‘Forced’ to plead guilty to attempted murder

Illinois Appellate Court Reports

PEOPLE v. BROWN, 358 Ill. App.3d 56 (2005) 831 N.E.2d 24
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
WOODROW BROWN, Defendant-Appellant. No. 1-03-3078.
Appellate Court of Illinois, First District. Opinion filed
June 8, 2005. Page 57

Appeal from the Circuit Court of Cook County; the Hon.
William G. Lacy, Judge, presiding.

Michael J. Pelletier and Joshua M. Bernstein, both of
State Appellate Defender’s Office, of Chicago, for
appellant.

Richard A. Devine, State’s Attorney, of Chicago (Renee
Goldfarb and Mary L. Boland, Assistant State’s Attorneys,
of counsel), for the People.

PRESIDING JUSTICE KARNEZIS delivered the opinion of the
court:

On October 23, 1997, defendant shot Chicago Housing
Authority Page 58 Officer William Henderson in the face
with a .22-caliber rifle at close range, breaking the
officer’s jaw. At the time of the offense, defendant was 16
years old. Consequently, he was initially the subject of a
petition for adjudication of wardship based on the offense
(97 JD 13460), but the case was transferred to criminal
court on February 4, 1998, pursuant to section 5-4(3.3) of
the Juvenile Court Act of 1987 (705 ILCS 405/5-4 (3.3)
(West 1996)).

In criminal court, defendant was indicted on two counts of
attempted first degree murder, one count of aggravated
battery with a firearm and four counts of aggravated
battery. On October 7, 1998, defendant entered a negotiated
plea of guilty to attempt first degree murder of a peace
officer (720 ILCS 5/8-4 (West 1998)). Defendant was
sentenced to 28 years’ imprisonment. Defendant did not move
to withdraw his plea or sentence, nor did he file a direct
appeal.

On March 25, 1999, defendant filed a postconviction
petition wherein he alleged he received ineffective
assistance of counsel because he was “forced” to plead
guilty to attempted murder of a peace officer. On April 30,
1999, the trial court summarily dismissed the petition as
frivolous and patently without merit. Defendant’s late
notice of appeal was denied.

On June 17, 2003, defendant filed a second postconviction
petition wherein he alleged that “fundamental fairness”
required review of his claims that he was transferred to
criminal court and sentenced under laws amended by Public
Act 88-680 (Pub. Act 88-680, eff. January 1, 1995), which
had been declared unconstitutional by the Illinois Supreme
Court in People v. Cervantes, 189 Ill. 2d 80, 723 N.E.2d
265 (1999). On August 1, 2003, the trial court issued a
written order dismissing defendant’s successive petition
because “[defendant’s] sentence was proper under the
appropriate statute, he should not be resentenced because
the amended statute was held to be void.” Without
addressing defendant’s claims that he had a right to a new
transfer hearing and trial, the trial court found the
petition to be frivolous and patently without merit.

Defendant now appeals from the trial court’s order
dismissing his successive postconviction petition. He
argues that his conviction should be vacated and the cause
remanded for a new transfer hearing because the presumptive
transfer provision and sentencing provision effectuated by
Public Act 88-680 were declared void in Cervantes. We
reverse and remand.

ANALYSIS

Public Act 88-680, commonly referred to as the Safe
Neighborhoods Law, became effective on January 1, 1995. Pub.
Act 88-680, Page 59 eff. January 1, 1995. It created 10
new statutes, amended 55 statues and repealed 1 statute.
Cervantes, 189 Ill. 2d at 82, 723 N.E.2d at 264.
Specifically relevant to this appeal, Public Act 88-680
amended the Juvenile Court Act of 1987 to add the
presumptive transfer provision (705 ILCS 405/5-4 (3.3)) and
amended section 8-4 of the Criminal Code of 1961 (720 ILCS
5/8-4) (the attempt statute) increasing the sentencing
range for attempted first degree murder of a peace officer
from 15 to 60 years’ imprisonment to 20 to 80 years’
imprisonment (720 ILCS 5/8-4). See Pub. Act 88-680,
§ 35-5, eff. January 1, 1995.

