People v. Miller

2023 IL App (5th) 210230-U

• Court: Appellate Court of Illinois
• Decided: March 13, 2023
• Docket: 5-21-0230
• Status: Unpublished

Opinion

2023 IL App (5th) 210230-U NOTICE NOTICE Decision filed 03/13/23. The This order was filed under text of this decision may be NO. 5-21-0230 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 98-CF-1814 ) MICHAEL MILLER, ) Honorable ) Janet R. Heflin, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE VAUGHAN delivered the judgment of the court. Presiding Justice Boie and Justice Welch concurred in the judgment.

ORDER

¶1 Held: The circuit court did not err in dismissing defendant’s petition for relief from judgment based on the doctrine of res judicata. Since no argument to the contrary would have merit, we grant defendant’s appointed appellate counsel leave to withdraw and affirm the judgment of the circuit court.

¶2 Defendant, Michael Miller, has completed two-thirds of his 45-year prison sentence for

attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 1998)). He appeals from the

circuit court’s dismissal of his most recent petition for relief from judgment pursuant to section 2-

1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2016)). Defendant’s

appointed counsel on appeal, the Office of the State Appellate Defender (OSAD), concluded the

instant appeal lacks substantial merit. On that basis, it filed a motion to withdraw as counsel

pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), along with a memorandum of law in

1 support thereof. OSAD gave proper notice to defendant, and we gave defendant an opportunity to

file a pro se brief, memorandum, or other document explaining why OSAD should not be allowed

to withdraw as counsel, or why this appeal has merit. Defendant has not taken advantage of that

opportunity. This court examined OSAD’s Finley motion and the accompanying memorandum of

law, as well as the entire record on appeal, and concludes this appeal indeed lacks merit.

Accordingly, we grant OSAD leave to withdraw as counsel and affirm the judgment of the circuit

court.

¶3 BACKGROUND

¶4 Defendant was charged with attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1)

(West 1998)), a Class X felony (id. § 8-4(c)(1)), in August 1998. The jury trial began in May 1999,

and the evidence revealed the following.

¶5 Defendant was in a relationship with Lavita A. Butkus, who was also known as Annie. In

August 1998, on the side of a road in Venice, Illinois, defendant grabbed Annie by the hair,

punched her repeatedly in the face, and stabbed her with a knife about her body. When he stabbed

her in the head, the knife broke. With the broken knife, he attempted to cut her throat. Giving up

on the knife, defendant grabbed a nearby tire iron and used it to strike Annie repeatedly on the

head, as she laid helpless at the side of the road.

¶6 Annie was taken to a hospital and remained in a coma for three weeks. Her face was

swollen beyond recognition. She required sutures for her wounds. As Annie regained semi-

consciousness, it became clear that she had suffered severe neurological injuries from the beating.

She remained largely noncommunicative and was confined to her bed for many weeks. After her

release from the hospital, Annie entered two rehabilitation centers, a nursing home for a period of

months, and later to a group home.

2 ¶7 Defendant denied any culpability. The jury found him guilty as charged.

¶8 At the July 1999 sentencing hearing, defendant again denied any culpability. The trial court

found that his offense “was committed with extremely brutal and heinous behavior indicative of

wanton cruelty” (see 730 ILCS 5/5-5-3.2(b)(2) (West 1998)) and imposed an extended term of

imprisonment of 45 years (see id. § 5-8-2(a)(2)).

¶9 On direct appeal, defendant argued—inter alia—that his extended-term sentence was

unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000). This court affirmed as

modified the judgment of the trial court. People v. Miller, No. 5-99-0651 (2001) (unpublished

order under Illinois Supreme Court Rule 23). In June 2003, the Illinois Supreme Court used its

supervisory authority to direct this court to vacate its original decision and reconsider this case in

light of People v. Swift, 202 Ill. 2d 378 (2002), People v. Crespo, 203 Ill. 2d 335 (2001), and

People v. Thurow, 203 Ill. 2d 352 (2003), to determine whether a different result was warranted.

People v. Miller, 204 Ill. 2d 675 (2003) (supervisory order).

¶ 10 On remand, this court rejected defendant’s first and second arguments on appeal. People

v. Miller, No. 5-99-0651 (2003) (unpublished order under Illinois Supreme Court Rule 23). As to

the third and fourth arguments, this court agreed errors were committed but found those errors

were harmless. Id. The judgment of conviction was affirmed. Id.

