People v. Curry

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People v. Curry

State: Illinois

Court: 4th District Appellate

Docket No: 4-06-0355 Rel

Case Date: 07/28/2008

Preview:NO. 4-06-0355 Filed 7/28/08 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISAAC CURRY, Defendant-Appellant. ) Appeal from ) Circuit Court of ) Macon County ) No. 05CF800 ) ) Honorable ) Scott B. Diamond, ) Judge Presiding. ________________________________________________________________ JUSTICE TURNER delivered the opinion of the court: In March 2006, a jury found defendant, Isaac Curry, guilty of armed robbery. In April 2006, the trial court adjudged

defendant an habitual criminal and sentenced him to life in prison under the Habitual Criminal Act (Act) (720 ILCS 5/33B-1 through 33B-3 (West 2006)). On appeal, defendant argues his natural-life sentence under the Act violates his rights to due process and to a jury trial. We affirm. I. BACKGROUND In June 2005, the State charged defendant by amended information with the offense of armed robbery (720 ILCS 5/18-2(a) (West 2004)), alleging that defendant, while armed with a dangerous weapon, a butcher knife, knowingly took United States currency from the presence of Cynthia Summers and Diana Huddlestun by threatening the imminent use of force. The State provided

notice of its intention to seek a sentence of natural life in prison under the Act based on defendant's two prior Class X

felony convictions. pleaded not guilty.

See 720 ILCS 5/33B-1 (West 2004).

Defendant

In March 2006, defendant's jury trial commenced. Summers testified she was working as an assistant manager at Walgreens in Decatur on May 29, 2005. operating the cash register. Diana Huddlestun was

Cindi

At approximately 9 p.m., Summers An announce-

stated five or six customers were inside the store.

ment was made for the customers to bring their purchases to the register as the store was about to close. Summers then locked

the entrance door while the exit door remained open. Thereafter, an African-American male appeared at the exit door and asked if he could buy a pack of cigarettes "real quick." The male walked to the coolers to get something to drink At the checkout counter,

and then headed to the front register.

the man presented a bottle of orange juice and two cigarette lighters. Summers stated the man "grabbed [her] arm and forced The man also pulled out a butcher knife

[her] to the ground."

and told her to get down on the ground or he would cut her. While kneeling on the floor, Summers heard the cash register open. The man told Huddlestun to get face down on the floor. Once they

When she did, the male told them to count to 100.

believed the man had left, Summers got up and locked the doors. Huddlestun called 9-1-1. After the police arrived, Summers Summers was

determined $120 had been taken from the register.

unable to identify the individual because all she could remember was the knife. - 2 -

Diana Huddlestun testified she worked as a cashier at the Walgreens on May 29, 2005. When the male who asked to enter

the store walked inside, Huddlestun kept glancing at him because it was "unusual" for someone to come in and ask to buy a pack of cigarettes and then walk away since the cigarettes are behind the register. Huddlestun testified she scanned the individual's The male then grabbed Summers and He

orange juice and two lighters.

told her to get face down on the floor or he would cut her. then demanded Huddlestun open the register.

She stated she was

looking at his face because she "wanted to remember exactly what he looked like in case he hurt" them. After Summers went to the

floor, the man pointed the knife at Huddlestun and told her to open the register or he would cut her. register and stepped back. Huddlestun opened the

The man then grabbed the money and Huddlestun identified

told Huddlestun to get on the floor. defendant as the man with the knife.

Huddlestun testified Decatur police detective Patrick Campbell came to her house on June 1, 2005, to show her a photo array. She identified a photo of defendant as the person who At a photo lineup, Huddlestun again

robbed the Walgreens.

identified defendant as the one who robbed her at knifepoint. After the conclusion of the State's evidence, defendant exercised his constitutional right not to testify. Const., amend. V. defendant guilty. See U.S.

Following closing arguments, the jury found In April 2006, defendant filed a motion for

judgment of acquittal or, in the alternative, for a new trial, - 3 -

which the trial court denied. Defendant also filed a motion to bar application of section 33B-1 of the Act (720 ILCS 5/33B-1 (West 2006)), arguing sentencing him to life in prison as an habitual criminal would violate the United States and Illinois Constitutions. The State

filed a notice upon conviction of its intention to pursue natural-life sentencing based on defendant's prior criminal convictions, those being the Class X felonies of armed robbery in Macon County case No. 95-CF-1025 and armed robbery in Macon County case No. 90-CF-68. The State attached certified copies of In case No. 95-CF-1025, the

those convictions to the notice.

State indicated defendant was sentenced to 20 years on the offense of armed robbery alleged to have been committed on October 14, 1995. In case No. 90-CF-68, defendant pleaded guilty

to two counts of armed robbery that allegedly occurred on January 27, 1990, and was sentenced to nine years in prison. The trial court denied defendant's motion to bar the application of section 33B-1. The court then adjudged defendant

an habitual criminal and sentenced him to life in prison without the possibility of parole or mandatory supervised release. Defendant filed a postsentencing motion, which the court denied. This appeal followed. II. ANALYSIS Defendant argues his natural-life sentence violates his constitutional rights to due process and to a jury trial because he was sentenced under section 33B-1 of the Act without a finding - 4 -

by a jury beyond a reasonable doubt that his two prior armedrobbery convictions did not result from, and were not connected with, the same transaction. We disagree.

