Opinion
3-12-0405
03-28-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT B. WOMACK, 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 the 21st Judicial Circuit,
Kankakee County, Illinois,
Appeal No. 3-12-0405
Circuit No. 06-CF-669
Honorable Clark E. Erickson, Judge, Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Wright and Justice Carter concurred in the judgment.
ORDER
¶ 1 Held: Where defendant's sentence for attempted first degree murder was not void, the trial court properly dismissed defendant's petition for relief from judgment as untimely. ¶ 2 Defendant, Robert B. Womack, was convicted of attempted first degree murder (720 ILCS 5/8-4(a) (West 2006)) and aggravated unlawful use of weapons (720 ILCS 5/24-1.6(a)(1)(3)(A) (West 2006)). The trial court sentenced him to 18 years in prison, plus a 20- year enhancement for personally discharging a firearm, and imposed a concurrent three-year term for aggravated unlawful use of weapons. In his petition for relief from judgment, defendant claimed that his due process rights were violated because the aggravating factor authorizing the firearm enhancement was not pled in the indictment or presented to the jury. The trial court dismissed the petition as untimely. We affirm. ¶ 3 Defendant was charged by indictment with attempted first degree murder, aggravated battery with a firearm and aggravated unlawful use of weapons. Count I alleged that on October 25, 2006, defendant performed a substantial step toward the commission of murder in that defendant "with the intent to kill Michael McCarns, shot Michael McCarns about the body with a handgun." Count II, charging aggravated battery with a firearm, alleged that defendant "knowingly and by means of the discharging of a firearm, caused an injury to Michael McCarns, in that said defendant[] shot Michael McCarns about the body with a handgun." Count III claimed that defendant "knowingly carried a firearm, to-wit: a handgun" in his vehicle and that the firearm was "uncased, loaded and immediately accessible at the time of the offense." ¶ 4 A jury trial was held on February 6, 2007. Before the trial started, the State made a record of the potential for an enhanced sentence. The prosecutor noted that defendant was charged with personally discharging a firearm; therefore, if the jury found defendant guilty, a mandatory term of 20 years in prison would be added to the Class X sentence imposed for attempted murder and defendant would have to serve 85% of the sentence. The trial court asked defense counsel if his client was aware of the consequences of a conviction on count I, attempted murder. Defense counsel stated that he had discussed the 20-year enhancement with defendant and had calculated the sentence at 85%. ¶ 5 At trial, the evidence demonstrated that defendant shot McCarns four times in the stomach and once in the wrist. Defendant's recorded statement to police, in which he admitted shooting the victim, was also introduced into evidence. Defendant claimed that he shot McCarns in self-defense but did not testify at trial. ¶ 6 The jury was instructed on the definitions of attempted first degree murder and aggravated battery with a firearm. The jury was also instructed that if it found defendant guilty of attempted first degree murder, it must then decide whether defendant personally discharged a firearm in the commission of the offense beyond a reasonable doubt and sign the appropriate form. The jury returned a verdict of guilty on all three counts and found beyond a reasonable doubt that defendant personally discharged a firearm during the commission of count I, attempted first degree murder. ¶ 7 At sentencing, the trial court noted that the supreme court recently determined that the mandatory firearm enhancement was constitutional in People v. Sharpe, 216 Ill. 2d 481 (2005). The court then added an enhanced term of 20 years to the 18-year sentence it imposed on count I, sentencing defendant to a total of 38 years for attempted first degree murder. The court did not impose a sentence on count II, finding that it merged with count I, and imposed a concurrent three-year term on count III. ¶ 8 On direct appeal, defendant argued that the offense of aggravated unlawful use of weapons was not proved beyond a reasonable doubt. We agreed and vacated the conviction and sentence. People v. Womack, No. 3-07-0265 (2009) (unpublished order under Supreme Court Rule 23). ¶ 9 Defendant then filed a pro se postconviction petition, claiming that his due process rights were violated based on the language of the charging instrument and mandatory sentencing guidelines. The trial court summarily dismissed that petition on January 14, 2010, and we affirmed. People v. Womack, No. 3-10-0087 (2012) (unpublished order under Supreme Court Rule 23). ¶ 10 While his appeal from the postconviction petition was pending, defendant filed a pro se petition for relief from judgment pursuant to section 2-1401(f) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401(f) (West 2010)). The trial court dismissed the petition, sua sponte, on the basis that defendant failed to allege grounds that would excuse the untimely filing of the petition. ¶ 11 In a motion to reconsider, defendant argued that section 111-3(c-5) of the Code of Criminal Procedure (725 ILCS 5/111-3(c-5) (West 2006)) was unconstitutional as applied to him because the aggravating factor authorizing the enhanced firearm sentence was not pled in the indictment. Defendant claimed that because the statute was unconstitutional, his sentence was void and could therefore be challenged at any time. ¶ 12 The trial court entered a written memorandum of decision denying the motion to reconsider. In its decision, the court held that defendant's enhanced sentence for attempted first degree murder complied with the statute and was not void.
