People v. Gay
| Decision Date | 18 November 2011 |
| Docket Number | No. 4–10–0009.,4–10–0009. |
| Citation | 356 Ill.Dec. 149,2011 IL App (4th) 100009,960 N.E.2d 1272 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Anthony GAY, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Michael J. Pelletier, of State Appellate Defender's Office, of Springfield, and Alan D. Goldberg and Scott F. Main (argued), both of State Appellate Defender's Office, of Chicago, for appellant.
Thomas J. Brown, State's Attorney, of Pontiac (Patrick Delfino, Robert J. Biderman, and Linda Susan McClain (argued), all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Harold C. Hirshman and Camille E. Bennett, both of SNR Denton US, LLP, and Alan Mills, of Uptown People's Law Center, both of Chicago, for amicus curiae.
[356 Ill.Dec. 152] ¶ 1 In December 2009, the trial court dismissed defendant Anthony Gay's amended postconviction petition following a second-stage nonevidentiary hearing, finding defendant failed to make a substantial showing that his constitutional rights were violated. Defendant appeals, arguing he made substantial showings that (1) his aggregate sentence in this and other unconsolidated cases violates the constitutional prohibition against cruel and unusual punishments; (2) the State subverted his constitutional rights to due process and a speedy trial by engaging in tactical preindictment delay; (3) he received ineffective assistance of counsel when his counsel on direct appeal did not argue the court erred by ordering a fitness examination and thereby circumventing defendant's speedy-trial request; and (4) the Department of Corrections (DOC) citation issued to defendant for his conduct that gave rise to this aggravated-battery conviction insufficiently advised him that the same conduct also exposed him to possible criminal prosecution. We disagree with defendant and affirm.
¶ 3 On August 25, 2000, while an inmate at Pontiac Correctional Center, defendant threw a liquid substance having a urine-like odor at a corrections officer, striking him in the face with it. DOC cited defendant for a violation of offense No. 102, “ASSAULTING ANY PERSON.” See 20 Ill. Adm.Code 504 app. A (2011) (enumerating and defining DOC offenses). On July 1, 2003, for the same incident, the State charged defendant with aggravated battery in this case, Livingston County case No. 03–CF–172 (case No. 172). 720 ILCS 5/12–4(b)(6) (West 2000). At that time, criminal charges were pending against defendant in five other Livingston County cases. After an August 30, 2005, trial, a jury found defendant guilty as charged. On October 28, 2005, the trial court sentenced defendant to an extended term of six years' imprisonment. See 730 ILCS 5/5–5–3.2(b)(1), 5–8–2(a)(5) (West 2004). This sentence was to run consecutively to sentences defendant had received in other cases. See 730 ILCS 5/5–8–4(f) (West 2004). This court affirmed on direct appeal. People v. Gay, 376 Ill.App.3d 796, 803, 316 Ill.Dec. 83, 878 N.E.2d 805, 811 (2007).
¶ 4 On July 19, 2007, defendant filed a postconviction petition in this case pursuant to the Post–Conviction Hearing Act (725 ILCS 5/122–1 through 122–8 (West 2006)). By that time, defendant had accumulated 16 aggravated-battery convictions, including his conviction in case No. 172, stemming from defendant's behavior toward corrections employees in Pontiac from 2000 to 2001. His convictions had resulted in 97 years of consecutive sentences. Defendant waived the appointment of postconviction counsel. See 725 ILCS 5/122–4 (West 2006). On June 24, 2008, according to the trial court's docket sheet, defendant was given leave to file amended postconviction petitions in this and other cases. The court noted, “The defendant is admonished to list case numbers on all of his pleadings.”
¶ 5 On December 26, 2008, defendant filed his amended postconviction petition in this case. No other case number was indicated in the caption of defendant's petition. Four of defendant's claims of constitutional violations are relevant to this appeal, and the lengthy and detailed factual assertions related to these claims will be discussed as necessary in our analysis.
¶ 6 The State was granted a series of continuances to file an answer or motion to dismiss. See 725 ILCS 5/122–5 (West 2006). The deadline for filing passed. On October 13, 2009, the trial court held a second-stage hearing on defendant's amended postconviction petition. The court denied the State's motion to file its motion to dismiss instanter but allowed the State to enter a general denial. It heard arguments and took the matter under advisement.
¶ 7 In a December 10, 2009, written order, the trial court dismissed defendant's amended petition, finding he made no substantial showing of a constitutional violation.
