People v. Johnson , 2015 IL App (2d) 140388 ( 2015 )

2015 IL App (2d) 140388
No. 2-14-0388
Opinion filed March 24, 2015
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 95-CF-1385
)
PATRICK LYNN JOHNSON, ) Honorable
) Susan Clancy Boles,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Presiding Justice Schostok and Justice Burke concurred in the judgment and opinion.
OPINION
¶1 Defendant, Patrick Lynn Johnson, appeals from an order of the circuit court of Kane
County denying his motion for leave to file a successive petition for relief under the Post-
Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)) from his conviction of
first-degree murder (720 ILCS 5/9-1(a)(1) (West 1994)). Defendant argues on appeal that he
established cause and prejudice, entitling him to file a successive petition challenging his
sentence pursuant to the due-process principles set forth in Apprendi v. New Jersey, 530 U.S. 466
(2000), and Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151 (2013). Defendant further
contends that his conviction is void because: (1) he was charged by an indictment that was
returned by an unsworn grand jury; (2) the indictment did not sufficiently allege the means by
2015 IL App (2d) 140388
which the victim was killed; (3) he was initially charged by complaint, but was not afforded a
prompt preliminary hearing to establish probable cause; and (4) the trial court never acquired
personal jurisdiction. He also argues that he was not admonished of his right to elect whether to
be sentenced under either the law in effect at the time of the offense or the law in effect at the
time of sentencing. We affirm.
¶2 Defendant was charged with first-degree murder in connection with the 1995 shooting
death of Sheldon Raider. Defendant pleaded guilty in 1997, and the trial court imposed an
extended-term sentence of 78 years’ imprisonment. The trial court concluded that defendant was
eligible for an extended-term sentence because the offense was accompanied by exceptionally
brutal or heinous behavior indicative of wanton cruelty. See 730 ILCS 5/5-5-3.2(b) (West 1994).
We affirmed defendant’s sentence on direct appeal. People v. Johnson, No. 2-98-0325 (1999)
(unpublished order under Supreme Court Rule 23). Defendant subsequently initiated a number
of collateral proceedings under the Act and other statutes.
¶3 The Act “provides a means for a criminal defendant to challenge his conviction or
sentence based on a substantial violation of constitutional rights.” People v. Beaman, 229 Ill. 2d
56, 71 (2008). A petition under the Act initiates a collateral proceeding at which the inquiry is
limited to constitutional issues that were not, and could not have been, adjudicated on direct
appeal. People v. Williams, 209 Ill. 2d 227, 232-33 (2004). Section 122-1(f) of the Act
provides:
“Only one petition may be filed by a petitioner under this Article without leave of the
court. Leave of court may be granted only if a petitioner demonstrates cause for his or
her failure to bring the claim in his or her initial post-conviction proceedings and
prejudice results from that failure. For purposes of this subsection (f): (1) a prisoner
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shows cause by identifying an objective factor that impeded his or her ability to raise a
specific claim during his or her initial post-conviction proceedings; and (2) a prisoner
shows prejudice by demonstrating that the claim not raised during his or her initial post-
conviction proceedings so infected the trial that the resulting conviction or sentence
violated due process.” 725 ILCS 5/122-1(f) (West 2012).
¶4 We first consider defendant’s arguments that his conviction is void because: (1) the
indictment was returned by an unsworn grand jury, (2) defendant was initially charged by
complaint, but was not afforded a prompt preliminary hearing to establish probable cause, and
(3) the indictment did not sufficiently allege the means by which the victim was killed. These
issues were not raised in defendant’s proposed successive postconviction petition. Nonetheless,
if defendant’s conviction is indeed void, he is entitled to seek relief for the first time in this
appeal. People v. Spears, 371 Ill. App. 3d 1000, 1006-07 (2007). We note that a judgment is
void only if the court that entered it lacked subject-matter jurisdiction or personal jurisdiction
over the party against whom the judgment was entered. See, e.g., People v. Rios, 2013 IL App
(1st) 121072, ¶ 11.
¶5 As pertinent here, the record reveals that a complaint for a preliminary hearing was filed
on July 4, 1995, and that an indictment was returned on July 14, 1995, alleging that “defendant,
without lawful justification and with the intent to kill or do great bodily harm to Sheldon Raider,
shot Sheldon Raider, thereby causing the death of Sheldon Raider.” According to defendant, the
record further establishes that the grand jurors were not sworn until July 17, 1995. Defendant’s
challenge to the grand-jury proceedings is based primarily on People v. Gray, 261 Ill. 140
(1913), and its progeny. Gray held as follows:
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“It is essential to the validity of the record of a criminal case that it show that the
proceedings were had in a court regularly organized, and therefore the convening order
for the term at which the conviction was had should appear. [Citation.] The record must
also show that the grand jury was sworn [citations], that the indictment was returned into
open court [citations], that defendant entered a plea to the indictment [citations], that the
trial jury was impaneled and sworn, and that the defendant was present at the trial
[citation].” Id. at 141.
In arguing that he was entitled to a preliminary hearing to establish probable cause, defendant
relies on article I, section 7, of the Illinois Constitution of 1970, which provides, in pertinent
part, that “[n]o person shall be held to answer for a crime punishable by death or by
imprisonment in the penitentiary unless either the initial charge has been brought by indictment
of a grand jury or the person has been given a prompt preliminary hearing to establish probable
cause.” (Emphasis added.) Defendant maintains that the indictment in this case was not the
“initial charge.” Lastly, as to the form of the indictment, defendant appears to argue that the
indictment did not sufficiently identify the weapon used to commit the offense.
