Opinion
5-17-0449
03-17-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT L. OLLIE JR., Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Jackson County. No. 09-CF-70 Honorable William G. Schwartz, Judge, presiding.
JUSTICE VAUGHAN delivered the judgment of the court. Justices Cates and Wharton concurred in the judgment.
ORDER
VAUGHAN, JUSTICE
¶ 1 Held: The trial court's denial of defendant's motion to file a successive postconviction petition is affirmed where defendant failed to establish either cause or prejudice.
¶ 2 On appeal from the circuit court's denial of his motion for leave to file a successive postconviction petition, defendant, Robert L. Ollie Jr., argues that (1) the trial court erred in ordering defendant's sentence to run consecutively rather than concurrently under the one-act, one-crime doctrine; (2) the trial court abused its discretion in finding "severe bodily injury" which was not an "element" of the offense in the charging information against defendant pursuant to section 111-3(a)(3) of the Code of Criminal Procedure of 1963 (725 ILCS 5/111-3(a)(3) (West 2008)); (3) the trial court abused its discretion in refusing to answer or respond to defendant's argument as to the defendant's constitutional right to bear arms in defense of self as protected by the second amendment; and (4) in light of Heller and McDonald, defendant's conviction must be reconsidered as to his constitutional right to self-defense because the Supreme Court dicta indicating approval of law forbidding felons from having firearms does not apply to felons keeping arms for self-defense and defendant's conviction should be considered unconstitutional pursuant to the decisions in Heller and McDonald. We disagree.
¶ 3 I. BACKGROUND
¶ 4 On February 20, 2009, defendant was charged with two counts of second degree murder in violation of section 9-2(a)(1) of the Criminal Code of 1961 (Code) (720 ILCS 5/9-2(a)(1) (West 2008)) related to the death of James Banner (counts I and II), aggravated battery with a firearm in violation of section 12-4.2(a)(1) of the Code (id. § 12-4.2(a)(1)) related to shooting Bobby Green in the face (count III), aggravated discharge of a firearm in violation of section 24-1.2(a) (2) of the Code (id. § 24-1.2(a) (2)) related to shooting in the direction of Bobby Green, Amy Wieland, Kyle Hayes, Robin Boyd, and James Banner (count IV), and unlawful use of weapons by a felon in violation of section 24-1.1(a) of the Code (id. § 24-1.1(a)) (count V). Following a jury trial, defendant was convicted on counts III, IV, and V. The trial court sentenced defendant to 15 years (at 85%) on count III, 6 years on count IV, and 5 years on count V. After finding that Green sustained severe bodily injury, the trial court ordered the sentences in counts III and IV to run consecutively pursuant to section 5-8-4(a) (i) of the Unified Code of Corrections (730 ILCS 5/5-8-4(a)(i) (West 2008)). The sentence for count V would run concurrent with counts III and IV.
¶ 5 On May 21, 2010, defendant filed a pro se petition for relief from judgment pursuant to section 2-1401 Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)), claiming inter alia: (1) the bullets found on defendant should not have been admitted because the State failed to establish any connection between the bullets and the shooting of Bobby Green; (2) nothing in the record established that Green was shot with a handgun or pistol as opposed to some other firearm; (3) admission of bullets found on defendant violated the sixth amendment because no integrated ballistic identification was presented at trial; (4) the bullets found on defendant should not have been admitted because the State failed to establish any connection between the bullets and the crime charged; (5) the trial court abused its discretion in allowing the bullets into evidence because the probative value was less than the prejudicial value; (6) defendant was denied a fair trial by prosecutor's closing argument that contained numerous erroneous statements concerning the evidence; (7) the State did not prove its case beyond a reasonable doubt that defendant was the aggressor based on evidence presented at trial; (8) defendant had the right to protect himself and others in the dwelling; (9) the failure to instruct the jury that the State must prove beyond a reasonable doubt that defendant was not justified in using the force which he used constituted plain error; (10) a significant purpose of the plain error exception to the waiver doctrine is to correct any serious injustices which were done to defendant; (11) the testimony of defendant's father and Kyle Hayes put Bobby Green in defendant's house/basement and assisted in the attack on defendant in contradiction to Green's testimony; (12) defendant is entitled to an instruction on his theory of the case if there is some evidence in the record for the instruction and it was an abuse of discretion for the trial court not to instruct the jury regarding Illinois Pattern Instruction 24-25.10A (Illinois Pattern Jury Instructions, Criminal, No. 24-25.10A (4th ed. Supp. 2009)); and (13) both a trial objection and written motion raised the issue as to People's Instruction No. 23.