¶ 11 In the years that followed the direct appeal, defendant launched several collateral attacks

on his conviction and sentence. Relevant here, he filed his first pro se petition for relief from

judgment, pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2004)), in December

2004. Citing federal appellate court cases, defendant argued that the court’s Apprendi violation

could not be harmless. In February 2005, the circuit court dismissed the petition, and defendant

appealed. This court’s initial decision, which affirmed the circuit court’s judgment, was vacated

3 by order of the Illinois Supreme Court which directed this court to reconsider its judgment in light

of People v. Vincent, 226 Ill. 2d 1 (2007), to determine whether a different result was warranted.

People v. Miller, 225 Ill. 2d 659 (2007) (supervisory order). This court found defendant’s petition

did not meet the two-year time requirement of the statute, and the judgment of conviction was not

void. People v. Miller, 376 Ill. App. 3d 1170 (2007) (table) (unpublished order under Illinois

Supreme Court Rule 23). This court additionally found the issue of an extended-term sentence was

res judicata because it had been raised, and was decided adversely to defendant, on direct appeal.

Id. Accordingly, this court affirmed the judgment of the circuit court. Id.

¶ 12 In December 2017, defendant filed another pro se section 2-1401 petition for relief from

judgment seeking vacatur of the judgment and resentencing. In this petition, which is the subject

of this appeal, defendant asserted that his 45-year sentence was “unconstitutional because it

violates his Sixth and Fourteenth Amendment Rights of the U.S. Const.” He explained that “the

statutory maximum” for the offense of which he was convicted was 30 years in prison. The court,

however, sentenced him to 45 years in prison based on a judicial finding that his conduct was

accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. Citing

People v. Swift, 202 Ill. 2d 378 (2002), defendant argued that the court could not sentence him to

an extended-term sentence on this basis because the jury at his trial was never presented with the

question of whether his criminal conduct was accompanied by such behavior and the jury never

made such finding.

¶ 13 The State filed a motion to dismiss, and defendant filed a reply to the State’s motion. The

court appointed counsel for defendant in January 2018.

¶ 14 In June 2019, the court held a hearing on the State’s motion to dismiss defendant’s petition.

The State, defendant, and defendant’s appointed attorney were present. The State argued that

4 defendant’s petition was filed beyond the two-year limitations period, while defendant’s attorney

argued that untimeliness was not an issue because the petition claimed the judgment was void due

to unconstitutionality. The court took the matter under advisement.

¶ 15 In August 2019, the circuit court entered an order dismissing defendant’s petition for relief

from judgment. The court found the issue was previously litigated and decided on direct appeal.

¶ 16 In January 2020, defendant filed a pro se motion for leave to file a motion to reconsider

the dismissal order. In his motion, defendant averred that he was not informed of the August 2019

dismissal until very recently, and only after repeatedly writing to the circuit clerk. On May 27,

2021, the circuit court held a hearing on defendant’s motion. Defendant appeared via a video-link

from prison; his attorney and the prosecutor were present personally. The State waived the

untimeliness of the motion to reconsider, and the court agreed to hear the motion on its merits.

¶ 17 Despite his attorney’s presence, defendant argued the motion himself. Defendant argued

that the two-year limitations period for section 2-1401 did not apply to his claim. “[T]here’s no

time limitation for the constitutionality of [a] statute.” He emphasized that he was not making an

argument based on Apprendi v. New Jersey, and “this only has to do with the constitutionality of

[section] 5-8-2 [of the Unified Code of Corrections], and People v. Swift.” Defendant claimed the

Illinois Supreme Court held, in Swift, that “the whole entire statute is basically unconstitutional.”

After hearing argument, the court took the matter under advisement.

¶ 18 On June 30, 2021, the circuit court denied defendant’s motion to reconsider. Defendant

appealed, and OSAD was appointed to represent defendant.

¶ 19 ANALYSIS

¶ 20 Section 2-1401 establishes a comprehensive statutory procedure to challenge a final

judgment when more than 30 days have elapsed since its entry. 735 ILCS 5/2-1401 (West 2016);

5 People v. Vincent, 226 Ill. 2d 1, 7 (2007). Petitions must be filed no later than two years after the

entry of the order or judgment. 735 ILCS 5/2-1401(c) (West 2016); People v. Caballero, 179 Ill.

