Opinion
4-22-0902
06-09-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LORENZO DAVIS JR., Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Rock Island County No. 04CF902 Honorable Richard A. Zimmer, Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court. Presiding Justice DeArmond and Justice Lannerd concurred in the judgment.
ORDER
ZENOFF JUSTICE.
¶ 1 Held: The appellate court granted appointed counsel's motion to withdraw and affirmed the judgment dismissing defendant's section 2-1401(f) petition. All of defendant's claims in his petition were barred by res judicata and otherwise lacked merit.
¶ 2 Defendant, Lorenzo Davis Jr., appeals an order entered on October 11, 2022, denying his petition for relief pursuant to section 2-1401(f) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401(f) (West 2022)). Defendant's appointed counsel moves to withdraw on the basis that she can raise no issue of arguable merit. Counsel indicates that she advised defendant of her opinion. Counsel supports her motion with a memorandum of law providing a statement of facts, a list of potential issues, and arguments why those issues lack merit. We notified defendant of his counsel's motion and allowed defendant until April 18, 2023, to file a response. Defendant filed no response to counsel's motion. For the reasons that follow, we grant counsel's motion to withdraw and affirm the trial court's judgment.
¶ 3 I. BACKGROUND
¶ 4 On October 1, 2004, defendant shot and killed his girlfriend, Susan Burge. That same day, the State charged defendant by information with two counts of first degree murder. Count I alleged that defendant shot Burge with the intent to kill her (720 ILCS 5/9-1(a)(1) (West 2004)). Count II alleged that defendant shot Burge with knowledge that such act created a strong probability of death (720 ILCS 5/9-1(a)(2) (West 2004)). Neither count mentioned the applicable firearm enhancement. See 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2004) (providing for a sentencing enhancement of between 25 years and life in prison where a defendant personally discharges a firearm that proximately causes death to another person).
¶ 5 On October 6, 2005, our supreme court (1) held that the firearm enhancement in section 5-8-1(a)(1)(d)(iii) of the Unified Code of Corrections is constitutional and (2) overruled cases that had found other similar enhancements unconstitutional. See People v. Sharpe, 216 Ill.2d 481, 519, 527 (2005). In light of Sharpe, on October 7, 2005, the prosecutor in defendant's case sent defense counsel a letter offering defendant the option of pleading guilty with a sentence of 40 years in prison. The prosecutor stated that if defendant declined the offer, the State would amend the charges to include a firearm enhancement, thereby increasing defendant's minimum sentence from 20 years in prison to 45 years. Defendant rejected the offer.
¶ 6 On November 30, 2005, the State charged defendant by information with first degree murder in counts III and IV. These counts mirrored counts I and II, except they alleged defendant was eligible for a sentencing enhancement because he personally discharged a firearm that proximately caused Burge's death.
¶ 7 The matter proceeded to a jury trial in January 2006. At the beginning of trial, the State nol-prossed counts I and II and proceeded on counts III and IV. During voir dire, the trial court informed the jury that the State had filed "two informations," and the court read the allegations of counts III and IV to the jury. In the State's opening statement and closing argument, the prosecutor mentioned that one of the elements the State had to prove was that defendant personally discharged a firearm. In closing argument, the prosecutor referred to the two pending counts as "Count 1" and "Count 2." The jury instructions likewise referred to a "Count One" and a "Count Two," while also instructing the jury to determine whether defendant personally discharged a firearm proximately causing death. The defense conceded in closing arguments that defendant shot Burge with a firearm, disputing only whether defendant had the mens rea for first degree murder. The jury returned a verdict finding defendant guilty of first degree murder in connection with both "Count One" and "Count Two." The jury also found that defendant personally discharged a firearm that proximately caused Burge's death.
¶ 8 At the sentencing hearing, the trial court asked the prosecutor whether he had a choice on which count to sentence defendant. The prosecutor responded: "Yes, sir, Count I, which was Count III, which actually says, intent to kill, that the State would ask that you impose a sentence on that particular count rather than the strong probability of death or great bodily harm." The court then noted that "Count II" would merge into "Count I." The prosecutor and defense counsel agreed defendant was subject to a firearm enhancement of 25-years to life in prison. The court sentenced defendant to 65 years in prison, inclusive of a 25-year enhancement. The sentencing order states that the sentence was imposed on count III.
¶ 9 The appellate court affirmed the judgment on direct appeal. People v. Davis, No. 3-06-0279 (2007) (unpublished order under Illinois Supreme Court Rule 23). Specifically, the court held that the trial court properly refused to instruct the jury on second-degree murder and that the 65-year sentence was not excessive.
¶ 10 Over the years, defendant challenged his conviction and sentence in multiple collateral proceedings. Of note, in June 2013, defendant filed a pro se petition pursuant to section 2-1401(f) of the Code. Defendant maintained that the judgment was void for many reasons. Defendant seemingly raised a facial challenge to the firearm enhancement in section 5-8-1(a)(1)(d)(iii) of the Unified Code of Corrections. Specifically, defendant asserted that the statute (1) fails "to provide a procedure by which a jury could have made a finding pertaining to the presence or absence of the aggravating factor of 'firearm usage'" and (2) fails "to contain the constitutionally required standard of proof beyond a reasonable doubt." Defendant also asserted that the enhancement violated the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. 1, § 11), as it did not serve the purpose of restoring offenders to useful citizenship. Defendant acknowledged that in 2005 our supreme court determined in Sharpe that section 5-8-1(a)(1)(d)(iii) of the Unified Code of Corrections was constitutional. However, defendant alleged that Sharpe "does not apply" to his case. Defendant reasoned that he murdered Burge in 2004, at which time People v. Moss, 206 Ill.2d 503 (2003), and People v. Walden, 199 Ill.2d 392 (2002), purportedly "stated that it was unconstitutional to give out the 15-20-25 to natural life penalty enhancement." Accordingly, defendant contended he had a "constitutional right under due process of law" to elect to be sentenced without a firearm enhancement.
