                             No. 2--05--0736               filed: 8/1/06
_________________________________________________________________________
_____

                                           IN THE

                             APPELLATE COURT OF ILLINOIS

                           SECOND DISTRICT
_________________________________________________________________________
_____

 EDWARD R. FAIRCLOTH,              )   Appeal from the Circuit Court
                                   )   of Lee County.
       Petitioner-Appellant,       )
                                   )
 v.                                )
                                   )   No. 03--MR--17
 JERRY L. STERNES, Warden, Dixon   )
 Correctional Center,              )   Honorable
                                   )   David T. Fritts,
       Respondent-Appellee.        )   Judge, Presiding.
_________________________________________________________________________
_____

          JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

          The petitioner, Edward Faircloth (the defendant), appeals from the June 30, 2005,

order of the circuit court of Lee County denying his petition for habeas corpus relief. On

appeal, the defendant challenges the constitutionality of the drug-induced-homicide statute

(Ill. Rev. Stat. 1989, ch. 38, par. 9--3.3(a) (now 720 ILCS 5/9--3.3(a) (West 2004))). We

affirm.

                                      I. BACKGROUND

          Between September 11 and 13, 1989, the defendant gave the victim, Sandra Parise,

cocaine. Following a three-day cocaine binge with the defendant, the victim died from the

adverse effects of the cocaine. On October 4, 1989, the defendant was charged by

indictment with unlawful delivery of a controlled substance (Ill. Rev. Stat. 1989, ch. 56_, par.
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1401) (now 720 ILCS 570/401 (West 2004)), possession with intent to deliver a controlled

substance (Ill. Rev. Stat. 1989, ch. 56_, par. 1401) (now 720 ILCS 570/401 (West 2004)),

and drug-induced homicide (Ill. Rev. Stat. 1989, ch. 38, par. 9--3.3(a) (now 720 ILCS 5/9--

3.3(a) (West 2004))). Following a jury trial, the defendant was convicted of all the charges

against him. The defendant was sentenced to consecutive prison terms of 30 years for

drug-induced homicide, 15 years for delivery of a controlled substance, and 15 years for

possession with intent to deliver a controlled substance. The defendant's convictions and

sentences were affirmed on direct appeal. See People v. Faircloth, 234 Ill. App. 3d 386,

394 (1992). The defendant's subsequent petition for postconviction relief was dismissed.

       On March 6, 2003, the defendant filed a pro se petition for a writ of habeas corpus.

The defendant argued that the drug-induced-homicide statute was unconstitutional.

Because that statute was unconstitutional, the defendant argued, he could be convicted

only of unlawful possession of a controlled substance (Ill. Rev. Stat. 1989, ch. 56_, par.

1402(c) (now 720 ILCS 570/402(c) (West 2004))), which carried with it a maximum

sentence of three years' imprisonment. The defendant therefore argued that, because he

had already served more than 12 years of imprisonment, he should be released

immediately.

       The respondent, Jerry Sternes, the warden of the Dixon Correctional Center,

represented by the office of the Illinois Attorney General (the State), filed a motion to

dismiss, arguing that the defendant could not challenge the constitutionality of a statute in a

habeas corpus proceeding. (Nedra Chandler replaced Sternes as the respondent after

Chandler became the Dixon Correctional Center warden.) The trial court denied the State's

motion to dismiss.

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       On June 30, 2005, the trial court denied the defendant's petition for a writ of habeas

corpus, holding that the drug-induced-homicide statute was constitutional. The defendant

thereafter filed a timely notice of appeal.

                                       II. DISCUSSION

          A. Propriety of Challenging a Statute in a Habeas Corpus Proceeding

       On appeal, the defendant argues that the trial court erred in determining that the

drug-induced-homicide statute is constitutional. Specifically, the defendant claims that the

statute is unconstitutional because it imposes a murder-type punishment without the

requirement of a murder-type mens rea. The defendant further argues that the drug-

induced-homicide statute is unconstitutional because it violates the proportionate-penalties

clause of the Illinois Constitution (Ill. Const. 1970, art. I, '11).