¶ 8 This appeal followed.
¶ 11 We review the trial court's dismissal of a postconviction petition without an evidentiary hearing de novo. People v. Hall, 217 Ill.2d 324, 334, 299 Ill.Dec. 181, 841 N.E.2d 913, 920 (2005). Dismissal is warranted at the second stage where the defendant's claims, liberally construed in light of the trial record, fail to make a substantial showing of a constitutional violation. Id. At that stage, the defendant's factual allegations not rebutted by the trial record are taken as true. Id.
¶ 13 First, defendant argues that he made a substantial showing that his aggregated sentence from this and 15 other unconsolidated criminal cases amounts to cruel and unusual punishment. We disagree.
¶ 14 The eighth amendment to the United States Constitution states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const., amend. VIII. The cruel and unusual punishments clause has been interpreted to embody two distinct propositions. One “prohibits the imposition of inherently barbaric punishments under all circumstances.” Graham v. Florida, 560 U.S. ––––, ––––, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010). The other embodies a “narrow proportionality principle,” which “forbids * * * extreme sentences that are grossly disproportionate to the crime.” (Internal quotation marks omitted.) Graham, 560 U.S. at ––––, 130 S.Ct. at 2021.
¶ 15 Cases challenging the proportionality of a sentence to the crime committed were, until Graham was decided in 2010, divided into two discrete categories: those involving a term-of-years sentence and those involving the death penalty. Graham, 560 U.S. at ––––, 130 S.Ct. at 2021. In cases challenging a term-of-years sentence, a court would initially engage in a case-by-case proportionality evaluation comparing the “gravity of the offense” to the “severity of the sentence.” Graham, 560 U.S. at ––––, 130 S.Ct. at 2022. If the sentence was grossly disproportionate, the court would compare the sentence to “the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions.” Graham, 560 U.S. at ––––, 130 S.Ct. at 2022. If the latter comparison confirmed that the sentence was grossly disproportionate to the offense, the sentence would be found cruel and unusual. Graham, 560 U.S. at ––––, 130 S.Ct. at 2022.
¶ 16 In cases challenging a capital sentence, the death penalty was found categorically cruel and unusual in certain instances based upon either “the nature of the offense” or “the characteristics of the offender.” Graham, 560 U.S. at ––––, 130 S.Ct. at 2022. The Supreme Court has held that capital punishment is impermissible when imposed for nonhomicide crimes or imposed against juvenile offenders or those “whose intellectual functioning is in a low range.” Graham, 560 U.S. at ––––, 130 S.Ct. at 2022.
¶ 17 The differential treatment of capital and term-of-years sentences before Graham reflected the Supreme Court's “longstanding view that the death penalty is different from other punishments in kind rather than degree.” (Internal quotation marks omitted.) Graham, 560 U.S. at ––––, 130 S.Ct. at 2038–39 (Roberts, C.J., concurring). Earlier in the opinion, however, the Court stated, “[L]ife without parole sentences share some characteristics with death sentences that are shared by no other sentences.” Graham, 560 U.S. at ––––, 130 S.Ct. at 2027.
¶ 18 In Graham, 560 U.S. at ––––, 130 S.Ct. at 2034, for the first time, the Supreme Court recognized a categorical limitation on a term-of-years sentence, holding that life without parole sentences were necessarily unconstitutional when imposed upon juvenile, nonhomicide offenders. The Court based its decision on its intermediate conclusions that (1) United States jurisdictions had developed a consensus against authorizing and imposing life without parole sentences for juvenile, nonhomicide offenders; (2) juvenile, nonhomicide offenders were generally less culpable than adult and homicide offenders; (3) “the challenged sentencing practice” served no “legitimate penological goals,” such as retribution, deterrence, incapacitation, and rehabilitation; (4) a categorical prohibition was preferable to a ruling restricted to the facts of the case; and (5) “the global consensus against the sentencing practice in question” confirmed the Court's determination that it was categorically unconstitutional. Graham, 560 U.S. at ––––, 130 S.Ct. at 2033. It concluded, “A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.” Graham, 560 U.S. at ––––, 130 S.Ct. at 2034.
¶ 19 Relying on Graham, defendant in this case contends his aggregated, 97–year sentence on his 16 felony convictions—which he characterizes as a de facto life without parole sentence—is cruel and unusual because defendan...
To continue reading
Request your trial
- People v. Cavazos
- People v. Brown
- People v. Harris
- People v. Cavazos