People v. Caballero ( 1997 )

    People v. Caballero, No. 81259 (12/4/97)

    NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the

    opinion to request a rehearing. Also, opinions are subject to modification, correction or

    withdrawal at anytime prior to issuance of the mandate by the Clerk of the Court.

    Therefore, because the following slip opinion is being made available prior to the

    Court's final action in this matter, it cannot be considered the final decision of the

    Court. The official copy of the following opinion will be published by the Supreme

    Court's Reporter of Decisions in the Official Reports advance sheets following final

    action by the Court.

              Docket No. 81259--Agenda 5--May 1997.

      THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JUAN

                      CABALLERO, Appellant.

                 Opinion filed December 4, 1997.

         JUSTICE HARRISON delivered the opinion of the court:

         Defendant, Juan Caballero, appeals from an order of the circuit court of

    Cook County dismissing, without an evidentiary hearing, his petition for post-

    conviction relief (725 ILCS 5/122--1 et seq. (West 1992)) and relief from

    judgment (735 ILCS 5/2--1401 (West 1992)). Because defendant was sentenced

    to death for the underlying murder convictions, the present appeal lies directly to

    this court. 134 Ill. 2d R. 651(a).

         Early on the morning of February 25, 1979, the bodies of three teenage

    males, Michael Salcido, Arthur Salcido, and Frank Mussa, were discovered in a

    car in a Chicago alley. In 1980, a jury found defendant guilty on charges of

    murder, unlawful restraint, and armed violence with respect to each of the three

    victims. On direct appeal, this court affirmed defendant's convictions and death

    sentence. People v. Caballero, 102 Ill. 2d 23 (1984).

         Defendant filed a petition for post-conviction relief alleging, inter alia, that

    he was denied effective assistance of counsel at his capital sentencing hearing. The

    circuit court dismissed the petition without an evidentiary hearing. On appeal, this

    court held that the allegations made a substantial showing of constitutional rights

    deprivation and remanded the cause for an evidentiary hearing. People v.

    Caballero, 126 Ill. 2d 248 (1989). After a hearing, the circuit court denied

    defendant post-conviction relief based on ineffective assistance of counsel at

    sentencing and this court affirmed. People v. Caballero, 152 Ill. 2d 347 (1992).

         On October 29, 1993, defendant filed a petition for post-conviction relief

    and relief from judgment based on the unconstitutional disparity of his death

    sentence, and later amended the petition to include violation of his due process

    right to "reverse-Witherspoon," or "life qualify," the jury. The State moved to

    dismiss defendant's petition. On May 29, 1996, after oral argument on the State's

    motion, the circuit court dismissed the petition and this appeal followed. The facts

    of this case are adequately set forth in our opinion on defendant's direct appeal

    and will not be repeated here.

         Initially, we note that while defendant alternatively argues that he is

    entitled to relief from judgment pursuant to section 2--1401 of the Civil Practice

    Law (735 ILCS 5/2--1401 (West 1992)), where a section 2--1401 petition is filed

    beyond two years after the judgment was entered, it cannot be considered. 735

    ILCS 5/2--1401(c) (West 1992); see also People v. Logan, 49 Ill. App. 3d 787,

    790 (1977), aff'd, 72 Ill. 2d 358 (1978). This court has held that the two-year

    limitation mandated by section 2--1401 and its predecessor, section 72 (Ill. Rev.

    Stat. 1975, ch. 110, par. 72), must be adhered to in the absence of a clear showing

    that the person seeking relief is under legal disability or duress or the grounds for

    relief are fraudulently concealed. Crowell v. Bilandic, 81 Ill. 2d 422, 427 (1980);

    People v. Berland, 74 Ill. 2d 286, 317 (1978). Moreover, the fact that a post-

    judgment motion or an appeal may be pending does not serve to toll the period

    of limitation. See Sidwell v. Sidwell, 127 Ill. App. 3d 169, 174 (1984).

