## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

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

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. CL AYTONROCKMAN, Def endant- Appellant.

District & N o. First District, Six th Division Docke t No. 1-10-2729

Filed Marc h 30, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Where defe ndant was convicted of first-degree murder in 1983 and sentenc ed to an enhanc ed term of 75 y ear s and then filed a m otion in 2010 seeking rese ntencing based on the cla i m that the portion of his sentenc e exceeding the statutory maxi mum of 40 y ear s was void beca use the jury was only asked to deter mine the bas i c elements of first-degree murder, the t rial court’s dismiss al of the motion on the g round that the voidness claim was not distinguishable from Apprendi was aff irmed, and Apprendi does not apply retroa ctively to case s in which the direc t appea l proce ss had conc luded at the time Apprendiwas de cided.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 82-C-488; the Hon. Vincent M. Ga

ug han, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Michae l J. Pelletier , Alan D. Goldberg
, and Be njamin A

. Wolowski
, all of State Appe llate Def

ender ’s Off

ice, of Chicag o, for a

ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, Br ian K. Hodes, and Miles J

. Kelehe r, Assistant State’s Attorney s, of counsel), for the People

.

Panel PR ESI DI NG J USTI CE R. GORDON delivere d the judgme nt o f th e c o u r t, with opinion.
J ustices L ampkin and Palmer c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 Def

endant Clay

ton Rockman was convicted in 1983 by a jury of first-degree murder. At the sentenc ing hear ing held on J uly 21, 1983, the trial judge made a fac tual finding that the murder was exceptionally brutal and heinous. At that time, thi s fa ct ual finding made defe ndant elig ible for an extended-term sentenc e, and defe ndant was sentenc ed to 75 y ear s in the I llinois Depa

rtment of Correc tions. Wit hout an extended-term sentenc e, the maxi mum sentenc e allowe d under the statute would have been 40 year s. ¶ 2 I n Apprendi v. New Jerse y , 530 U.S. 466, 490 (2000), the United States Supreme Court held t hat “[ o]t her than the fact of a prior conviction, any fac t that incre ases the penalty for

a crime beyond the presc ribed statutory maxi mum must be submitted to a jury
, and proved beyond a rea sonable doubt.” I n the case at bar, the fa ct t h at i ncre ased defe ndant’s penalty beyond the statutory m axim um was not submitt ed to a jury and was not proved beyond a
rea sonable doubt. Howeve r, the I llinois Supreme Court held in People v. De La Paz
, 204 I ll. 2d 426, 439 (2003), that “ Appr en di d oes not apply retroa ctively .” As a result, defe ndant

conce des, as he must, that Appr en d i ca n not help him. Instead, on this appea l, defe ndant argues that the e x tended- term portion of his sentenc e is void. ¶ 3 Since 1991, defe ndant has made sever al collater al attacks on his conviction and sente nce, including sever al postconviction petitions, two petitions for relief from judgme nt, a habeas
corpus petition, and a motion to vacate a void judg ment. ¶ 4 This curr ent appea l conce rns defe ndant’s “Motion to Resentenc e De fe n d an t W i t hin Prescr ibed Statutory L imits I nstanter” filed o n M ar ch 16, 2010. In this motion, defe ndant argued that, pursuant to our supreme court’s decision in People v. Swift
, 2 0 2 I l l

. 2d 378 (2002), the portion of hi s sentenc e that excee ds the 40-year statutory maxi mum is void. In Swift
, our supreme court held that, wher e a jury is asked to deter mine only the basic elements of first-degree murder, the plain languag e of the statute makes defe ndant elig ible only for the sentenc ing rang e specifie d for first-degree murder, but not for any extended term. Swift
, 202 I ll. 2d at 388, 392.

-2-¶ 5 I n the case at bar, the trial court was not pe rsuade d that defe ndant’s voidness argument

was distinguishable from Apprendi
, and thus it dismiss ed defe ndant’s motion. For the following rea sons, we af

firm.

