People v. Spears

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People v. Spears

State: Illinois

Court: 1st District Appellate

Docket No: 1-05-3600 Rel

Case Date: 02/28/2007

Preview:THIRD DIVISION February 28, 2007

No. 1-05-3600

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHERMAN SPEARS, Defendant-Appellant.

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Appeal from the Circuit Court of Cook County. No. 87 CR 4330 Honorable Joseph G. Kazmierski, Jr., Judge Presiding.

PRESIDING JUSTICE THEIS delivered the opinion of the court: Defendant Sherman Spears appeals from the trial court's order denying him leave to file his second petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2004)) because he failed to establish cause for his failure to raise his claims in his initial postconviction proceeding and prejudice resulting from that failure. On appeal, defendant makes two new arguments: (1) that the trial court erred in deeming his petition successive where his previous collateral motion was improperly recharacterized as a postconviction petition in violation of People v. Shellstrom, 216 Ill. 2d 45, 833 N.E.2d 863 (2005), and (2) that the consecutive nature of his sentences is void under People v. Palmer, 218 Ill. 2d 148, 843 N.E.2d 292 (2006), because the trial court imposed his 60-year sentence consecutive to a sentence of natural life. For the following reasons, we affirm in part, vacate in part, and modify defendant's sentence.

1-05-3600 Following a jury trial, defendant was convicted of the first degree murder of Sharon Eskridge, the attempted murder of Karen Spaulding, and home invasion on October 3, 1989. He was found eligible for the death penalty and was sentenced to natural life imprisonment for murder and an extended term of 60 years' imprisonment for attempted murder based on the trial court's determination that the offenses were accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. The court also ordered that these sentences run consecutively. The facts surrounding these crimes are set forth in his direct appeal and need not be repeated here. See People v. Spears, 256 Ill. App. 3d 374, 628 N.E.2d 376 (1993). On direct appeal, defendant argued that the trial court erred in allowing the introduction of gang evidence and hearsay evidence, the court abused its discretion in refusing to publish to the jury a newspaper article, the prosecutor made improper remarks, defendant was afforded ineffective assistance of counsel, and his sentences were excessive and improper. This court rejected these arguments and affirmed his convictions and sentences. People v. Spears, 256 Ill. App. 3d 374, 628 N.E.2d 376 (1993). Defendant's petition for leave to appeal to the Illinois Supreme Court was denied on December 6, 1994. People v. Spears, 158 Ill. 2d 563, 645 N.E.2d 1366 (1994). On March 27, 2001, defendant filed a petition seeking state habeas corpus relief, or in the alternative, relief pursuant to section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2000)). In his petition, defendant challenged the constitutionality of his sentences under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). On April 20, 2001, the trial court determined that the issue raised in his motion could not

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1-05-3600 be properly raised in a habeas petition or a section 2-1401 petition. The court then, sua sponte, considered the pleading as a petition pursuant to section 122-2.1 of the Act. 725 ILCS 5/122-2.1 (West 2000). The court summarily dismissed defendant's petition, based partly on its holding that Apprendi did not apply retroactively to collateral proceedings. On appeal, defendant challenged only the constitutionality of his 60-year extended-term sentence for attempted murder and argued that Apprendi applied retroactively. This court rejected his argument and affirmed. People v. Spears, No. 1-01-2567 (June 27, 2002) (unpublished order under Supreme Court Rule 23). The United States Supreme Court denied certiorari on April 26, 2004. Spears v. Illinois, 541 U.S. 1017, 158 L. Ed. 2d 633, 124 S. Ct. 2085 (2004). On August 3, 2005, defendant filed the instant pro se petition under the Act. In his petition, he argued: (1) Apprendi applied retroactively to his extended-term attempted murder sentence; (2) his sentence violated the proportionate penalty clause; (3) the felony murder statute is facially void; and (4) he was denied effective assistance of counsel at trial, on direct appeal, and on "first post-conviction appeal." Defendant did not argue that he had established the elements of the cause-and-prejudice test necessary to be granted leave to file a successive petition or that this petition should not be deemed successive because the trial court improperly recharacterized his first collateral motion as a postconviction petition. On September 30, 2005, the trial court denied defendant leave to file this second petition, holding that he had failed to demonstrate cause and prejudice. The court addressed each of his claims and found that the factual assertions relied upon by defendant were available to him at the time his initial petition was filed. The court also found that defendant failed to identify any

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1-05-3600 factor which impeded his efforts to raise these claims in earlier proceedings, and that, in fact, he had raised two of these claims in his direct appeal and in his first postconviction petition. Further, the court found that defendant failed to show any prejudice resulting from the failure to raise these claims earlier because there was "scant probability" that he would have prevailed. Therefore, the trial court denied defendant leave to file the instant postconviction petition. Defendant then filed this timely appeal. The Act contemplates the filing of only one postconviction petition. People v. Flores, 153 Ill. 2d 264, 273, 606 N.E.2d 1078, 1083 (1992). A defendant may file a second postconviction petition only if he receives leave of court. Leave of court may be granted if a defendant demonstrates cause for his failure to bring the claim in his initial postconviction proceedings and prejudice resulting from that failure. 725 ILCS 5/122-1(f) (West 2004). A defendant shows cause by identifying an objective factor that impeded his ability to raise a specific claim during his initial postconviction proceedings and prejudice by demonstrating that the claim not raised during his initial postconviction proceedings so infected the trial that the resulting conviction or sentence violated due process. 725 ILCS 5/122-1(f) (West 2004). See also People v. Harris, No. 102017, slip op. at 15 (January 19, 2007). Defendant first argues that the trial court erred in finding that this petition was successive and in requiring him to meet the cause-and-prejudice test. He contends that his first collateral motion, filed in 2001, sought state habeas relief and, in the alternative, relief under section 21401 of the Code, but that the trial court recharacterized it as a postconviction petition without notifying him or allowing him leave to amend. Because the trial court's recharacterization of his