       In response, the State argues that the trial court erred in denying its motion to

dismiss the defendant's petition. The State contends that a defendant can raise only

certain issues in a habeas corpus proceeding, and a challenge to the constitutionality of a

statute is not such an issue.

       The Illinois Habeas Corpus Act (735 ILCS 5/10--101 et seq. (West 2002)) provides

an extremely narrow remedy for state prisoners. The sole remedy or relief authorized by a

writ of habeas corpus is the prisoner's immediate release from custody. People ex rel.

Burbank v. Irving, 108 Ill. App. 3d 697, 700 (1982). Habeas corpus relief is available to

secure the release of a prisoner only when: (1) the court of conviction lacked subject matter

or personal jurisdiction, or (2) some event subsequent to the conviction entitles the prisoner

to immediate release from custody. People v. Gosier, 205 Ill. 2d 198, 205 (2001); Barney

v. Prisoner Review Board, 184 Ill. 2d 428, 430 (1998). Examples of subsequent events that


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might entitle a prisoner to habeas corpus relief include serving more than a maximum

imposed sentence or transfer from one prison to another without a hearing. People ex rel.

Swiderski v. Brierton, 65 Ill. App. 3d 153, 154 (1978). Habeas corpus relief is not available

to review errors that only render the judgment voidable or are of a nonjurisdictional nature,

even where a denial of constitutional rights is alleged. People ex rel. Lewis v. Frye, 42 Ill.

2d 311, 313 (1969). Consequently, where the original judgment of conviction is not void, a

prisoner's maximum term has not yet expired, and nothing has occurred to warrant a

prisoner's immediate discharge, the trial court is without jurisdiction to grant habeas corpus

relief. Owens v. Lane, 196 Ill. App. 3d 358, 360 (1990).

       Relying on three Illinois Supreme Court decisions, the most recent case being from

1916, the State argues that the constitutionality of a statute cannot be challenged in a

habeas corpus proceeding. See People ex rel. Harris v. Graves, 276 Ill. 350, 352 (1916);

People ex rel. Joyce v. Strassheim, 242 Ill. 359, 362 (1909); People ex rel. Birkholz v.

Jonas, 173 Ill. 316, 320 (1898). Our research reveals that none of these cases have been

explicitly overruled.

       However, in Hill v. Cowan, 202 Ill. 2d 151 (2002), the Illinois Supreme Court

nonetheless addressed a defendant's challenge to the constitutionality of a statute, even

though the defendant first raised that issue in a habeas corpus proceeding. In Hill, the

defendant filed a habeas corpus petition, contending that he was entitled to immediate

release because the extended-term portions of his sentences were unconstitutional in light

of the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466,

147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The trial court granted the defendant's petition,

declaring the pertinent extended-term sentencing provisions to be unconstitutional under


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Apprendi. Because the defendant had already served three years more than the maximum

nonextended-term sentences to which he could have been subjected, the trial court ordered

that he be released immediately. The State thereafter appealed. Hill, 202 Ill. 2d at 153.

       On appeal, the supreme court declined to reject the defendant's challenge to the

constitutionality of a statute in a habeas corpus petition on procedural grounds. The

supreme court explained that the constitutionality of a criminal statute may be challenged at

any time. Hill, 202 Ill. 2d at 156, citing People v. Wagener, 196 Ill. 2d 269, 279 (2001), and

People v. Wright, 194 Ill. 2d 1, 23-24 (2000). As such, the supreme court considered the

merits of the defendant's constitutional challenge to his sentence, and then rejected it. Hill,

202 Ill. 2d at 156.

       Based on the supreme court's decision in Hill, we do not believe that Graves,

Strassheim, and Jonas reflect the current law in this state as to whether a defendant can

challenge the constitutionality of a statute in a habeas corpus proceeding. We therefore

reject the State's argument that the defendant's petition should have been dismissed on

this basis.

