People v. Lake

• Decision Date: 29 December 2014
• Docket Number: No. 1–13–1542.,1–13–1542.
• Citation: 24 N.E.3d 888
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Lamonte LAKE, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

24 N.E.3d 888

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Lamonte LAKE, Defendant–Appellant.

No. 1–13–1542.

Appellate Court of Illinois, First District, Fifth Division.

Dec. 29, 2014.

Michael J. Pelletier, Alan D. Goldberg, Jennifer L. Bontrager, State Appellate Defender's Office, Chicago, for Appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Tasha Marie Kelly, Margaret M. Smith, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice McBRIDE delivered the judgment of the court, with opinion.

¶ 1 Defendant Lamonte Lake appeals the trial court's sua sponte dismissal of his pro se petition for relief from judgment pursuant to section 2–1401 of the Code of Civil Procedure (735 ILCS 5/2–1401 (West 2010) ). Defendant argues that (1) the addition of a three-year term of mandatory supervised release (MSR) violated his due process rights; and (2) the case must be remanded because the trial court's dismissal was premature since the State was not properly served with defendant's petition.

¶ 2 Following a 1996 jury trial, defendant was found guilty of first degree murder of 14–year–old Alvin Gilmore and sentenced to a term of 45 years in the Illinois Department of Corrections. Defendant's conviction and sentence were affirmed on direct appeal. People v. Lake, 298 Ill.App.3d 50, 232 Ill.Dec. 217, 697 N.E.2d 1147 (1998).¹ Defendant has unsuccessfully challenged his conviction and sentence several times in the form of postconviction petitions, a petition for writ of mandamus, and section 2–1401 petitions. See, e.g., People v. Lake, No. 1–00–2049, 332 Ill.App.3d 1137, 296 Ill.Dec. 641, 835 N.E.2d 994 (2002), People v. Lake, No. 107–3100, 391 Ill.App.3d 1119, 367 Ill.Dec. 838, 982 N.E.2d 988 (2009), and People v. Lake, No. 1–09–1960, 401 Ill.App.3d 1142, 371 Ill.Dec. 289, 989 N.E.2d 1217 (2010), (unpublished orders under Supreme Court Rule 23 ); People v. Lake, 2012 IL App (1st) 110219–U, 2012 WL 6955481.

¶ 3 The reviewing court on direct appeal described the circumstances that led to the shooting death of a 14 year old as follows. “Events that began with a street encounter between two women and a slap ended on December 26, 1992, with a hail of bullets being fired at and into a building with the resultant death of Alvin Gilmore, who suffered a gunshot wound to the head.” Lake, 298 Ill.App.3d at 52, 232 Ill.Dec. 217, 697 N.E.2d 1147.

¶ 4 The court then summarized the evidence at trial:

“On December 26, 1992, Lashundia Davis, while on her way to a store by her home, ran into Tineshea Lake, who was with two other women, Rashawn Jackson and Kimberly Manning. Tineshea had previously dated Lashundia's boyfriend, Orlando Potts. Rashawn approached Lashundia, said something to her and slapped her across the face. At this point, Tineshea said ‘let's get her.’ Lashundia then ran home and spoke to her sister and brother, who then accompanied her to Tineshea's home. At Tineshea's house, Lashundia offered to fight Tineshea but Tineshea refused and Lashundia went home. On her way home, Lashundia ran into her mother and her boyfriend, Orlando Potts. After they conversed, Orlando Potts went to Tineshea's house and broke windows in her house.

Ben Harden testified for the State pursuant to a plea agreement in which first degree murder charges against him were dropped and he received a sentence of 12 years' imprisonment for aggravated discharge of a firearm. According to Harden's testimony, he was in a car with Lemont Lake when Lemont stopped to make a phone call in response to a page he received on his pager. Harden testified that defendant appeared to be angry when he got back in the car and told Harden that ‘[t]hey was bogus.’ Defendant then drove to Allen Duncan's apartment on 55th and Union Streets. Once inside, defendant told Allen to ‘give me that,’ at which point Allen retrieved a black, 9 millimeter gun along with a loaded clip and handed it to defendant. Defendant put the loaded clip into the gun.

Defendant, Ben Harden and Allen Duncan left Allen's apartment where, soon thereafter, they saw Jermail Lake and Shon Scott. Defendant told Jermail and Shon, ‘They was bogus for doing that.’ Defendant, Allen Duncan and Ben Harden then drove to the Lake house at 39th and Prairie, where they met Jermail Lake and Shon Scott, who had driven separately. Rashawn Jackson was sweeping up the glass from the window that Orlando Potts had broken. Harden further testified that Tineshea told defendant that Orlando had broken the windows because she had called him ‘out [sic ] his name.’ Harden also testified that Tineshea told the group, which consisted of himself, defendant, Jermail Lake, Shon Scott, and Allen Duncan, that they should go to Orlando's house and ‘kick his ass,’ but that they should be careful because someone would be there. Defendant then pulled out the 9 millimeter gun and said, ‘don't worry about it.’

