People v. Murray

2023 IL App (4th) 220330, 228 N.E.3d 821

• Court: Appellate Court of Illinois
• Decided: April 10, 2023
• Docket: 4-22-0330
• Status: Published

Opinion

2023 IL App (4th) 220330 FILED April 10, 2023 NO. 4-22-0330 Carla Bender 4th District Appellate IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Boone County DEONTAE X. MURRAY, ) No. 13CF86 Defendant-Appellant. ) ) ) Honorable ) C. Robert Tobin III, Judge Presiding.

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Cavanagh and Lannerd concurred in the judgment and opinion.

OPINION

¶1 Defendant, Deontae X. Murray, appeals the order of the circuit court of Boone

County summarily dismissing his postconviction petition at the first stage. Defendant contends

that he stated the gist of a constitutional argument where he alleged that he was sentenced pursuant

to a statute our supreme court had previously found to be unconstitutional. In imposing the

sentence, however, the circuit court executed the mandate of our supreme court. Because we must

regard the mandate of the supreme court to be free from error, we affirm.

¶2 I. BACKGROUND

¶3 A jury convicted defendant of first degree murder (720 ILCS 5/9-1(a)(2) (West

2012)), aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d)

(West 2012)), and unlawful possession of a firearm by a street gang member (720 ILCS 5/24-1.8(a)(1) (West 2012)) in connection with the 2013 shooting death of Richard J. Herman in

Belvidere. The trial court merged the conviction of AUUW into the conviction of unlawful

possession of a firearm by a street gang member and sentenced defendant to an aggregate of 60

years’ imprisonment. The Second District affirmed the convictions in People v. Murray, 2017 IL

App (2d) 150599, ¶ 98. Our supreme court reversed the conviction for unlawful possession of a

firearm by a street gang member. People v. Murray, 2019 IL 123289, ¶¶ 53-54. The supreme court

then remanded the matter to the circuit court for sentencing on the AUUW conviction. Murray,

2019 IL 123289, ¶ 53. Defendant did not seek a rehearing.

¶4 On October 18, 2019, the supreme court’s mandate issued. The mandate stated that

the appellate court’s judgment was reversed in part and that the matter was “remanded with

directions.” On November 30, 2020, the circuit court held a sentencing hearing in accordance with

the supreme court’s mandate.

¶5 At the sentencing hearing, the dilemma facing the trial court and the parties was the

unconstitutionality of the AUUW offense for which defendant was about to be sentenced.

Defendant was convicted of violating section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute. 720

ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2012). In People v. Aguilar, 2013 IL 112116, ¶ 22, our

supreme court held that section of the AUUW statute unconstitutional as infringing on the right to

keep and bear arms. At defendant’s sentencing hearing, the State recommended sentencing

defendant in accordance with the supreme court’s mandate. The State also recommended

sentencing defendant on a lesser included offense, which survived constitutional scrutiny.

Defendant argued that the court was required to follow the supreme court’s mandate. Doing so, he

noted, would result in an unconstitutional sentence. Therefore, defendant recommended that the

court vacate defendant’s conviction for AUUW. The court ruled that it was prohibited from

-2- “straying” from the supreme court’s mandate. Consequently, the court sentenced defendant to six

years’ incarceration, to be served consecutively to the sentence for first degree murder. Defendant

appealed but then dismissed the appeal.

¶6 On March 23, 2022, defendant, through counsel, filed a petition pursuant to the

Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). Defendant, inter alia,

argued that his AUUW conviction should be vacated because the statute under which he was

convicted was found to be unconstitutional in Aguilar. On March 24, 2022, the trial court issued a

written memorandum of decision and dismissed the petition. The court found defendant’s

constitutional argument meritless. The court noted that, in remanding for sentencing, the supreme

court appeared to have decided that the offense of AUUW—“as charged and supported by the

evidence” in defendant’s case—was constitutional. Otherwise, the court stated, the supreme court

would have vacated defendant’s conviction.

¶7 This timely appeal followed.