                 B. Constitutionality of the Drug-Induced-Homicide Statute

       Having determined that the defendant may challenge the constitutionality of a statute

in a habeas corpus proceeding, we note that the defendant's task is nonetheless

formidable. This is because to challenge a statute in this setting, the defendant must

establish that the statute is unconstitutional on its face, that it is void ab initio. Hill, 202 Ill.

2d at 157. Statutes enjoy a strong presumption of constitutionality, and courts must

construe statutes in order to uphold their constitutionality whenever reasonably possible.

Wickham v. Byrne, 199 Ill. 2d 309, 316 (2002). The fact that a statute may operate invalidly


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under some circumstances is insufficient to establish facial invalidity; a statute is facially

unconstitutional only if no set of circumstances exists under which the statute would be

valid. In re C.E., 161 Ill. 2d 200, 210-11 (1994). Thus, so long as there exists a situation in

which a statute could be validly applied, a facial challenge must fail. Hill, 202 Ill. 2d at 157.

        A person commits drug-induced homicide if he "violates Section 401 of the Illinois

Controlled Substances Act [(the Act) (Ill. Rev. Stat. 1989, ch. 56_, par. 1401 (now 720 ILCS

570/401 (West 2004)))] by unlawfully delivering a controlled substance to another, and any

person dies as a result of the injection, inhalation or ingestion of any amount of that

controlled substance." Ill. Rev. Stat. 1989, ch. 38, par. 9--3.3(a) (now 720 ILCS 5/9--3.3(a)

(West 2004)). Section 401 of the Act provides that "[e]xcept as authorized by this Act, it is

unlawful for any person knowingly to: (I) manufacture or deliver, or possess with intent to

manufacture or deliver, a controlled or counterfeit substance or controlled substance

analog." Ill. Rev. Stat. 1989, ch. 56_, par. 1401 (now 720 ILCS 570/401 (West 2004)).

Cocaine is a Schedule II controlled substance under the Act (Ill. Rev. Stat. 1989, ch. 56_,

pars. 1202, 1206(b)(4) (now 720 ILCS 570/202, 206(b)(4) (West 2004))), and the defendant

does not dispute that section 401 of the Act barred him from delivering cocaine to Parise.

        Although the defendant frames his challenge to the statute in terms of due process,

we note that he is essentially arguing that the drug-induced-homicide statute is overbroad

and vague because it punishes drug users when it was designed to punish drug traffickers.

The defendant also argues that the statute is vague because it is the only murder statute in

Illinois that lacks a mental state requiring a specific intent to kill or to inflict great bodily

harm.



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       This court recently rejected almost identical challenges to the constitutionality of the

drug-induced-homicide statute, albeit in dicta, in People v. Boand, 362 Ill. App. 3d 106

(2005). In Boand, the defendant was convicted of drug-induced homicide (720 ILCS 5/9--

3.3(a) (West 2004)), involuntary manslaughter (720 ILCS 5/9--3(a) (West 2004)), and

criminal sexual assault (720 ILCS 5/12--13(a)(2) (West 2004)). On appeal, the defendant

raised numerous contentions, including that the drug-induced-homicide statute was

unconstitutional. This court reversed the defendant's convictions and remanded for further

proceedings. Boand, 362 Ill. App. 3d at 144. This court further addressed the defendant's

challenge to the constitutionality of the drug-induced-homicide statute because that issue

was likely to arise again on remand. Boand, 362 Ill. App. 3d at 138.

       In Boand, the defendant argued that the drug-induced-homicide statute was

unconstitutional because it was vague. Boand, 362 Ill. App. 3d at 138. Specifically, the

defendant argued that the statute was vague because it did not reflect the legislature's

intent to stop drug traffickers. Boand, 362 Ill. App. 3d at 140. Instead, the defendant

argued, based on the statute's vagueness, it also improperly punished casual drug users

who shared drugs with their fellow users. Boand, 362 Ill. App. 3d at 140, 142-43. We

rejected the defendant's argument, finding that the legislative intent was best reflected by

the plain language of the statute. Boand, 362 Ill. App. 3d at 141. We found that had the

legislature wanted to punish only drug traffickers pursuant to the drug-induced-homicide

statute, it easily could have included language to that effect. Boand, 362 Ill. App. 3d at 141.