2d 205, 210 (1997). However, a defendant may use a section 2-1401 petition to challenge a void

judgment at any time. People v. Thompson, 2015 IL 118151, ¶¶ 31-32. Section 2-1401 authorizes

a circuit court “to vacate or modify a final order or judgment in civil and criminal proceedings.”

Warren County Soil & Water Conservation District v. Walters, 2015 IL 117783, ¶ 31. Where a

section 2-1401 petition raises a purely legal challenge to a final order or judgment, and does not

involve any factual dispute, the circuit court’s dismissal of the petition is subject to de novo review.

Id. ¶ 47.

¶ 21 The claim raised in defendant’s section 2-1401 petition was previously raised by defendant,

and decided by this court, in defendant’s direct appeal. Therefore, as OSAD acknowledges, the

claim is barred by the doctrine of res judicata.

¶ 22 Res judicata is a doctrine intended “to prevent multiple lawsuits between the same parties

where the facts and issues are the same.” Lutkauskas v. Ricker, 2015 IL 117090, ¶ 44. Under this

doctrine, “a final judgment on the merits rendered by a court of competent jurisdiction operates to

bar a subsequent suit between the same parties and involving the same cause of action.” Id.

¶ 23 In defendant’s direct appeal, defendant argued that his 45-year extended-term sentence was

unconstitutional under the then-recent decision in Apprendi v. New Jersey, 530 U.S. 466, 490

(2000), which 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.” People v. Miller, No. 5-99-0651 (2003) (unpublished order

under Illinois Supreme Court Rule 23). This court agreed a constitutional error was made. Id.

However, citing People v. Thurow, 203 Ill. 2d 352 (2003), and People v. Crespo, 203 Ill. 2d 335

6 (2001), this court concluded Apprendi errors can be harmless beyond a reasonable doubt and there

was overwhelming evidence that defendant committed the crime in a brutal and heinous manner

indicative of wanton cruelty. Id. This court had no doubt that the instant crime was committed in

such a manner. Id. Based on the record, this court continues to have no doubt that defendant acted

in an exceptionally brutal and cruel manner.

¶ 24 With his latest section 2-1401 petition, defendant attempts to raise the same argument.

Defendant attempted to distract from the res judicata of the claim in his petition by stating it “has

nothing to do with Apprendi” and was instead based on People v. Swift, 202 Ill. 2d 378 (2002).

However, the Swift decision is an Illinois progeny of Apprendi and represents nothing more than

a straightforward application of Apprendi to the Illinois offense of first degree murder. See id. at

392 (“for purposes of Apprendi analysis, the ‘sentencing range’ for first degree murder in Illinois

is 20 to 60 years’ imprisonment” and therefore an 80-year extended-term sentence for that offense

was unconstitutional under the circumstances in that case). To say a claim based on Swift “has

nothing to do with Apprendi” is illogical. Moreover, this court considered Swift during defendant’s

direct appeal on remand from the Illinois Supreme Court. People v. Miller, No. 5-99-0651 (2003)

(unpublished order under Illinois Supreme Court Rule 23).

¶ 25 We further reject defendant’s request to ignore res judicata because section 5-8-2 of the

Unified Code of Corrections (730 ILCS 5/5-8-2 (West 1998)) was void ab initio, as our supreme

court has stated that section 5-8-2 is not void ab initio. Hill v. Cowan, 202 Ill. 2d 151, 156 (2002)

(sections 5-5-3.2 and 5-8-2 of the Unified Code of Corrections “are not unconstitutional on their

face”; therefore, the void ab initio doctrine is inapplicable). As such, the court properly dismissed

defendant’s petition for relief from judgment.

7 ¶ 26 CONCLUSION

¶ 27 The claim presented by defendant in his latest section 2-1401 petition was previously raised

and rejected in his direct appeal. The circuit court therefore properly dismissed defendant’s petition

based on the doctrine of res judicata. No argument to the contrary would have merit. Accordingly,

OSAD is granted leave to withdraw as counsel, and the judgment of the circuit court is affirmed.

¶ 28 Motion granted; judgment affirmed.