ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

CLAYTON ROCKMAN, Defendant-Appellant.

 District & No. First District, Sixth Division

Docket No. 1-10-2729

Filed March 30, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Where defendant was convicted of first-degree murder in 1983 and

sentenced to an enhanced term of 75 years and then filed a motion in

2010 seeking resentencing based on the claim that the portion of his

sentence exceeding the statutory maximum of 40 years was void because

the jury was only asked to determine the basic elements of first-degree

murder, the trial court’s dismissal of the motion on the ground that the

voidness claim was not distinguishable from Apprendi was affirmed, and

Apprendi does not apply retroactively to cases in which the direct appeal

process had concluded at the time Apprendi was decided.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 82-C-488; the Hon.

Vincent M. Gaughan, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Michael J. Pelletier, Alan D. Goldberg, and Benjamin A. Wolowski, all

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 ofthe 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 firstdegree 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 Swiftstressed 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 degreemurder.” 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 extendedterm 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 previouslyraised 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 whetherthey 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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