Opinion
No. 1-10-2693
03-29-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTONIO PERKINS, Defendant-Appellant.
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. 05 CR 27605
Honorable
Arthur E. Hill,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Hoffman and Justice Rochford concurred in the judgment.
ORDER
¶ 1 Held: The defendant's convictions for armed robbery and aggravated vehicular hijacking were not void; the trial court properly dismissed the defendant's postconviction petition at the first stage where the defendant's claims were without merit. ¶ 2 This appeal arises from a summary dismissal of a postconviction petition filed by defendant-appellant, Antonio Perkins, pursuant to the Illinois Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2010)). On appeal, the defendant argues that the trial court erred in dismissing his postconviction petition at the first stage, where: (1) he was improperly convicted of uncharged offenses in violation of his due process rights; and (2) in the alternative, he had stated a non- frivolous claim that his appellate counsel was ineffective for failing to challenge his convictions for the uncharged offenses on direct appeal. For the following reasons, we affirm the judgment of the circuit court of Cook County.
¶ 3 BACKGROUND
¶ 4 The facts of this case were recounted fully on direct appeal and are summarized here. See People v. Perkins, No. 1-08-0061 (2010) (unpublished order under Supreme Court Rule 23). ¶ 5 In 2005, the defendant was charged by indictment with two counts of aggravated vehicular hijacking (counts 1 and 2) and armed robbery (counts 3 and 4), with respect to his conduct toward each of the two victims-Latosha McBride (Latosha) and Olivia McBride (Olivia). The charges for aggravated vehicular hijacking (counts 1 and 2) alleged that the defendant:
"knowingly took a motor vehicle, to wit: 1993 Chrysler from the person or immediate presence of [Latosha McBride/Olivia McBride], by the use of force or by threatening the imminent use of force and he was armed with a dangerous weapon, to wit: firearm, in violation of Chapter 720 Act 5 Section 18-4(a) of the Illinois Compiled Statues 1992 as amended."The charges for armed robbery (counts 3 and 4) alleged that the defendant:
"by the use of force or by threatening the imminent use of force, knowingly took United States currency, a cellular telephone, wallet, credit card, a debit card and keys from the person or presence of [Latosha McBride/Olivia McBride], and he carried on or about his¶ 6 At the defendant's 2007 jury trial, Latosha testified that on November 6, 2005, at approximately 7:30 p.m., she and her younger sister, Olivia, went grocery shopping and returned to Latosha's home in a high-rise building at 3620 South Rhodes Avenue in Chicago, Illinois. After parking her car, a maroon 1993 Chrysler Concorde, in the adjoining parking lot, Latosha secured the Club anti-theft device to the steering wheel. The sisters then carried the groceries to an entrance in the back of the building, where they were stopped by three men. Two of the men, including the defendant, pointed guns at Latosha and Olivia and demanded their possessions. Latosha gave the defendant her cellular telephone and purse, which contained a debit card, checkbook, identification, keys and money. Olivia handed her belongings, including her cellular telephone, to a second man who was pointing a gun at her. As the defendant rifled through Latosha's purse, he discovered her car keys and asked if she owned a car. When Latosha answered in the affirmative, the defendant ordered her to the vehicle, where Latosha opened the car door and unlocked the Club anti-theft device. The defendant then forced Latosha and Olivia to lay face down on the ground, after which the three men, with the defendant as the driver, drove away in Latosha's car. Thereafter, on November 17, 2005, Latosha identified a set of keys recovered by the police as those the defendant had taken from her, and positively identified the defendant in a physical lineup as one of the offenders. ¶ 7 Olivia's testimony at trial substantially mirrored Latosha's testimony. Olivia testified that on November 17, 2005, she went to a police station, where she identified the defendant in a physical lineup and identified her stolen cellular phone. ¶ 8 Officer Krofta testified at trial that on November 16, 2005, at approximately 11p.m., she responded to a radio dispatch to guard a stolen maroon 1993 Chrysler on the 6900 block of South Eggleston Avenue until an evidence technician could arrive to process the vehicle. When Officer Krofta arrived at