         Defendant's section 2--1401 petition was filed 13 years after the judgment

    of conviction was entered and sentence imposed in 1980, and he does not contend

    that any of the grounds for tolling the limitations period exist. Therefore, section

    2--1401 is not available as a remedy. Although the circuit court did not state its

    reasoning for dismissing that portion of defendant's petition, we may affirm for

    any reason warranted by the record, regardless of the reasons relied on by the

    lower court. People v. Nash, 173 Ill. 2d 423, 432 (1996).

         The State contends that the circuit court also properly dismissed

    defendant's petition for post-conviction relief because, as his second, it is

    procedurally barred. It is true that the Post-Conviction Hearing Act (Act)

    contemplates the filing of only one petition, and "a ruling on a post-conviction

    petition has res judicata effect with respect to all claims that were raised or could

    have been raised in the initial petition." People v. Free, 122 Ill. 2d 367, 375-76

    (1988); accord People v. Flores, 153 Ill. 2d 264, 273-74 (1992).

                   "The filing of successive post-conviction petitions sets up

                   two competing interests. On the one hand, there is the State's

                   interest in providing a forum for the vindication of the petitioner's

                   constitutional rights. On the other hand, the State has a legitimate

                   interest in the finality of criminal litigation and judgments. ***

                             * * *

                   Where, however, the claimed error is one which could not

                   have been presented in an earlier proceeding, procedural bars may

                   be ineffectual in bringing about that finality which ordinarily

                   follows direct appeal and the first post-conviction proceeding. In

                   such cases, there is the potential that a second or subsequent post-

                   conviction petition may be filed ***." Flores, 153 Ill. 2d at 274-75.

         Defendant's sentence disparity claim constitutes one such case.

         Defendant and three codefendants have been convicted of the triple

    homicide involved herein. Defendant and codefendant Luis Ruiz were tried in

    1980 before one judge supervising two separate juries, and, following separate

    sentencing hearings, both men were sentenced to death. In his second post-

    conviction petition, defendant claims that the disparity between his death sentence

    and the prison sentences of codefendants Placido LaBoy and Nelson Aviles

    violates defendant's constitutional rights. Defendant has supplemented his petition

    with portions of the circuit court records of Aviles and LaBoy, which indicate that

    Aviles had been a fugitive from 1979 until 1988. After Aviles was arrested in

    California, he agreed to testify against LaBoy and plead guilty to the murders in

    exchange for an agreed recommendation by the State of a 40-year sentence. In

    February 1992, Aviles testified at LaBoy's jury trial and, although the State sought

    the death penalty, the jury concluded that a sentence other than death should be

    imposed. Accordingly, LaBoy was sentenced to three consecutive natural-life

    terms of imprisonment. In March 1992, Aviles plead guilty and received

    concurrent sentences of 40 years on each of the three murder counts.

         LaBoy and Aviles were sentenced during the pendency of defendant's

    appeal from the circuit court's denial of his first post-conviction petition. On April

    3, 1992, defendant filed with this court a "Motion to Take Judicial Notice of the

    Trial of Codefendants and to Raise the Additional Issue of Proportionality and to

    Submit Additional Authority." Defendant's motion was denied on May 12, 1992.

    This court's opinion affirming denial of defendant's first post-conviction petition

    was filed October 15, 1992, and rehearing was denied on December 7, 1992.

         It is thus obvious that defendant's claim of unconstitutional disparity in

    sentencing could not have been presented in an earlier proceeding, and, indeed,

    his attempt to raise the claim on appeal from his first post-conviction petition was

    rebuffed by this court. Therefore, defendant's claim of sentence disparity is neither

    res judicata nor waived. See Flores, 153 Ill. 2d at 281-82 (where defendant's

    ineffective-assistance claims could not have been raised on direct appeal or in his

    first post-conviction proceeding, those claims were neither res judicata nor

    waived). Further, although defendant's direct appeal challenged his death sentence

    as disproportionate and excessive (Caballero, 102 Ill. 2d at 46-47), the issue of

    disparity in sentencing between defendant and his codefendants is not, contrary to

    the State's assertion, "essentially the same" such that "res judicata bars a second

    visit to this issue." See Flores, 153 Ill. 2d at 293-94.