¶ 6 On June 27, 2016, defendant was appointed counsel to represent him on his petition for relief from judgment. Counsel filed no pleadings and on September 11, 2017, defendant filed a motion for leave to file a successive postconviction petition replacing his motion for relief from judgment. On September 20, 2017, the trial court struck the pro se pleadings filed after counsel's appointment on June 27, 2016. On October 2, 2017, defendant's counsel moved to withdraw because defendant wished to proceed pro se. On October 13, 2017, defendant refiled his motion for leave to file a successive postconviction pleading replacing his motion for relief from judgment. The issues in this pleading claimed: (1) the trial court erred in ordering defendant's sentence to run consecutively rather than concurrently pursuant to the one-act, one-crime doctrine; (2) severe bodily injury was not an element of the offense in defendant's information with no reference to that fact in count III of the charging instructions for aggravated battery with a firearm and therefore his sentence should be vacated as void pursuant to section 111-3(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/111-3(a)(3) (West 2016)); (3) the one-act, one-crime doctrine should have come into effect when the trial court abused its discretion in imposing consecutive sentences against defendant; (4) aggravated battery with a firearm and aggravated discharge of a firearm were part of the same course of conduct, thereby precluding imposition of consecutive sentences; (5) the mere possession of a firearm following commission of specified felonies as Class X offense violates an individual's right to bear arms protected by the second amendment; (6) in light of Heller and McDonald, defendant's conviction must be reconsidered in light of his right to self-defense; (7) the Supreme Court's dicta indicating approval of law forbidding felons from having firearms does not apply to felons keeping arms for self-defense and, in any case, was not intended to be given any weight; and (8) defendant's conviction should be considered unconstitutional and should be vacated following the United States Supreme Court's decision in Heller and the Illinois Supreme Court's decision in McDonald.
¶ 7 On October 27, 2017, the trial court granted postconviction counsel's motion to withdraw and on October 30, 2017, issued an order denying defendant's motion for leave to file a successive postconviction petition finding that defendant failed to show cause for his failure to bring the claims in his initial postconviction proceeding or his direct appeal. More specifically, the trial court found:
"The first and third arguments of the defendant fail the first test since he argues that his consecutive sentence should have been a concurrent sentence under the doctrine of 'one act - one crime.' Not only has the defendant failed to show a cause by identifying an objective factor that impeded his ability to raise a specific claim during his initial post-conviction proceeding[, ] *** [h]e has been unsuccessful in previous attempts and claims in a successive post-conviction petition are barred.
The second argument of the defendant alleges that the charging instrument in his case was defective. Again, the first test for allowing a successive postconviction petition to be filed is if the defendant demonstrates cause for his failure to bring the claim in his initial post-conviction proceedings. The defendant offers no cause for failing to bring this claim previously if, in fact, it has not been brought in the previous welter of allegations and filings made by the defendant.
The fourth argument of the defendant concerns a self [-] defense argument. This is a matter that either was presented during the trial; should have been presented during the trial; or, addressed on direct appeal. The defendant has failed to allege any facts for failing to address this issue prior to now.
The fifth, sixth, seventh, eighth and ninth arguments of the defendant allege that his conviction violates his right to bear arms. This argument is so absurd that it does not warrant a response. The right to bear arms is wholly distinct from the injury caused by the use of those arms."
¶ 8 On November 9, 2017, defendant appealed the denial. On appeal, the Office of the State Appellate Defender (OSAD) was appointed to represent defendant. On September 10, 2019, OSAD moved to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). This court issued an order allowing OSAD's withdrawal and allowing defendant to proceed pro se. The issues have now been fully briefed by the parties and we consider defendant's arguments.