After defendant had been transferred from juvenile court
to criminal court and was sentenced in this case under
amendments effectuated by Public Act 88-680, Public Act
88-680 was declared unconstitutional by our supreme court
in Cervantes, 189 Ill. 2d 80. On December 2, 1999, the
Cervantes court ruled that Public Act 88-680 violated the
single subject rule of the Illinois Constitution. Ill.
Const. 1970, art. IV, § 8(d) (“Bills, except bills
for appropriations and for the codification, revision or
rearrangement of laws, shall be confined to one subject”).
Accordingly, Public Act 88-680 was determined to be void ab
initio; the state of the law is as if the act had never
been passed. In re G.O., 191 Ill. 2d 37, 43, 727 N.E.2d
1003, 1007 (2000).

¶ 1 Defendant has raised three issues in the appeal
from the denial of his successive postconviction petition.
Petitioner now argues that as a result of the court’s
holding in Cervantes: (1) his transfer hearing is void and
must be vacated; (2) his plea is void and must be vacated;
and (3) his sentence is void and must be vacated.

Generally, any claim of substantial denial of
constitutional rights not raised in an original or amended
petition is waived. 725 ILCS 5/122-3 (West 1998). However,
a claim that a judgment is void is not subject to waiver
and can be raised at any time, either directly or
collaterally. People v. Thompson, 209 Ill. 2d 19, 27, 805
N.E.2d 1200, 1205 (2004). In Thompson, the defendant argued
for the first time on appeal from the summary dismissal of
his postconviction petition that his extended-term sentence
was void. Our supreme court held that because a void
judgment could be attacked at any time, the defendant’s
claim “[did] not depend for its viability on his
postconviction petition.” Thompson, 209 Ill. 2d at 27, 805
N.E.2d at 1205. The court further held that “courts have an
independent duty to vacate void orders.” Thompson, 209 Ill.
2d at 27, 805 N.E.2d at 1205. Courts also have the
authority to correct void orders at any time. People v.
Arna, 168 Ill. 2d 107, 113, 658 N.E.2d 445, 448 (1995).

In support of his argument that his transfer and conviction
are void, defendant urges us to follow the holding in
People v. Pena, Page 60 321 Ill. App. 3d 538, 747 N.E.2d
1020 (2001). In Pena, the 15-year-old defendant was
transferred from juvenile court to criminal court under the
presumptive transfer provision pursuant to section 5-4(3.3)
of the Juvenile Court Act of 1987 (705 ILCS 405/5-4(3.3)
(West 1996)). Pena, 321 Ill. App. 3d at 540. This
presumptive transfer provision was enacted into law as part
of Public Act 88-680, which was declared unconstitutional
by Cervantes on December 2, 1999. Pena, 321 Ill. App. 3d at
540, 747 N.E.2d at 1021. After a bench trial, the defendant
was convicted of attempted first degree murder and
sentenced to 18 years in prison. Pena, 321 Ill. App. 3d at
540, 747 N.E.2d at 1021. On appeal from his conviction, the
defendant argued that because Public Act 88-680 was found
unconstitutional in its entirety, the presumptive transfer
provision under which his case was transferred to criminal
court was void ab initio. Consequently, the defendant
argued that his conviction must be vacated and the cause
remanded to juvenile court. Pena, 321 Ill. App. 3d at 540,
747 N.E.2d at 1021. The State agreed and the court vacated
the defendant’s conviction and remanded the cause to
juvenile court for a new transfer hearing. Pena, 321 Ill.
App. 3d at 541-44, 747 N.E.2d at 1023.

The State argues that Pena is inapplicable to the facts of
the instant case because Pena involved a direct appeal,
while this case involves a successive postconviction
petition. We reject this argument. As previously discussed,
a void judgment can be attacked at any time, either
directly or collaterally. Thompson, 209 Ill. 2d at 27, 805
N.E.2d at 1205.