         Finally, the statutory time limitation in the Act is also no bar to

    defendant's sentence disparity claim. The applicable section provides, inter alia:

              "No proceedings under this Article shall be commenced more than

                   *** 6 months after the date of the order denying certiorari by the

                   United States Supreme Court *** or 3 years from the date of

                   conviction, whichever is later, unless the petitioner alleges facts

                   showing that the delay was not due to his culpable negligence."

                   (Emphasis added.) 725 ILCS 5/122--1 (West 1992).

         Defendant's petition sets forth a factual chronology in support of his

    allegation that "any delay in filing this Petition was not due to Defendant's

    culpable negligence but was a result of the timing of the sentencings of LaBoy

    and Aviles." The circuit court specifically agreed with defendant on this point,

    stating: "defendant could not have raised this disparate sentencing issue *** on his

    direct appeal or in his initial post-conviction petition." We do not believe this

    finding by the circuit court was manifestly erroneous. See People v. Silagy, 116

    Ill. 2d 357, 365 (1987) (at a hearing under the Act, determinations by the trial

    court will not be disturbed unless manifestly erroneous). Therefore, we find that

    defendant has sufficiently met his burden of showing that the delay in filing his

    second post-conviction petition asserting a sentence disparity claim was not due

    to his culpable negligence.[fn1] See People v. Lansing, 35 Ill. 2d 247, 248

    (1966); People v. Heirens, 271 Ill. App. 3d 392, 401 (1995).

         Defendant contends that his petition was sufficient to require a hearing and

    a ruling on the merits of his sentence disparity claim, but that the circuit court

    dismissed the petition based on the mistaken belief that the issue of

    unconstitutional disparity of sentences could only be considered by an appellate

    court. Following oral argument by the parties at the hearing on the State's motion

    to dismiss, the circuit court cited extensively from this court's decisions in People

    v. Page, 156 Ill. 2d 258 (1993), and People v. Edgeston, 157 Ill. 2d 201 (1993),

    concluding "these cases stand for the proposition that the issue of disproportionate

    sentence is a matter for appellate review." The circuit court has misinterpreted our

    holdings.

         In Page and Edgeston, this court held that a defendant's request to have

    the jury at his capital sentencing hearing consider nonstatutory mitigating evidence

    of a codefendant's natural life sentence was neither constitutionally required nor

    relevant to the jury's examination of the individual defendant's characteristics and

    the circumstances of his offense. Edgeston, 157 Ill. 2d at 239. We further stated

    that in order to insure that the death penalty was not imposed in an arbitrary or

    capricious manner, we would, on direct review of an appropriate case, consider

    whether a death sentence is disproportionately harsh in comparison with a less

    severe sanction imposed on a codefendant convicted of the same offense. Page,

    156 Ill. 2d at 270.

         Neither Page nor Edgeston dealt with the sentence disparity issue in the

    context of a petition for post-conviction relief, nor did they hold that a circuit

    court could not consider such an issue raised under the Act. Disparity of sentence

    is cognizable under the Act in noncapital cases (see People v. Wren, 223 Ill. App.

    3d 722, 729 (1992)), and where circuit courts routinely handle post-conviction

    petitions in capital cases, we see no reason to preclude examination of this issue.

    Thus, we agree with defendant that the circuit court erroneously believed the issue

    was "a matter for appellate review" only. A remand for a decision on the merits

    is therefore necessary, unless, as the State contends, the court's dismissal was

    correct because defendant's sentencing disparity claim does not constitute a

    substantial constitutional error within the meaning of the Act. See Nash, 173 Ill.

    2d at 432 (the question on review is the correctness of the trial court's result, not

    the correctness of the reasoning upon which that result was based); People v.

    Hightower, 258 Ill. App. 3d 517, 519 (1994).

