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People v. Taylor

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT
Oct 16, 2013
2013 Ill. App. 4th 110633 (Ill. App. Ct. 2013)

Opinion

NO. 4-11-0633

2013-10-16

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNY TAYLOR, 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

Circuit Court of

Macoupin County

No. 05CF191


Honorable

Kenneth R. Deihl,

Judge Presiding.

JUSTICE APPLETON delivered the judgment of the court.

Justices Pope and Knecht concurred in the judgment.

ORDER

¶ 1 Held: (1) The 15-year enhancement in section 18-2(b) of the Criminal Code of 1961 (720 ILCS 5/18-2(b) (West 2008)) is no longer "void ab initio." Public Act 95-688 (eff. Oct. 23, 2007) cured the constitutional infirmity. ¶ 2 (2) No evidence in the record demonstrates the circuit court acted sua sponte in dismissing defendant's pro se postconviction petition at the second stage of the proceedings. ¶ 3 In October 2006, defendant, Johnny Taylor, pleaded guilty to one count of armed robbery while possessing a handgun in exchange for the State's agreement to dismiss the other three pending charges and to cap its sentencing recommendation at 30 years. Defendant was facing a potential range of punishment on this offense between 21 and 45 years, due to the mandatory 15-year sentencing enhancement for the use of a firearm during the commission of the armed robbery. In November 2006, the trial court sentenced defendant to a total of 24 years. ¶ 4 In 2007, our supreme court determined the 15-year mandatory enhancement violated the proportionate-penalties clause and was unconstitutional. People v. Hauschild, 226 Ill. 2d 63, 86-89 (2007). Defendant appealed, claiming his sentence was void since the trial court had added the 15-year mandatory enhancement. Defendant also claimed the circuit court erred in sua sponte dismissing his postconviction petition after appointing counsel to represent defendant. ¶ 5 On November 6, 2012, we filed a Rule 23 order in this case, wherein we found defendant's 24-year sentence was void pursuant to Hauschild. People v. Taylor, 2012 IL App (4th) 110633-U, ¶ 15. We further found that, because the State's agreement to cap its sentencing recommendation at 30 years was an essential element of the plea agreement, yet was based on a void statutory provision, defendant was entitled to withdraw his guilty plea and plea anew or proceed to trial if he so chose. Taylor, 2012 IL App (4th) 110633-U, ¶ 20. Given our disposition of defendant's first claim, we found it unnecessary to address his second claim of error regarding the dismissal of his postconviction petition. Taylor, 2012 IL App (4th) 110633-U, ¶ 21. ¶ 6 On May 29, 2013, in the exercise of its supervisory authority, the supreme court directed us to vacate our decision in Taylor, 2012 IL App (4th) 110633-U, and to reconsider our judgment in light of People v. Blair, 2013 IL 114122, and People v. Donelson, 2013 IL 113603, to determine whether a different result was warranted. People v. Taylor, 2013 IL 115416, 992 N.E.2d 1, (nonprecedential supervisory order on denial of petition for leave to appeal). Accordingly, we vacate our decision in Taylor, 2012 IL App (4th) 110633-U. ¶ 7 We change our analysis of defendant's first argument. It would be inconsistent with Blair to persist in the view that the statutory authority for the 15-year enhancement is nonexistent. According to Blair, the 15-year enhancement in section 18-2(b) of the Criminal Code of 1961(720 ILCS 5/18-2(b) (West 2004)) exists as legislation even though the legislation was unconstitutional when enacted and hence "void ab initio"; Public Act 95-688 (eff. Oct. 23, 2007) cured the constitutional infirmity; and therefore, defendant's sentence may now include the 15-year enhancement after all. ¶ 8 However, we find Donelson inapplicable to our new analysis since Donelson addresses whether an entire plea agreement should be declared void when the sentencing structure is void. Donelson, 2013 IL 113603, ¶ 1. The Donelson court concluded that the defendant's plea could be fulfilled because his sentence could be reconfigured, consistent with statutory mandates, in such a way to give him the benefit of his bargain without voiding the entire plea agreement. Donelson, 2013 IL 113603, ¶ 27. In our new analysis, we find defendant's sentence is not void, and therefore the analysis in Donelson does not apply.