We agree with defendant that consistent with the holding
in Pena, his transfer and plea are void pursuant to
Cervantes. Because we have a duty to vacate void orders
(Thompson, 209 Ill. 2d at 27, 805 N.E.2d at 1205; Arna, 168
Ill. 2d at 113, 658 N.E.2d at 448), we vacate defendant’s
conviction and remand for a new transfer hearing.

The only remaining question before us then is what law
should be applied at the new transfer hearing. As this is a
question of law, our review is de novo. People v.
Saunders, 288 Ill. App. 3d 523, 525, 680 N.E.2d 790, 791
(1997).

Prior to Cervantes, but after defendant’s transfer
hearing, section 5-4(3.3) of the Juvenile Court Act of 1987
was repealed by Public Act 90-590 (Pub. Act 90-590, eff.
January 1, 1999). Public Act 90-590, otherwise known as the
Juvenile Justice Reform Act, enacted presumptive transfer
language (705 ILCS 405/5-805(2) (West 1998)) similar but
not identical to the repealed section 5-4(3.3). Defendant
contends that on remand, the court should apply the
transfer provisions Page 61 as they existed prior to the
enactment of Public Act 88-680.[fn1] The State maintains
that the new transfer hearing should be conducted pursuant
to the presumptive transfer provision enacted by Public Act
90-590 and now in effect. 705 ILCS 405/5-805 (West 2000).

Defendant argues that the prohibition of ex post facto
laws prevents the presumptive transfer provision now in
effect from being applied at his new transfer hearing. The
United States Constitution prohibits the application of
criminal or penal measures to events occurring before their
enactment: “[n]o State shall * * * pass any * * * ex post
facto Law.” U.S. Const., art. I, § 10. The Illinois
Constitution contains similar language. Ill. Const. 1970,
art. I, § 16. A law is ex post facto when it is both
“retroactive” and “disadvantageous” to the defendant.
Fletcher v. Williams, 179 Ill. 2d 225, 230, 688 N.E.2d 635,
638 (1997). A law is considered to be “disadvantageous” “if
it makes criminal an act that was innocent when done, if it
increases the punishment for a previously committed
offense, or if it alters the legal rules of evidence to
make conviction easier.” People v. Shumpert, 126 Ill. 2d
344, 351, 533 N.E.2d 1106, 1109 (1989); see also Calder v.
Bull, 3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648, 650 (1798).

Defendant asserts that applying the presumptive transfer
provision enacted pursuant to Public Act 90-590 on remand
would violate the prohibition against ex post facto laws
because the presumptive transfer provision now in effect
greatly increases the possibility that he will face an
increase in punishment. In addition, defendant argues that
subjecting him to the presumptive transfer provision now in
effect would violate the ex post facto clause because it
would alter the burden of persuasion at the transfer
hearing, making it easier for the State to transfer him to
criminal court. We consider each argument in turn.

In In re R.T., 313 Ill. App. 3d 422, 729 N.E.2d 889
(2000), the defendant argued that his sentence should be
vacated because he was sentenced under a statute (705 ILCS
405/5-33 (West 1996)) that was declared unconstitutional
under Cervantes. Defendant contended that the statute that
was effective prior to the Public Act 88-680 should be
applied because the judge had discretion to sentence him to
probation under the old law but could only commit him under
the new law. R.T., 313 Ill. App. 3d at 432, 729 N.E.2d at
897. The State responded by arguing that the law enacted
subsequent to the invalidation of Page 62 Public Act
88-680, the Juvenile Justice Reform Act (705 ILCS
405/5-750(2) (West 2000)), should apply. In support of its
argument, the State relied on Dobbert v. Florida, 432 U.S.
282, 53 L. Ed. 2d 344, 97 S. Ct. 2290 (1977).

