People v. Johnson

Full title: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TRAVIS…

Court: APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT FIRST DISTRICT Fifth Division

Date published: Jan 17, 2020

2020 Ill. App. 172094 (Ill. App. Ct. 2020)

Opinion

No. 1-17-2094

01-17-2020

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TRAVIS JOHNSON, Defendant-Appellant.

JUSTICE ROCHFORD delivered the judgment of the court.

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 15 CR 6695 Honorable Thaddeus L. Wilson, Judge, presiding. JUSTICE ROCHFORD delivered the judgment of the court.
Presiding Justice Hoffman and Justice Delort concurred in the judgment.

ORDER

¶ 1 Held: We affirm the denial of defendant's petition for relief from judgement, where defendant forfeited his as-applied constitutional challenge by raising it for the first time on appeal. ¶ 2 Defendant-appellant, Travis Johnson, appeals from the denial of his petition for relief from judgment, filed pursuant to section 2-1401 of the Code of Civil Procedure. 735 ILCS 5/2-1401 (West 2016). For the following reasons, we affirm.¹

1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order stating with specificity why no substantial question is presented. --------

¶ 3 I. BACKGROUND

¶ 4 In April 2015, defendant was charged in an 11-count information. Count 1 of that information alleged that defendant committed the offense of being an armed habitual criminal (AHC), in that on or about March 15, 2015, defendant was in possession of a firearm after having previously been twice convicted of unlawful use of a weapon by a felon. ¶ 5 On February 29, 2016, defendant requested and received a conference pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 2012). Thereafter, defendant accepted the trial court's recommendation and pleaded guilty to the single AHC count. He was then sentenced to a term of seven years' imprisonment and three years of mandatory supervised release, and the State dismissed the remaining counts of the information. ¶ 6 On September 27, 2016, defendant filed a pro se petition for relief from judgment, filed pursuant to section 2-1401 of the Code of Civil Procedure. 735 ILCS 5/2-1401 (West 2016). Therein, defendant's primary contention was that he received ineffective assistance of counsel. However, the petition also included the following cursory argument:

"The armed habitual criminal statute *** is unconstitutional in its entirety because it violates the Single-Subject-Rule, Provisions under article 4 Section 8(d) of the Illinois State Constitution, (1970) and also the Proportionate Penalties Clause under article 1 section II, of Illinois State Constitution (1970)."

¶ 7 In a written order entered on January 20, 2017, the trial court sua sponte denied defendant's section 2-1401 petition. While the trial court specifically addressed the merits of both defendant's claim of ineffective assistance of counsel and his assertion that the AHC statute violated the single-subject rule in the order, defendant's proportionate penalties argument was not specifically addressed. ¶ 8 On September 5, 2017, this court granted defendant's motion to file a late notice of appeal.

¶ 9 II. ANALYSIS

¶ 10 On appeal, defendant's sole argument is that the trial court improperly denied his section 2-1401 petition because the sentencing requirements of the AHC statute were disproportionately applied as to him, in violation of the proportionate penalties clause of the Illinois constitution. Ill. Const. 1970, art. I, § 11. We find that defendant has forfeited this as-applied constitutional challenge by raising it for the first time on appeal. This issue presents a question of law that we review de novo. People v. Thompson, 2015 IL 118151, ¶ 25. ¶ 11 In relevant part, the proportionate penalties clause of the Illinois constitution provides that "[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." Ill. Const. 1970, art. I, § 11. Criminal defendants may bring both facial and as-applied constitutional challenges. Thompson, 2015 IL 118151, ¶ 36. However, as our supreme court has recognized:

"Although facial and as-applied constitutional challenges are both intended to address constitutional infirmities, they are not interchangeable. [Citation.] An as-applied challenge requires a showing that the statute violates the constitution as it applies to the facts and circumstances of the challenging party. [Citation.] In contrast, a facial challenge requires a showing that the statute is unconstitutional under any set of facts, i.e., the specific facts related to the challenging party are irrelevant.

Because facial and as-applied constitutional challenges are distinct actions, it is not unreasonable to treat the two types of challenges differently for purposes of section 2-1401. By definition, an as-applied constitutional challenge is dependent on the particular circumstances and facts of the individual defendant or petitioner. Therefore, it is paramount

that the record be sufficiently developed in terms of those facts and circumstances for purposes of appellate review." Id. at ¶¶ 36-37.

¶ 12 In light of these considerations, a defendant forfeits an as-applied challenge under the proportionate penalties clause of the Illinois constitution where that challenge is raised for the first time on appeal from an adverse ruling on a section 2-1401 petition. Id. at 39; People v. Harris, 2018 IL 121932, ¶ 41 ("As we have emphasized, a reviewing court is not capable of making an as-applied finding of unconstitutionality in the 'factual vacuum' created by the absence of an evidentiary hearing and findings of fact by the trial court."). ¶ 13 Here, it is evident that defendant only raised a facial challenge to the AHC statute under the proportionate penalties clause below, where his section 2-1401 petition cursorily asserted that the "armed habitual criminal statute *** is unconstitutional in its entirety because it violates the Proportionate Penalties Clause under article 1 section II, of Illinois State Constitution (1970)." (Emphasis added.) It is also clear that no evidentiary hearing on this claim was held below, nor did the trial court make any findings of fact with respect thereto. Nevertheless, on appeal defendant concedes that he is raising an as-applied proportionate penalties clause challenge to the sentencing requirements of the AHC statute. Pursuant to our supreme court's decisions in Thompson and Harris, we find that this argument has been forfeited due to defendant's failure to first raise it below.

¶ 14 III. CONCLUSION

¶ 15 For the foregoing reasons, we affirm the judgment of the circuit court. ¶ 16 Affirmed.