FIFTH DIVISION
JUNE 1, 2007
1-06-0302
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 87 CR 18009
)
WILLIE BALLE, ) Honorable
) Clayton J. Crane,
Defendant-Appellant. ) Judge Presiding.
)
)
)
JUSTICE TULLY delivered the opinion of the court:
On October 3, 2005, defendant filed a second postconviction petition in which he alleged
(1) that his trial counsel was ineffective for failing to obtain records from the psychiatric unit of
the Cook County jail, which would have supported an insanity defense and a request for a fitness
hearing; (2) that, in violation of Brady v. Maryland (373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct.
1194 (1963), the State failed to turn over defendant's mental health records from the Cook
County jail; and (3) that his natural life sentence is void because he was not eligible to be
sentenced pursuant to the Habitual Criminal Act (720 ILCS 5/33B-1 et seq. (West 2002)). The
circuit court dismissed defendant's petition, concluding that defendant's second postconviction
petition failed to satisfy the cause-and-prejudice test. See 725 ILCS 5/122-1(f) (West 2004). We
affirm in part, reverse in part, and remand for a new sentencing hearing.
1-06-0302
FACTS
Following a jury trial, defendant was convicted of one count of aggravated criminal
sexual assault and one count of armed robbery. Pursuant to the Habitual Criminal Act (720 ILCS
5/33B-1 et seq. (West 2002)), the circuit court determined that defendant was a habitual criminal
and sentenced him to a term of natural life. Defendant filed a direct appeal with this court and
we affirmed defendant's conviction and sentence on November 29, 1993. People v. Balle, 256
Ill. App. 3d 963 (1993).
On May 29, 2003, defendant filed a petition for habeas corpus. In his petition, defendant
asserted that the circuit court lacked jurisdiction to impose a natural life sentence under the
Habitual Criminal Act based on guilty pleas defendant made in 1976 and 1981 and defendant
asserted that he never was advised that these pleas could lead to harsher penalties for future
convictions. The circuit court determined that, rather than a petition for habeas corpus,
defendant's petition should be recharacterized as a postconviction petition. After recharacterizing
defendant's petition as a postconviction petition, the circuit court dismissed the petition as
frivolous and patently without merit. On December 10, 2004, this court affirmed the circuit
court's dismissal of defendant's postconviction petition. People v. Balle, No. 1-03-2411 (2004)
(unpublished order under Supreme Court Rule 23).
On October 3, 2005, defendant filed a second postconviction petition, which he labeled
"Succes[s]or Post-Conviction Petition Seeking Relief." In this petition, defendant alleged that
his trial counsel was ineffective for failing to obtain records regarding defendant's pretrial
incarceration in the psychiatric unit of the Cook County jail, which would have supported an
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insanity defense or a request for a fitness hearing. Defendant also alleged that, by failing to turn
over his mental health records from the Cook County jail, the State failed to comply with Brady
v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). After confirming that
defendant's petition was a second post-conviction petition, the circuit court determined that
defendant failed to meet the cause-and-prejudice test. See 725 ILCS 5/122-1(f) (West 2004).
Following the circuit court's dismissal of his second postconviction petition, defendant filed this
appeal.
DISCUSSION
Defendant's first argument on appeal is that the circuit court erred when it determined that
the petition he filed on October 3, 2005, which he labeled "Succes[s]or Post-Conviction Petition
Seeking Relief," was his second postconviction petition. Specifically, defendant asserts that,
pursuant to our supreme court's decision in People v. Shellstrom, (216 Ill. 2d 45 (2005), the
postconviction petition he filed in this case should be considered his first post-conviction petition
and, therefore, the circuit court erred when it applied the "cause-and-prejudice" test rather than
the "gist of a constitutional claim" test. We disagree.
The Act contemplates the filing of only one postconviction petition. People v. Flores,
153 Ill. 2d 264, (1992). A defendant may file a second postconviction petition only if he receives
leave of court. Flores, 153 Ill. 2d at 273-274. The circuit court may grant such leave only if the
defendant can satisfy the cause-and-prejudice test; that is, the defendant must demonstrate cause
for his failure to bring the claim in his initial postconviction proceeding and must demonstrate
prejudice in that the claim not raised in his initial postconviction petition proceedings so infected
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the trial that the resulting conviction or sentence violated due process. 725 ILCS 5/122-1(f)
(West 2004).