"In general, the Habitual Criminal Act mandates the imposition of a natural-life sentence on a defendant convicted of three temporally separate Class X offenses, or other eligible serious felonies, within a 20-year period." People v. Palmer, Specifi-

218 Ill. 2d 148, 154-55, 843 N.E.2d 292, 296 (2006). cally, section 33B-1 of the Act provides as follows: "(a) Every person who has been twice

convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class X felony, criminal sexual assault, aggravated kidnapping[,] or first degree murder, and is thereafter convicted of a Class X felony, criminal sexual assault[,] or first degree murder, committed after the 2 prior convictions, shall be adjudged an habitual criminal. (b) The 2 prior convictions need not have been for the same offense. (c) Any convictions which result from or are connected with the same transaction, or result from offenses committed at the same time, shall be counted for the purposes of - 5 -

this [s]ection as one conviction. (d) This [a]rticle shall not apply unless each of the following requirements are satisfied: (1) the third offense was committed after the effective date of this Act; (2) the third offense was committed within 20 years of the date that judgment was entered on the first conviction, provided, however, that time spent in custody shall not be counted; (3) the third offense was committed after conviction on the second offense; (4) the second offense was committed after conviction on the first offense. (e) Except when the death penalty is imposed, anyone adjudged an habitual criminal shall be sentenced to life imprisonment." 720 ILCS 5/33B-1 (West 2006). Section 33B-2(a) of the Act provides that "unless the defendant admits [prior] conviction[s], the court shall hear and determine such issue, and shall make a written finding thereon." - 6 -

720 ILCS 5/33B-2(a) (West 2006).

"A duly authenticated copy of

the record of any alleged former conviction of an offense set forth in [s]ection 33B-1 shall be prima facie evidence of such former conviction." 720 ILCS 5/33B-2(b) (West 2006). "The date

that an offense was committed may be established by circumstantial evidence[,] such as a certified copy of the conviction and a presentence investigation report." People v. Walton, 240 Ill. The State has the

App. 3d 49, 57, 608 N.E.2d 59, 65 (1992).

burden of establishing the defendant's eligibility for sentencing as an habitual criminal by a preponderance of the evidence. People v. Eaglin, 292 Ill. App. 3d 677, 682, 686 N.E.2d 695, 698 (1997), citing People v. Robinson, 167 Ill. 2d 53, 73, 656 N.E.2d 1090, 1099 (1995). At the sentencing hearing, the State presented a certified copy of Macon County case No. 90-CF-68, wherein defendant pleaded guilty to two counts of armed robbery. Count I

pertained to victim William Handt, and count II pertained to victim Debbie Weltmer. The offenses in both counts were commit-

ted on January 27, 1990, and involved defendant taking currency from the victims while armed with a knife. In April 1990, the

trial court sentenced defendant to concurrent terms of nine years in prison. In Macon County case No. 95-CF-1025, defendant pleaded guilty to one count of armed robbery. The offense was committed

on October 14, 1995, and involved defendant taking money and food stamps from Rick Yutzy while armed with a wrench handle. - 7 In

February 1996, the trial court sentenced defendant to 20 years in prison. Defendant argues his life sentence violates the rule established in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and clarified in Shepard v. United States, 544 U.S. 13, 161 L. Ed. 2d 205, 125 S. Ct. 1254 (2005), because the trial court found by a preponderance of the evidence, not a jury beyond a reasonable doubt, that his two prior armed-robbery convictions did not result from, and were not connected with, the same transaction. (West 2006). See 720 ILCS 5/33B-1(c)

Defendant concedes his prior convictions were not

committed at the same time and notes the State's documents sufficiently established the number, timing, and sequence of his prior convictions. However, he contends the certified copies of

his prior convictions did not furnish conclusive proof that those convictions arose from unrelated or unconnected transactions. Initially, a short history on the pertinent case law is in order as to the enhancement of a sentence based on a defendant's conduct during the commission of the crime and any prior convictions. In Almendarez-Torres v. United States, 523 U.S.

224, 226, 140 L. Ed. 2d 350, 357, 118 S. Ct. 1219, 1222 (1998), the United States Supreme Court was confronted with a federal statute prescribing a maximum prison sentence of 2 years for an illegal-immigration offense but authorizing a 20-year maximum sentence if the defendant had a prior aggravated felony conviction. The defendant pleaded guilty to the indictment of being in - 8 -

the United States after being deported, but the indictment did not mention his prior felony convictions. Almendarez-Torres, 523 The

U.S. at 227, 140 L. Ed. 2d at 357, 118 S. Ct. at 1222-23. defendant argued he could not be sentenced in excess of the

minimum because his indictment had not mentioned those prior convictions. Almendarez-Torres, 523 U.S. at 227, 140 L. Ed. 2d The district court disagreed and Almendarez-Torres, 523

at 357, 118 S. Ct. at 1222-23.

sentenced him to 85 months in prison.

