People v. Schrader

• Decision Date: 30 September 2004
• Docket Number: No. 1-02-1565.,1-02-1565.
• Citation: 820 N.E.2d 489,289 Ill.Dec. 713,353 Ill. App.3d 684
• Parties: The PEOPLE of the State of Illinois, Respondent-Appellee, v. Michael SCHRADER, Petitioner-Appellant.
• Court: United States Appellate Court of Illinois

820 N.E.2d 489

353 Ill. App.3d 684

289 Ill.Dec. 713

The PEOPLE of the State of Illinois, Respondent-Appellee, v. Michael SCHRADER, Petitioner-Appellant.

No. 1-02-1565.

Appellate Court of Illinois, First District, Third Division.

September 30, 2004.

As Modified Upon Denial of Rehearing December 8, 2004.

Michael J. Pelletier, Deputy Defender, Robert Hirschhorn, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney, County of Cook, Chicago (Renee Goldfarb and Alan J. Spellberg, of counsel), for Appellee.

Justice HARTMAN delivered the modified opinion of the court upon denial of rehearing:

Petitioner, Michael Schrader, appeals from the circuit court's denial of his pro se petition for relief from judgment filed pursuant to section 2-1401 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-1401 (West 2002) (section 2-1401). On appeal, petitioner contends that (1) the court was without authority to summarily dismiss his section 2-1401 petition, (2) his extended-term sentence of 70 years for murder based on his "brutal or heinous" conduct is unconstitutional, and (3) his convictions for armed robbery and armed violence are prohibited by the one-act, one-crime doctrine. This court affirmed the circuit court's denial in a Rule 23 disposition, now withdrawn by separate order. The original issues petitioner raised on appeal, and those additionally set forth in his petition for rehearing, will be addressed in this opinion.

Following a jury trial in 1983, petitioner was convicted of murder, armed robbery, and armed violence for his involvement in a 1982 store robbery. He was found eligible for the death penalty, but was sentenced to an extended prison term of 70 years for murder, and to two concurrent 30-year terms for armed robbery and armed violence. No direct appeal was taken.

Petitioner filed his initial post-conviction petition in 1993, in which he alleged his trial counsel was ineffective for failing to perfect his direct appeal. The circuit court summarily dismissed the petition, finding petitioner elected to pursue a clemency petition in lieu of a direct appeal. The Cook County Public Defender's Office filed a motion pursuant to Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), which the appellate court granted, affirming the circuit court's first-stage summary dismissal. People v. Schrader, No. 1-93-2255, 260 Ill.App.3d 1118, 221 Ill.Dec. 467, 675 N.E.2d 662 (1994) (unpublished under Supreme Court Rule 23).

In September of 2000, petitioner filed a second, successive post-conviction petition, alleging only that his extended-term sentence was in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (Apprendi). In November of 2000, the circuit court summarily dismissed the petition without prejudice, expressly permitting petitioner to re-file his petition in the event Apprendi were to become applicable to successive post-conviction petitions. Petitioner sought leave to file a late notice of appeal, which the circuit court denied.

Petitioner filed the instant section 2-1401 petition for relief from judgment in March of 2002, again arguing that his extended-term sentence, based upon the brutal or heinous behavior, was imposed in contravention of Apprendi. On April 23, 2002, the circuit court summarily dismissed the petition, finding it was barred by the statute of limitations and by non-conformity with the pleading requirements of section 2-1401. Petitioner timely appeals.

I

Petitioner initially contends the circuit court lacked the statutory authority to summarily dismiss his section 2-1401 petition. Section 2-1401 provides a comprehensive statutory procedure by which final orders, judgments, and decrees may be challenged more than 30 days after their entry. People v. Pinkonsly, 207 Ill.2d 555, 562, 280 Ill.Dec. 311, 802 N.E.2d 236 (2003). Section 2-1401 provides remedial powers to criminal cases. People v. Harvey, 196 Ill.2d 444, 447, 257 Ill.Dec. 98, 753 N.E.2d 293 (2001). A section 2-1401 petition requires the circuit court to determine whether facts exist that were unknown to the court at the time of trial, and would have prevented entry of the judgment. Pinkonsly, 207 Ill.2d at 566, 280 Ill.Dec. 311, 802 N.E.2d 236. The dismissal of a section 2-1401 petition is reviewed under an abuse of discretion standard. Pinkonsly, 207 Ill.2d at 562, 280 Ill.Dec. 311, 802 N.E.2d 236.

