People v. Patterson

2018 IL App (1st) 160610

123 N.E.3d 63

428 Ill.Dec. 599

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

v.Ramon PATTERSON, Defendant-Appellant.

No. 1-16-0610

Appellate Court of Illinois, First District, Fifth Division.

Opinion filed December 14, 2018

James E. Chadd, Patricia Mysza, and Bradley Jarka, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Christine Cook, and Clare Wesolik Connolly, Assistant State’s Attorneys, of counsel), for the People.

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

¶ 1 In this proceeding under the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2014) ), defendant Ramon Patterson appeals the circuit court's dismissal of his pro se postconviction petition as frivolous and patently without merit. Defendant argues that his petition should advance to a stage-two postconviction proceeding because he made an arguable claim that his armed habitual criminal (AHC) conviction is based on a statute that is unconstitutionally vague as applied to him. Specifically, he argues that the statute, which requires the offender to have been convicted a total of two or more times of any combination of certain predicate offenses, failed to give sufficient notice of the unlawful conduct and was enforced arbitrarily where the State had charged him with the two predicate offenses on the same day and he had been convicted of those predicate offenses on the same day.

¶ 2 We hold that (1) under Class v. United States , 583 U.S. ––––, 138 S.Ct. 798, 200 L.Ed.2d 37 (2018), defendant did not waive his vagueness challenge to the AHC statute by pleading guilty in the circuit court and (2) the circuit court properly dismissed defendant's pro se petition at the first stage of the postconviction proceedings because his vagueness challenge to the AHC statute has no arguable basis in the law.

¶ 3 For the reasons that follow, we affirm the judgment of the circuit court.¹

¶ 4 I. BACKGROUND

¶ 5 In August 2012, Chicago police officers attempted to pull over a car in which defendant Ramon Patterson was the backseat passenger. However, before the car came to a complete stop, defendant exited the car and fled on foot. As officers chased him, he threw a garbage can in front of the officers' squad car to prevent them from capturing him. He also threw a silver object over a fence. Eventually, the officers arrested him and recovered the silver object, a .380 caliber handgun loaded with six live rounds.

¶ 6 In September 2012, the State charged defendant in case No. 12 CR 16401 (the 2012 case) with, inter alia , one count of being an AHC ( 720 ILCS 5/24-1.7 (West 2012) ) for possessing a firearm after having been convicted of delivery of a controlled substance and possession of a controlled substance in two separate 2008 cases. According to the record, in case No. 08 CR 5181, defendant was convicted of the Class 2 felony of delivery or possession with intent to deliver a narcotic drug under section 401(d)(i) of the Illinois Controlled Substances Act ( 720 ILCS 570/401(d)(1) (West 2006) ) based on his July 24, 2007, delivery of 1 gram or more but less than 15 grams of a controlled substance containing heroin. In case No. 08 CR 5178, defendant was convicted of the Class 2 felony of delivery or possession with intent to deliver a narcotic drug under section 401(d)(i) of the Illinois Controlled Substances Act based on his August 30, 2007, delivery of less than one gram of a substance containing heroin. Id. In both those 2008 cases, defendant was charged on the same day, March 12, 2008. On July 18, 2008, he pled guilty in both 2008 cases and was sentenced to two 3-year prison terms, to run concurrently.

¶ 7 While defendant was on bond for the 2012 case, undercover police officers observed him in March 2013 engage in three hand-to-hand suspected narcotic transactions. The officers recovered from defendant two tin foil packets containing 0.7 grams of PCP and $105. The State charged him in case No. 13 CR 8065 (the 2013 case) with one count of possession of a controlled substance, less than 10 grams of a substance containing PCP, with intent to deliver within 1000 feet of a school.

¶ 8 On December 4, 2013, defendant pled guilty to both the AHC charge in the 2012 case and the reduced offense of possession of a controlled substance in the 2013 case. The court then sentenced him to six years' and four years' imprisonment for the 2012 and the 2013 cases, respectively, to be served consecutively.

¶ 9 In March 2014, defendant filed an untimely petition to withdraw his guilty plea and a late pro se notice of appeal, both of which were denied by trial court. He also filed a petition for relief from judgment under section 2-1401 of the Code of Civil Procedure ( 735 ILCS 5/2-1401 (West 2014) ), alleging ineffectiveness of trial counsel. In April 2014, the trial court denied defendant's 2-1401 petition and he timely appealed (case No. 1-14-1450).

