People v. Fernandez

• Decision Date: 17 July 2014
• Docket Number: No. 1–12–0508.,1–12–0508.
• Citation: 16 N.E.3d 151
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Luis FERNANDEZ, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

16 N.E.3d 151

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Luis FERNANDEZ, Defendant–Appellant.

No. 1–12–0508.

Appellate Court of Illinois, First District, Fourth Division.

July 17, 2014.

Rehearing Denied Aug. 7, 2014.

Michael J. Pelletier, Alan D. Goldberg, David C. Holland, and Patrick F. Cassidy, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Assistant State's Attorney, of counsel), for the People.

OPINION

Justice EPSTEIN

delivered the judgment of the court, with opinion.

¶ 1 Defendant Luis Fernandez sold 1,008.5 grams—approximately two pounds—of cocaine to an undercover police officer in 2010. For that amount of cocaine, defendant would have ordinarily faced a sentence of between 15 and 60 years' incarceration. 720 ILCS 570/401(a)(2)(D)

(West 2010). In this case, because defendant had pled guilty to drug offenses in 1992 and 1999, the Habitual Criminal Act (Act) required the trial court to sentence defendant to spend the rest of his life in prison. 730 ILCS 5/5–4.5–95(a) (West 2010). The trial court noted, “It gives me no pleasure to do this,” in sentencing defendant to the harshest penalty under Illinois law.

¶ 2 Defendant raises three issues on appeal: (1) his 1999 federal conviction cannot serve as a qualifying offense under the Act, because it did not have the same elements as a Class X offense; (2) the Act violates the eighth amendment to the United States Constitution; and (3) the Act, as applied, violates the proportionate penalties clause of the Illinois Constitution. Although defendant's natural life sentence is harsh, we are compelled to affirm it.

¶ 3 I. BACKGROUND

¶ 4 On August 3, 2010, undercover Illinois State Police special agent Gutierrez met defendant, codefendant Daniel Quispe, and an informant at a restaurant in Chicago, Illinois. There, defendant and codefendant agreed to sell three kilograms of cocaine to Gutierrez for $31,500 per kilogram. The following day, defendant told Gutierrez via telephone that he could obtain only one kilogram. On August 5, 2010, Gutierrez—equipped with a surreptitious recording device and $31,500 in prerecorded bills—met codefendant in a restaurant parking lot, but moved to the corner of Armitage Avenue and Rockwell Street, because codefendant was nervous. Codefendant entered Gutierrez's truck, made a telephone call, and said that defendant would be there shortly. Defendant arrived approximately 15 minutes later, entered the truck, and handed Gutierrez a black plastic bag containing 1,008.5 grams of cocaine. Gutierrez opened a toolbox containing the money, a signal to his surveillance team that a deal had been made. As the surveillance team approached, defendant and codefendant attempted to flee, but were soon arrested. That night at the police station, defendant told Gutierrez that codefendant paid him $500 to deliver the cocaine. A jury found defendant guilty of delivery of a controlled substance.

¶ 5 At sentencing, the State presented a certified copy of defendant's 1992 conviction for delivery of more than 400 grams but less than 900 grams of cocaine. With respect to that 1992 conviction, a retired Chicago police officer testified that, on October 29, 1991, defendant sold him cocaine while the officer was undercover. The State also presented a certified copy of defendant's 1999 federal conviction for possession with intent to deliver. With respect to the 1999 conviction, the parties stipulated that a Drug Enforcement Administration agent would testify that he arrested defendant as he exited a train traveling from New York to Chicago with 10 packets of heroin taped to his stomach. The State argued that defendant's 1999 conviction was equivalent to a Class X felony, directing the trial court to defendant's plea declaration in his federal case. In that document, defendant admitted to possessing approximately 800 grams of heroin. Defendant's attorney did not object to the admission of this evidence.

¶ 6 In mitigation, defense counsel argued that both of defendant's prior convictions occurred several years before the instant case. Defendant had been employed as a construction worker and maintenance worker before being convicted in this case. Defense counsel noted that defendant had pled guilty to his two prior drug offenses, evincing his willingness to accept responsibility for his actions. Finally, defense counsel argued that he should be sentenced to a term of years because he was 56 years old at the time of sentencing.

¶ 7 The trial court sentenced defendant to mandatory natural life imprisonment, stating:

“It gives me no pleasure to do this. Mr. Fernandez from all outward appearances is a nice man and he's always been respectful to this Court and as far as the Court can tell he's always been respectful to the court staff and personnel. But based on his background and based on this conviction this Court will sentence the defendant to natural[ ]life in prison.”