As recognized recently by the first district appellate court in People v. Taylor, 349 Ill.App.3d 718, 285 Ill.Dec. 761, 812 N.E.2d 581 (2004) (Taylor), there is "a dispute among the districts of this court concerning whether a [circuit] court may summarily dismiss [ ] defendant's section 2-1401 petition sua sponte." The second district appellate court has held that a circuit court commits reversible error by dismissing a section 2-1401 petition without giving petitioner notice and an opportunity to respond to the dismissal, and a reviewing court may not look beyond this error to assess the merits of the petition. See People v. Mescall, 347 Ill.App.3d 995, 283 Ill.Dec. 813, 808 N.E.2d 1101 (2d Dist.2004); People v. Pearson, 345 Ill.App.3d 191, 280 Ill.Dec. 461, 802 N.E.2d 386 (2d Dist.2003), appeal allowed, 208 Ill.2d 549, 284 Ill.Dec. 344, 809 N.E.2d 1290 (2004) (Pearson); People v. Gaines, 335 Ill.App.3d 292, 295-97, 269 Ill.Dec. 350, 780 N.E.2d 822 (2d Dist.2002); see also People v. Winfrey, 347 Ill.App.3d 987, 988-91, 283 Ill.Dec. 623, 808 N.E.2d 589 (2d Dist.2004) (summary dismissal of habeas corpus petition improper); People v. Shellstrom, 345 Ill.App.3d 175, 176-79, 280 Ill.Dec. 456, 802 N.E.2d 381 (2nd Dist.2003), appeal allowed, 208 Ill.2d 552, 284 Ill.Dec. 345, 809 N.E.2d 1291 (2004) (summary dismissal of mandamus petition improper).

In contrast, the fourth district has reached the opposite conclusion, holding that a circuit court possesses the inherent authority to strike a section 2-1401 petition sua sponte if it finds the petition to be frivolous and without merit. See People v. Bramlett, 347 Ill.App.3d 468, 472-73, 282 Ill.Dec. 663, 806 N.E.2d 1251 (4th Dist.2004); see also Mason v. Snyder, 332 Ill.App.3d 834, 839-43, 266 Ill.Dec. 351, 774 N.E.2d 457 (4th Dist.2002) (summary dismissal of mandamus petition proper).

In Taylor, 349 Ill.App.3d at720,285 Ill.Dec. 761,812 N.E.2d 581, the first district expressly declined to follow the second district's holding in Pearson, where the court rejected the State's argument that the summary dismissal could be affirmed on grounds that the petition lacked merit and defendant sustained no prejudice. The Pearson court reasoned that the "proceedings by which defendant's petition was dismissed were too far removed from those to which he was entitled for us to hold that he suffered no prejudice." Pearson, 345 Ill.App.3d at 195,280 Ill.Dec. 461,802 N.E.2d 386. In Taylor, however, the court decided that it "may look beyond any alleged procedural defect * * * where defendant's petition raised a pure question of law, was frivolous and completely without merit and no prejudice resulted from the [circuit] court's dismissal." Taylor, 349 Ill.App.3d at 720,285 Ill.Dec. 761,812 N.E.2d 581; see also Owens v. Snyder, 349 Ill.App.3d 35, 285 Ill.Dec. 251, 811 N.E.2d 738 (2004) (summary dismissal of mandamus petition proper where found to be frivolous and no prejudice incurred by defendant).

In the case sub judice, the relevant holdings and reasoning of the first and fourth district cases will be applied. Petitioner's section 2-1401 petition raised only a pure question of law-whether his extended-term sentence was in violation of Apprendi. At the time of the summary dismissal, on April 23, 2002, People v. De La Paz, 204 Ill.2d 426, 439, 274 Ill.Dec. 397, 791 N.E.2d 489, (May 8, 2003) (De La Paz), was the controlling and dispositive authority on this issue. De La Paz held that Apprendi does not apply retroactively to cases on collateral review. De La Paz, 204 Ill.2d at 439, 274 Ill.Dec. 397, 791 N.E.2d 489. Therefore, the circuit court applied the law properly in reaching its conclusion that petitioner's Apprendi challenge was frivolous and without merit. "[E]ven if [petitioner] had been given notice and an opportunity to be heard before the court dismissed his petition, he could not have cured its inherent defects" because he could not allege "any facts in his petition that would circumvent De La Paz and make his extended-term sentence subject to Apprendi." Taylor, 349 Ill.App.3d at 721, 285 Ill.Dec. 761, 812 N.E.2d 581.

On the same day Taylor was decided, the United States Supreme Court decided Schriro v. Summerlin, ___ U.S. ___, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (Schriro), and Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (Blakely). In his petition for rehearing, petitioner relies on both Schriro and Blakely, maintaining that his extended-term sentence is unconstitutional. As these cases concern the constitutionality of sentencing enhancements, they create an additional component to petitioner's specific challenge, thereby differentiating the instant case from Taylor despite the indistinguishable nature of the claims. Part II of this opinion addresses petitioner's sentencing challenge in light of these decisions.

II

The indictment in this case charged petitioner with three counts of first degree murder, making no mention of his "brutal or heinous" behavior. The jury found petitioner guilty of murder. Petitioner waived his right to a jury for purposes of the death penalty hearing. The judge found petitioner death eligible since he was older than 18 years of age, and the murder occurred during the commission of another felony-armed robbery. Nonetheless, the court elected not to impose the death penalty, but found his behavior to be "brutal or heinous," thereby authorizing the imposition of an extended-term sentence....