreno, a taxi driver, was shot to death in his cab. Defendant, who was born January 29, 1960, was charged with murder and armed robbery. On June 16, 1978, he entered an open plea of guilty to murder. The State dismissed the armed-robbery charge.

¶ 3 The factual basis relied heavily on what David Cichelli had told the police earlier. On the morning of March 7, 1978, defendant visited Cichelli at the gas station where the latter worked and told Cichelli that he was going to rob and kill a cab driver. Defendant showed Cichelli a loaded .22-caliber revolver. Shortly afterward, defendant left, walked two blocks, and called for a cab. Moreno arrived, picked him up, and drove to the area of York Commons. Defendant shot Moreno twice in the head. Defendant drove the cab, with Moreno's body inside, a short distance and left it there. Defendant took some money from Moreno, returned to the gas station, and told Cichelli that he had killed Moreno. He added that he did it because Moreno could identify him.

¶ 4 The factual basis continued as follows. Later that day, the police found the cab, with Moreno's body inside. On March 8, 1978, defendant was arrested. He admitted that he had called for the cab, that he was in it when he heard two shots fired, and that only he and Moreno had been in the cab then. Defendant said that the gun was in his home. The police searched the home and found the gun. When defendant shot Moreno, he was not under the influence of drugs or experiencing any mental incapacity that negated the intent required for murder.

¶ 5 The presentencing investigation report (PSIR) revealed that defendant's parents divorced when he was three and that his mother, Delores Malo, had custody of him for most of the following years. She had remarried twice. Defendant had a poor relationship with his stepfather William Malo. Defendant submitted a statement in which he said that he was under the influence of LSD on March 7, 1978. He remembered calling for the cab, talking to the driver, and leaving the cab later, but he did not recall the shooting itself. The PSIR revealed that defendant had a burglary conviction for which he was still serving a three-year probation term.

¶ 6 At the sentencing hearing, held August 31, 1978, Cichelli testified consistently with the factual basis at the guilty-plea hearing. He added that defendant told him that he had committed the murder for money but that it was not worth it. Police sergeants who had examined the scene testified that Moreno had been shot twice from behind at close range and that there was no money or identification on him. Three deputy sheriffs who had worked at the Du Page County jail testified that, late in March and early in April 1978, they saw defendant wearing a T-shirt inscribed, "Elmhurst Executioner." Joseph Ray, a 16-year-old, testified that, a few weeks before defendant was arrested, defendant asked Ray to help him rob a drugstore cash register. Before then, they had burglarized a home. Also, defendant telephoned Ray from jail and asked him to get him some " ‘hash,’ " but Ray refused.

¶ 7 In mitigation, Delores and William testified that defendant had a serious drug problem. Also, defendant's relationship with William had deteriorated in recent years, which Delores attributed to William's excessive drinking and William attributed to defendant's use of drugs. Both Malos testified that they had never known defendant to be violent toward anyone. Reverend Erling Jacobson testified that he had tried to help defendant with his drug problem but also believed that defendant was dangerous and needed to be locked up. In allocution, defendant told the court that, on March 7, 1978, he had been under the influence of LSD. He said that he could not remember whether he had killed Moreno; if he did, "it was the LSD."

¶ 8 The State urged a sentence of life without parole. It argued that defendant's drug use was not mitigating and might incline him to commit more crimes. Further, his offense was premeditated, unprovoked, and done solely for money. He murdered Moreno a few months after starting probation for burglary. Finally, his crime was exceptionally brutal or heinous, showing wanton cruelty, and committed in the course of another felony.

¶ 9 Defendant argued that life was excessive; he was not only young but "very young emotionally." He was "capable of, sometime, providing society with some responsible behavior * * * when he matures, he may be able to exercise some of that responsible behavior." Defendant urged the court to give him the hope that he could "return to society as a useful individual."

¶ 10 On September 18, 1978, the court sentenced defendant. The judge stated as follows. Defendant's conduct showed "premeditation and a calculated deliberateness." No factors in mitigation applied. In aggravation was one that would have authorized a death sentence: defendant murdered Moreno in the course of committing an armed robbery, and he did so intentionally or knowing that his act created a strong probability of death or great bodily harm to Moreno. See Ill. Rev. Stat., 1978 Supp., ch. 38, ¶ 9-1(b)(6)(b). The judge continued:

"So, the Court, in taking into consideration the heinous nature of this crime, its brutality, its cold, calculating, cold-blooded act which is indicative of the wanton cruelty, there was an indication it was premeditated and post meditated [sic ], * * * the defendant * * * shall serve a life sentence, without parole."

¶ 11 The sentence was based on a statutory provision authorizing a life sentence for murder if the court found that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Ill. Rev. Stat., 1978 Supp., ch. 38, ¶ 1005-8-1(a)(1).

¶ 12 Defendant filed a notice of appeal but then moved to reconsider the sentence. The trial court refused to hear the motion, holding that the notice of appeal had divested it of jurisdiction. On appeal, defendant argued that the court had erred in finding that his conduct had been exceptionally brutal or heinous. We agreed. We explained that defendant did not have a significant history of criminal activity: he had pleaded guilty to committing a burglary when he was 17 and was given three years' probation, and he never committed the drugstore robbery or received the "hash" in the jail. Further, defendant had had a difficult home situation, problems with drug abuse, limited educational and work histories, and no prior involvement "with the use of violence." People v. LaPointe , 85 Ill. App. 3d 215, 222, 41 Ill.Dec. 4, 407 N.E.2d 196 (1980).

¶ 13 We also relied on the proportionate-penalties clause, noting that it required all penalties to be determined " ‘both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.’ " Id. at 222-23, 41 Ill.Dec. 4, 407 N.E.2d 196 (quoting Ill. Const. 1970, art. I, § 11 ). We concluded from the record, and from the fact of the life sentence, that although the trial court had considered the seriousness of the offense, it had failed to evaluate the possibility that "defendant could at some future date be restored to useful citizenship." Id. at 223, 41 Ill.Dec. 4, 407 N.E.2d 196. Therefore, we reduced defendant's sentence to 60 years, the maximum nonextended term. Id. at 224, 41 Ill.Dec. 4, 407 N.E.2d 196.

¶ 14 The supreme court reversed us, holding that the trial court had not abused its discretion. People v. La Pointe , 88 Ill. 2d 482, 492-93, 59 Ill.Dec. 59, 431 N.E.2d 344 (1981). Although defendant argued that the proportionate-penalties clause required the trial court to make specific findings concerning his rehabilitative potential, the supreme court held that the clause did not require the judge "to detail for the record the process by which he concluded that the penalty he imposed was appropriate." Id. at 493, 59 Ill.Dec. 59, 431 N.E.2d 344. The judge had "carefully considered the evidence within the prescribed statutory framework." Id. Moreover, he had specifically rejected any argument that defendant's criminal conduct was the result of circumstances unlikely to recur or that his character and attitude indicated that he was unlikely to commit another crime. Id. ; see Ill. Rev. Stat., 1978 Supp., ch. 38, ¶ 1005-5-3.1(a)(8), (a)(9).

¶ 15 The court also disagreed with our statement that defendant lacked a significant criminal history: in addition to the burglary conviction, he had possessed and used illegal drugs over two or three years and had solicited Ray to assist him in a robbery and to smuggle drugs into the jail. La Pointe , 88 Ill. 2d...