In Dobbert, the defendant was sentenced to death under a
death penalty statute that was later declared
unconstitutional. The defendant argued that his sentence
should be vacated and that he should be resentenced in
accordance with the previous statute. Conversely, the State
argued that the defendant should be sentenced under the
current law. Dobbert, 432 U.S. at 294, 53 L. Ed. 2d at 357,
97 S. Ct. at 2299. In determining which statute should
apply, the United States Supreme Court considered whether
the statute in question was substantive or procedural and
whether punishment would be more severe if the current
statute were applied. Reasoning that the contested statute
was procedural, because the new law only changed the role
of the judge and jury in death penalty hearings and did not
change the quantum of punishment, only the procedure of who
would impose punishment, the Court determined that the
current law should be applied. Dobbert, 432 U.S. at 294, 53
L. Ed. 2d at 357, 97 S. Ct. at 2299. The Court stated,
“[i]t is axiomatic that for a law to be ex post facto it
must be more onerous than the prior law.” Dobbert, 432 U.S.
at 294, 53 L. Ed. 2d at 357, 97 S. Ct. at 2299.

In R.T., the appellate court used the considerations set
forth in Dobbert and held that R.T. should be resentenced
under the law prior to the enactment of Public Act 88-680,
because the sentencing statute in question involved
substantive, not procedural, changes. The new law in effect
provided for a harsher range of punishment than the law in
effect prior to Public Act 88-680 and was therefore “`more
onerous than the prior law.'” R.T., 313 Ill. App. 3d at
432, 729 N.E.2d at 897, quoting Dobbert, 432 U.S. at 294,
53 L.Ed.2d at 357, 97 S.Ct. at 2299.

Illinois courts have held that the transfer provisions of
the Juvenile Court Act are a procedural mechanism used to
determine in what division of the circuit court a
respondent will be tried. People v. P.H., 145 Ill. 2d 209,
222, 582 N.E.2d 700, 705-06 (1991). Whether a person is
tried in juvenile or criminal court is merely a matter of
procedure. P.H., 145 Ill. 2d at 222, 582 N.E.2d at 705-06;
People v. DeJesus, 127 Ill. 2d 486, 498, 537 N.E.2d 800,
806 (1989); In re M.C., 319 Ill. App. 3d 713, 719, 745
N.E.2d 122, 127 (2001); People v. Pena, 321 Ill. App. 3d
538, 542, 747 N.E.2d 1020, 1021 (2001). In addition, a
transfer hearing does not by itself result in the
determination of guilt or innocence, nor does it directly
result in confinement or other punishment. People v.
Taylor, 76 Ill. 2d 289, 302, 391 N.E.2d 366, 372 (1979).
Page 63

Following the reasoning used in Dobbert, it is clear that
the application of the presumptive transfer provision as
set forth in the Juvenile Justice Reform Act (Public Act
90-590) does not violate the prohibition against ex post
facto laws because it does not provide for a greater
punishment, but only affects the procedure by which
punishment is determined. Dobbert, 432 U.S. at 294, 53 L.
Ed. 2d at 357, 97 S. Ct. at 2299.

Defendant also argues that subjecting him to the
presumptive transfer provision now in effect would violate
the ex post facto clause because it would alter the burden
of persuasion at the transfer hearing, making it easier for
the State to transfer him to criminal court.

In People v. Ramsey, 192 Ill. 2d 154, 735 N.E.2d 533
(2000), the Illinois Supreme Court held that the
application of a statute that amended the statutory
insanity defense violated the ex post facto clause because
the new statute increased the burden of proof a defendant
must meet in order to establish that he was insane at the
time of the offense. The court determined that the increase
in the burden of proof had the effect of making it easier
for the State to secure a conviction. Ramsey, 192 Ill. 2d
at 158, 735 N.E.2d at 535.