¶8 II. ANALYSIS

¶9 The Act provides a method for persons under criminal sentence to assert that their

convictions resulted from constitutional infirmities. People v. Hodges, 234 Ill. 2d 1, 9 (2009). A

postconviction proceeding consists of three stages. Hodges, 234 Ill. 2d at 10. At the first stage, the

trial court, within 90 days of the filing of the petition, independently reviews the petition, taking

the allegations as true, and then determines whether the petition is “frivolous or is patently without

merit.” (Internal quotation marks omitted.) Hodges, 234 Ill. 2d at 10. If the trial court determines

that the petition is either frivolous or patently without merit, the court must dismiss the petition in

a written order. Hodges, 234 Ill. 2d at 10. At the first stage, a defendant need only make a claim

that is arguably constitutional to invoke the Act. Hodges, 234 Ill. 2d at 9. The only requirement at

-3- this stage is that the pleading state the “gist” of a constitutional claim. Hodges, 234 Ill. 2d at 9.

However, if the court does not dismiss the petition, then the petition advances to the second stage,

where counsel may be appointed and the State can move to dismiss the petition. Hodges, 234 Ill.

2d at 10-11. If the petition survives the second stage, the case advances to the third stage, where

the court receives evidence and weighs the petition’s merits to determine whether a defendant is

entitled to relief. People v. Allen, 2015 IL 113135, ¶ 22. Our review of a first-stage dismissal is

de novo. Hodges, 234 Ill. 2d at 9.

¶ 10 Defendant contends that his postconviction petition should not have been dismissed

at the first stage because he stated the gist of a constitutional argument. Defendant argues that the

supreme court likely overlooked that it had previously held unconstitutional the statute under

which it ordered defendant to be sentenced. Defendant also asserts that the only remedy is to vacate

the conviction, citing People v. Mosley, 2015 IL 115872, ¶ 24 (holding that where a defendant has

been sentenced in violation of Aguilar, the proper remedy is to vacate the defendant’s conviction).

Thus, defendant argues that we must remand for second-stage proceedings for the trial court to

vacate his conviction of AUUW. However, in arguing that his conviction must be vacated,

defendant necessarily assumes that the trial court was free to ignore the supreme court’s mandate.

The State maintains that the trial court properly dismissed defendant’s petition, as the court had no

discretion to deviate from the mandate. We agree with the State.

¶ 11 As early as 1862, our supreme court held that when it reverses and remands a cause

to the trial court with directions, the trial court “has no discretion, but must pursue the mandate of

the appellate court.” Chickering v. Failes, 29 Ill. 294, 302-03 (1862). The court was also clear that

“[i]f such instructions were not observed, it would be error, for which the second decree would be

reversed on appeal.” Chickering, 29 Ill. at 303. Since Chickering, our supreme court has persisted

-4- in this view. See, e.g., Winchester v. Grosvenor, 48 Ill. 515, 516 (1868); Boggs v. Willard, 70 Ill.

315, 316 (1873) (stating, “the court below has no power to do any thing but carry out the specific

directions [of the mandate]”); Fisher v. Burks, 285 Ill. 290, 293 (1918) (stating, “it is the duty of

the trial court to carry [the mandate] into execution and not to look elsewhere for authority to

change its meaning or direction”); Smith v. Dugger, 318 Ill. 215, 217 (1925); PSL Realty Co. v.

Granite Investment Co., 86 Ill. 2d 291, 305 (1981) (stating, “if the cause is remanded, the circuit

court can take only such action which conforms to the judgment of the court of review”); Price v.

Philip Morris, Inc., 2015 IL 117687, ¶ 49 (stating, if the cause is remanded with instructions to the

circuit court to enter a specific order, the circuit court is authorized to do nothing but enter the

decree).

¶ 12 Defendant argues that the doctrine established in the above cases does not apply

here, because the supreme court issued an “unconstitutional” mandate when it directed the trial

court to sentence defendant on his AUUW conviction. There is no question that the offense for

which defendant was sentenced was held unconstitutional in Aguilar. Aguilar, 2013 IL 112116,

¶ 22. Nevertheless, two principles apply: (1) even where the supreme court’s mandate is erroneous,

the circuit court has no discretion but to enter an order conforming to the mandate (Winchester, 48

Ill. at 516-17) and (2) when the supreme court reverses or vacates the judgment of the circuit court

and remands to the circuit court with specific directions, the order entered upon remand is the

judgment of the supreme court, not the judgment of the trial court (People v. Brown, 2022 IL

127201, ¶ 24). This means (1) the trial court in our case had no discretion to do anything other

than sentence defendant in conformity with the supreme court’s mandate and (2) this court has no

authority to review—much less reverse—the supreme court’s judgment. See Brown, 2022 IL

-5- 127201, ¶ 51 (Michael J. Burke, J., dissenting) (but agreeing with the majority that a judgment of

the supreme court cannot be reviewed by the appellate court).