¶6 The State responds that these issues are barred by the doctrine of res judicata. “The
doctrine of res judicata provides that a final judgment on the merits rendered by a court of
competent jurisdiction bars any subsequent actions between the parties or their privies on the
same cause of action.” People v. Carroccia, 352 Ill. App. 3d 1114, 1123 (2004). Thus, in
postconviction proceedings, res judicata bars relitigation of “any issues which have previously
been decided by a reviewing court.” People v. Whitfield, 217 Ill. 2d 177, 183 (2005). Defendant
previously raised these issues in a petition for relief under section 2-1401 of the Code of Civil
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Procedure (735 ILCS 5/2-1401 (West 2012)). In affirming the denial of that petition, we stated
as follows:
“A number of defendant’s contentions relate to the sufficiency of the charging
instrument. Specifically, defendant contends that the grand jury was not properly sworn
before it returned the indictment against him, the indictment did not sufficiently state the
offense of first degree murder, and the prosecution was improperly initiated by a
complaint signed by a law enforcement officer. Even if defendant is correct in his claims
of error, they did not render defendant’s conviction void, because any defects in the
charging instrument do not deprive the trial court of jurisdiction.” People v. Johnson,
No. 2-09-0402, slip order at 4 (2010) (unpublished order under Supreme Court Rule 23).
Accordingly, we agree with the State that review of these issues is barred by res judicata. Apart
from considerations of res judicata, we see no reason to deviate from our prior decision. We
note, in particular, that the jurisdictional principles in force when Gray was decided were
considerably different from those that apply under our present state constitution. See People v.
Kliner, 2015 IL App (1st) 122285, ¶ 11. The failure to swear the grand jury does not divest the
trial court of subject-matter jurisdiction to enter a criminal conviction. Id. Furthermore, it has
long been recognized that, where a defendant is indicted after initially having been charged in
some other manner, article I, section 7, of our state constitution does not require the trial court to
conduct a preliminary hearing. People v. Kuelper, 46 Ill. App. 3d 420, 422-23 (1977). The
failure to conduct a preliminary hearing was not error, let alone error that would divest the trial
court of subject-matter jurisdiction.
¶7 Defendant also argues for the first time on appeal that his conviction is void for lack of
personal jurisdiction. While acknowledging that a defendant’s appearance before the trial court
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on a criminal charge ordinarily confers personal jurisdiction over the defendant (see, e.g., People
v. Raczkowski, 359 Ill. App. 3d 494, 497 (2005)), defendant “asserts that only a valid charging
instrument can be used in the personal jurisdiction creation process.” Defendant cites no
authority in support of the assertion. Bare assertions that are unsupported by any citation of
authority do not merit consideration on appeal. People v. Fredericks, 2014 IL App (1st) 122122,
¶ 64.
¶8 Defendant next argues that he has satisfied the cause-and-prejudice test with respect to
his claim that his right to due process of law was violated because his eligibility for an extended-
term sentence was not determined by a jury based on proof beyond a reasonable doubt.
Apprendi held that, “[o]ther 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.” Apprendi, 530 U.S. at 490. Alleyne extended this rule to facts that
increase the mandatory minimum sentence for an offense. In People v. De La Paz, 204 Ill. 2d
426 (2003), our supreme court held that, pursuant to principles set forth in Teague v. Lane, 489
U.S. 288 (1989), Apprendi announced a “new rule” that does not apply in proceedings for
collateral review of convictions that were final before Apprendi was decided. De La Paz
recognized that watershed rules of criminal procedure may be applied retroactively. De La Paz,
204 Ill. 2d at 434. However, the De La Paz court concluded that Apprendi did not announce a
watershed rule. Id. at 438-39. The rule announced in Alleyne is no more a watershed rule than
was the rule announced in Apprendi. Furthermore, inasmuch as Alleyne simply extended the rule
announced in Apprendi, Alleyne cannot be applied retroactively to convictions that were final
before Apprendi was decided. There is no dispute that defendant’s conviction falls within that
category.
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¶9 Defendant notes that the United States Supreme Court has explained that state courts are
not required to follow Teague and may employ a different retroactivity analysis. Danforth v.
Minnesota, 552 U.S. 264, 282 (2008). However, notwithstanding Danforth, our supreme court
has continued to employ the Teague analysis. See People v. Sanders, 238 Ill. 2d 391, 400-01
(2010).
¶ 10 The nonretroactivity of Apprendi and Alleyne necessarily precludes defendant from
establishing prejudice for purposes of the cause-and-prejudice test. Because the claim would not
have been cognizable in an earlier postconviction proceeding, defendant suffered no prejudice as
a result of the failure to raise the claim.
¶ 11 Finally, defendant argues that his conviction and sentence must be vacated because he
was not advised of his right to elect to be sentenced under the law in effect either at the time of
his offense or at the time of sentencing. 1 Defendant contends that the truth-in-sentencing law
(see 730 ILCS 5/3-6-3(a)(2)(i) (West 1996)) took effect after he committed his crime and was in
effect when he was sentenced. The truth-in-sentencing law barred the Department of Corrections
from awarding good-conduct credit toward prison sentences for first-degree murder. Id. In
People v. Reedy, 295 Ill. App. 3d 34 (1998), aff’d, 186 Ill. 2d 1 (1999), this court invalidated the
truth-in-sentencing law that was in effect when defendant was sentenced. Department of
Corrections records establish that defendant is receiving good-conduct credit in accordance with
the law in effect on the date of the offense, which, of course, is the law more favorable to him.
In any event, because the law in effect when defendant was sentenced has been invalidated, he
could never have validly elected it.
1
Although defendant raises this argument for the first time on appeal (and does not assert
here that the judgment is void), we can dispose of it briefly.
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¶ 12 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.
¶ 13 Affirmed.
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