                            ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Rockman, 2012 IL App (1st) 102729




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     CLAYTON ROCKMAN, Defendant-Appellant.



District & No.              First District, Sixth Division
                            Docket No. 1-10-2729


Filed                       March 30, 2012


Held                        Where defendant was convicted of first-degree murder in 1983 and
(Note: This syllabus        sentenced to an enhanced term of 75 years and then filed a motion in
constitutes no part of      2010 seeking resentencing based on the claim that the portion of his
the opinion of the court    sentence exceeding the statutory maximum of 40 years was void because
but has been prepared       the jury was only asked to determine the basic elements of first-degree
by the Reporter of          murder, the trial court’s dismissal of the motion on the ground that the
Decisions for the           voidness claim was not distinguishable from Apprendi was affirmed, and
convenience of the          Apprendi does not apply retroactively to cases in which the direct appeal
reader.)
                            process had concluded at the time Apprendi was decided.


Decision Under              Appeal from the Circuit Court of Cook County, No. 82-C-488; the Hon.
Review                      Vincent M. Gaughan, Judge, presiding.


Judgment                    Affirmed.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Benjamin A. Wolowski, all
Appeal                     of State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Brian
                           K. Hodes, and Miles J. Keleher, Assistant State’s Attorneys, of counsel),
                           for the People.


Panel                      PRESIDING JUSTICE R. GORDON delivered the judgment of the court,
                           with opinion.
                           Justices Lampkin and Palmer concurred in the judgment and opinion.



                                             OPINION

¶1           Defendant Clayton Rockman was convicted in 1983 by a jury of first-degree murder. At
        the sentencing hearing held on July 21, 1983, the trial judge made a factual finding that the
        murder was exceptionally brutal and heinous. At that time, this factual finding made
        defendant eligible for an extended-term sentence, and defendant was sentenced to 75 years
        in the Illinois Department of Corrections. Without an extended-term sentence, the maximum
        sentence allowed under the statute would have been 40 years.
¶2           In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the United States Supreme Court
        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.” In the case at bar, the fact that increased defendant’s penalty
        beyond the statutory maximum was not submitted to a jury and was not proved beyond a
        reasonable doubt. However, the Illinois Supreme Court held in People v. De La Paz, 204 Ill.
        2d 426, 439 (2003), that “Apprendi does not apply retroactively.” As a result, defendant
        concedes, as he must, that Apprendi cannot help him. Instead, on this appeal, defendant
        argues that the extended-term portion of his sentence is void.
¶3           Since 1991, defendant has made several collateral attacks on his conviction and sentence,
        including several postconviction petitions, two petitions for relief from judgment, a habeas
        corpus petition, and a motion to vacate a void judgment.
¶4           This current appeal concerns defendant’s “Motion to Resentence Defendant Within
        Prescribed Statutory Limits Instanter” filed on March 16, 2010. In this motion, defendant
        argued that, pursuant to our supreme court’s decision in People v. Swift, 202 Ill. 2d 378
        (2002), the portion of his sentence that exceeds the 40-year statutory maximum is void. In
        Swift, our supreme court held that, where a jury is asked to determine only the basic elements
        of first-degree murder, the plain language of the statute makes defendant eligible only for the
        sentencing range specified for first-degree murder, but not for any extended term. Swift, 202
        Ill. 2d at 388, 392.

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¶5         In the case at bar, the trial court was not persuaded that defendant’s voidness argument
       was distinguishable from Apprendi, and thus it dismissed defendant’s motion. For the
       following reasons, we affirm.

¶6                                          BACKGROUND
¶7         Since defendant makes a strictly legal argument and the facts of his underlying case are
       not at issue, we need recite only the facts of the motion currently on appeal.
¶8         In his “Motion to Resentence Defendant Within Prescribed Statutory Limits Instanter,”
       filed March 16, 2010, defendant claimed that his extended-term sentence was void, based on
       the Illinois Supreme Court’s decision in People v. Swift, 202 Ill. 2d 378 (2002). Although
       defendant’s motion was neither a postconviction petition nor a petition for relief from
       judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West
       2008)), a void order “may be attacked at any time or in any court, either directly or
       collaterally.” People v. Thompson, 209 Ill. 2d 19, 25 (2004). The trial court appointed a
       public defender on March 23, 2010, but defendant chose to waive appointed counsel and
       proceed pro se. Counsel then moved to withdraw, and the trial court allowed defendant to
       represent himself. On July 17, 2010, the State moved to dismiss, and on August 12, 2010,
       a hearing was held.
¶9         At the hearing, defendant argued pro se on behalf of his motion. At the outset, defendant
       stated that his current motion did not concern Apprendi. Defendant stated that he recalled
       being before the trial judge in 2005 and that the trial judge “had unequivocally explained to
       [him] that Apprendi was not retroactive on collateral review.”
¶ 10       Defendant stated that his current motion was “a motion for resentencing within the
       prescribed statutory maximum” and that “it’s dealing with a void judgment.” Defendant
       stated that, in Swift, the Illinois Supreme Court had held that the sentencing range for first-
       degree murder was 20 to 60 years. However, defendant observed that, at the time that he was
       sentenced, the statute provided that, if no jury had found defendant eligible for the death
       penalty, then the sentencing range was 20 to 40 years.
¶ 11       Defendant argued that his sentencing order was “void as to the excess portion of the
       extended term as unauthorized by the sentencing statute as explained in the Illinois Supreme
       Court precedent established in People v. Swift *** which for the first time interpreted the
       sentencing statute for first degree murder.” Defendant argued “that construction exposed the
       fact that the extended term sentencing statute had been misapplied to citizens of Illinois
       convicted of first degree murder for over 32 years.”
¶ 12       Defendant further argued that:
                “Defendant’s excess sentence is void. Sentences that do not conform to statutory
           requirements [are] void. Where a sentence that is greater than that permitted by statute
           is imposed, a complete sentence is not void but rather only the excess portion of the
           sentence is void. *** [A] void judgment may be attacked at any time.”
¶ 13       The trial court responded:
                “No matter what you’re saying, because you know if you go through the Apprendi