Defendant, Jermail Lake, Ben Harden, Shon Scott and Allen Duncan left the apartment and walked northbound on Prairie to Lashundia's house. Lashundia lived at 3932 S. Prairie, which is a low-rise housing unit. When they reached a tree about 30 feet away from Orlando's apartment, defendant told the group to stop, pulled the gun out of his jacket and aimed it toward the apartment. As defendant fired the gun he said, ‘watch me light this place up.’ He fired 16 shots at the apartment. On cross-examination, Harden testified that he could see people in Orlando's apartment before defendant began shooting.

Defendant, Ben Harden and Allen Duncan ran to defendant's car and Allen drove them to defendant's house, where they drank and watched videos. Jermail Lake and Shon Scott arrived 5 to 10 minutes later. Jermail then made a phone call in which Ben heard him say, ‘Is everybody straight? Is she O.K.?’ Approximately 15 minutes later, the police arrived and arrested everyone.

At trial, Lashundia Davis testified that, at about 6:30 p.m., shortly after Orlando had gone to Tineshea's home to break her windows, she was at home with her mother, siblings, Eric Watkins and her nieces and nephews, including Alvin Gilmore. Eric Watkins looked out the window and said something that caused Lashundia to look out the window. When Lashundia looked out the window she saw defendant, Rashawn Jackson, Kimberly Manning, Tineshea, Jermail Lake and Allen Duncan approaching her apartment from the courtyard directly across from her apartment. Lashundia claimed that the group was within 40 feet of her apartment at one time prior to shooting. Prior to the shooting, 14–year–old Alvin Gilmore was sitting at the kitchen table near a window. Testimony established that he died from a gunshot wound to his brain.” Lake, 298 Ill.App.3d at 52–53, 232 Ill.Dec. 217, 697 N.E.2d 1147.

¶ 5 On January 29, 2013, defendant filed a pro se petition for relief from judgment pursuant to section 2–1401 of the Code of Civil Procedure (735 ILCS 5/2–1401 (West 2012) ). In his petition, defendant argued that the trial court failed to admonish defendant that he would be required to serve a three-year period of MSR following the completion of his prison term and the MSR term was improperly added to his sentence by the Department of Corrections (DOC) in violation of defendant's due process rights. Defendant contended that this rendered his sentence void and asked to be resentenced without the imposition of the three-year MSR term. Defendant's notice of filing indicated that he served the petition on the trial court and the State via the United States mail.

¶ 6 The petition was stamped as received by the clerk's office of the circuit court of Cook County, criminal court division, on January 29, 2013. Thereafter, on February 22, 2013, the trial court stated on the record that defendant had filed a pro se

section 2–1401 petition. The report of proceedings for February 22, 2013, indicated that an assistant State's Attorney was present in the courtroom at the time of those proceedings and was appearing on behalf of Anita Alvarez, the State's Attorney of Cook County. The court continued the case until March 21, 2013. On March 21, the trial court continued the case until April 4, 2013. On April 4, 2013, the trial court stated on the record that defendant's pro se petition under section 2–1401 was denied and a written order was filed. In the six-page written order, the trial court considered the merits of defendant's petition and held that defendant's “term of MSR attached to the sentence which was imposed by the court as an operation of law” and his claim was “without merit.”

¶ 7 This appeal followed.

¶ 8 Defendant initially contends the substantive argument from his section 2–1401 petition, that his sentence was void and violated his due process rights because the trial court did not explicitly advise him that he would be required to serve a mandatory three-year period of MSR after his prison sentence. Section 5–8–1(d)(1) of the Unified Code of Corrections states that the term of MSR “shall be written as part of the sentencing order” and for a first degree murder conviction, the term would be three years. 730 ILCS 5/5–8–1(d)(1) (West 2012).

¶ 9 However, the Illinois Supreme Court has recently considered and rejected this argument in People v. McChriston, 2014 IL 115310, 378 Ill.Dec. 430, 4 N.E.3d 29. As in the present case, the defendant in McChriston argued that “only the trial court, not the DOC, is empowered to impose a term of MSR, and therefore the addition of the MSR term to defendant's sentence violates the separation of powers clause of the Illinois Constitution and his federal constitutional right to due process.” Id. ¶ 6. The supreme court held that “[t]he plain language of section 5–8–1(d) at the time of defendant's sentencing was unambiguous and provided that the MSR term be automatically included as part of defendant's sentence and the DOC did not add onto defendant's sentence when it enforced the MSR term.” Id. ¶ 23. The supreme court observed that “the ...