The case presently before this court can be distinguished
from Ramsey. Although the present presumptive transfer
statute (705 ILCS 405/5-805(2)(b) (West 2002)) contains a
statutory burden of proof (“clear and convincing”) not
present in the transfer laws prior to Public Act 88-680,
this burden does not make it easier for the State to obtain
a conviction, nor does it alter any defenses available.
Unlike Ramsey, this new burden does not affect the
determination of guilt or innocence. As previously
discussed, a transfer hearing is a mechanism by which to
determine in which division of the circuit court a
respondent will be tried in. P.H., 145 Ill. 2d at 222, 582
N.E.2d at 706. A transfer hearing does not by itself result
in the determination of guilt or innocence, nor does it
directly result in confinement or other punishment. Taylor,
76 Ill. 2d at 302.

Defendant suggests that the United States Supreme Court
decision in Carmell v. Texas, 529 U.S. 513, 146 L. Ed. 2d
577, 120 S. Ct. 1620 (2000), strictly prohibits us from
using the substantive/procedural dichotomy in ex post facto
analysis. Defendant claims that the following supports his
argument.

“The better understanding of Collins’ discussion of the
Ex Post Facto Clause is that it eliminated a doctrinal
hitch that had developed in our cases, which purported to
define the scope of the Clause along an axis
distinguishing between laws involving `substantial
protections’ and those that are merely `procedural.’
[Citations.] * * * Accordingly, Collins held that it was a
mistake to stray Page 64 beyond Calder’s four categories
* * *.” (Emphasis in original.) Carmell, 529 U.S. at 539,
120 S. Ct. at 1636, 146 L. Ed. 2d 598.

We disagree.

The decision in Carmell, finding a Texas statute violative
of the constitutional provision prohibiting ex post facto
application of laws which alter the state’s burden of proof,
was not based on a procedural versus substantive analysis.
Rather, the court’s decision was based on an analysis of
the statute in light of the four factors enunciated in
Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648,
650 (1798). The Supreme Court in Calder set forth criteria
for finding a law violative of the ex post facto clause. An
ex post facto law is:

“1st. Every law that makes an action done before the
passing of the law, and which was innocent when done,
criminal; and punishes such action, 2d. Every law that
aggravates a crime, or makes it greater than it was, when
committed. 3d. Every law that changes the punishment, and
inflicts a greater punishment, than the law annexed to the
crime, when committed. 4th. Every law that alters the
legal rules of evidence, and receives less, or different,
testimony, than the law required at the time of the
commission of the offence, in order to convict the
offender.” (Emphasis omitted.) Calder v. Bull, 3 U.S. (3
Dall.) at 390, 1 L. Ed. at 650.

Specifically relying on the fourth Calder category, the
Supreme Court in Carmell found that the statue, which
altered the legal rules of evidence by requiring less
evidence to obtain a conviction, i.e., changed the quantum
of evidence, was a violation of the ex post facto clause.
Carmell, 529 U.S. at 530, 146 L. Ed. 2d at 593, 120 S. Ct.
at 1631.

Similar to Carmell, we did not stray from the four
categories announced in Calder in determining that the
retroactive application of the presumptive transfer statute
effectuated by Public Act 90-590 would not violate the ex
post facto clause. While we did discuss whether the
presumptive transfer statute was procedural or substantive
for purposes of determining whether a violation of the ex
post facto clause would occur if it were applied
retroactively to defendant on remand, we did so within the
parameters set forth in Calder. As previously discussed,
the statute in question here simply does not fall within the
four categories as defined by Calder.

Based on the aforementioned reasons, we conclude that the
retroactive application of the presumptive transfer
provision enacted pursuant to Public Act 90-590, and
currently in effect, does not Page 65 violate ex post
facto principles and may be applied on remand. See Pena,
321 Ill. App. 3d at 544.

Cause remanded with instructions.

HOFFMAN and SOUTH, JJ., concur.

[fn1] Prior to the enactment of Public Act 88-680, the
Juvenile Court Act of 1987 allowed for juveniles to be
transferred to criminal court under “mandatory transfer”
and “discretionary transfer.”