¶ 6 BA CKGROUND ¶ 7 Since defe ndant makes a strictly leg al argument and the fac ts of his underly ing case are not at issue, we ne ed re cite only the fa cts of the motion curr ently on appea l. ¶ 8 I n his “Motion to Resentenc e Def endant Wit hin Prescr ibed Statutory L imits Instanter,” filed Marc h 16, 2010, defe ndant claimed that his extended-term sentenc e was void, based on the I llinois Supreme Court’s decision in People v. Swift
, 202 I ll. 2d 378 (2002). Although d ef en d ant’s motion was neither a postconviction petition nor a petition for relief fro m judgme nt under se ction 2-1401 of the Code of Civil P roce dure (735 I L CS 5/2-1401 (West 2008)), a void order “may be attacke d at any t i m e o r i n an y court, either direc tly or collater ally .” Peopl e v. T h o mp son , 209 I ll. 2d 19, 25 (2004). The trial court appointed a public defe nder on Marc h 2 3
, 2 0 1 0
, but defe ndant chose to waive appointed counsel and proce ed pro se

. Counsel then moved t o withdraw, and the t rial court allowed defenda nt to repr esent him self. On J uly 17, 2010, the S tate moved to d i s miss, and on August 12, 2010, a hea ring was he ld. ¶ 9 At the hear ing, defe ndant argued pro se on behalf of his motion. At the outset, defe ndant

s t ated that his curr ent motion did not conce rn Apprendi

. Def endant stated that he rec al l ed being befor e the trial judge in 2005 and that the trial judge “had unequivoca lly explained to [hi m] that Apprendiwas not re troac tive on collater al re view.” ¶ 10 Def

endant stated that his curr ent motion was “a m o t i o n fo r rese ntencing within the presc ribed statutory maxi mum” an d that “it’s dealing with a void judgme nt.” Def endant stated that, in Swift
, the I llinois Supreme Court had held that the sentenc ing rang e for firstdeg ree murder was 20 to 60 y ear s. Howeve r, defe ndant observe d that, at the time that he was sentenc ed, the statute provided that, if no jury had found defe ndant eli gi b l e for the death penalty , then the sente ncingrang e wa s 20 to 40 y ear s. ¶ 11 Def

en d an t ar gu ed t h at his sentenc ing order was “void as to the excess portion of the extended term as unauthorized by the sentenc ing statute as explained in the I llinois Supreme Court prec edent establ i s h ed i n P eople v. Swift *** which for the first time interpre ted the sentenc ing statute for first deg ree murder.” Def endant argued “that construction exposed the fac t that the extended term sentenc ing statut e h ad b ee n misapplied to citizens of I llinois convicted of

first deg ree murder f

or over 32 y ear s.” ¶ 12 Def

endant f urther a rgued that: “De fenda nt’s excess sentenc e is void. Sentence s that do not confor m to s t atut ory require ments [are] void. Where a sentenc e that is g reater than that permitted by statute is imposed, a complete sentenc e is not void but rathe r only the excess portion of the sentenc e is void. *** [A] void judgment may be attac ked at a

ny time.” ¶ 13 The trial c ourt responde d:

“No matter what y ou’re say ing, beca use y ou know if y ou g o throug h the Apprendi

-3-door, there ’s no steps there
, and y ou just fall flat. And I ’m just using an example of that. You’ve been ve ry

articulate. So what y ou’re doing is couching it under differ ent terms, but it still comes under the Apprendi fac tor no matter how many times–y ou know, if y ou look at a dog from the side, from the f ront, from the ba ck, fr om the top, from the bottom, it’s sti ll a dog .” ¶ 14 Def

endant r esponded: “[W ]hen a court interpre ts or clar ifies the meaning of a statute or explains how it is to be applied, the court does not announce a new law but mere ly furnished t h e p ro p er statemen t of the law. And this is what I ’m saying that People v. Swift did. I t was the statutory interpre tation of what the law in I llinois has alway s been from the eff ective date of 1978 all the way past the Apprendi decision *** past the Swift decision. So when the Swift decision ca

me out, it applied to me as we ll.” ¶ 15 The trial court then g rante d the State’s motion to dismiss

. A notice of appea l was timely filed, and this appe al now follows.

¶ 16 ANALYSI S ¶ 17 On this appea l, defe ndant appea ls the dismiss al of his “Motion to Resentenc e Def endant Wit hin Prescr ibed Statutory L imits Instanter” filed on Marc h 16, 20 10. In this motion, defe ndant ar g ues that the e x tended- term portion of his sentenc e is void. ¶ 18 After his jury

conviction for f

irst-deg ree murder, the trial judge made a fac tual finding that made de fenda

nt elig ible for a

n extended-term se ntence . The trial c ourt then sentenc ed defe ndant t o 7 5 y ear s in the I llinois Depa rtment of Correc tions. The maxi mum sentenc e allowed, without an extended-term sentenc e, was 40 y ear s. Def end an t ar g ues that the extended-term por