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. The circuit court, sua sponte, recharacterized the
pleading as a first postconviction petition under the Act and summarily dismissed it. Shellstrom,
216 Ill. 2d at 49. In vacating the circuit court's order, our supreme court first reaffirmed the well-
settled principle that where a pro se pleading alleges a deprivation of constitutional rights
cognizable under the Act, a circuit court may treat the pleading as a postconviction petition, even
where labeled differently. Shellstrom, 216 Ill. 2d at 53 & n.1. The court found, however, that
before a circuit court recharacterizes a defendant's pleading as a first postconviction petition, the
defendant must be given notice. Shellstrom, 216 Ill. 2d at 57. Specifically, our supreme court
stated:
"Pursuant to our supervisory authority, we hold that, in the future, when a circuit
court is recharacterizing 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 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
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the court fails to do so, the pleading cannot be considered to have become a
postconviction pleadingfor purposes of applying to later pleadings the Act's restrictions
on successive postconviction petitions." Shellstrom, 216 Ill. 2d at 57.
Because the circuit court failed to give the defendant all three of these admonishments, our
supreme court vacated the circuit court's judgment and remanded the cause with instructions.
Shellstrom, 216 Ill. 2d at 57-58.
Here, on May 29, 2003, defendant filed his petition for habeas corpus, which the court
recharacterized as a postconviction petition. Over two years later, on July 21, 2005, our supreme
court decided Shellstrom, 216 Ill. 2d 45. Defendant asserts that Shellstrom should apply
retroactively to his case and, because he did not receive the admonishments required by
Shellstrom, the May 29, 2003, postconviction petition should be disregarded and the
postconviction petition in this case should be treated as if it was his first postconviction petition.
Contrary to defendant's argument that Shellstrom should apply retroactively, this court's recent
decision in People v. Spears, No. 1-05-3600, slip op. at 9 (February 28, 2007) confirmed that our
supreme court in Shellstrom "intended its holding to apply prospectively." Therefore, we reject
defendant's contention that Shellstrom should apply retroactively to his May 29, 2003, petition
for habeas corpus, which the circuit court recharacterized as a postconviction petition.
Since Shellstrom does not apply retroactively to defendant's case (see People v. Spears,
No. 1-05-3600 (February 28, 2007), defendant's October 3, 2005, postconviction petition was his
second postconviction petition. Therefore, in order to receive leave of court to file this petition,
defendant must satisfy the cause-and-prejudice test. See 725 ILCS 5/122-1(f) (West 2004).
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Pursuant to the cause-and-prejudice test, the defendant must show "cause" for failing to
raise the issue in a prior proceeding and "prejudice" resulting from the claimed error. People v.
Smith, 352 Ill. App. 3d 1095 (2004). "Cause" is defined as an objective factor external to the
defense that impeded defense counsel's attempts to raise the claim in an earlier proceeding.
People v. Leason, 352 Ill. App. 3d 450, 453 (2004). "Prejudice" is defined as an error so
infectious to the trial proceeding that the resulting conviction violates due process. Leason, 352
Ill. App. 3d at 453.
In this case, defendant has failed to show "cause" for failing to raise in an earlier
proceeding his claims of ineffective assistance of counsel, which included claims regarding trial
counsel's failure to obtain his mental health records and trial counsel's failure to argue an insanity
defense or request a fitness hearing. Furthermore, defendant has failed to show "cause" for
failing to raise in an earlier proceeding his claims that the State failed to turn over defendant's
mental health records, which defendant asserts amounted to a violation of the United States
Supreme Court's decision in Brady , 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194. Indeed,
defendant has offered no plausible explanation as to why he failed to raise these issues either on
direct appeal to this court or in his May 29, 2003, petition for habeas corpus, which the circuit
court recharacterized as a postconviction petition. Since defendant has failed to demonstrate
"cause" for his default, we need not address the "prejudice" element of the cause-and-prejudice
test. See Leason, 352 Ill. App. 3d at 455 (when a "defendant is unable to establish cause for his
default[, he or she] fails to satisfy the requirements of the cause and prejudice test").