¶ 9 I. BACKGROUND

¶ 10 In August 2005, at approximately 11 p.m., defendant and Crystal Stephens drove in her vehicle to the Hardee's restaurant in Staunton. Stephens entered the restaurant through the employee entrance while defendant waited in the car. While armed with a .22-caliber handgun, Stephens demanded cash from the safe. She left the restaurant with $366 cash, ran across the parking lot, and entered the car being driven by defendant. ¶ 11 The manager at Hardee's called the police. An officer spotted Stephens's vehicle and activated his squad car's overhead lights and siren. Defendant did not pull over and a chase ensued. Stephens leaned out of the car and fired multiple shots, one of which hit the squad car. Defendant eventually crashed the car and both occupants were arrested. ¶ 12 The State charged defendant with four counts: two counts of armed robbery while possessing and firing a weapon (720 ILCS 5/18-2(a)(2), (a)(3) (West 2004)) (counts I and II, respectively), one count each of aggravated fleeing or attempting to elude (625 ILCS 5/11-204.1(a)(4) (West 2004)) (count III), and reckless driving (625 ILCS 5/11-503(a) (West 2004)) (count IV). In October 2006, defendant entered into a negotiated guilty plea agreement, wherein he agreed to plead guilty to one count of armed robbery in exchange for the State (1) dismissing the remaining charges and (2) recommending a sentencing cap of no more than 30 years in prison. At the plea hearing, defendant's attorney told the trial court defendant maintained his innocence and only agreed to plead guilty because he understood "the likelihood of his being convicted is very great." The court appropriately admonished defendant and, after considering the stipulated factual basis, accepted defendant's plea. ¶ 13 In November 2006, the trial court considered the testimony of the Hardee's manager, the police officer who responded to the call, a police officer who was involved in the chase, a detective involved in the investigation, Stephens, and defendant. Stephens had changed her story about defendant's knowledge of her intent to commit the robbery. Initially, she said she and defendant had planned the robbery in advance. She changed her story at sentencing to state that defendant did not know about the robbery and was asleep in the car when she went inside Hardee's. Based on this change of testimony, defendant made a motion to withdraw his guilty plea. The court refused to consider defendant's motion at sentencing and sentenced him to 9 years in prison on the armed-robbery conviction and added 15 years for the automatic weapon enhancement. See 720 ILCS 5/18-2(b) (West 2004). ¶ 14 Defendant filed a pro se motion to withdraw his guilty plea. His attorney filed an amended motion, which the trial court denied. Defendant appealed, and this court vacated the trial court's order and remanded due to defense counsel's failure to file a certificate in compliance with Illinois Supreme Court Rule 604(d) (Ill. S. Ct. R. 604(d) (eff. July 1, 2006)). People v. Taylor, No. 4-07-0479 (Sept. 5, 2007) (unpublished summary order under Supreme Court Rule 23(c)(1)). ¶ 15 In October 2008, the trial court denied defendant's second amended motion to withdraw his guilty plea and defendant appealed. People v. Taylor, No. 4-09-0189 (Apr. 9, 2010) (unpublished order under Supreme Court Rule 23). This court agreed with the trial court, finding Stephens's recantation of her initial statement was suspect, and affirmed the court's order denying defendant's motion to withdraw his guilty plea. Taylor, No. 4-09-0189, slip order at 14. ¶ 16 In March 2011, defendant filed a pro se postconviction petition, claiming (1) his counsel rendered ineffective assistance, (2) his due-process and equal-protection rights were violated, and (3) prosecutorial misconduct. The trial court appointed counsel to represent defendant and, after a continuance was granted, scheduled a motions hearing for June 13, 2011. On that day, defendant's counsel was unavailable, so the court rescheduled the hearing for July 19, 2011. On June 15, 2011, the following docket entry was included in the common-law record:

"Cause called for status at the request of the attorneys. Present SA Watson and PD Verticchio. Statements made to the [c]ourt concerning the [p]ost[-c]onviction process. Matter taken under advisement. Clerk to forward copy of docket entry to the attorneys."
¶ 17 On June 20, 2011, the following docket entry was filed:
"Successive [p]etition for [p]ost[-c]onviction [r]elief as filed by the defendant has been reviewed and considered. In light of the
[p]ost [c]onviction [p]rocess [s]ummary [d]ismissal is found to be appropriate. The prayer of the [p]etition is denied. The hearing set for July 19, 2011, at 1:30 p.m. is canceled. Writ for defendant's return is canceled. Clerk is directed to forward copy of docket entry to attorneys and to the defendant."
This appeal followed.