¶ 10 In May 2014, defendant filed a late notice of appeal of the trial court's December 4, 2013 judgment and sentence (case No. 1-14-1267). This court allowed defendant to file that late notice of appeal and consolidated his two 2014 appeals. Thereafter, this court reversed the trial court's sua sponte dismissal of defendant's 2-1401 petition and corrected his mittimus to reflect his guilty plea in the 2013 case for possession of a controlled substance. People v. Patterson , 2016 IL App (1st) 141267-U, 2016 WL 3035979.

¶ 11 In December 2015, defendant filed the pro se postconviction petition at issue in this appeal. In his petition, defendant raised several claims, including challenging the AHC statute as unconstitutionally vague as applied to him. In January 2016, the circuit court dismissed his petition as frivolous and patently without merit at the first stage of the postconviction process, and defendant timely appealed.

¶ 12 II. ANALYSIS

¶ 13 Defendant's sole argument on appeal is that the circuit court erroneously dismissed his petition as frivolous and patently without merit because he made an arguable claim that the AHC statute is unconstitutionally vague as applied to him. He argues that the AHC statute, by focusing on the number of times that a defendant has previously been convicted, as opposed to the number of convictions , provides inadequate notice that a defendant may face liability as an AHC when he is convicted of two qualifying offenses at the same time. He asserts that the statute's failure to sufficiently specify the sequence of qualifying predicate convictions is out of step with the General Assembly's purpose in recidivist statutes to target those who have served the terms of their punishment and have nonetheless been proven incorrigible. Defendant contends that his case exemplifies the lack of clarity in the statute because his convictions in two 2008 cases were entered only one time, i.e. , simultaneously, and there was no period of time between his conviction of one offense and his commission of the other so that judgments about his likelihood to recidivate could fairly be made. According to defendant, under the facts of his case, the decision of what constitutes convictions entered two or more times, and thus who should be branded an AHC, rests solely with law enforcement and the prosecution and, consequently, the resulting possibility of arbitrary enforcement runs afoul of due process.

¶ 14 We review the first-stage summary dismissal of a postconviction petition de novo . People v. Morris , 236 Ill. 2d 345, 354, 338 Ill.Dec. 863, 925 N.E.2d 1069 (2010). A postconviction proceeding is a collateral attack on the defendant's conviction and allows only constitutional claims to be heard that were not and could not be adjudicated during trial and could not have been raised on appeal. People v. Harris , 224 Ill. 2d 115, 124, 308 Ill.Dec. 757, 862 N.E.2d 960 (2007). Res judicata then bars any issues decided at trial or on direct appeal as well as issues that could have been presented in the appeal from the conviction but were not. People v. Blair , 215 Ill. 2d 427, 443-44, 294 Ill.Dec. 654, 831 N.E.2d 604 (2005).

¶ 15 For cases not involving the death penalty, the Act sets forth a three-stage process for hearing a petitioner's constitutional claims. Harris , 224 Ill. 2d at 125, 308 Ill.Dec. 757, 862 N.E.2d 960. At the first stage, the circuit court independently reviews the petition and determines whether the petition is frivolous or patently without merit. 725 ILCS 5/122-2.1 (West 2014) ; Morris , 236 Ill. 2d at 354, 338 Ill.Dec. 863, 925 N.E.2d 1069. A petition may be summarily dismissed at the first stage as frivolous and patently without merit "only if the petition has no arguable basis either in law or in fact." People v. Hodges , 234 Ill. 2d 1, 16, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009). A petition lacks an arguable basis in law or fact if it is based on "an indisputably meritless legal theory or a fanciful factual allegation." Id. Because most petitions at the first stage are drafted by defendants with little legal knowledge or training, a defendant need only present a limited amount of detail in the petition to survive summary dismissal by the circuit court. Id. at 9, 332 Ill.Dec. 318, 912 N.E.2d 1204. That is, defendants only need to set forth the "gist" of an arguably constitutional claim to meet the relatively low factual threshold to satisfy the first stage under the Act. Id.

¶ 16 But defendants still "must set forth some facts which can be corroborated and are objective in nature or contain some explanation as to why those facts are absent" ( People v. Delton , 227 Ill. 2d 247, 255, 317 Ill.Dec. 636, 882 N.E.2d 516 (2008) ) and must also attach affidavits, records, or other supporting evidence to the petition ( 725 ILCS 5/122-2 (West 2014) ). And if a single claim in the pro se petition is deemed sufficient, the entire petition advances to the second stage of the...