¶ 9 II. ANALYSIS
¶ 10 On appeal of the trial court's denial of his motion to file a successive postconviction petition, defendant contends that (1) the trial court erred in ordering defendant's sentences to run consecutively rather than concurrently under the one-act, one-crime doctrine; (2) the trial court abused its discretion in finding "severe bodily injury" which was not an element of the offense in the charging information against defendant pursuant to section 111-3 (a) (3) of the Code of Criminal Procedure of 1963 (725 ILCS 5/111-3(a)(3) (West 2008)); (3) the trial court abused its discretion in refusing to answer or respond to defendant's argument as to his constitutional right to bear arms in defense of self as protected by the second amendment; and (4) in light of Heller and McDonald, defendant's conviction must be reconsidered as to his constitutional right to self-defense because: (a) the Supreme Court's dicta indicating approval of law forbidding felons from having firearms does not apply to felons keeping arms for self-defense and (b) defendant's conviction should be considered unconstitutional pursuant to the decisions issued in Heller and McDonald and his conviction should be vacated.
¶ 11 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)) "provides a statutory remedy to criminal defendants who claim that substantial violations of their constitutional rights occurred at trial." People v. Edwards, 2012 IL 111711, ¶ 21. The Act, which allows for a collateral attack on a final judgment, contemplates only one postconviction proceeding. People v. Robinson, 2020 IL 123849, ¶ 42. However, there are two bases which relax the bar against successive proceedings. Edwards, 2012 IL 111711, ¶ 22. The first basis is "when a petitioner can establish 'cause and prejudice' for the failure to raise the claim earlier." Id. (quoting People v. Pitsonbarger, 205 Ill.2d 444, 459 (2002)). The second basis is the "fundamental miscarriage of justice" exemption. Id. ¶ 23. "In order to demonstrate a miscarriage of justice to excuse the application of the procedural bar, a petitioner must show actual innocence." Id.
¶ 12 "[I]t is the petitioner's burden to obtain 'leave' before further proceedings on his claims can follow." Id. ¶ 24. "Defendant has not only the burden to obtain leave of court, but also 'must submit enough in the way of documentation to allow a circuit court to make that determination' regardless of which exception is the basis of the pleading. Id. (quoting People v. Tidwell, 236 Ill.2d 150, 161 (2010)). "[L] eave of court to file a successive postconviction petition should be denied when it is clear, from a review of the successive petition and the documentation submitted by the petitioner, that the claims alleged by the petitioner fail as a matter of law or where the successive petition with supporting documentation is insufficient to justify further proceedings." People v. Smith, 2014 IL 115946, ¶ 35. We review a circuit court's denial of a motion for leave to file a successive postconviction petition under the Act de novo. People v. Prante, 2021 IL App (5th) 200074, ¶ 59 (citing People v. Robinson, 2020 IL 123849, ¶ 39).
¶ 13 Review of defendant's motion confirms that defendant is not claiming innocence. As such, we consider whether defendant's pleading established both cause and prejudice. Under this exception," 'cause' *** refers to any objective factor, external to the defense, which impeded the petitioner's ability to raise a specific claim in the initial post-conviction proceeding." Pitsonbarger, 205 Ill.2d at 462. To establish "prejudice," the petitioner must demonstrate that the claimed constitutional error so infected his trial that the resulting conviction violated due process. Id. at 464. If a petitioner could not have succeeded on a claim if it had been included in his initial postconviction petition, he cannot show prejudice. People v. Smith, 341 Ill.App.3d 530, 540-41 (2003).
¶ 14 "The petitioner must make a prima facie showing of both cause and prejudice as to the asserted claim or claims." Prante, 2021 IL App (5th) 200074, ¶ 61 (citing People v. Bailey, 2017 IL 121450, ¶ 24). This requirement applies to each individual claim, not to the petition as a whole. Pitsonbarger, 205 Ill.2d at 462. As such, both prongs for each claim must be satisfied and a denial of leave to file a successive petition will be upheld if the defendant failed to establish either prong for any claim.
