People v. De La Paz

• Citation: 204 Ill.2d 426,274 Ill.Dec. 397,791 N.E.2d 489
• Decision Date: 08 May 2003
• Docket Number: No. 93208.,93208.
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Paul A. DE LA PAZ, Appellant.
• Court: Supreme Court of Illinois

791 N.E.2d 489
204 Ill.2d 426
274 Ill.Dec. 397

The PEOPLE of the State of Illinois, Appellee,
v.
Paul A. DE LA PAZ, Appellant

No. 93208.

Supreme Court of Illinois.

May 8, 2003.

791 N.E.2d 491

Michael J. Pelletier, Deputy Defender, Office of the State Appellate Defender, Chicago, Alison J. Norwood, Streamwood, for appellant

James E. Ryan, Attorney General, Springfield, Richard A. Devine, State's Attorney, Chicago (William L. Browers, Assistant Attorney General, Chicago, Renee G. Goldfarb, Linda Halperin, Alan J. Spellberg, Assistant State's Attorneys, of counsel), for the People.

Justice FREEMAN delivered the opinion of the court:

Petitioner, Paul De La Paz, is currently serving an extended-term sentence for an armed robbery conviction. He has exhausted his direct appeals and is now before this court on appeal from the dismissal of his petition for postconviction relief. He argues that he received ineffective assistance of counsel in the postconviction proceedings and also argues that his extended-term sentence should be reversed because the procedures followed by the circuit court did not comply with the Supreme Court's mandate in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We affirm, finding specifically with respect to the latter claim that Apprendi does not apply retroactively to causes in which the direct appeal process had concluded at the time that Apprendi was decided.

BACKGROUND

In 1985, a jury in the circuit court of Cook County convicted petitioner of armed robbery, armed violence, home invasion and aggravated battery. A detailed recitation of the circumstances of the crime is not necessary for our analysis, but the facts adduced at trial established that petitioner entered the home of the 77-year-old victim brandishing a hammer and demanding the victim's wallet. After the victim produced his wallet, petitioner hit him on the head with the hammer and began to ransack his home. Petitioner later also hit the victim with a gun, knocking him unconscious. The circuit court sentenced petitioner to a 55-year extended sentence on the armed robbery conviction and a concurrent 5-year sentence for the aggravated battery conviction. The appellate court affirmed petitioner's convictions on direct appeal. People v. De La Paz, No. 1-85-3293, 181 Ill.App.3d 1114, 142 Ill.Dec. 934, 553 N.E.2d 448 (1989) (unpublished order under Supreme Court Rule 23).

Petitioner first petitioned for postconviction relief in September 1986, while his direct appeal was still pending. Appointed counsel filed an amended petition in October 1999, and petitioner followed with a supplemental pro se petition. Because the arguments raised on appeal do not involve the arguments raised in the various petitions, we will not recount them in detail. We do note that in petitioner's supplemental pro se petition, he stated that he had "spoken with the Assistant Public Defender Ingrid Gill, [p]rior to her filing this Supplemental Petition for Post Conviction relief, whereas she had said in a telephone conversation that she was only going to raise One Issue and that issue being the one she now raised in" the October petition. (Emphasis in original.) Petitioner continued: "Petitioner not only argued

791 N.E.2d 492

with her about this only issue [sic], he filed a complaint with the ARDC Attorney Registration Disciplinary Commission of the Illinois Supreme Court." Petitioner stated that according to his review of the authorities—specifically citing People v. Britz, 174 Ill.2d 163, 220 Ill.Dec. 388, 673 N.E.2d 300 (1996)—the issue counsel raised in the amended petition was "worthless."

The State moved to dismiss, and the court granted the State's motion in March 2000. Petitioner appealed, and the appellate court affirmed the dismissal. No. 1-00-0976 (unpublished order under Supreme Court Rule 23).

During the unusual length of time that the petition remained pending in the circuit court, petitioner composed numerous documents complaining of the circumstances that had resulted in his conviction. These included a complaint with the Attorney Registration and Disciplinary Commission (ARDC) against his trial attorney; a letter to the circuit court of Cook County that indicated that he was planning to file a lawsuit against the trial judge, his trial attorney, and the State's Attorney; and a second letter to a deputy clerk of the circuit court of Cook County reiterating that the assistant State's Attorney and petitioner's trial judge were prejudiced against him.