¶ 13 The following cases illustrate these principles. In an initial appeal in Winchester,

the supreme court reversed the decision of the trial court and remanded with instructions to enter

a remittitur in favor of the appellee in the amount of $300. Winchester, 48 Ill. at 515. After remand,

the circuit court entered a remittitur in the amount of $700. Winchester, 48 Ill. at 516. In a

subsequent appeal, the supreme court determined that its judgment granting a remittitur in any

amount was wrong. Winchester, 48 Ill. at 516. Even though the supreme court noted that the trial

court’s order after remand was occasioned by the supreme court’s erroneous instruction to the trial

court, the supreme court still opined that the trial court had no discretion but to follow the supreme

court’s mandate. Winchester, 48 Ill. at 516-17.

¶ 14 In Smith, our supreme court stated:

“Where a decree is reversed and the cause is remanded with specific

directions as to the action to be taken by the trial court it is the duty of that court to

follow those directions, and a decree entered in accordance with such directions

cannot be erroneous, however erroneous the directions may be.” Smith, 318 Ill. at

216.

¶ 15 In Boggs, our supreme court originally reversed the trial court’s judgment and

remanded with directions to dismiss the complaint. Boggs, 70 Ill. at 315. Upon remand, the plaintiff

moved to remove the cause to federal court. Boggs, 70 Ill. at 315. The trial court denied the motion

for removal and dismissed the complaint. Boggs, 70 Ill. at 315. The plaintiff appealed, contending

that the court should have granted removal and that the complaint should not have been dismissed.

Boggs, 70 Ill. at 315-16. As to the first argument, our supreme court stated that the trial court had

-6- no power to do anything except “carry out” the supreme court’s specific directions. Boggs, 70 Ill.

at 316. Regarding the dismissal of the complaint, the supreme court noted that (1) the decision to

dismiss the complaint was not the trial court’s judgment but that of the supreme court and (2) if

that judgment was wrong, the plaintiff could obtain review only by a rehearing in the original

supreme court case, by petition to the supreme court, or by a “spontaneous action” by the supreme

court. Boggs, 70 Ill. at 317. In other words, if the supreme court’s mandate is wrong, only the

supreme court can furnish a remedy.

¶ 16 At oral argument, defendant acknowledged the above principles but argued that

they are contradicted by In re N.G., 2018 IL 121939. In N.G., a case involving the termination of

parental rights, the trial court found the respondent father unfit based on prior felony convictions.

N.G., 2018 IL 121939, ¶ 1. One of those convictions was under the AUUW statute that had been

found to be unconstitutional as violating the second amendment to the United States Constitution

(U.S. Const., amend. II). N.G., 2018 IL 121939, ¶ 2. The appellate court vacated the AUUW

conviction and then reversed the unfitness finding, holding that without an unfitness finding, there

was no basis to terminate the respondent’s parental rights. N.G., 2018 IL 121939, ¶ 2. Our supreme

court affirmed the appellate court. N.G., 2018 IL 121939, ¶ 89. Our supreme court noted that a

finding that a criminal statute is facially invalid under the constitution of the United States means

that the State had no authority to punish the defendant under that law. N.G., 2018 IL 121939, ¶ 40.

The supreme court further noted that state courts are under a “mandatory obligation” to ignore a

law that is repugnant to the United States Constitution. N.G., 2018 IL 121939, ¶¶ 40-41. Defendant

interprets this “mandatory obligation” to trump the mandate of our supreme court in the present

case. Thus, defendant argues, we must hold that the mandate was unconstitutional.

-7- ¶ 17 N.G. is inapposite. It did not involve a mandate of our supreme court. At oral

argument, defendant conceded that N.G. does not specifically grant the appellate court authority

to overturn a judgment of our supreme court. Rather, defendant acknowledged that he extrapolates

that conclusion from other language in the opinion.