       We further rejected the defendant's argument that the drug-induced-homicide statute

was unconstitutional because it did not specify what mental state subjects an accused to

criminal liability. Boand, 362 Ill. App. 3d at 141. We determined that the drug-induced-


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homicide statute incorporates the "knowing" mental state element from section 401 of the

Act. Boand, 362 Ill. App. 3d at 142. We noted that the drug-induced-homicide statute was

similar to the felony murder statute, which derives its mental state from the underlying

intended offense. Boand, 362 Ill. App. 3d at 142. Just as the felony murder statute

imposes criminal liability for a death resulting from a forcible felony, the drug-induced-

homicide statute imposes criminal liability for a death resulting from the knowing delivery of

certain controlled substances. Boand, 362 Ill. App. 3d at 142. We held that the drug-

induced-homicide statute was satisfied by a showing that the death was proximately

caused by the knowing delivery of a controlled substance. Boand, 362 Ill. App. 3d at 143.

       We agree with the analysis set forth in Boand. We believe that the Boand court

properly determined that the drug-induced-homicide statute is not so vague or overbroad

as to render that statute unconstitutional.

       In so ruling, we reject the defendant's argument that Boand was wrongly decided

because it improperly analogized the drug-induced-homicide statute to the felony murder

statute. The defendant argues that, because forcible felonies are necessarily dangerous, a

defendant could anticipate that death or serious injury might happen to some other person.

Conversely, the defendant argues that there is no proof that the delivery and ingestion of

narcotics is likely to result in death. Because death is not likely to result from the delivery of

drugs, the defendant argues, the Boand court's analysis is flawed.

       We disagree with the defendant's argument that it is not at all foreseeable that one

could die as a result of the delivery of drugs. Not only is such an argument contrary to

common experience, it is also contrary to the spirit of numerous Illinois laws that criminalize

the sale, delivery, and use of illegal drugs so as to prevent such unnecessary deaths.


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Instead, as we explained in Boand, one will be responsible for the death of another when

he engages in a criminal activity that sets in motion a chain of events that proximately

causes the death of another person. Boand, 362 Ill. App. 3d at 142. Here, the defendant

illegally delivered cocaine to Parise that proximately caused her death. We believe that this

was a foreseeable consequence of the defendant's criminal actions.

       Finally, we reject the defendant's argument that the drug-induced-homicide statute is

unconstitutional because it violates the proportionate-penalties clause of the Illinois

Constitution. The defendant argues that the statute is "so wholly disproportionate to the

offense as to shock the moral sense of the community." Specifically, the defendant argues

that the possible sentence for drug-induced homicide is disproportionate to the wrong, the

delivery of a small amount of narcotics, that the statute is seeking to prevent.

       The Illinois Constitution provides that "[a]ll penalties shall be determined both

according to the seriousness of the offense and with the objective of restoring the offender

to useful citizenship." Ill. Const. 1970, art. I, '11. In analyzing a proportionate-penalties

challenge, our ultimate inquiry is whether the legislature has set the sentence in accord with

the seriousness of the offense. People v. Guevara, 216 Ill. 2d 533, 543 (2005). A statute

may be deemed unconstitutionally disproportionate if the punishment for the offense is

cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense

of the community. People v. Miller, 202 Ill. 2d 328, 338 (2002).

       We reject the defendant's attempt to minimize the severity of his crime.            As

discussed above, because of the defendant's criminal actions, a woman died. We do not

believe that the legislature's desire to punish such conduct and to deter others from

committing similar crimes by classifying drug-induced homicide as a Class X felony is


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disproportionate to the seriousness of the offense. We also do not believe that the possible

sentencing range that the legislature has prescribed for drug-induced homicide is so

unconscionable as to shock the moral sense of the community. Accordingly, we find the

defendant's proportionate-penalties challenge to be without merit.

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

       Affirmed.

       McLAREN and HUTCHINSON, JJ., concur.




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