People v. Beachem

• Decision Date: 08 November 2000
• Docket Number: No. 1-99-0852.,1-99-0852.
• Citation: 740 N.E.2d 389,317 Ill. App.3d 693,251 Ill.Dec. 308
• Court: United States Appellate Court of Illinois
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dionna BEACHEM, Defendant-Appellant.

740 N.E.2d 389

317 Ill. App.3d 693

251 Ill.Dec. 308

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dionna BEACHEM, Defendant-Appellant.

No. 1-99-0852.

Appellate Court of Illinois, First District, Third Division.

November 8, 2000.

Rehearing Denied December 6, 2000.

As Modified on Denial of Rehearing December 6, 2000.

Michael J. Pelletier, Deputy Defender, and Michael H. Orenstein, Assistant Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, Christine Cook, Alan J. Spellberg, William D. Carroll and Michele Grimaldi Stein, of counsel), for Appellee.

MODIFIED OPINION ON DENIAL OF PETITION FOR REHEARING

Justice WOLFSON delivered the opinion of the court:

This year, in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the United States Supreme Court issued a decision that penetrates the constitutional foundation of this State's extended sentencing procedures. In this appeal from a summary dismissal of her post-conviction petition, Dionna Beachem (Beachem) challenges the constitutionality of the extended sentence of 90 years she received for first degree murder. The most serious question before us is whether Apprendi reaches beyond a direct appeal to an appeal of the dismissal of a timely-filed post-conviction petition. We hold that it does.

FACTS

On December 5, 1994, Annie Jones (Jones), a 77 year-old woman living alone on Chicago's south side, was fatally beaten in her apartment. That day, Beachem was arrested and subsequently released on bond for attempting to use Jones' newly-issued credit card at a suburban mall jewelry store. Two days later, Jones' landlord discovered her body.

Beachem was charged with and convicted of residential burglary, home invasion, robbery, and first degree murder. Though the trial court found her eligible for the death penalty, Beachem was sentenced to an extended term of 90 years imprisonment for the murder conviction, 30 years for the home invasion conviction, 15 years for the residential burglary conviction, and six years for the robbery conviction, all sentences running concurrently.

Beachem appealed her convictions and sentences. We affirmed. People v. Beachem, No. 1-96-3260, 294 Ill.App.3d 1094, 242 Ill.Dec. 570, 721 N.E.2d 849 (1998) (unpublished order under Supreme Court Rule 23).

Beachem then filed a pro se post-conviction petition. In a 23-page "MEMORANDUM OPINION AND ORDER," the trial court dismissed Beachem's petition. This appeal followed.

DECISION

Beachem raises two issues in her initial brief.

First, Beachem contends the trial court erred in summarily dismissing the allegation in her post-conviction petition that her trial attorney failed to advise her of a plea-bargain offer. Beachem's petition said: "After my sentencing, 8-26-96 my attorney told my aunt * * * and my mother * * * that the state offered me 20 years and I turned it down. This offer was never brought to my attention. If the state told me that they were offering me 20 years, it was my attorney's job to discuss that issue with me."

The trial judge found Beachem failed to provided the gist of a constitutional claim, which is all that is required at the first stage of a post-conviction proceeding. See People v. Frieberg, 305 Ill.App.3d 840, 847, 238 Ill.Dec. 964, 713 N.E.2d 210 (1999). The petition should be dismissed if it is frivolous and patently without merit. People v. Gaultney, 174 Ill.2d 410, 418, 221 Ill.Dec. 195, 675 N.E.2d 102 (1996).

Here, Beachem's petition alleged her attorney should have discussed any offer made by the prosecution directly to her. Assuming Beachem is contending her attorney failed to advise her, this allegation lacks any record support. Beachem relies on a sworn February 5, 1999, handwritten statement from her mother. But this statement was addressed "To the Appellate Court" nearly a month after the trial court dismissed Beachem's petition. The trial judge did not have it.

In exercising our de novo review (People v. Mitchell, 189 Ill.2d 312, 322, 245 Ill.Dec. 1, 727 N.E.2d 254 (2000)), we agree with the trial court: Beachem's plea-bargain offer allegation was "frivolous or * * * patently without merit." 725 ILCS 5/122-2.1 (West 1996). It was pure unsupported conclusion.