         One who seeks relief under the Act for disparity of sentence must allege

    facts which, if proven, indicate that his constitutional rights were violated in that

    regard. See Wren, 223 Ill. App. 3d at 729; People v. Adams, 164 Ill. App. 3d 742,

    745 (1987). Arbitrary and unreasonable disparity between the sentences of

    similarly situated codefendants is impermissible. People v. Jackson, 145 Ill. 2d 43,

    119 (1991), vacated on other grounds, 506 U.S. 802, 121 L. Ed. 2d 5, 113 S. Ct.

    32 (1992); People v. Godinez, 91 Ill. 2d 47, 55 (1982). However, the mere

    disparity of sentences does not, by itself, establish a violation of fundamental

    fairness. People v. Kline, 92 Ill. 2d 490, 508 (1982). A disparity of sentences will

    not be disturbed where it is warranted by differences in the nature and extent of

    the concerned defendants' participation in the offense. Flores, 153 Ill. 2d at 294;

    Godinez, 91 Ill. 2d at 55.

          Defendant's petition alleged that his death sentence was unconstitutionally

    disparate from the natural life sentence received by LaBoy, who, according to

    testimony at his trial and sentencing and the affidavit of defendant's counsel,

    played a more culpable role in the murders and had a more significant criminal

    record and less rehabilitative potential than defendant. The petition further alleged

    that defendant's death sentence was unconstitutionally disparate from the 40-year

    prison term received by Aviles, who played a similar role in the offenses.

    Defendant's petition was verified and its allegations were additionally supported

    by numerous exhibits, including circuit court computer records reflecting the

    sentences received by LaBoy and Aviles, and relevant portions of the official

    transcript from LaBoy's trial and penalty phase proceedings detailing the relative

    culpability of the various participants in the murders, Aviles' plea agreement,

    LaBoy's criminal background, rehabilitative potential and the findings and

    conclusions of the trial court in sentencing LaBoy.

         The standard for the evaluation of defendant's sentence disparity claim is

    clear:

              "A Post-Conviction Hearing Act proceeding is not an appeal per se,

                   but a collateral attack on a judgment. [Citation.] In order to prevail

                   under the Act, the defendant must establish a substantial

                   deprivation of his rights under the United States Constitution or the

                   Constitution of Illinois. [Citation.] The defendant is not entitled to

                   an evidentiary hearing unless the allegations of his petition,

                   supported where appropriate by the trial record or by

                   accompanying affidavits, make a substantial showing that the

                   defendant's rights have been so violated. [Citation.] For the

                   purpose of determining whether to grant an evidentiary hearing, all

                   well-pleaded facts in the petition and in any accompanying

                   affidavits are to be taken as true. [Citations.]" Caballero, 126 Ill.

                   2d at 258-59.

    In light of these considerations, we believe that defendant has made a substantial

    showing that his constitutional rights were violated so as to entitle him to an

    evidentiary hearing on the disparity between his death sentence and LaBoy's life

    sentence. See People v. Gleckler, 82 Ill. 2d 145 (1980) (death sentence vacated

    to prevent its arbitrary imposition where more culpable codefendant, with criminal

    record and similarly poor rehabilitative prospects, received imprisonment term).

         However, with regard to Aviles, we find that even if all the "well-pleaded

    facts" in the petition and supporting exhibits are taken as true, defendant has not

    established an unconstitutional disparity. A sentence imposed on a codefendant

    who pleaded guilty as part of a plea agreement does not provide a valid basis of

    comparison to a sentence entered after a trial. See People v. Brown, 267 Ill. App.

    3d 482, 487 (1994). Further, dispositional concessions are properly granted to

    defendants who plead guilty when the interest of the public in the effective

    administration of criminal justice would thereby be served. People v. Sivels, 60 Ill.

    2d 102, 105 (1975). Aviles, by agreeing to plead guilty and testify against LaBoy

    in exchange for the State's recommendation of a 40-year sentence: (1)

    acknowledged his guilt and showed willingness to assume responsibility for his

    conduct; (2) made a public trial unnecessary; and (3) gave cooperation which

    resulted in the successful prosecution of another offender engaged in equally

    serious or more serious criminal conduct. See Sivels, 60 Ill. 2d at 105. Thus,

    defendant cannot establish that the disparate treatment of himself and Aviles was

    unreasonable or unwarranted. We therefore affirm the circuit court's dismissal of

    defendant's claim of sentence disparity as to Aviles.