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           door, there’s no steps there, and you just fall flat. And I’m just using an example of that.
           You’ve been very articulate.
               So what you’re doing is couching it under different terms, but it still comes under the
           Apprendi factor no matter how many times–you know, if you look at a dog from the side,
           from the front, from the back, from the top, from the bottom, it’s still a dog.”
¶ 14       Defendant responded:
           “[W]hen a court interprets or clarifies the meaning of a statute or explains how it is to be
           applied, the court does not announce a new law but merely furnished the proper
           statement of the law. And this is what I’m saying that People v. Swift did. It was the
           statutory interpretation of what the law in Illinois has always been from the effective date
           of 1978 all the way past the Apprendi decision *** past the Swift decision. So when the
           Swift decision came out, it applied to me as well.”
¶ 15       The trial court then granted the State’s motion to dismiss. A notice of appeal was timely
       filed, and this appeal now follows.

¶ 16                                        ANALYSIS
¶ 17       On this appeal, defendant appeals the dismissal of his “Motion to Resentence Defendant
       Within Prescribed Statutory Limits Instanter” filed on March 16, 2010. In this motion,
       defendant argues that the extended-term portion of his sentence is void.
¶ 18       After his jury conviction for first-degree murder, the trial judge made a factual finding
       that made defendant eligible for an extended-term sentence. The trial court then sentenced
       defendant to 75 years in the Illinois Department of Corrections. The maximum sentence
       allowed, without an extended-term sentence, was 40 years. Defendant argues that the
       extended-term portion of his sentence, which is 35 years, is void.
¶ 19       As noted above, in Apprendi, the United States Supreme Court 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.” Apprendi, 530 U.S. at 490. In the case at bar, the fact that increased defendant’s
       penalty beyond the statutory maximum was not submitted to a jury and was not proved
       beyond a reasonable doubt.
¶ 20       However, as defendant concedes, Apprendi does not help defendant, because the Illinois
       Supreme Court held in De La Paz that “Apprendi does not apply retroactively.” De La Paz,
       204 Ill. 2d at 439.
¶ 21       Instead, on this appeal, defendant argues that the extended-term portion of his sentence
       is void. Since defendant makes a purely legal argument, our review is de novo. Swift, 202 Ill.
       2d at 385.
¶ 22       In Apprendi, the defendant was convicted of possession of a firearm for an unlawful
       purpose, which was a second-degree offense normally punishable by a sentence of 5 to 10
       years of imprisonment. Swift, 202 Ill. 2d at 381 (summarizing Apprendi). However, a New
       Jersey hate-crime statute increased the possible sentence to 10 to 20 years of imprisonment
       if the trial judge found, by a preponderance of the evidence, that the defendant had a