Second, Beachem contends the trial court erred in summarily dismissing her allegations of prosecutorial misconduct. Because Beachem's petition contained no such allegations, this claim is waived. 725 ILCS 5/122-3 (West 1996).

In a supplemental brief, Beachem raises another, more substantial issue never addressed in the trial court. Beachem contends her extended term sentence was unconstitutional.

In Beachem's first appeal, we held the trial court did not abuse its discretion in imposing a 90-year extended term sentence. The court found two statutory aggravating factors, "that the crime was exceptionally brutal and heinous, indicative of wanton cruelty, and based on the fact that the victim was over 60 years of age." These findings triggered the extended term sentence provision of the Unified Code of Corrections. See 730 ILCS 5/5-8-2(a)(1) (West 1996).

After Jones' direct appeal, and after the denial of her post-conviction petition, the United States Supreme Court decided Apprendi.

Justice Stevens' opinion for a 5-4 majority of the Court framed the issue:

"The question presented is whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense * * * be made by a jury on the basis of proof beyond a reasonable doubt." Apprendi, 530 U.S. at ___, 120 S.Ct. at 2351, 147 L.Ed.2d at 442.

The Court then said:

"Our answer to that question was foreshadowed by our opinion in Jones v. United States, 526 U.S. 227[, 119 S.Ct. 1215, 143 L.Ed.2d 311] (1999), construing a federal statute. We there noted that `under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.' [Citation.] The Fourteenth Amendment commands the same answer in this case involving a state statute." Apprendi, 530 U.S. at ___, 120 S.Ct. at 2355, 147 L.Ed.2d at 446.

Noting the constitutional founders would have recognized no distinction between an element of a felony offense and a so-called "sentencing factor," the Court offered an historical overview of the principle that a criminal defendant is entitled to a jury determination of guilt beyond a reasonable doubt on every element of the charged offense. The Court assured, however, "nothing in this history suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute." (Emphasis in original.) Apprendi, 530 U.S. at ___, 120 S.Ct. at 2358, 147 L.Ed.2d at 449. The Court did not provide legislatures any leeway. The fact that the New Jersey legislature intended racial hatred to be an enhanced sentencing provision, not part of the crime of possessing weapons, was of no significance:

"`It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.'" Apprendi, 530 U.S. at ___, 120 S.Ct. at 2363, 147 L.Ed.2d at 455 (quoting Jones, 526 U.S. at 252-53, 119 S.Ct. at 1215, 143 L.Ed.2d at 311 (Stevens, J., concurring)).

The Court said it again: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at ___, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455.

Apprendi calls into question parts of Illinois' sentencing scheme (see People v. Clifton, Nos. 1-98-2126, 1-98-2384, ___ Ill.App.3d ___, ___ Ill.Dec. ___, ___ N.E.2d ___, 2000 WL 1459781 (September 29, 2000) (Illinois' consecutive sentencing provision, 730 ILCS 5/5-8-4(a) (West 1996) violates Apprendi)), including the extended term provision used by the trial court here. But before proceeding to the merits of Beachem's Apprendi claim, we must answer a threshold question: does Apprendi apply to cases on collateral review? We limit our consideration of this question to timely, first post-conviction petitions. We make no comment on untimely or successive post-conviction petitions.¹

To determine whether Apprendi reaches back to a timely post-conviction petition, we have to weigh the public's interest in the finality of criminal judgments against its interest in the fairness and integrity of criminal trials. This balance usually tips toward nonretroactivity. See People v. Moore, 177 Ill.2d 421, 430, 226 Ill.Dec. 804, 686 N.E.2d 587 (1997) ("Generally, decisions which announce `new rules' are not to be applied retroactively to cases pending on collateral review.").

But a plurality decision by the United States Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), adopted by the Illinois Supreme Court in People v. Flowers, 138 Ill.2d 218, 237, 149 Ill.Dec. 304, 561 N.E.2d 674 (1990), established two exceptions to this general principle.

First, "a new rule should be applied retroactively if it places `certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Teague, 489 U.S. at 311, 109 S.Ct. at 1075, 103 L.Ed.2d at 356. Because Apprendi did not address primary, private behavior, this first exception does not apply.

Second, "a new rule should be applied retroactively if it requires the observance of `those...