Opinion
No. 1-01-2555
July 31, 2002 Modified Order on Denial of Petition for Rehearing
Appeal from the Circuit Court of Cook County, No. 76 C 2091, Honorable Diane Gordon Cannon, Judge, presiding.
Following a jury trial, defendant Johnny Outlaw was convicted of two counts of murder, armed robbery and burglary. The trial court sentenced defendant to concurrent terms of 150 to 300 years on each count of murder, 25 to 50 years for armed robbery and 10 to 20 years for burglary. On direct appeal, this court affirmed defendant's conviction and sentence. People v. Outlaw, 75 Ill. App.3d 626 (1979). This court also affirmed the dismissal of defendant's petition for a writ of habeas corpus. Outlaw v. O'Leary, 161 Ill. App.3d 218 (1987). Defendant's federal habeas corpus petition was also dismissed. United States ex rel. Outlaw v. O'Leary, No. 88 C 6583 (N.D. Ill. 1989). Defendant subsequently filed a pro se post-conviction petition which was summarily dismissed. On appeal, this court granted counsel's motion for leave to withdraw and affirmed the judgment. People v. Outlaw, No. 1-98-3508 (2000) (unpublished order under Supreme Court Rule 23). Defendant filed a successive pro se post-conviction petition challenging his indeterminate sentences under Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435, 120 S.Ct. 2348 (2000) (holding that other 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). The trial court summarily dismissed the petition as frivolous and patently without merit, and defendant has appealed.
Defendant also has an appeal pending from the denial of a petition for a writ of habeas corpus (No. 1-01-3864).
The public defender of Cook County, who represents defendant on appeal, has filed a motion for leave to withdraw as appellate counsel. A brief in support of the motion has been submitted pursuant to Pennsylvania v. Finley, 481 U.S. 551, 95 L.Ed.2d 539, 107 S.Ct. 1990 (1987), in which counsel states that he has reviewed the trial record and concluded that there are no arguable bases for collateral relief. Defendant has responded.
We have carefully reviewed the record in this case, the aforesaid brief and defendant's response in compliance with the mandate of the Finley decision and find no issues of arguable merit. Defendant was convicted of murdering two individuals (bludgeoned to death during an abortive burglary). Although he was not eligible for the death penalty because his crimes were committed in January 1976 after the supreme court had declared the then current death penalty statute unconstitutional ( People ex rel. Rice v. Cunningham, 61 Ill.2d 353 (1975)) and before the subsequent death penalty statute became effective on June 21, 1977 (see People v. Hill, 78 Ill.2d 465, 475-76 (1980)), he was properly sentenced to statutorily authorized indeterminate terms. People v. Warner, 146 Ill. App.3d 370, 382-83 (1986); People v. Lott, 57 Ill. App.3d 706, 711 (1978); People v. Bigsby, 52 Ill. App.3d 277, 284 (1977); see also Ill. Rev. Stat. 1975, ch. 38, pars. 9-1(b) (a defendant convicted of murder shall be sentenced to death or imprisonment for any indeterminate term with a minimum of not less than 14 years), 1005-8-1(b)(1) (maximum term for murder shall be any term in excess of 14 years). Defendant's indeterminate sentences did not expose him to a greater punishment than that authorized by the jury's guilty verdict and, thus, did not implicate Apprendi. See United States v. Wilkes, 130 F. Supp.2d 222, 232 (D. Mass. Feb. 20, 2001) ("If the legislature simply prescribes a broad penalty range, and leaves it to a sentencing commission or judges to specify where a given punishment should lie within that broad range, the Apprendi rule is inapplicable"); see also United States v. Jackson, 835 F.2d 1195, 1197 (7th Cir. 1987) ("statutes without stated maxima have been treated as authorizing life sentences"). Therefore, the motion of the public defender for leave to withdraw as counsel is allowed.
The judgment of the circuit court of Cook County is affirmed.
Affirmed.
SOUTH, J., with HALL, P.J., and CERDA, J., concurring.