the location, she checked the license plate number of the vehicle and learned that it had been taken in an armed robbery involving a handgun. Officer Krofta observed a men's leather jacket inside the vehicle. Officer Krofta then received additional police information to investigate a green van which was parked two parking spots behind the police car. As Officer Krofta, Officer Rodriguez and a police sergeant approached the green van, Officer Krofta noticed the defendant sitting in the front passenger seat while another man, who was later identified as Deandre Walker (Walker), sat in the rear passenger seat. Although it was cold outside, the defendant wore a short-sleeved shirt but had no jacket. Officer Krofta then ordered the men to exit the van, after which she performed a pat down search of the defendant. The pat down search revealed two cellular telephones and a set of keys, which Officer Krofta used to unlock the driver's door of the stolen 1993 Chrysler. The defendant and Walker were then placed under arrest. ¶ 9 Evidence presented at trial showed that a forensic evidence technician located and inventoried two latent lift impressions on the inside rearview mirror of the stolen vehicle. Officer Jones compared the latent lift impressions with the defendant's palm prints and fingerprints, and determined that the fingerprints on the latent lift impressions matched those of the defendant. ¶ 10 The defendant testified in his own defense that on November 16, 2005, he was visiting his friend, Walker, on the 6900 block of South Eggleston Avenue when he found car keys on the ground near a 1993 Chrysler Concorde and used them to unlock the car's door. The defendant then entered the vehicle and found two cellular telephones, which he put into his pocket before entering Walker's home. Later, as he and Walker sat in Walker's green van, a police officer approached them with her weapon drawn and ordered them to exit the van. After the defendant complied, the police officer searched him and found the keys and cellular telephones in his pocket. ¶ 11 Following closing arguments, the trial court instructed the jury, inter alia, on the charges of aggravated vehicular hijacking and armed robbery as follows:
person or was otherwise armed with a dangerous weapon, to wit: a firearm, in violation of Chapter 720, Act 5, Section 18-2 of the Illinois Compiled Statutes 1992, as amended."
"A person commits the offense of aggravated vehicular hijacking when he knowingly takes a motor vehicle from the person or the immediate presence of another by the use of force or by threatening the imminent use of force, and he carries on or about his person or is otherwise armed with a dangerous weapon.¶ 12 Following deliberations, the jury found the defendant guilty of two counts of armed robbery and two counts of aggravated vehicular hijacking. At the sentencing hearing, the trial court merged one count of aggravated vehicular hijacking into the other because only one car was stolen, and sentenced the defendant to concurrent 25-year terms of imprisonment for the two counts of armed robbery and the one remaining count of aggravated vehicular hijacking. ¶ 13 On February 18, 2010, this court affirmed the defendant's convictions and sentence on direct appeal. People v. Perkins, No. 1-08-0061 (2010) (unpublished order under Supreme Court Rule 23). On May 26, 2010, our supreme court denied the defendant's petition for leave to appeal. People v. Perkins, 236 Ill. 2d 568, 932 N.E.2d 1035 (2010). ¶ 14 On June 10, 2010, the defendant filed the instant pro se postconviction petition, alleging that (1) the State engaged in prosecutorial misconduct; (2) the State failed to prove him guilty beyond a reasonable doubt; (3) he was denied the right to confront certain witnesses; (4) he was actually innocent; (5) defense trial counsel rendered ineffective assistance at trial; and (6) defense appellate counsel rendered ineffective assistance on direct appeal. On July 23, 2010, the trial court dismissed the defendant's postconviction petition at the first stage of the proceedings. ¶ 15 On August 20, 2010, the defendant filed a notice of appeal.
To sustain the charge of aggravated vehicular hijacking, the State must prove the following propositions:
First: That the defendant *** knowingly took a motor vehicle from the person or the immediate presence of [Latosha/Olivia]; and
Second: That the defendant *** did so by the use of force or by threatening the imminent use of force; and
Third: That the defendant *** carried on or about his person or was otherwise armed with a dangerous weapon at the time of the
taking.