tion of his sentence , which is 35 y ear s, is void. ¶ 19 As noted above, in Apprendi
, the United States Supreme Court held that “[o] ther than the fac t of a prior conviction, an y fac t that incre ases the penalty for a crime beyond the presc ribed statutory maxi mum must be submitt ed to a jury
, and proved beyond a rea sonable doubt.” Apprendi
, 530 U.S. at 490. In the ca s e at bar, the fac t that incre ased defe ndant’s penalty beyond the statutory maxi mum was not sub m i tted to a jury and was not proved beyond a re asonable doubt. ¶ 20 Howeve r, as defe ndant conce des, Apprendi does not help defe ndant, beca use the I llinois Supreme Court held in De La Paz that “ Apprendi does not apply retroa ctively .” De La Paz
, 204 I ll. 2d at 439. ¶ 21 I nstead, on this appea l, defe ndant argues that the extended-term portion of his sentence is void. Since defe ndant makes a purely leg al argument, our revie w is de novo

. Swift
, 202 I ll. 2d at 385. ¶ 22 I n Apprendi
, the defe ndant wa s co n v i cted of possession of a firea rm for an unlawf

ul purpose, which was a second- deg ree offe nse normally punishable by a sentence of 5 to 10
y ear s of imprisonment. Swift
, 202 I ll. 2d at 381 (summarizing Apprendi ). Howeve r, a New J erse y hate- crime statute incre ased the possible sentenc e to 10 to 20 y ear s of imprisonment if the trial judge found, by a preponde ranc e of the evidenc e, t h at t h e d efendant had a

-4-particula r motive for the crime. Swift
, 202 I ll. 2d at 381 (summarizing Apprendi ). The United States Supreme Court struck down the hate- crime statute, holding that “[o] ther than the fac t of a prior conviction, any fac t that incre ases the penalty for a crime bey ond the p re s cr i b ed statutory maxi mum must be submitt ed to a jury
, and proved beyond a rea sonable d oubt.” Apprendi , 530 U.S. at 490. ¶ 23 Af

t er A p p r en d i , courts wer e left with the task of deter mining what “the pr escr ibed statutory maxi mum” was. Apprendi
, 530 U.S. at 490. In other wor ds, to apply Apprendi , a court must firs t deter

mine what was the maxi mum sentenc e the defe ndant could have

rec eived, ba sed solely

on the fa cts deter

mined by a jury

. Swift , 202 I ll. 2d at 385. ¶ 24 I n Swift
, our supreme court did what ever y court must do in a

n Apprendi case , which is to deter mine what is the statutory max i mum, based solely on a jury deter mination of the basic elements of the crime. Swift
, 202 I ll. 2d at 388. Our supreme court in Swift stressed that “this case involves application of the rule of Apprendi ” ( Swift , 202 I ll. 2d at 381) and that, to apply Apprendi
, it must interpre t the sta t u t e to deter mine what sentenc e the statute authorized, based sole ly

on the basic e lements. Swift , 202 I ll. 2d at 385, 388. ¶ 25 I n S

w i ft
, our supreme court descr ibed the basic elements of firs t -d egr ee m u rd er as follows: “A defenda

nt commits firs t d egr ee murder when he kills an indi vidual, intending

or knowing that he is likely to cause death or g rea t bodily harm, or when he commits the killing in the attempt or commission of a felony other than second degree murder.” Swift
, 202 I ll. 2d at 388. Our supreme court h el d i n Swift that, when a jury deter mines these basic elements, and only t h es e basic elements, “the plain languag e of the statute[ ]” makes him elig ible for the sentenc ing rang e specifie d for first-degree murder, but not f or an extendedterm sentenc e. Swift
, 202 I ll. 2d at 388, 392. S i n ce S w i f t was hear d on direc t appea l, retroa ctivity

was not an issue. People v . Smith , 395 I ll. App. 3d 496, 500 (2009). ¶ 26 L ess than six months afte r Swift
, our supreme court held i n De La Paz that “ Apprendi does not apply retroa ctively to cause s in which the direc t appea l proce ss had conclude d at the time that Apprendi was decide d.” De La Paz
, 204 I ll. 2d at 429. Although the De La Paz case involved an extended-term sentenc e for arme d robber y , wher eas our case involves an extended-term sentenc e for first-degree murder, our supreme court held that, with reg ard to Apprendicase s, “[r]etroactivity is an all-or- nothing pr oposition.” De La Paz , 204 I ll. 2d at 438. I f we find that t h e er ro r d i d not seriously aff ect “the fairne ss” in some case s, then it cannot b e s u ch “a bedroc k proce dural element *** requiring retroa ctive application in all

case s.” De La Paz , 204 I ll. 2d at 438. ¶ 27 I n the case at bar, defe ndant rec og nizes the problem cre ated 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 maxi mum sentenc e of only 40 y ear s, the portion of his sentenc e that exceeds 40 y ear s is void. “Where

a court i m p o s es a s entenc e in excess of what a statute permits, the leg al and authorized portion of the sentenc e is not void, but the excess portion of the sentenc e is void.” People v. Perruquet
, 181 I l l

