                                                                FIFTH DIVISION
                                                                FEBRUARY 8, 2008



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 originally affirmed the dismissal of defendant's postconviction petition, but vacated his

sentence and remanded to the circuit court for a new sentencing hearing. Subsequently, the

Illinois Supreme Court exercised its supervisory authority and directed this court to reconsider its
1-06-0302

judgment in light of People v. Cardenas, 209 Ill. App. 3d 217 (1991), and People v. Sims, 166 Ill.

App. 3d 289 (1987) (225 Ill. 2d 640 (2007)).

                                               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


                                                  2
1-06-0302

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

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 postconviction 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 postconviction 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 273-74. 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


                                                   3
1-06-0302

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

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 Post-Conviction Hearing Act "Act" (725

ILCS 5/122-1 et seq. (West 2002)), 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 n1. 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


                                                  4
1-06-0302

        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 the

        court fails to do so, the pleading cannot be considered to have become a postconviction

        pleading for 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, 371 Ill. App. 3d 1000, 1006 (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,

371 Ill. App. 3d. 1000 (2007)), defendant's October 3, 2005, postconviction petition was his


                                                   5
1-06-0302

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).

       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


                                                   6
1-06-0302

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

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.

       "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 at 71. In general, the Habitual Criminal Act, which is the statute pursuant to which defendant

was sentenced, mandates the imposition of a natural life sentence if a defendant is convicted of


                                                   7
1-06-0302

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 (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


                                                  8
1-06-0302

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 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.

       This court has held that a conviction for deviate sexual assault, despite being reclassified

as criminal sexual assault, a Class I felony, in a 1984 amendment (Ill. Rev. Stat. 1985, ch. 38, par.

12-13(a)(1)), is sufficient to satisfy the sentencing conditions under the Habitual Criminal Act

prior to its 1988 amendment. See People v. Sims, 166 Ill. App. 3d 289, 303 (1987); see also

People v. Cardenas, 209 Ill. App. 3d 217, 232 (1991). Because this argument has been

considered and rejected by this court in both Sims and Cardenas, we find that the circuit court's

failure to advise defendant of his right to choose under which statute he wished to be sentenced

                                                   9
1-06-0302

was, under these circumstances, harmless error.

                                        CONCLUSION
       For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.


       Affirmed.

       FITZGERALD SMITH, P.J., and GALLAGHER, J., concur.




                                                  10