¶ 15 Defendant's initial claim contends that the trial court erred in ordering his sentences to run consecutively, rather than concurrently, under the one-act, one-crime doctrine. However, defendant fails to provide any rationale why this issue was not included in either his direct appeal or his initial postconviction proceeding and provides no argument related to the one-act, one crime doctrine. As such, we find any argument related to the one-act, one-crime doctrine forfeited. Ill. S.Ct. R. 341(h)(7) (eff. July 1, 2008).
¶ 16 Instead, defendant argues that because Green did not incur "great bodily injury," the triggering statute for consecutive sentences (730 ILCS 5/5-8-4 (a) (West 2008)) should not have applied. However, the trial court found that Green incurred "great bodily injury" and although defendant's argument could have been raised in his direct appeal, no rationale was provided for why this issue was not included in the direct appeal. Further, defendant's argument does not contend a substantial violation of his constitutional rights as required by the Act. As such, it is clear that defendant could not have succeeded on his claim even if it had been included in his initial postconviction petition, and therefore, prejudice has not been shown.
¶ 17 Defendant's second claim contends it was unconstitutional for him to have consecutive sentences because the finding of "severe bodily injury" pursuant to section 5-8-4 (a) of the Unified Code of Corrections (id.) should have been found by the jury, not the trial court, and that a finding of "severe bodily injury" was not a required element of either his aggravated battery with a firearm or aggravated discharge of a firearm charges. Once again, defendant provides no basis as to why this issue was not included in either his direct appeal or his initial postconviction petition. As such, cause cannot be shown.
¶ 18 Although not cited by defendant, we find his initial argument asserts an Apprendi error. In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court held that "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." However, thereafter, our state supreme court held that consecutive sentences imposed under section 5-8-4(a) did not violate a defendant's due process rights and the Supreme Court decision in Apprendi did not apply. People v. Carney, 196 Ill.2d 518, 536 (2001). That holding was reinforced in People v. Harris, 203 Ill.2d 111 (2003), when the court stated, "We have previously held that Apprendi concerns are not implicated by consecutive sentencing." Harris, 203 Ill.2d at 120-21 (citing People v. Wagener, 196 Ill.2d 269, 286 (2001)).
¶ 19 As to defendant's second argument, we find the reasoning in People v. Whitney, 188 Ill.2d 91 (1999), instructive. In Whitney, the court interpreted the language of section 5-8-4 (a) and stated:
"[W]e disagree that only Class X or Class 1 felonies where severe bodily injury is an inherent factor trigger consecutive sentences under section 5-8-4 (a). Instead, any Class X or Class 1 felony that results in severe bodily injury being inflected on the victim of the felony triggers consecutive sentences." Id.
¶ 20 As such, we find that Whitney clarifies that "severe bodily injury" for sentencing purposes need not be a required element of the Class X or Class 1 felony to trigger mandatory consecutive sentences. As petitioner would not have succeeded on either claim if it had been included in his initial postconviction petition, no prejudice can be shown. Smith, 341 Ill.App.3d at 540-41.
¶ 21 Defendant's final claims contend that the trial court abused its discretion in failing to address his second amendment right to keep firearms for self-defense and reiterates his claim related thereto for review by this court. However, again defendant provides no rationale regarding why the latter claim was not raised in either his direct appeal or his initial postconviction petition. As such, no cause can be shown.
¶ 22 Additionally, defendant's argument is directly controverted by the United States Supreme Court language in District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008), which specifically excepted felons and the mentally ill from possessing firearms when addressing the importance of the second amendment. Further, even if the Supreme Court's language in Heller did not directly undermine defendant's claim, the arguments are futile because defendant never claimed self-defense related to the charge of unlawful possession of weapons by a felon (count V) which is the basis of his self-defense argument. As such, this claim fails to reveal prejudice.
¶ 23 III. CONCLUSION
¶ 24 For the foregoing reasons, we affirm the trial court's denial of defendant's petition for leave to file a successive postconviction petition.
¶ 25 Affirmed.