¶ 11 Aside from the facial challenge to the firearm enhancement, defendant argued the enhancement did not apply to him for multiple reasons. Defendant asserted that his "jury was never instructed on the enhancement factor." With this argument, defendant seemingly maintained that the judgment violated Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), which requires that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury[ ] and proved beyond a reasonable doubt." Defendant also asserted that the prosecutor committed misconduct by offering him 40 years in prison and then seeking a firearm enhancement after he rejected the offer. Defendant further argued that the State had no authority to amend charges, as "the statutes allowing amendments do not apply to criminal cases." From that premise, defendant reasoned that once the State nol-prossed counts I and II, a trial on counts III and IV was void for lack of jurisdiction. Defendant also mentioned that he was found guilty of counts I and II, which had been dismissed at the beginning of trial.
¶ 12 On November 14, 2013, the trial court dismissed defendant's section 2-1401(f) petition. On appeal from that order, defendant argued only that the trial court prematurely dismissed the petition before the State was served with notice. The appellate court rejected that claim and affirmed the judgment. People v. Davis, 2016 IL App (3d) 130884-U, ¶¶ 10, 13.
¶ 13 In June 2020, defendant filed a second pro se section 2-1401(f) petition, raising the same claims as the 2013 petition. The trial court initially appointed counsel to represent defendant in connection with this petition, but defendant elected to proceed pro se. On October 11, 2022, the court denied defendant's petition. Defendant appealed that order, and the court appointed the Office of the State Appellate Defender (OSAD) to represent him.
¶ 14 II. ANALYSIS
¶ 15 Defendant's section 2-1401 petition raised purely legal challenges to an allegedly void judgment, so we review the trial court's order de novo. Warren County Soil &Water Conservation District v. Walters, 2015 IL 117783, ¶ 47. We agree with defendant's counsel that there is no arguably meritorious issue that can be raised in this appeal. As counsel notes, the trial court committed no procedural errors in ruling on the petition. Additionally, all of defendant's claims are barred by res judicata because they were adjudicated by the trial court in 2013. See People v. Poole, 2022 IL App (4th) 210347, ¶ 81 (stating that res judicata bars issues that were decided in a prior action).
¶ 16 Moreover, defendant's claims lack merit. Our supreme court has held that the firearm enhancement in section 5-8-1(a)(1)(d)(iii) of the Unified Code of Corrections is constitutional. See Sharpe, 216 Ill.2d at 527. In his petition, defendant cited cases that Sharpe overruled, and which had addressed firearm enhancements in relation to charges other than first degree murder. Defendant did not have a right to elect to be sentenced without the firearm enhancement.
¶ 17 Furthermore, contrary to what defendant alleged, there was no Apprendi violation here. The trial court instructed the jury that if it found defendant guilty of first degree murder, it must decide whether "the State has proven beyond a reasonable doubt that during the commission of that offense, the defendant personally discharged a firearm that proximately caused the death of Susan Burge." The jury made the necessary findings for the court to impose the firearm enhancement.
¶ 18 The prosecutor did not commit misconduct by pursuing the firearm enhancement after defendant rejected the State's offer to plead guilty without the enhancement." 'The filing of criminal charges is a discretionary matter resting within the exclusive jurisdiction of the prosecution.' "People v. Page, 2022 IL App (4th) 210374, ¶ 43 (quoting People v. Flanagan, 201 Ill.App.3d 1071, 1076 (1990)); see also Bordenkircher v. Hayes, 434 U.S. 357, 358, 365 (1978) (holding that it did not violate due process for a prosecutor to carry out his threat to enhance the charges if the defendant rejected a plea offer). Defendant's claim that the State could not amend charges before trial was simply wrong. See 725 ILCS 5/111-3(d) (West 2004) (allowing the State to amend charges "[a]t any time prior to trial" to notify the defendant of the possibility of a sentencing enhancement).
¶ 19 The record is also clear that both the prosecution and the defense understood that the State would proceed on counts III and IV of the information at trial but that such counts would be called counts I and II in front of the jury. Presumably, the parties did this to avoid the jury speculating as to what happened to the other counts. The only differences between counts I and II versus III and IV were the allegations relating to the firearm enhancement. The trial court instructed the jury regarding the firearm enhancement, and the jury made the findings to warrant that enhancement. Thus, there is no merit to defendant's contention that he was convicted of dismissed charges.
¶ 20 Defendant's appellate counsel notes that the Second District of the Illinois Appellate Court stated in People v. Buchanan, 2019 IL App (2d) 180194, ¶ 5, that trial courts have no authority to appoint OSAD in appeals relating to section 2-1401 petitions. However, counsel here indicates she does not move to withdraw on this basis. Accordingly, we decline to address whether this would be an additional basis for counsel to withdraw.
¶ 21 III. CONCLUSION
¶ 22 For the reasons stated, we grant counsel's motion to withdraw and affirm the trial court's judgment.
¶ 23 Affirmed.