         Finally, we address defendant's contention that the trial court's failure to

    "reverse-Witherspoon" the jury entitles him to post-conviction relief. Defendant

    raised this issue on direct appeal, and this court rejected the argument that his

    capital sentencing jury should have been "life qualified" in order to exclude all

    jurors who feel that the death penalty should be automatically imposed in all

    murder cases.[fn2] Caballero, 102 Ill. 2d at 45-46. Eight years later, in Morgan

    v. Illinois, 504 U.S. 719, 735-36, 119 L. Ed. 2d 492, 506-07, 112 S. Ct. 2222,

    2233 (1992), the United States Supreme Court held that a capital defendant is

    entitled to inquire into prospective jurors' opinions in support of the death penalty,

    or reverse-Witherspoon the jury. Defendant argues that, in light of Morgan, "he

    is entitled to the constitutional due process right to `life qualify' the jury." We

    find, however, that the circuit court correctly concluded that the Morgan decision

    does not apply retroactively to cases on collateral review.

         "In Teague v. Lane (1989), 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct.

    1060, the United States Supreme Court barred the retroactive application, upon

    collateral review, of a new constitutional rule of criminal procedure that is

    announced after a defendant's conviction is final because all avenues of direct

    appeal have been exhausted." People v. Holman, 164 Ill. 2d 356, 380 (1995). The

    Teague Court held that a case announces a new rule "when it breaks new ground

    or imposes a new obligation on the States or the Federal Government." Teague,

    489 U.S. at 301, 103 L. Ed. 2d at 349, 109 S. Ct. at 1070. In other words, "a case

    announces a new rule if the result was not dictated by precedent existing at the

    time the defendant's conviction became final." (Emphasis in original.) Teague, 489

    U.S. at 301, 103 L. Ed. 2d at 349, 109 S. Ct. at 1070; People v. Flowers, 138 Ill.

    2d 218, 240 (1990). In Flowers, this court adopted the Teague test for purposes

    of analyzing collateral review under the Act. Flowers, 138 Ill. 2d at 237-38.

         Application of the Teague test indicates that Morgan should not be applied

    retroactively because it constituted a new rule. Clearly, the result defendant seeks

    was not "dictated" by existing precedent, where this court rejected his original

    claim that his jury should have been "life qualified." Caballero, 102 Ill. 2d at 45-

    46. Indeed, in People v. Cloutier, 156 Ill. 2d 483, 497 (1993), this court found that

    prior to Morgan, "no reverse-Witherspoon questioning was required in Illinois."

    Further, "if prior to the rule's being established there was a significant difference

    of opinion on the issue in the lower courts, this would indicate that a decision is

    a new rule." Flowers, 138 Ill. 2d at 240. In Morgan, the United States Supreme

    Court specifically stated that it granted certiorari because of the considerable

    disagreement on the issue among state courts of last resort. Morgan, 504 U.S. at

    725, 119 L. Ed. 2d at 500, 112 S. Ct. at 2227.

         Nevertheless, defendant argues that the Morgan Court did not enunciate a

    new rule, but rather based its decision on precedent interpreting the due process

    clause requirement that a jury be impartial. We agree with the State that while the

    right to reverse-Witherspoon does stem from a defendant's due process right to an

    impartial jury (see Morgan, 504 U.S. at 728-29, 119 L. Ed. 2d at 502-03, 112 S.

    Ct. at 2229), what renders Morgan a new rule is the "new obligation" imposed

    upon the trial courts to "life qualify" the jury upon the request of a capital

    defendant. Therefore, unless this new rule falls within one of the two exceptions

    recognized in Teague, it will not be applied retroactively.