* * *
A person commits the offense of armed robbery when he, while carrying on or about his person, or while otherwise armed with a dangerous weapon, knowingly takes property from the person or presence of another by the use of force or by threatening the imminent use of force.
To sustain the charge of armed robbery, the State must prove the following propositions:
First: That the defendant *** knowingly took property from the person or presence of [Latosha/Olivia]; and
Second: That the defendant *** did so by the use of force or by threatening the imminent use of force; and
Third: That the defendant *** carried on or about his person a dangerous weapon or was otherwise armed with a dangerous weapon at the time of the taking."
¶ 16 ANALYSIS
¶ 17 On appeal, we determine whether the trial court erred in summarily dismissing the defendant's postconviction petition at the first stage, which we review de novo. See People v. Hodges, 234 Ill. 2d 1, 9, 912 N.E.2d 1204, 1208 (2009). ¶ 18 At the outset, we address the issue of jurisdiction. See People v. Lewis, 234 Ill. 2d 32, 36-37, 912 N.E.2d 1220, 1223 (2009) ("courts of review have an independent duty to consider jurisdiction even if a jurisdictional issue is not raised by the parties"). In perfecting an appeal, "a notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion." Ill. S. Ct. R. 606(b) (eff. Sept. 1, 2006). In the case at bar, the defendant's postconviction petition was summarily dismissed by the trial court on July 23, 2010, thus, allowing the defendant 30 days-until August 23, 2010-to file a notice of appeal with the clerk of the circuit court in order to perfect his appeal. ¶ 19 Supreme Court Rule 373 provides that if a notice of appeal presented to the circuit court is received after the due date, "the time of mailing, or the time of delivery to a third-party commercial carrier for delivery to the clerk within three business days, shall be deemed the time of filing." Ill. S. Ct. R. 373 (eff. Feb. 1, 1994); see Ill. S. Ct. R. 612(s) (eff. Sept. 1, 2006) (Rule 373 applies to civil and criminal cases). This rule, commonly referred to as the "mailbox rule," allows litigants to perfect an appeal even if the notice of appeal was received by the clerk of the circuit court after the due date, as long as the notice of appeal was mailed within the applicable 30-day period. See Childs v. Pinnacle Health Care, LLC, 399 Ill. App. 3d 167, 177, 926 N.E.2d 807, 815-16 (2010). ¶ 20 Here, the record reveals that the defendant's pro se notice of appeal was date stamped "received" on August 27, 2010, by the circuit court. However, the notice of appeal, which was accompanied by a notarized "notice of filing," shows that it was mailed on August 20, 2010. Because the notice of appeal was received by the circuit court after the due date of August 23, 2010, the time of mailing-August 20, 2010-shall be deemed the time of filing. Thus, we find that the defendant's notice of appeal, which was mailed on August 20, 2010, within the 30-day applicable period, was timely under the mailbox rule. Therefore, the notice of appeal properly conferred jurisdiction upon this court. ¶ 21 Turning to the merits of the appeal, we determine whether the trial court erred in summarily dismissing the defendant's postconviction petition. The defendant argues in his opening brief that his convictions for armed robbery and aggravated vehicular hijacking were void because he was charged with armed robbery and aggravated vehicular hijacking predicated upon "possession of a firearm," but that he was found guilty of different, uncharged offenses of armed robbery and aggravated vehicular hijacking predicated upon "possession of a dangerous weapon other than a firearm." Specifically, he argues that the offenses he was charged with and the offenses he was convicted of were distinct offenses found in different statutory provisions; thus, he was convicted of uncharged offenses in violation of his due process rights. In the alternative, the defendant requests that this court remand his case for further postconviction proceedings because he had raised a non-frivolous claim that appellate counsel was ineffective for failing to argue on direct appeal that he was improperly convicted of uncharged offenses. ¶ 22 The State counters that the defendant's arguments were forfeited because they were not included in his postconviction petition. The State further contends that the defendant's convictions were not void, arguing that the convictions were based on the charges contained in the indictment and that portions of the charged statutes, which