Defendant's final argument on appeal is that his life sentence is void since he was not
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eligible to be sentenced pursuant to the Habitual Criminal Act. 720 ILCS 5/33B-1 et seq. (West
2002). Specifically, defendant asserts that deviate sexual assault, for which defendant was
convicted in 1976 and which served as a basis for the circuit court's determination that he should
be sentenced as a habitual criminal, was not a conviction that could be considered under the
applicable version of the Habitual Criminal Act. We agree.
A sentence that does not conform to a statutory requirement is void (People v. Arna, 168
Ill. 2d 107, 113 (1995)) and "[c]hallenges to void judgments may be raised at any time,
irrespective of the principle of waiver" (People v. Simmons, 256 Ill. App. 3d 651, 653 (1993),
citing People v. Terrell, 132 Ill. 2d 178, 230 (1989)). Here, since defendant has asserted that his
sentence is void in that the sentence did not comply with the statutory requirements provided by
the Habitual Criminal Act (720 ILCS 5/33B-1 et seq. (West 2002)), we review defendant's
sentence to assess whether the his sentence is, in fact, void.
Our supreme court has confirmed that a defendant has a right to be sentenced under either
the law in effect on the date he or she committed the crime or the law in effect on the date he or
she is sentenced. People v. Hollins, 51 Ill. 2d 68, 71 (1972). "[I]n the absence of a showing that
[the defendant] was advised of his right to elect under which statute he should be sentenced, and
an express waiver of that right, [the defendant] was denied due process of law." Hollins, 51 Ill.
2d 68 (1972). In general, the Habitual Criminal Act, which is the statute pursuant to which
defendant was sentenced, mandates the imposition of a naturallife sentence if a defendant is
convicted of three temporally separate Class X offenses, or other eligible serious felonies, within
a 20-year period. 720 ILCS 5/33B-1 et seq. (West 2002); People v. Palmer, 218 Ill. 2d 148, 155
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(2006). Two different versions of the Habitual Criminal Act were in effect between the date
defendant committed the crimes for which he was convicted in this case and the date defendant
was sentenced. Specifically, on December 12, 1987, which was the date on which defendant
committed the aggravated criminal assault and the armed robbery at issue in this postconviction
petition, the Habitual Criminal Act provided that a defendant should be sentenced to natural life
imprisonment if he or she previously had been convicted of two offenses that "contain[] the same
elements as an offense now classified in Illinois as a Class X felony or first degree murder." Ill.
Rev. Stat., 1986 Supp., ch. 38, par. 33B-1(a). On January 1, 1988, which was approximately two
months after defendant committed the crimes at issue in the present case, a new version of the
Habitual Criminal Act went into effect. This new version of the Habitual Criminal Act, which
was the version of the Act that the circuit court applied at defendant's sentencing hearing,
provided that a defendant could be sentenced to natural life imprisonment if he or she previously
had been convicted of two offenses that "contain[] the same elements as an offense now
classified in Illinois as a Class X felony, criminal sexual assault or first degree murder."
(Emphasis added.); Ill. Rev. Stat. 1987, ch. 38, par. 33B-1(a). Therefore, it is clear that there
were substantive differences between the Habitual Criminal Act in effect on the date defendant
committed the crimes at issue in this case and the Habitual Criminal Act in effect on the date
defendant was sentenced in this case. Furthermore, it is clear from this record that defendant was
not advised by the circuit court of his right to elect to be sentenced under the law in effect at the
time the offenses were committed rather than the law in effect at the time he was sentenced. As
such, we must assess whether the circuit court's failure to advise defendant of his right to choose
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under which statute he wished to be sentenced denied defendant of his due process rights or
simply was harmless error.