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       particular motive for the crime. Swift, 202 Ill. 2d at 381 (summarizing Apprendi). The United
       States Supreme Court struck down the hate-crime statute, holding 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.
¶ 23        After Apprendi, courts were left with the task of determining what “the prescribed
       statutory maximum” was. Apprendi, 530 U.S. at 490. In other words, to apply Apprendi, a
       court must first determine what was the maximum sentence the defendant could have
       received, based solely on the facts determined by a jury. Swift, 202 Ill. 2d at 385.
¶ 24        In Swift, our supreme court did what every court must do in an Apprendi case, which is
       to determine what is the statutory maximum, based solely on a jury determination of the
       basic elements of the crime. Swift, 202 Ill. 2d at 388. Our supreme court in Swift stressed that
       “this case involves application of the rule of Apprendi” (Swift, 202 Ill. 2d at 381) and that,
       to apply Apprendi, it must interpret the statute to determine what sentence the statute
       authorized, based solely on the basic elements. Swift, 202 Ill. 2d at 385, 388.
¶ 25        In Swift, our supreme court described the basic elements of first-degree murder as
       follows: “A defendant commits first degree murder when he kills an individual, intending
       or knowing that he is likely to cause death or great bodily harm, or when he commits the
       killing in the attempt or commission of a felony other than second degree murder.” Swift, 202
       Ill. 2d at 388. Our supreme court held in Swift that, when a jury determines these basic
       elements, and only these basic elements, “the plain language of the statute[ ]” makes him
       eligible for the sentencing range specified for first-degree murder, but not for an extended-
       term sentence. Swift, 202 Ill. 2d at 388, 392. Since Swift was heard on direct appeal,
       retroactivity was not an issue. People v. Smith, 395 Ill. App. 3d 496, 500 (2009).
¶ 26        Less than six months after Swift, our supreme court held in De La Paz that “Apprendi
       does not apply retroactively to causes in which the direct appeal process had concluded at the
       time that Apprendi was decided.” De La Paz, 204 Ill. 2d at 429. Although the De La Paz case
       involved an extended-term sentence for armed robbery, whereas our case involves an
       extended-term sentence for first-degree murder, our supreme court held that, with regard to
       Apprendi cases, “[r]etroactivity is an all-or-nothing proposition.” De La Paz, 204 Ill. 2d at
       438. If we find that the error did not seriously affect “the fairness” in some cases, then it
       cannot be such “a bedrock procedural element *** requiring retroactive application in all
       cases.” De La Paz, 204 Ill. 2d at 438.
¶ 27        In the case at bar, defendant recognizes the problem created for him by De La Paz and,
       as a result, he claims that he is not making an Apprendi argument but a voidness argument.
       He claims that, since the statute under which the jury convicted him authorized a maximum
       sentence of only 40 years, the portion of his sentence that exceeds 40 years is void. “Where
       a court imposes a sentence in excess of what a statute permits, the legal and authorized
       portion of the sentence is not void, but the excess portion of the sentence is void.” People v.
       Perruquet, 181 Ill. App. 3d 660, 663 (1989). Since the supreme court’s interpretation of a
       statute is retroactive to that statute’s effective date (Perruquet, 181 Ill. App. 3d at 662-63),
       defendant argues that the statute never authorized his extended-term sentence and that, as a


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       result, his extended-term sentence is–and always has been–void.
¶ 28        “To the extent that the excess sentence is void, the judgment is void also, and a void
       judgment may be vacated at any time.” Perruquet, 181 Ill. App. 3d at 663. Specifically, with
       respect to voidness and extended-term sentences, our supreme court has held:
            “A void order may be attacked at any time or in any court, either directly or collaterally.
            An argument that an order or judgment is void is not subject to waiver. Defendant’s
            argument that the extended-term portion of his sentence is void does not depend for its
            viability on his postconviction petition. In fact, courts have an independent duty to vacate
            void orders and may sua sponte declare an order void.” Thompson, 209 Ill. 2d at 27.
¶ 29        On appeal, the State argues that: (1) defendant’s claim is untimely because it was filed
       26 years after his sentence was imposed; (2) defendant’s claim is barred by res judicata
       because he previously raised an Apprendi claim; and (3) an Apprendi claim cannot be applied
       retroactively. First, defendant’s claim is not untimely because a void order may be attacked
       at any time. Thompson, 209 Ill. 2d at 27. Second, the State does not argue that defendant
       previously raised a voidness claim, so his claim is not barred by res judicata. Third,
       defendant has acknowledged all along, in his pro se motion and argument before the trial
       court and in his briefs to this court, that Apprendi cannot be applied retroactively.
¶ 30        However, we are still not persuaded that Swift is somehow distinguishable from all the
       other Apprendi cases to which De La Paz applies. In Swift, our supreme court stated
       explicitly that Swift was an Apprendi case and that the court was simply applying the rule of
       Apprendi to the statute before it. Swift, 202 Ill. 2d at 381. If the extended-term sentence in
       Swift was void, then we fail to see why every extended-term sentence in every statute would
       not be void; and, if they were all void, that would render meaningless our supreme court’s
       holding in De La Paz that Apprendi has no retroactive application. If the extended terms
       were simply void, then our supreme court would not have had to consider whether they could
       be vacated retroactively under Apprendi.
¶ 31        In the appeal before us, defendant argues that De La Paz applies to all statutes but the
       first-degree murder statute. However, he offers us no reason why this statute should be
       treated differently, and he points to no language in either Swift or De La Paz indicating that
       our supreme court intended to carve out an exception for the first-degree murder statute.
¶ 32        The Second District has also considered the same argument raised here by defendant and
       rejected it. Smith, 395 Ill. App. 3d at 499-500. In Smith, the Second District held:
            “If, as defendant argues, Swift had authoritatively construed the statutes as consistent
            with Apprendi and those requirements were included in the statutes from their effective
            dates, there would have been no need to decide six months later whether Apprendi
            applied retroactively. Under defendant’s theory, Swift would have meant that Apprendi
            and its requirements were incorporated into the statutes from the beginning.” Smith, 395
            Ill. App. 3d at 500.
       We agree.




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¶ 33                                CONCLUSION
¶ 34   For the foregoing reasons, we affirm the trial court’s dismissal of defendant’s motion.

¶ 35   Affirmed.




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