were amended in 2000 and upon which the defendant now seeks relief, had been declared unconstitutional by our supreme court at the time of the defendant's commission of the offenses and at trial. Thus, the State maintains, the defendant was indicted with the preamended versions of the statutes which did not differentiate between offenses committed with a firearm and those committed with other dangerous weapons, and the defendant's postconviction petition lacked merit and was properly dismissed. Moreover, the State argues that the defendant's alternative claim of ineffective assistance of appellate counsel should fail, where it was never raised in his postconviction petition. ¶ 23 In reply, the defendant concedes that his claim that he was convicted of the uncharged offenses of armed robbery and aggravated vehicular hijacking predicated upon "possession of a dangerous weapon other than a firearm" has no merit, in light of our supreme court's decision in People v. Washington, 2012 IL 107993, which held that because the sentencing enhancements in the 2000 amended versions of the statutes for armed robbery and aggravated vehicular hijacking were unconstitutional, a defendant charged with these offenses after the adoption of the amended statutes was thus indicted under the preamended versions of the statutes-the versions which did not distinguish between offenses committed while "armed with a firearm" from those committed while "armed with a dangerous weapon other than a firearm." The defendant further acknowledges this court's duty to follow the holding in Washington, but nonetheless states that he must argue that Washington was wrongly decided "in order to preserve this issue for possible review in the Illinois Supreme Court." ¶ 24 The Act provides a three-step procedural mechanism by which a convicted defendant can assert that there was a substantial denial of his constitutional rights in the proceedings which resulted in his conviction. People v. Harris, 224 Ill. 2d 115, 124, 862 N.E.2d 960, 966 (2007). "Postconviction proceedings are not a continuation of, or an appeal from, the original case." Id. Rather, a postconviction proceeding is "a collateral attack upon the prior conviction and affords only limited review of constitutional claims not presented at trial." Id. The scope of a postconviction proceeding is limited to constitutional matters that have not been, nor could have been, previously adjudicated." Id. Thus, a claim that could have been raised on direct appeal, but was not, is procedurally forfeited. Id. Moreover, generally, a claim not raised in the postconviction petition cannot be argued for the first time on appeal. People v. Jones, 213 Ill. 2d 498, 505, 821 N.E.2d 1093, 1097 (2004). ¶ 25 We find that the issue regarding the defendant's convictions of uncharged offenses could have been, but was not, raised on direct appeal. Further, it was never raised in the postconviction petition and was only argued for the first time on appeal. Although void orders may be attacked either directly or collaterally at any time in any court (see People v. Thompson, 209 Ill. 2d 19, 27, 800 N.E.2d 1200, 1205 (2004)), we find that where the defendant's convictions were not void, as the defendant concedes in his reply brief that this claim lacked merit under Washington, this issue has been forfeited for review on appeal. See generally People v. Brown, 225 Ill. 2d 188, 206, 866 N.E.2d 1163, 1173 (2007) (where the defendant's sentence was not void, his right to bring a postconviction challenge to that sentence must conform to the requirements governing postconviction petitions). ¶ 26 Even if this issue was not forfeited, we find that, as the State argues and the defendant concedes, the defendant's convictions were properly entered on the charges contained in the indictment. ¶ 27 A postconviction proceeding contains three distinct stages. Hodges, 234 Ill. 2d at 10, 912 N.E.2d at 1208. At the first stage, a postconviction petition may be summarily dismissed if the claims in the petition are frivolous and patently without merit. Id. at 10, 912 N.E.2d at 1209; see 725 ILCS 5/122-2.1(a)(2) (West 2010). A petition is "frivolous or patently without merit" if it has "no arguable basis either in law or in fact." Hodges, 234 Ill. 2d at 16, 912 N.E.2d at 1212. "A petition which lacks an arguable basis either in law or in fact is one which is based on an indisputably meritless legal theory or a fanciful factual allegation." Id. ¶ 28 Prior to 2000, Illinois statutes provided that a person committed the offenses of armed robbery and aggravated vehicular