A review of this record confirms that, in 1976, defendant was convicted of robbery and
deviate sexual assault. Deviate sexual assault has the same elements as a crime subsequently
named criminal sexual assault. Furthermore, in 1981, defendant was convicted of rape, deviate
sexual assault, armed robbery, and aggravated battery. Finally, in 1988, defendant was convicted
of aggravated criminal sexual assault and armed robbery. Defendant and the State agree that
both the 1981 conviction for rape and the 1988 conviction for aggravated criminal sexual assault
were Class X felonies and, therefore, both were convictions that could be considered when
evaluating whether defendant was a habitual criminal, regardless of which version of the
Habitual Criminal Act was in effect. Defendant and the State disagree, however, as to whether
the 1976 convictions, for either robbery or deviate sexual assault (i.e., criminal sexual assault)
could properly serve as a basis for sentencing defendant under the Habitual Criminal Act.
After reviewing the version of the Habitual Criminal Act that was in effect at the time
defendant committed the crimes at issue in this case, the version of the Habitual Criminal Act
that was in effect at the time defendant was sentenced in this case, and the robbery and deviate
sexual assault convictions from 1976 that served as the basis for the circuit court's determination
that defendant was a habitual criminal, we must conclude that defendant's due process rights
were violated such that he is entitled to a new sentencing hearing. First, robbery, which is one of
the crimes for which defendant was convicted in 1976, was a Class 2 felony, not a Class X
felony. Second, deviate sexual assault, which was the other crime for which defendant was
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convicted in 1976, contained the same elements as criminal sexual assault, which is a Class 1
felony, not a Class X felony. Finally, while the version of the Habitual Criminal Act in effect at
the time defendant was sentenced provided that a defendant would be sentenced as a habitual
criminal if he or she previously had been convicted of two offenses that "contain[] the same
elements as an offense now classified in Illinois as a Class X felony, criminal sexual assault or
first degree murder." (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 33B-1(a). The version
of the Habitual Criminal Act that was in effect on the date that defendant committed the crimes
provided that a defendant would be sentenced to natural life imprisonment if he or she had
previously been convicted of two offenses that "contain[] the same elements as an offense now
classified in Illinois as a Class X felony or first degree murder." Ill. Rev. Stat., 1986 Supp., ch.
38, par. 33B-1(a). Since neither robbery nor deviate sexual assault (i.e., criminal sexual assault)
contained the same elements as an offense then "classified in Illinois as a Class X felony or first
degree murder," and since the language including "criminal sexual assault" was not added to the
Act until January 1, 1989, which was approximately two months after defendant committed the
crime, we must conclude that defendant was not eligible to be sentenced as a habitual criminal
under the version of the Act that was in effect on the day he committed the Class X felony at
issue in this case. As such, defendant is entitled to a new sentencing hearing.
In sum, we hold that our supreme court's decision in Shellstrom,216 Ill. 2d 45, does not
apply retroactively to the successive postconviction petition defendant filed in this case and
defendant is not entitled to relief because he has failed to satisfy the cause-and-prejudice test.
See 725 ILCS 5/122-1(f) (West 2004). In addition, we conclude that defendant was sentenced
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under a version of the Habitual Criminal Act that became effective on January 1, 1988, for
crimes that he committed on December 12, 1987. Therefore, defendant should have been given
the opportunity to elect between the Habitual Criminal Act in effect on the date he committed the
crimes and the Habitual Criminal Act in effect on the date he was sentenced. See Hollins, 51 Ill.
2d at 71 (holding that a defendant has a right to be sentenced under either the law in effect on the
date he or she committed the crime or the law in effect on the date he or she is sentenced). This
record confirms that defendant did not know of his right to elect to be sentenced under the law in
effect at the time the offenses were committed and confirms that the circuit court did not
admonish him of this right. As a result, defendant's sentence must be vacated and the cause
remanded for a new sentencing hearing.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court dismissing defendant's
postconviction petition is affirmed. The sentence imposed following his 1988 conviction for
aggravated sexual assault and robbery is vacated and the cause is remanded to the circuit court
for a new sentencing hearing where defendant may be allowed to make an informed election
between the sentencing provisions in effect at the time of the offenses and those in effect on the
date of sentencing.
Affirmed in part and reversed in part; cause remanded with instructions.
O'BRIEN, P.J., and GALLAGHER, J., concur.
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