¶ 18 The State relies on Brown, which we find apt. In Brown, the circuit court held a

criminal statute unconstitutional, but it also resolved the cause on nonconstitutional grounds.

Brown, 2022 IL 127201, ¶ 6. The State appealed directly to our supreme court. Brown, 2022 IL

127201, ¶ 7. The supreme court vacated the finding of unconstitutionality and remanded with

directions to the trial court to enter a modified judgment excluding that finding. Brown, 2022 IL

127201, ¶ 10. The trial court initially entered an order conforming to the supreme court’s mandate.

Brown, 2022 IL 127201, ¶ 14. However, upon granting the defendant’s motion to reconsider, the

trial court vacated its order, reinstated the criminal charge, and allowed the defendant to file

motions challenging the constitutionality of the statute under which she was charged. Brown, 2022

IL 127201, ¶ 16. The trial court again found the statute unconstitutional, and the State appealed to

the supreme court. Brown, 2022 IL 127201, ¶ 17. In the second appeal, our supreme court vacated

the trial court’s orders, stating that the rule requiring the circuit court to execute the supreme

court’s mandate is “clear and unconditional.” (Emphasis added.) Brown, 2022 IL 127201, ¶ 20.

The supreme court reiterated its long-standing view that an order entered after remand with

directions is “not that of the circuit court.” Brown, 2022 IL 127201, ¶ 24. “Rather,” said the

supreme court, “[i]t is, in fact, the judgment of this court promulgated through the trial court.”

(Internal quotation marks omitted.) Brown, 2022 IL 127201, ¶ 24. The court emphasized that an

order entered after remand is merely the ministerial act of implementing the supreme court’s

judgment and must be regarded as “free from error.” (Emphasis added and internal quotation

-8- marks omitted.) Brown, 2022 IL 127201, ¶ 24. Consequently, we reject defendant’s argument that

an exception exists when the constitutionality of a statute is at issue. We therefore hold that the

trial court did not err in sentencing defendant pursuant to the supreme court’s mandate.

Accordingly, we hold that the court properly dismissed defendant’s postconviction petition.

¶ 19 Defendant argues that his appellate counsel was ineffective for not seeking a

rehearing in the supreme court. To establish ineffective assistance of counsel, defendant must

satisfy the two-pronged test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984):

(1) counsel’s performance fell below an objective standard of reasonableness and (2) counsel’s

deficient performance resulted in prejudice. People v. McGath, 2017 IL App (4th) 150608, ¶ 37.

Failure to satisfy either prong precludes a finding of ineffectiveness. McGath, 2017 IL App (4th)

150608, ¶ 37. Even assuming, without deciding, that defendant has met the first prong of

Strickland, the only remedy proposed is to remand to advance defendant’s postconviction petition

to the second stage. However, the court could not grant relief because it cannot circumvent the

supreme court’s mandate. Moreover, because the mandate must be regarded as being without error

(Brown, 2022 IL 127201, ¶ 24), defendant cannot satisfy the prejudice prong.

¶ 20 We are, of course, sensitive to the anomaly this case presents. However, it is our

duty to follow the law as promulgated by our supreme court. Travellers Insurance Co. v.

Leafgreen, 150 Ill. App. 155, 157 (1909). Only our supreme court, either by granting a petition for

leave to appeal or exercising its supervisory authority, can change its mandate. Boggs, 70 Ill. at

317.

¶ 21 III. CONCLUSION

¶ 22 For the reasons stated, we affirm the trial court’s judgment.

¶ 23 Affirmed.

-9- People v. Murray, 2023 IL App (4th) 220330

Decision Under Review: Appeal from the Circuit Court of Boone County, No. 13-CF-86; the Hon. C. Robert Tobin III, Judge, presiding.

Attorneys James E. Chadd, Catherine K. Hart, and Sarah G. Lucey, of State for Appellate Defender’s Office, of Springfield, for appellant. Appellant:

Attorneys Tricia L. Smith, State’s Attorney, of Belvidere (Patrick Delfino for and David J. Robinson, of State’s Attorneys Appellate Appellee: Prosecutor’s Office, of counsel (Kavi Modi, law student)), for the People.

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