. App. 3d 660, 663 (1989). Si nce the supreme court’s int erpr etation of a statute is r etroa ctive to tha t statute’s eff

ective date (

Perruquet
, 181 I ll. App. 3d at 662-63), defe ndant arg

ues that the statute never authorized his extended-term sentenc e and that, as a

-5-result, his ext ended- term sentenc e is–and a lway s has bee n–void.

¶ 28 “To the extent that the excess sentenc e is v o i d
, t h e judgme nt is void also, and a void judgme nt may be vaca

ted at any time.” Perruquet
, 181 I ll. App. 3d at 663. Specifica lly
, with respe ct to voidness and extended-te rm sentenc es, our supre me cour t has held:
“A void order may be attacke d at any time or in any court, either direc tly or collater ally

. An argument that an order or judgme nt is void is not subje ct t o waiver

. Def endant’ s argument that the extended-term portion of his sentenc e is void does not de pend for its viability on his postconviction petition. In fac t, courts have an independe nt duty to vacate void orders a

nd may sua sponte decla

re a n order void.” Thompson , 209 I ll. 2d at 27. ¶ 29 On appe al, the State ar g ues t hat: (1) de fenda nt’s claim is untimely

beca use it was filed 26 y ear s afte r his sentenc e wa s i m p o s ed; (2) defe ndant’s claim is barr ed by res judicata beca use he previously raised an Apprendi claim; and (3) an Apprendi claim cannot be applied retroa ctively

. First, defe ndant’s claim is not untimely beca use a void order may be attacke d
at any time. Thompson
, 209 I ll. 2d at 27. Second, the State does not argue that defen d ant previously raised a voidness claim, so his claim i s not barr ed by res judicata

. Third, defe n dant has acknow ledg ed all along
, in his pro se motion and arg ument befor e the trial court a nd in his briefs to this court, that Apprendicannot be applied re troac tively

. ¶ 30 Howeve r, we are still not pe rsuade d that Swift is somehow distinguishable f rom all the

o t her Apprendi case s to which De La Paz applies. In Swift
, our supreme court s t at ed expli citly that Swift was an Apprendi case and that the court was simply applying the rule of Apprendi to the s tatute before it. Swift
, 202 I ll. 2d at 381. I f t he extended-te rm sentenc e in Swift was void, then we fail to see why ever y extended-term sentenc e in ever y statute would not be void; and, if they

wer e all void, that would rende r m eaning less our supreme court’s hol d i n g in De La Paz that Apprendi has no retroa ctive application. I f the extended terms

wer e simply void, then our supreme court would not have had to consider whether they could be vac ated r etroa ctively

under Apprendi

. ¶ 31 I n the appea l befor e us, defen d ant argues that De La Paz applies to all statutes but the first-degree murder statut e. Ho we v er , he offe rs us no rea son why this statute should be treated differ ently
, and he points to no languag e in either Swift or De La Paz indicating that our supre me cour

t intended to car

ve out an e x ception for

the first-de g ree murder statute. ¶ 32 The Second District has also considere d the same argument raised here by defe ndant and reje cted it. Smith , 395 I ll. App. 3d at 499-500. In Smith , the Second District he ld: “I f, as defe ndant argues, Swift had authoritat i v el y const rued the statutes as consistent with Apprendi and those require ments wer e included in the statutes from their eff ective d at es , there would have been no need to decide six months later whether Apprendi applied retroa ctively

. Under defe ndant’s theory
, Swift would have meant that Apprendi and its require ments wer e incorporated into the statutes from the beg inning.” Smith
, 395 I ll. App. 3d at 500. We ag ree

.

-6-¶ 33 CONCL USI ON

¶ 34 For

the fore g oing r easons, we aff irm the trial cour

t’s dismiss al of de fenda

nt’s motion.

¶ 35 Affir

med.

-7-