¶ 13 ANALYSIS
¶ 14 Defendant claims that the trial court erred in sua sponte dismissing his petition for relief from judgment because the application of section 111-3(c-5) in this case violated his due process and equal protection rights. Specifically, he claims that his sentence is void because the requirements of the enhanced sentencing statute were not included in the charging instrument or presented to the trier of fact as an element of the offense. ¶ 15 Section 2-1401 of the Code provides a comprehensive statutory procedure for defendants to challenge final orders and judgments more than 30 days after their entry. 735 ILCS 5/2-1401 (West 2010). Although a section 2-1401 petition must generally be filed within 2 years after the entry of an order or judgment, section 2-1401(f) provides that where a defendant challenges a judgment as being void, he may seek relief beyond the two-year limitations period. 735 ILCS 5/2-1401(f)(West 2010); Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95 (2002). ¶ 16 A judgment is void only where the court lacked subject matter or personal jurisdiction, or where it lacked the power to render the judgment or sentence in question. People v. Raczkowski, 359 Ill. App. 3d 494 (2005). In Illinois, circuit courts have subject matter jurisdiction over all justiciable matters, and trial courts acquire personal jurisdiction over a defendant when he or she appears before it. Ill. Const. 1970, art. VI, §9; Raczkowski, 359 Ill. App. 3d at 497. Jurisdiction is not conferred by information or indictment, and a defective charging instrument does not deprive the circuit court of jurisdiction. See People v. Benitez, 169 Ill.2d 245 (1996). Although the State's failure to allege and prove that the defendant personally discharged a firearm may violate a defendant's due process rights and warrant the dismissal of an enhanced sentence, it does not deprive the circuit court of jurisdiction. 725 ILCS 5/111-3(c-5) (West 2006); see generally People v. Davis, 156 Ill. 2d 149 (1993). In the present case, even if we assume that no notice was given in the charging instrument and the enhancing element was never submitted to the jury or proven beyond a reasonable doubt, the alleged error did not deprive the circuit court of jurisdiction, and defendant's postconviction claim that the violation of section 111-3(c-5) rendered the judgment against him void must fail. ¶ 17 Moreover, defendant's allegations of error are not supported by the record on appeal. Section 111-3(c-5) provides that if an alleged fact is not an element of the offense but is used to enhance the defendant's sentence, it must be "included in the charging instrument or otherwise provided to the defendant through a written notification before trial, submitted to a trier of fact as an aggravating factor, and proved beyond a reasonable doubt." 725 ILCS 5/111-3(c-5) (West 2006). ¶ 18 Here, the evidence demonstrates that defendant had adequate notice that the State was seeking to prove that defendant personally discharged a firearm both in the indictment and at trial. The attempted murder charge stated that defendant performed a substantial step toward the commission of murder by shooting the victim about the body with a handgun, and the aggravated battery charge provided that defendant committed the offense "by means of discharging a firearm." In addition, the parties and the court made a record of defendant's understanding of the enhanced sentencing statute and its application to this case prior to trial. Defense counsel specifically stated that defendant was aware that a 20-year add on would apply if the jury found him guilty. At trial, the State presented evidence that defendant personally fired a handgun. Finally, the jury was instructed that it needed to consider whether defendant personally discharged a firearm, and it returned a verdict finding that defendant did so beyond a reasonable doubt. Thus, the enhanced sentence for attempted first degree murder complied with section 111-3(c-5) of the Code of Criminal Procedure and was not void. Because defendant's sentence was not void, the trial court properly dismissed defendant's section 2-1401 petition as untimely. ¶ 19 In his supplemental brief on appeal, defendant claims that section 111-3(c-5) violates his right to equal protection because it does not mandate that a defendant who faces an enhanced firearm sentence be given pretrial notice of the State's intent to seek an enhanced sentence. Defendant argues that similar situated defendants are treated unequally by comparing section 111-3(c-5) to section 111-3(c), which states that when the State seeks an enhanced sentenced based on a prior conviction, the charge shall state the intent and the prior conviction so as to give notice to the defendant. He argues that because subsection (c-5) does not require that the defendant be given notice of the State's intent, he was not provided the same constitutional protections as those who face an enhanced sentenced based on a prior conviction. ¶ 20 The guarantee of equal protection requires that the government treat similarly situated people in a similar manner. In re R.C., 195 Ill. 2d 291 (2001). Since the defendant in this case and others similarly situated are not members of a suspect class, equal protection requires only that there be a reasonable and rational basis for the classification that justifies the distinction. People v. Alexander, 354 Ill. App. 3d 848 (2004); People v. Pembrock, 62 Ill. 2d 317 (1976). A statute carries a presumption of rationality when undergoing the traditional equal protection examination, and it is the defendant's burden to demonstrate the impermissible nature of the classification created. People v. Kaeding, 98 Ill. 2d 237 (1983). ¶ 21 The distinction between section 111-3(c) and section 111-3(c-5) is not irrational. These two sentencing provisions present different situations. Section 111-3(c) addresses cases in which the State seeks an enhanced sentence, which is defined in the statute as a sentence that is increased by a prior conviction from one class of offense to a higher classification of offense. That section specifically states that the enhanced sentence it addresses does not include an increase in the sentence applied within the same classification of offense. 725 ILCS 5/111-3(c) (West 2006). ¶ 22 Section 11-3(c-5), on the other hand, addresses those cases in which an alleged fact is "sought to be used to increase the range of penalties for the offense beyond the maximum that could otherwise be imposed for the offense." 725 ILCS 5/111-3(c-5) (West 2006). The plain language of subsection (c-5) indicates that it does not seek to raise the classification of the offense to a higher level classification, i.e. from a Class 1 offense to a Class X offense. Accordingly, there is a rational basis for providing stricter notification requirements in subsection (c). Thus, defendant failed to demonstrate that section 111-3(c-5) violates his equal protection rights.
¶ 23 CONCLUSION
¶ 24 The judgment of the circuit court of Kankakee County is affirmed. ¶ 25 Affirmed.