Also, after petitioner filed his postconviction petition, he filed a "motion for leave to file an original petition for writ of mandamus" and a "petition for writ of mandamus," requesting that his postconviction petition be heard in another county. This request was based on petitioner's contention that Judge Gillis, who had presided over petitioner's original trial, was prejudiced against him to such an extent that petitioner could not receive a fair hearing on his postconviction proceeding before Judge Gillis or any other judge in the circuit court of Cook County. The motion was denied. Later, petitioner filed motions for extensions of time to file a "supplemental brief," contending that the assistant public defender assigned to his case was indifferent to his claims. As a result of these allegations, the assistant public defender was permitted to withdraw as counsel in 1987, and petitioner proceeded pro se. However, no further activity occurred in the case until the court granted a motion to reinstate the petition in June 1993, with the matter reassigned to a different judge. In July 1997 petitioner filed a motion for supervisory order, naming as respondents the judge before whom his petition was pending, the public defender, and two assistant public defenders. In that motion petitioner complained that no progress was being made in his case.

A new assistant public defender, Ingrid Gill, filed an appearance in the case in May 1999. Soon thereafter, petitioner filed a complaint against her with the ARDC, which the ARDC found to be "unfounded."

The matter was set for hearing in March 2000. At that time, counsel filed a certificate of compliance with Rule 651(c). Counsel then summarized for the court's benefit the course of proceedings until that point, including the fact that in addition to the filings above, petitioner had also filed lawsuits in federal court against the police and Cermak Hospital, which had been dismissed. The court dismissed the postconviction petition, the appellate court affirmed, and we granted petitioner leave to appeal. 177 Ill.2d R. 315(a).

ANALYSIS

Before this court, petitioner raises two issues. He contends that (1) his sentence should be reversed because the circuit court did not comply with the procedures required by Apprendi in sentencing him, and (2) his postconviction counsel was ineffective in failing to request a hearing on

791 N.E.2d 493

petitioner's competency to participate in postconviction proceedings

I. Apprendi

We first address petitioner's argument that his 55-year sentence for armed robbery must be vacated and the cause remanded for resentencing because the circuit court entered that sentence without following the procedures required by the Supreme Court in Apprendi.

Initially, we note that petitioner failed to present this argument in his postconviction petition. A petition under the Post-Conviction Hearing Act must, inter alia, "clearly set forth the respects in which petitioner's constitutional rights were violated." 725 ILCS 5/122-2 (West 1994). Just as the legislature has set forth what must be contained in a petition, it has specified the consequences of omitting a claim: "[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived." 725 ILCS 5/122-3 (West 1994). "Waiver" is a well-established term of art in the legal field. This court has long recognized that we may, in appropriate cases, reach issues notwithstanding their waiver. At least as long ago as 1957, this court had held that

"the general rule is that where a question is not raised or reserved in the trial court, or where, though raised in the lower court, it is not urged or argued on appeal, it will not be considered and will be deemed to have been waived. However, this is a rule of administration and not of jurisdiction or power, and it will not operate to deprive an accused of his constitutional rights of due process. `The court may, as a matter of grace, in a case involving deprivation of life or liberty, take notice of errors appearing upon the record which deprived the accused of substantial means of enjoying a fair and impartial trial, although no exceptions were preserved or the question is imperfectly presented.'" People v. Burson, 11 Ill.2d 360, 370-71, 143 N.E.2d 239 (1957), quoting 3 Am.Jur. Appeal & Error § 248, at 33 (1936).

See also Flynn v. Ryan, 199 Ill.2d 430, 438 n. 1, 264 Ill.Dec. 710, 771 N.E.2d 414 (2002) (waiver is an admonition to the parties, not a limitation upon the powers of this court); Hux v. Raben, 38 Ill.2d 223, 225, 230 N.E.2d 831 (1967) (this court has "the responsibility * * * for a just result and for the maintenance of a sound and uniform body of precedent [that] may sometimes override the considerations of waiver that stem from the adversary character of our system").

"`Where statutes are enacted after judicial opinions are published, it must be presumed that the legislature acted with knowledge of the prevailing case law.'" Burrell v. Southern Truss, 176 Ill.2d 171, 176, 223 Ill.Dec. 457, 679 N.E.2d 1230 (1997), quoting People v. Hickman, 163 Ill.2d 250, 262, 206 Ill.Dec. 94, 644 N.E.2d 1147 (1994). We may thus assume that the legislature understood the legal ramifications of the term "waiver"—including the fact that reviewing courts may overlook waiver in appropriate circumstances—when it enacted section 122-3 in 1964.

In view of the principles...