hijacking if, at the time of the offense, he or she "carrie[d] on or about his or her person, or [was] otherwise armed with a dangerous weapon." See 720 ILCS 5/18-2(a) (West 1999) (armed robbery statute); 720 ILCS 5/18-4(a)(3) (West 1999) (aggravated vehicular hijacking statute). However, the term "dangerous weapon" was not statutorily defined. ¶ 29 Effective January 1, 2000, our legislature enacted Public Act 91-404 for the stated purpose of "deterr[ing] the use of firearms in the commission of a felony offense." Pub. Act 91-404, § 5 (eff. Jan. 1, 2000) (codified at 720 ILCS 5/33A-1(b)(1) (West 2000)). Public Act 91-404 amended the statutes by creating substantively distinct offenses based on whether the offenses were committed with a "dangerous weapon other than a firearm" or committed with a "firearm." See 720 ILCS 5/18-2(a)(1) (West 2010) (armed robbery committed while offender is "armed with a dangerous weapon other than a firearm"); 720 ILCS 5/18-2(a)(2) (West 2010) (armed robbery committed while offender is "armed with a firearm"); 720 ILCS 5/18-4(3) (West 2010) (aggravated vehicular hijacking while offender is "armed with a dangerous weapon other than a firearm"); see also 720 ILCS 5/18-4(4) (West 2010) (aggravated vehicular hijacking while offender is "armed with a firearm"). Notably, the amended versions of the statutes increased the penalties for certain felonies, including armed robbery and aggravated vehicular hijacking, which are committed with a "firearm." See 720 ILCS 5/18-2(b) (West 2010) (offender who commits armed robbery while armed with a firearm shall have 15 years added to the term of imprisonment); see also 720 ILCS 5/18-4(b) (West 2010) (offender who commits aggravated vehicular hijacking while armed with a firearm shall have 15 years added to the term of imprisonment). Courts were required to impose these sentencing enhancements, "commonly referred to as the 15-20-25-life sentencing provisions," based on whether a firearm was in the offender's possession, discharged, or used to cause bodily harm. Washington, 2012 IL 107993, ¶ 6. ¶ 30 However, Illinois supreme and appellate courts have since held that the sentencing enhancements in the amended versions of the statutes were unconstitutional because they violated the proportionate penalties clause of the Illinois Constitution. See People v. Hauschild, 226 Ill. 2d 63, 871 N.E.2d 1 (2007) (holding postamended sentencing enhancements for armed robbery while armed with a firearm statute unconstitutional); People v. Clemons, 2012 IL 107821 (affirming the continuing validity of Hauschild); People v. Andrews, 364 Ill. App. 3d 253, 845 N.E.2d 974 (2006) (holding postamended firearm sentencing enhancements for aggravated vehicular hijacking unconstitutional). ¶ 31 In Washington, the defendant was indicted for committing several crimes, including armed robbery and aggravated vehicular hijacking, while "armed with a dangerous weapon, to wit: a firearm" (Internal quotation marks omitted.) Washington, 2012 IL 107993, ¶ 5. At trial, the jury was instructed to find the defendant guilty of armed robbery and aggravated vehicular hijacking if it found he committed those offenses "while armed with a dangerous weapon." Id. at ¶ 20. On appeal, the appellate court held that the evidence was insufficient to uphold the defendant's convictions and remanded the cause to the trial court with instructions that judgment and sentences be entered on the lesser-included offenses of robbery and vehicular hijacking. Id. at ¶ 25. Thereafter, the State was granted leave to appeal to our supreme court, and the defendant filed a cross-appeal arguing, inter alia, that there was a fatal variance between the indictment and the proof at trial regarding the type of dangerous weapon used. Id. at ¶ 39. Specifically, the defendant argued that the indictment charged the use of a "firearm," but that the State was allowed to prove merely that he was "armed with a dangerous weapon" during the commission of the crimes. Id. Our supreme court found that the evidence at trial was sufficient to uphold the defendant's convictions, and rejected the defendant's claim on cross-appeal that there was a fatal variance between the indictment and the proof at trial. Id. at ¶¶ 37, 40. In so holding, the Washington court found that because the 2000 amended statutes were unconstitutional, the State thus had charged the defendant with the preamended versions of the statutes, and the defendant had never challenged the propriety of proceeding in that manner. Id. at ¶ 40. The Washington court found that, under the preamended versions of