         The first exception states that the new rule should be given retroactive

    application if it places certain kinds of primary, private individual conduct beyond

    the power of the criminal-law-making authority to proscribe. Teague, 489 U.S. at

    307, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073. Defendant does not argue that this

    exception applies, and it clearly does not. The conduct proscribed in this case is

    murder, the prosecution of which is not prohibited by Morgan. Nor does the

    Morgan rule involve a categorical guarantee accorded by the Constitution such as

    a prohibition on the imposition of death on a certain class of offenders. See

    Flowers, 138 Ill. 2d at 241.

         Under the second exception, a new rule may be applied on collateral

    review if it requires the observance of those procedures that are implicit in the

    concept of ordered liberty. Teague, 489 U.S. at 307, 103 L. Ed. 2d at 353, 109 S.

    Ct. at 1073. This second exception is reserved for "watershed rules of criminal

    procedure" implicating the fundamental fairness and accuracy of the trial. Teague,

    489 U.S. at 311-12, 103 L. Ed. 2d at 356-57, 109 S. Ct. at 1076. While defendant

    contends that this exception applies to the right to reverse-Witherspoon a jury, we

    find it significant that Morgan requires a trial court to "life qualify" prospective

    jurors only at the defendant's request. The condition that the defendant make the

    request suggests that such voir dire questioning is not " `so central to an accurate

    determination of innocence or guilt' " as to constitute a component of basic due

    process. See Flowers, 138 Ill. 2d at 241-42, quoting Teague, 489 U.S. at 313, 103

    L. Ed. 2d at 358, 109 S. Ct. at 1077.) Therefore, because this exception must be

    narrowly construed (Flowers, 138 Ill. 2d at 242), we find that the Morgan rule

    does not fall within its boundaries.

         In light of these considerations, we find no error in the circuit court's

    dismissal of defendant's post-conviction petition with respect to this issue.

    Application of Morgan to defendant's post-conviction proceeding would have been

    an improper, retroactive operation of a new rule of criminal procedure in order to

    collaterally challenge defendant's conviction, which had become final before

    Morgan was announced. See Holman, 164 Ill. 2d at 381-82.

         For the reasons stated, the judgment of the circuit court of Cook County

    is affirmed in part and reversed in part. The cause is remanded to the circuit court

    for an evidentiary hearing on that portion of defendant's post-conviction petition

    that alleges that his sentence of death is unconstitutionally disparate from the

    natural life sentence imposed on codefendant LaBoy.

    Judgment affirmed in part and

                                             reversed in part;

                                               cause remanded.

                                                                     JUSTICE BILANDIC, dissenting:

         The majority opinion holds that "defendant has made a substantial showing

    that his constitutional rights were violated so as to entitle him to an evidentiary

    hearing on the disparity between his death sentence and LaBoy's life sentence."

    Slip op. at 7-8. I respectfully dissent from the majority's holding on this issue. For

    the reasons that follow, I find that the circuit court properly dismissed defendant's

    petition for post-conviction relief. See People v. P.H., 145 Ill. 2d 209, 220 (1991)

    (the reasons provided by the trial court for its judgment are immaterial if the

    decision is correct).

         The facts as set forth in this court's opinion on direct appeal (People v.

    Caballero, 102 Ill. 2d 23 (1984)) reveal that defendant, Luis Ruiz, Placedo LaBoy

    and Nelson Aviles, all members of the Latin Kings, committed the murders of

    Arthur and Michael Salcido and Frank Mussa. Defendant and his companions

    encountered the three victims when Michael Salcido approached Luis Ruiz and

    asked him where he could purchase marijuana. Michael told defendant and his

    companions that he was a member of a rival street gang, the Latin Eagles, because

    he believed they were members of that gang. Defendant and his companions got

    into one of the victim's cars on the pretense that they would help the victims buy

    marijuana. Defendant and his companions had the car driven to an alley where

    they instructed Michael to get out of the car and follow them to buy some

    marijuana. While they were alone with Michael, defendant and his companions

    beat him. Upon returning to the car, defendant and the others decided to kill

    Michael and his friends because they had seen their faces and could identify them.

