                       Illinois Official Reports

                              Appellate Court



                  People v. Johnson, 2015 IL App (2d) 140388



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           PATRICK LYNN JOHNSON, Defendant-Appellant.




District & No.    Second District
                  Docket No. 2-14-0388




Filed             March 24, 2015




Decision Under    Appeal from the Circuit Court of Kane County, No. 95-CF-1385; the
Review            Hon. Susan Clancy Boles, Judge, presiding.




Judgment          Affirmed.




Counsel on        Patrick Lynn Johnson, of Menard, appellant pro se.
Appeal
                  Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                  Bauer and Scott Jacobson, both of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.
     Panel                    JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                              Presiding Justice Schostok and Justice Burke concurred in the
                              judgment and opinion.




                                                OPINION

¶1         Defendant, Patrick Lynn Johnson, appeals from an order of the circuit court of Kane
       County denying his motion for leave to file a successive petition for relief under the
       Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)) from his
       conviction of first-degree murder (720 ILCS 5/9-1(a)(1) (West 1994)). Defendant argues on
       appeal that he established cause and prejudice, entitling him to file a successive petition
       challenging his sentence pursuant to the due-process principles set forth in Apprendi v. New
       Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151
       (2013). Defendant further contends that his conviction is void because: (1) he was charged by
       an indictment that was returned by an unsworn grand jury; (2) the indictment did not
       sufficiently allege the means by which the victim was killed; (3) he was initially charged by
       complaint, but was not afforded a prompt preliminary hearing to establish probable cause; and
       (4) the trial court never acquired personal jurisdiction. He also argues that he was not
       admonished of his right to elect whether to be sentenced under either the law in effect at the
       time of the offense or the law in effect at the time of sentencing. We affirm.
¶2         Defendant was charged with first-degree murder in connection with the 1995 shooting
       death of Sheldon Raider. Defendant pleaded guilty in 1997, and the trial court imposed an
       extended-term sentence of 78 years’ imprisonment. The trial court concluded that defendant
       was eligible for an extended-term sentence because the offense was accompanied by
       exceptionally brutal or heinous behavior indicative of wanton cruelty. See 730 ILCS
       5/5-5-3.2(b) (West 1994). We affirmed defendant’s sentence on direct appeal. People v.
       Johnson, No. 2-98-0325 (1999) (unpublished order under Supreme Court Rule 23). Defendant
       subsequently initiated a number of collateral proceedings under the Act and other statutes.
¶3         The Act “provides a means for a criminal defendant to challenge his conviction or sentence
       based on a substantial violation of constitutional rights.” People v. Beaman, 229 Ill. 2d 56, 71
       (2008). A petition under the Act initiates a collateral proceeding at which the inquiry is limited
       to constitutional issues that were not, and could not have been, adjudicated on direct appeal.
       People v. Williams, 209 Ill. 2d 227, 232-33 (2004). Section 122-1(f) of the Act provides:
               “Only one petition may be filed by a petitioner under this Article without leave of the
               court. Leave of court may be granted only if a petitioner demonstrates cause for his or
               her failure to bring the claim in his or her initial post-conviction proceedings and
               prejudice results from that failure. For purposes of this subsection (f): (1) a prisoner
               shows cause by identifying an objective factor that impeded his or her ability to raise a
               specific claim during his or her initial post-conviction proceedings; and (2) a prisoner
               shows prejudice by demonstrating that the claim not raised during his or her initial
               post-conviction proceedings so infected the trial that the resulting conviction or
               sentence violated due process.” 725 ILCS 5/122-1(f) (West 2012).