the statutes, which did not distinguish between offenses committed with a firearm from those committed with a dangerous weapon other than a firearm, the State was only required to prove that the defendant committed the offenses "while armed with a dangerous weapon." Id. ¶ 32 We find that the indictment charging the defendant in the instant case was identical to the charging instrument leveled against the defendant in Washington, which alleged that the defendant committed armed robbery and aggravated vehicular hijacking against Latosha and Olivia while "armed with a dangerous weapon, to wit: firearm." Like Washington, the jury at the defendant's trial was instructed to find him guilty of armed robbery and aggravated vehicular hijacking if it found he committed those offenses "while armed with a dangerous weapon." We find that, under Washington, because the penalty provisions of the 2000 amended statutes had been declared unconstitutional, the State had to charge the defendant with the preamended versions of the armed robbery and aggravated vehicular hijacking statutes-the propriety of which the defendant had not challenged at any point. Under the predecessor statutes, there was no substantive distinction between firearm-related offenses and nonfirearm-related offenses. See 720 ILCS 5/18-2(a) (West 1999) (preamended armed robbery statute); 720 ILCS 5/18-4(a)(3) (West 1999) (preamended aggravated vehicular hijacking statute). Thus, the State only had to prove at trial that the defendant committed the offenses of armed robbery and aggravated vehicular hijacking while "armed with a dangerous weapon." Moreover, we note that subsequent to our supreme court's decision in Hauschild, the Illinois legislature enacted Public Act 95-688, effective October 23, 2007, which removed the constitutional infirmities found in the 2000 amended armed robbery and aggravated vehicular hijacking statutes. See Pub. Act 95-688, § 4 (eff. Oct. 23, 2007). However, because the enactment of Public Act 95-688 did not become effective until October 23, 2007, long after the crimes were committed by the defendant, it had no bearing on the defendant's case. See People v. Aguilar, 408 Ill. App. 3d 136, 142, 944 N.E.2d 816, 822 (2011) (where Public Act 96-742 was effective on or after August 25, 2009, it did not apply to the defendant's case which stemmed from an incident involving the defendant more than a year prior to the effective date of the statutory amendments). Accordingly, where the defendant was charged with the preamended versions of the statutes, we hold that the defendant's claim that his convictions were void-on the basis that he was convicted of uncharged offenses as set forth in the amended statutes-must fail. ¶ 33 We observe that the defendant concedes in his reply brief that our supreme court's decision in Washington governs, thereby invalidating his claim that he was convicted of uncharged offenses. Having abandoned this argument, the defendant essentially argues that Washington was wrongly decided for the sake of preserving this issue for possible review in our supreme court. He posits that although the sentencing provisions of the amended statutes enacted under Public Act 91-404 had been declared unconstitutional under the proportionate penalties clause, the substantive portions of the amended statutes remained intact under the legal principles of severability. See Washington, 2012 IL 107993, ¶ 50 (Kilbride, J., dissenting). ¶ 34 We see no reason to depart from the majority holding in Washington. See People v. Artis, 232 Ill. 2d 156, 164, 902 N.E.2d 677, 682 (2009) (appellate court lacks authority to overrule decisions of the supreme court, which are binding on all lower courts); see also Andrews, 364 Ill. App. 3d at 280, 845 N.E.2d at 974 (finding that "the severance of the 15-year add-on without the severance of the offense of aggravated vehicular hijacking while carrying a firearm in subsection 18-4(a)(4) was impermissible"). ¶ 35 Having determined that the defendant's convictions were not void, it follows that the defendant's alternative claim that appellate counsel was ineffective for failing to argue on direct appeal that he was improperly convicted of uncharged offenses, was patently without merit and must fail. Therefore, the defendant's arguments lacked an arguable basis in law because it was based on an indisputably meritless legal theory. Accordingly, the trial court properly dismissed the defendant's postconviction petition at the first stage of the proceedings. ¶ 36 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County. ¶ 37 Affirmed.