¶ 18 II. ANALYSIS


¶ 19 A. 15-Year Sentence Enhancement

¶ 20 Defendant first claims his 24-year sentence is void because the 15-year automatic add-on for the use of a weapon during the armed robbery was found to be unconstitutional in Hauschild, 226 Ill. 2d at 86-89, and therefore, he claims, either the case should be remanded for further proceedings related to the withdrawal of his plea or this court should reduce his sentence to 9 years. We first note that an issue related to a potentially void sentence may be challenged at any time, including for the first time on appeal from the dismissal of a postconviction petition. People v. Thompson, 209 Ill. 2d 19, 27 (2004). ¶ 21 The armed-robbery statute (720 ILCS 5/18-2(a) (West 2004)) provides several alternative definitions of armed robbery, including a type of armed robbery of which defendant was convicted in this case, armed robbery while in possession of a firearm (720 ILCS 5/18-2(a)(2) (West 2004)). If, when committing a robbery, a person "carries on or about his or her person[,] or is otherwise armed with a firearm" (id.), the person commits "a Class X felony for which 15 years shall be added to the term of imprisonment imposed by the court" (emphasis added) (720 ILCS 5/18-2(b) (West 2004)). According to this language, the trial court should determine what prison sentence the defendant deserves within the normal Class X range, i.e., imprisonment for no less than 6 years and no more than 30 years (730 ILCS 5/5-8-1(a)(3) (West 2004)), and "impose" that sentence. 720 ILCS 5/18-2(b) (West 2004). A court imposes a sentence by orally pronouncing it. People v. Williams, 97 Ill. 2d 252, 310 (1983). Then, after the court imposes its sentence, regardless of the number of years of imprisonment within the 6- to 30-year range that the court selects, the legislature was of the opinion that the defendant deserved 15 more years, which was to be "added to the term of imprisonment imposed by the court." 720 ILCS 5/18-2(b) (West 2004). ¶ 22 At sentencing, it was apparent that the trial court specifically added 15 years "because of [defendant's] possession of a weapon" to the imposed 9-year sentence. That is, the court specifically bifurcated the sentence. As explained above, this 15-year enhancement was declared void per Hauschild when the supreme court held that the armed robbery statute's enhancement provision was unconstitutional because, when compared to the offense of armed violence, it created a disproportionate penalty. Hauschild, 226 Ill. 2d at 86-87. The legislature responded to the Hauschild decision by enacting Public Act 95-688, which revised the armed violence statute to correct the disproportionality, but it did not address the armed robbery statute. Pub. Act 95-688, § 4 (eff. Oct. 23, 2007). ¶ 23 However, this court thereafter held the legislature's adoption of Public Act 95-688 did not affect the validity of the 15-year enhancement in the armed-robbery statute since the public act amended only the armed-violence statute, not the armed-robbery statute. See People v. Gillespie, 2012 IL App (4th) 110151, ¶ 52 ("the amendment of one statute does not validate a different statute that is void ab initio by reason of its unconstitutionality"). This court was of the opinion that the 15-year enhancement was void ab initio pursuant to Hauschild, meaning it was "a nullity from the start, an aborted legislative enactment." Gillespie, 2012 IL App (4th) 110151, ¶ 52. ¶ 24 Our supreme court's decision in Blair invalidated this reasoning by instructing that the term "void ab initio" meant only "unenforceable" by reason of "constitutional[] infirm[ity]." Blair, 2013 IL 114122, ¶ 30. Before Blair, we understood the term to mean the statute was "[n]ull from the beginning." Black's Law Dictionary, 1604 (8th ed. 2004). However, the supreme court clarified in Blair that unconstitutional legislation really is not a nullity. The legislation exists in the statute books but is merely unenforceable "until the constitutional violation is remedied." Blair, 2013 IL 114122, ¶ 30. Public Act 95-688 removed the constitutional infirmity, making the 15-year enhancement enforceable. Blair, 2013 IL 114122, ¶ 35. Thus, the 15-year enhancement to defendant's sentence is not void.

¶ 25 B. Circuit Court's Sua Sponte Dismissal

of Defendant's Pro Se Postconviction Petition

¶ 26 Defendant next contends the circuit court erred by sua sponte dismissing his pro se petition during the second stage of the proceedings, after the court had appointed counsel to represent defendant. Our review of the record demonstrates the court's dismissal was not "sua sponte" as defendant argues. The circuit court apparently conducted a hearing on June 15, 2011, at which both counsel were present. The court made a docket entry, claiming "[s]tatements made to the [c]ourt concerning" the petition. However, we have no transcript of this hearing to know the nature of the "statements." The court indicated it was taking the matter under advisement. Five days later, the court dismissed defendant's petition. Having heard from both sides prior to the entry of its order, the court cannot be said to have entered the order sua sponte. See People v. Vincent, 226 Ill. 2d 1, 12 (2007) (a court acts sua sponte when it initiates an action or acts on its own motion). ¶ 27 It is defendant's burden as the appellant to produce a record demonstrating error. Without such, we must presume the circuit court's order was entered in accordance with the law and applicable procedures. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984) ("[A]n appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error, and in the absence of such a record on appeal, it will be presumed that the order entered by the trial court was in conformity with law and had a sufficient factual basis. Any doubts which may arise from the incompleteness of the record will be resolved against the appellant.") Defendant provides no indication the court initiated the dismissal or acted on its own motion. As such, our review of the record before us does not indicate the court erred by sua sponte dismissing defendant's postconviction petition.

¶ 28 III. CONCLUSION

¶ 29 For the foregoing reasons, we affirm defendant's conviction and sentence and we affirm the circuit court's order dismissing defendant's postconviction petition. As part of our judgment, we award the State its $50 statutory costs. ¶ 30 Affirmed.


Summaries of

People v. Taylor

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT
Oct 16, 2013
2013 Ill. App. 4th 110633 (Ill. App. Ct. 2013)
Case details for

People v. Taylor

Case Details

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

Court:APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

Date published: Oct 16, 2013

Citations

2013 Ill. App. 4th 110633 (Ill. App. Ct. 2013)