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1-05-3600 motion contravened the holding in People v. Shellstrom, 216 Ill. 2d 45, 833 N.E.2d 863 (2005), defendant argues, this postconviction petition cannot be considered his second such petition and his case must be remanded for a determination of its merits. In Shellstrom, the defendant filed a pro se document entitled "Motion to Reduce Sentence, Alternatively, Petition for Writ of Mandamus to Order Strict Compliance with Terms of Guilty Plea." Shellstrom, 216 Ill. 2d at 48, 833 N.E.2d at 866. The circuit court sua sponte recharacterized the pleading as a first postconviction petition under the Act and summarily dismissed it. In vacating the trial court's decision, the supreme court first reaffirmed the wellsettled principle that where a pro se pleading alleges a deprivation of constitutional rights cognizable under the Act, a trial court may treat the pleading as a postconviction petition, even where it is labeled differently. Shellstrom, 216 Ill. 2d at 53, 833 N.E.2d at 868. However, the court found that before a trial court recharacterizes a defendant's pleading as a first postconviction petition, the defendant must be given notice. Shellstrom, 216 Ill. 2d at 53, 833 N.E.2d at 868. The court then stated: "Pursuant to our supervisory authority, we hold that, in the future, when a circuit court is recharacterizing as a first postconviction petition a pleading that a pro se litigant has labeled as a different action cognizable under Illinois law, the circuit court must (1) notify the pro se litigant that the court intends to recharacterize the pleading, (2) warn the litigant that this recharacterization means that any subsequent postconviction petition will be subject to the restrictions on successive postconviction petitions, and (3) provide the litigant an opportunity to withdraw

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1-05-3600 the pleading or to amend it so that it contains all the claims appropriate to a postconviction petition that the litigant believes he or she has. If the court fails to do so, the pleading cannot be considered to have become a postconviction petition for purposes of applying to later pleadings the Act's restrictions on successive postconviction petitions." Shellstrom, 216 Ill. 2d at 57, 833 N.E.2d at 870. Because the trial court failed to give the defendant all three of these admonishments, the supreme court vacated that judgment and remanded the cause to the circuit court with instructions. Shellstrom, 216 Ill. 2d at 57-58, 833 N.E.2d at 870-71. In this case, defendant explains that he does not seek to reopen the proceeding surrounding his first collateral motion filed in 2001 or to apply Shellstrom retroactively to that motion. Rather, he asks this court to apply only the second part of Shellstrom's holding to his present postconviction petition and find that because the trial court failed to notify him or give him leave to amend when it recharacterized his first collateral motion in 2001, the present petition cannot be considered to be successive. We reject defendant's interpretation and proposed application of Shellstrom. Shellstrom presented a different factual scenario from that in the instant case because it involved only the trial court's recharacterization of a pro se motion as a first postconviction petition and not the subsequent filing of a second petition. Thus, the Shellstrom court did not address the exact issue raised in this case. However, that court foreshadowed its answer to this issue when it specifically stated that its holding would only apply "in the future" where a trial court recharacterized a pleading as a first postconviction without providing the defendant with

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1-05-3600 these admonishments. In that future situation, the court held that a second postconviction petition would not be considered successive. Shellstrom, 216 Ill. 2d at 57, 833 N.E.2d at 870. Therefore, based on Shellstrom's explicit language, both sentences of Shellstrom's holding apply prospectively only. Shellstrom was decided on July 21, 2005, and thus, applies only to cases pending at that time in the trial court or on direct appeal where the trial court recharacterized a pro se pleading as a first postconviction petition without notice and an opportunity to amend. See also People v. Pearson, 216 Ill. 2d 58, 68, 833 N.E.2d 827, 832 (2005) (holding that Shellstrom applies when a trial court recharacterizes as a successive postconviction petition a pleading that a pro se litigant has labeled as a different action). In this case, defendant's first pleading was recharacterized as a postconviction petition on April 20, 2001, and the appeal process was completed on April 26, 2004, over one year before Shellstrom was decided. Thus, Shellstrom's holding does not apply to this case. Defendant cites Castro v. United States, 540 U.S. 375, 157 L. Ed. 2d 778, 124 S. Ct. 786 (2003), a case relied on by the Shellstrom court, to support his claim that Shellstrom applies retroactively to a second postconviction petition. In Castro, the Supreme Court held that before a federal district court recharacterized as a request for habeas relief under section 2255 (28 U.S.C.

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