    Michael and Frank were taken out of the car by defendant and LaBoy. When

    defendant returned to the car, he watched while Aviles stabbed Arthur. Frank was

    then brought to the car. Ultimately, defendant encouraged LaBoy to cut Frank's

    throat. Defendant then retrieved Michael and brought him to the car containing the

    bodies of Arthur and Frank. Defendant pushed Michael into the car, pulled back

    his head, slit his throat and stabbed him in the chest several times.

         As noted in the majority opinion, defendant's petition for post-conviction

    relief alleged that his death sentence was unconstitutionally disparate from the

    natural life sentence received by LaBoy because LaBoy played a more culpable

    role in the murders, had a more significant criminal record and less rehabilitative

    potential than defendant. Slip op. at 7. This court has repeatedly commented that

    simply because "some or all of the members of [a codefendant's] sentencing jury

    chose not to impose the death penalty in [the codefendant's] case does not, in our

    view, render the defendant's own sentence disproportionate." See People v.

    Kitchen, 159 Ill. 2d 1, 46 (1994). From this court's recitation of the facts on direct

    appeal, it is evident that defendant's claim of unconstitutional disparity in

    sentencing is not supported. Defendant alleges that LaBoy was the ringleader and

    implies that he was only a follower. Evidence that a defendant is a follower, as

    opposed to a leader, has been held to be a significant factor in disparate

    sentencing analysis. See People v. Jackson, 145 Ill. 2d 43, 125 (1991). The facts

    in this case, however, refute defendant's claim. They show that defendant

    encouraged LaBoy to slash one of the victim's throats and then proceeded to slash

    another victim's throat himself and repeatedly stab that victim. As noted by this

    court on direct appeal, defendant was an active, willing participant in all three of

    the murders. Caballero, 102 Ill. 2d at 42. Defendant has thus failed to show that

    he was merely a follower and that LaBoy was more culpable.

         The facts, as revealed in this court's opinion on direct appeal, also provide

    some insight into defendant's character. The facts show that defendant is a ruthless

    killer, who exhibited no remorse for his actions. Following his statement to the

    police, defendant expressed a willingness to kill again. When asked if he had a

    chance to do it over " `would he do it again,' " defendant stated that he would

    " `if it was a sure thing.' " Caballero, 102 Ill. 2d at 46. Defendant's only regret

    was that he was caught. Defendant's statements expressing a lack of remorse

    reveal that defendant had little rehabilitative potential. In light of the facts

    regarding defendant's actions during the murder and his character, LaBoy's

    allegedly more severe criminal record, standing alone, does not render defendant's

    death sentence arbitrarily and unreasonably disparate with that of LaBoy's life

    sentence. See People v. Towns, 174 Ill. 2d 453, 481 (1996).

         I would therefore find that defendant failed to establish that the sentence

    of death imposed on him is unconstitutionally disparate from LaBoy's life

    sentence. As such, defendant's petition fails to make a substantial showing that

    defendant's constitutional rights have been violated. I would therefore affirm the

    circuit court's dismissal of defendant's claim of unconstitutional sentence

    disparity.

         JUSTICES MILLER and HEIPLE join in this dissent.

    [fn1] Defendant's petition also states that it is timely under section 122--1 because

    it is filed within six months after the date of the order denying certiorari by the

    United States Supreme Court. While it appears that, as in the case at bar, a second

    post-conviction petition filed within six months after the Supreme Court's denial

    of certiorari from a defendant's initial post-conviction petition is timely under

    section 122--1 (see Flores, 153 Ill. 2d at 271-72, 275), we decline the State's

    invitation to decide this issue of statutory interpretation, because we find the

    exception to that section's time limits applies here.

    [fn2] In his first post-conviction petition, defendant argued that his trial counsel

    was incompetent for failing to "life qualify" the jury. This contention was not

    considered by this court on appeal because, based on another alleged error by

    counsel, defendant's petition was remanded for an evidentiary hearing to

    determine if he was denied a fair sentencing hearing.  Caballero, 126 Ill. 2d at

    268-69, 283.