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¶4       We first consider defendant’s arguments that his conviction is void because: (1) the
     indictment was returned by an unsworn grand jury, (2) defendant was initially charged by
     complaint but was not afforded a prompt preliminary hearing to establish probable cause, and
     (3) the indictment did not sufficiently allege the means by which the victim was killed. These
     issues were not raised in defendant’s proposed successive postconviction petition.
     Nonetheless, if defendant’s conviction is indeed void, he is entitled to seek relief for the first
     time in this appeal. People v. Spears, 371 Ill. App. 3d 1000, 1006-07 (2007). We note that a
     judgment is void only if the court that entered it lacked subject-matter jurisdiction or personal
     jurisdiction over the party against whom the judgment was entered. See, e.g., People v. Rios,
     2013 IL App (1st) 121072, ¶ 11.
¶5       As pertinent here, the record reveals that a complaint for a preliminary hearing was filed on
     July 4, 1995, and that an indictment was returned on July 14, 1995, alleging that “defendant,
     without lawful justification and with the intent to kill or do great bodily harm to Sheldon
     Raider, shot Sheldon Raider, thereby causing the death of Sheldon Raider.” According to
     defendant, the record further establishes that the grand jurors were not sworn until July 17,
     1995. Defendant’s challenge to the grand-jury proceedings is based primarily on People v.
     Gray, 261 Ill. 140 (1913), and its progeny. Gray held as follows:
                  “It is essential to the validity of the record of a criminal case that it show that the
             proceedings were had in a court regularly organized, and therefore the convening order
             for the term at which the conviction was had should appear. [Citation.] The record must
             also show that the grand jury was sworn [citations], that the indictment was returned
             into open court [citations], that defendant entered a plea to the indictment [citations],
             that the trial jury was impaneled and sworn, and that the defendant was present at the
             trial [citation].” Id. at 141.
     In arguing that he was entitled to a preliminary hearing to establish probable cause, defendant
     relies on article I, section 7, of the Illinois Constitution of 1970, which provides, in pertinent
     part, that “[n]o person shall be held to answer for a crime punishable by death or by
     imprisonment in the penitentiary unless either the initial charge has been brought by
     indictment of a grand jury or the person has been given a prompt preliminary hearing to
     establish probable cause.” (Emphasis added.) Defendant maintains that the indictment in this
     case was not the “initial charge.” Lastly, as to the form of the indictment, defendant appears to
     argue that the indictment did not sufficiently identify the weapon used to commit the offense.
¶6       The State responds that these issues are barred by the doctrine of res judicata. “The
     doctrine of res judicata provides that a final judgment on the merits rendered by a court of
     competent jurisdiction bars any subsequent actions between the parties or their privies on the
     same cause of action.” People v. Carroccia, 352 Ill. App. 3d 1114, 1123 (2004). Thus, in
     postconviction proceedings, res judicata bars relitigation of “any issues which have previously
     been decided by a reviewing court.” People v. Whitfield, 217 Ill. 2d 177, 183 (2005).
     Defendant previously raised these issues in a petition for relief under section 2-1401 of the
     Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)). In affirming the denial of that
     petition, we stated as follows:
                  “A number of defendant’s contentions relate to the sufficiency of the charging
             instrument. Specifically, defendant contends that the grand jury was not properly
             sworn before it returned the indictment against him, the indictment did not sufficiently
             state the offense of first degree murder, and the prosecution was improperly initiated by