U.S. at 227, 140 L. Ed. 2d at 357, 118 S. Ct. at 1223. The Supreme Court noted recidivism "is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence." Almendarez-Torres, 523 U.S. As recidivism

at 243, 140 L. Ed. 2d at 368, 118 S. Ct. at 1230.

does not relate to the commission of the offense, the Court concluded that "to hold that the Constitution requires that recidivism be deemed an 'element' of petitioner's offense would mark an abrupt departure from a longstanding tradition of treating recidivism as 'go[ing] to the punishment only.'" Almendarez-

Torres, 523 U.S. at 244, 140 L. Ed. 2d at 368-69, 118 S. Ct. at 1231, quoting Graham v. West Virginia, 224 U.S. 616, 629, 56 L. Ed. 917, 923, 32 S. Ct. 583, 587-88 (1912). As the statute in

question "simply authorizes a court to increase the sentence for a recidivist," the Court found the Government was not required to include the defendant's prior convictions in the indictment. Almendarez-Torres, 523 U.S. at 226-27, 140 L. Ed. 2d at 357, 118 S. Ct. at 1222. - 9 -

During its following term, the Supreme Court construed the federal carjacking statute providing for an enhanced sentence if serious bodily injury occurred during the commission of the offense in Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999). There, the defendant was charged Jones, 526 U.S. at 230, 143 The issue of serious

with and found guilty of carjacking. L. Ed. 2d at 318, 119 S. Ct. at 1218.

bodily harm was not alleged in the indictment or tried to the jury. Jones, 526 U.S. at 230-31, 143 L. Ed. 2d at 318, 119 S. At the sentencing hearing, the district court found

Ct. at 1218.

by a preponderance of the evidence that a victim had suffered serious bodily injury and sentenced defendant to 25 years in prison, which included a 10-year enhancement. 231, 143 L. Ed. 2d at 318, 119 S. Ct. at 1218. The Supreme Court found "serious bodily harm" constituted an element of the offense that must be submitted to a jury for verdict. Jones, 526 U.S. at 239, 143 L. Ed. 2d at 324, 119 The Jones majority rejected the dissenting Jones, 526 U.S. at

S. Ct. at 1222.

justices' arguments that Almendarez-Torres "stood for the broad proposition that any fact increasing the maximum permissible punishment may be determined by a judge by a preponderance" and would therefore be dispositive of the issues before the Court. Jones, 526 U.S. at 249 n.10, 143 L Ed. 2d 330 n.10, 119 S. Ct. at 1227 n.10. Instead, the Court stated Almendarez-Torres "stands

for the proposition that not every fact expanding a penalty range must be stated in a felony indictment, the precise holding being - 10 -

that recidivism increasing the maximum penalty need not be so charged." Jones, 526 U.S. at 248, 143 L. Ed. 2d at 329, 119 S. In noting the history of treating recidivism as

Ct. at 1226-27.

a sentencing factor, the Court stated that "unlike virtually any other consideration used to enlarge the possible penalty for an offense ***, a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees." Jones, 526 U.S. at 249, 143 L. Ed.

2d at 329-30, 119 S. Ct. at 1227. A year later in Apprendi, 530 U.S. at 469, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351, the defendant in that case fired several shots into the home of an African-American family and later admitted being the shooter. During police questioning, he

gave a statement, which he later retracted, that he fired the shots because of the family's race and that he did not want them in the neighborhood. Apprendi, 530 U.S. at 469, 147 L. Ed. 2d at The defendant was charged with various

442, 120 S. Ct. at 2351.

offenses, but none of the counts mentioned the state hate-crime statute or alleged he acted with a racially biased purpose. Apprendi, 530 U.S. at 469, 147 L. Ed. 2d at 442, 120 S. Ct. at 2352. The defendant pleaded guilty to two counts of illegal Apprendi, 530 U.S. At an

possession of a firearm and bomb possession.

at 469-70, 147 L. Ed. 2d at 442, 120 S. Ct. at 2352.

evidentiary hearing, the trial court found by a preponderance of the evidence that the defendant acted with a racially biased purpose and sentenced him to an enhanced 12-year term on the - 11 -

firearm-possession counts.

Apprendi, 530 U.S. at 471, 147 L. Ed.

2d at 443, 120 S. Ct. at 2352. The Supreme Court found the trial court's enhancement amounted to "an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system." Apprendi, 530 U.S. at 497, 147 L. Ed. 2d at 459, 120 S. Ct. at 2366. The Court held the fifth and fourteenth amendments to the

United States Constitution (U.S. Const., amends. V, XIV) required 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, 147 L. Ed. 2d at 455,

120 S. Ct. at 2362-63. The Supreme Court revisited issues raised by Apprendi in Shepard. In that case, the defendant pleaded guilty to Shepard, 544 U.S. At the sentenc-

unlawful possession of a firearm by a felon.

at 16, 161 L. Ed. 2d at 211, 125 S. Ct. at 1257.

ing hearing, the government argued the defendant's sentence should be extended pursuant to the Armed Career Criminal Act of 1984 (ACCA) (18 U.S.C.

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