Defendant appeals.

¶ 8 II. ANALYSIS

¶ 9 Defendant's arguments concern the constitutionality and scope of the Act. We first address his nonconstitutional arguments. See People v. Brown, 225 Ill.2d 188, 200, 310 Ill.Dec. 561, 866 N.E.2d 1163 (2007)

(“If a court can resolve a case on nonconstitutional grounds, it should do so. [Citation.] Constitutional issues should be reached only as a last resort.”).

¶ 10 A. 1999 Federal Conviction

¶ 11 Defendant contends that his life sentence is void, because his 1999 federal conviction is not a qualifying offense under the Act, where it does not have the same elements as a Class X felony. Defendant also argues that the trial court's examination of the facts underlying his 1999 federal conviction ran afoul of his sixth amendment right to a jury trial as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)

. Finally, defendant claims that his trial attorney was ineffective for failing to object to the use of his federal conviction as a qualifying offense under the Act. The State argues that defendant forfeited this issue, and even if he had preserved it, defendant's reading of the Act is inaccurate. We first address the State's forfeiture argument and then address defendant's statutory and constitutional claims.

¶ 12 In support of its forfeiture argument, the State points to the Act, which provides that “[a]ny claim that a previous conviction offered by the prosecution is not a former conviction of an offense set forth in this Section because of the existence of any exceptions described in this Section, is waived unless duly raised at the hearing on that conviction, or unless the prosecution's proof shows the existence of the exceptions described in this Section.” 730 ILCS 5/5–4.5–95(a)(8)

(West 2010); see also People v. Brown, 229 Ill.2d 374, 389, 323 Ill.Dec. 42, 892 N.E.2d 1034 (2008) (“if defendant fails to rebut the presumption of his eligibility at his sentencing hearing, he will have forfeited the right to do so on direct appeal”).

¶ 13 Defendant acknowledges that he failed to challenge whether his federal conviction satisfied the Act, but cites the exception to forfeiture set forth in Brown: “[I]f the State's evidence concerning the defendant's prior convictions does not support the inference of eligibility because the evidence, on its face, demonstrates that defendant's prior convictions do not meet all of the requirements of [the] section * * * defendant will not be prohibited from challenging his sentence on appeal.” Brown, 229 Ill.2d at 389–90, 323 Ill.Dec. 42, 892 N.E.2d 1034

. The Brown court stated that, where the State's evidence was deficient on its face, the defendant's sentence would be void and subject to challenge at any time. Id. at 391–92, 323 Ill.Dec. 42, 892 N.E.2d 1034.¹

¶ 14 Here, the State's evidence regarding defendant's federal conviction, on its face, met the requirements of the Act. At his sentencing hearing, defendant stipulated to testimony that, in 1999, he was arrested by federal agents with 10 packets of heroin taped to his stomach. He stipulated that he later pled guilty to possession of heroin with intent to distribute for that offense. The State presented the trial court with a certified copy of defendant's federal conviction and asked that the plea declaration in that case be incorporated as part of its evidence in aggravation. Defendant did not object to the State's use of his federal plea declaration. Defendant's plea declaration stated that he was in possession of “approximately 100 pellets of heroin, weighing roughly 800 grams.” This evidence, on its face, shows that defendant's federal conviction would qualify as a Class X offense under Illinois law. Without any objection to this evidence, defendant forfeited review of this issue.

¶ 15 Even if defendant had preserved this issue, we would find that his federal conviction would qualify as a predicate offense under the plain language of the Act. The Act mandates that “[e]very person who has been twice convicted in any state or federal court of an offense that contains the same elements as an offense now * * * classified in Illinois as a Class X felony * * * and who is thereafter convicted of a Class X felony * * * committed after the 2 prior convictions, shall be adjudged an habitual criminal.” (Emphasis added.) 730 ILCS 5/5–4.5–95 (West 2010)

. Defendant argues that, by the plain language of the statute, an offense in another jurisdiction only supports habitual criminal status if that offense included the “same elements” as a Class X felony in Illinois.

¶ 16 Under Illinois law, a drug offense is a Class X felony only where the State proves beyond a reasonable doubt that the defendant possessed a certain type of substance (e.g., heroin, peyote, or amphetamine) and certain amount of that substance (e.g., 15 grams of heroin, 200 grams of peyote, or 200 grams of amphetamine). 720 ILCS 570/401(a)(1)(A)

, (a)(4), (a)(6) (West 2010). In other words, when a...