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              a complaint signed by a law enforcement officer. Even if defendant is correct in his
              claims of error, they did not render defendant’s conviction void, because any defects in
              the charging instrument do not deprive the trial court of jurisdiction.” People v.
              Johnson, No. 2-09-0402, slip order at 4 (2010) (unpublished order under Supreme
              Court Rule 23).
     Accordingly, we agree with the State that review of these issues is barred by res judicata.
     Apart from considerations of res judicata, we see no reason to deviate from our prior decision.
     We note, in particular, that the jurisdictional principles in force when Gray was decided were
     considerably different from those that apply under our present state constitution. See People v.
     Kliner, 2015 IL App (1st) 122285, ¶ 11. The failure to swear the grand jury does not divest the
     trial court of subject-matter jurisdiction to enter a criminal conviction. Id. Furthermore, it has
     long been recognized that, where a defendant is indicted after initially having been charged in
     some other manner, article I, section 7, of our state constitution does not require the trial court
     to conduct a preliminary hearing. People v. Kuelper, 46 Ill. App. 3d 420, 422-23 (1977). The
     failure to conduct a preliminary hearing was not error, let alone error that would divest the trial
     court of subject-matter jurisdiction.
¶7        Defendant also argues for the first time on appeal that his conviction is void for lack of
     personal jurisdiction. While acknowledging that a defendant’s appearance before the trial court
     on a criminal charge ordinarily confers personal jurisdiction over the defendant (see, e.g.,
     People v. Raczkowski, 359 Ill. App. 3d 494, 497 (2005)), defendant “asserts that only a valid
     charging instrument can be used in the personal jurisdiction creation process.” Defendant cites
     no authority in support of the assertion. Bare assertions that are unsupported by any citation of
     authority do not merit consideration on appeal. People v. Fredericks, 2014 IL App (1st)
     122122, ¶ 64.
¶8        Defendant next argues that he has satisfied the cause-and-prejudice test with respect to his
     claim that his right to due process of law was violated because his eligibility for an
     extended-term sentence was not determined by a jury based on proof beyond a reasonable
     doubt. Apprendi 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. Alleyne extended this rule
     to facts that increase the mandatory minimum sentence for an offense. In People v. De La Paz,
     204 Ill. 2d 426 (2003), our supreme court held that, pursuant to principles set forth in Teague v.
     Lane, 489 U.S. 288 (1989), Apprendi announced a “new rule” that does not apply in
     proceedings for collateral review of convictions that were final before Apprendi was decided.
     De La Paz recognized that watershed rules of criminal procedure may be applied retroactively.
     De La Paz, 204 Ill. 2d at 434. However, the De La Paz court concluded that Apprendi did not
     announce a watershed rule. Id. at 438-39. The rule announced in Alleyne is no more a
     watershed rule than was the rule announced in Apprendi. Furthermore, inasmuch as Alleyne
     simply extended the rule announced in Apprendi, Alleyne cannot be applied retroactively to
     convictions that were final before Apprendi was decided. There is no dispute that defendant’s
     conviction falls within that category.
¶9        Defendant notes that the United States Supreme Court has explained that state courts are
     not required to follow Teague and may employ a different retroactivity analysis. Danforth v.
     Minnesota, 552 U.S. 264, 282 (2008). However, notwithstanding Danforth, our supreme court


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       has continued to employ the Teague analysis. See People v. Sanders, 238 Ill. 2d 391, 400-01
       (2010).
¶ 10       The nonretroactivity of Apprendi and Alleyne necessarily precludes defendant from
       establishing prejudice for purposes of the cause-and-prejudice test. Because the claim would
       not have been cognizable in an earlier postconviction proceeding, defendant suffered no
       prejudice as a result of the failure to raise the claim.
¶ 11       Finally, defendant argues that his conviction and sentence must be vacated because he was
       not advised of his right to elect to be sentenced under the law in effect either at the time of his
       offense or at the time of sentencing.1 Defendant contends that the truth-in-sentencing law (see
       730 ILCS 5/3-6-3(a)(2)(i) (West 1996)) took effect after he committed his crime and was in
       effect when he was sentenced. The truth-in-sentencing law barred the Department of
       Corrections from awarding good-conduct credit toward prison sentences for first-degree
       murder. Id. In People v. Reedy, 295 Ill. App. 3d 34 (1998), aff’d, 186 Ill. 2d 1 (1999), this court
       invalidated the truth-in-sentencing law that was in effect when defendant was sentenced.
       Department of Corrections records establish that defendant is receiving good-conduct credit in
       accordance with the law in effect on the date of the offense, which, of course, is the law more
       favorable to him. In any event, because the law in effect when defendant was sentenced has
       been invalidated, he could never have validly elected it.
¶ 12       For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

¶ 13       Affirmed.




           1
            Although defendant raises this argument for the first time on appeal (and does not assert here that
       the judgment is void), we can dispose of it briefly.

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