effect on the outcome here or otherwise affected substantial
rights. Id.

The State first argues that any Apprendi error found by this
court is harmless on the grounds that the Illinois Supreme Court’s
decision in People v. Ford would have produced the same result as
the appellate court’s reconsideration in light of Jackson. 761
N.E.2d 735, 738-39 (I11. 2001) (finding that a defendant who faced
the death penalty as possible punishment cannot claim Apprendi
error since any sentence ultimately imposed is less than or equal
to the death penalty). The defendant in Ford faced a maximum
sentence of death under 720 ILCS 5/9-1(b) (6) (West 1998), which was
triggered because the defendant committed first degree murder
during the course of another felony. Ford, 761 N.E.2d at 737.
Taking these crimes together, the trial court in Ford could have
imposed a death sentence, but declined to do so. Id. Instead, the
defendant in Ford was sentenced to an extended term sentence of 100
years for first degree murder under 730 ILCS 5/5-5-3.2(b) (2), 5-8-
2(a) (1) (West 1998) upon a finding that the crime was exceptionally
brutal or heinous and indicative of wanton cruelty. Jd. Although
this determination was made under a preponderance of the evidence
standard, id., the Illinois Supreme Court declared the extended
sentence not in conflict with Apprendi because the maximum sentence
faced by the defendant, death, was dictated by facts proven and

found by the trial court beyond a reasonable doubt. Id. at 739

- 19 -


a defendant may be sentenced is an element of the crime and thus
falls within the constitutional rights of a jury trial and proof
beyond a reasonable doubt.” Jackson, 769 N.E.2d at 27.

White points out, however, that the indictment never charged
the “exceptionally brutal or heinous” element, nor did he ever
admit or stipulate to committing an exceptionally brutal or heinous
crime indicative of wanton cruelty. White thus argues that his
guilty plea was made without the requisite knowledge of the
elements of the crime charged, and should not be considered a valid
waiver of his right to have the “exceptionally brutal or heinous”
determination proved beyond a reasonable doubt. White’s argument
appears to be that the State has the option to either charge him
with all the elements that determine his maximum punishment and
then accept a guilty plea, or to prove those elements beyond a
reasonable doubt. Anything less, argues White, would be a
violation of a defendant’s constitutional right to have a jury
determination beyond a reasonable doubt of the elements
constituting the crime charged, resulting in an invalid guilty plea
and waiver with respect to those elements.

The respondent, echoing the arguments of the Illinois Supreme
Court in Jackson, points out that Illinois Supreme Court Rule
402(a) (1) only requires that a defendant be apprised of, and
understand, the nature of the charges against him prior to

accepting a guilty plea to that charge. See Jackson, 169 N.E.2d


defendant argued that the imposition of an extended term sentence
was an Apprendi violation. The Crespo court held that the nature
of the defendant’s crime constituted “overwhelming evidence that
the crime was brutal and heinous,” and decided that there was no
plain error because defendant could not show that any error was
prejudicial. See id. at 1124-23. In other words, the Crespo court
determined that no reasonable jury would have failed to find that
the defendant’s crimes were exceptionally brutal and heinous. See
id.

In Gholiston, the appellate court concluded that under the
facts of the case, which involved a gang rape and aggravated
battery, it would be the vacatur of petitioner's sentence, if
anything, that would affect the “fairness, integrity or public
reputation of the judicial proceedings.” Gholston, 772 N.E. 2d at
888. Noting the brutality of the crime at issue in Gholston, the
court stated:

{I]t is contrary to human experience and
reason that the conduct involved in this case
should be placed into the technical reservoir
of requiring a new sentencing hearing solely
for the purpose of attaching a label of
“brutal and heinous” to the conclusion reached
earlier by the fact finder. Surely these
facts would be recognized by any rational and
reasonable person as requiring an enhanced
sentence.
Id. at 887.
Similarly, the facts of this case undeniably show an

exceptionally brutal and heinous crime. Indeed, the trial judge

~ 23 -


murder of Valerie Drain, for armed robbery and residential
burglary; these sentences were to be served concurrently to each
other, but consecutively to petitioner’s 80-year sentence for first
degree murder, for an aggregate term of 95 years. The court
determined that the remaining counts merged with the other
convictions.

This case has a somewhat complicated appellate history. An
initial appeal resulted in the Illinois Court of Appeals remanding
the case to the trial court due to improper admonishment at the
sentencing hearing. (The trial judge described the crime as one of
the most brutal and heinous he had heard, and denied petitioner's
Pro se motion to reconsider the sentences.) In a second appeal,
petitioner claimed that the trial court abused its discretion in
not reducing his sentence by failing to consider adequately
mitigating factors. The petitioner’s arguments were found
unpersuasive and the judgment of the circuit court was affirmed by
the Illinois Court of Appeals on June 23, 2000.

Just three days later, the U.S. Supreme Court decided Apprendi
v. New Jersey, 530 U.S. 466 (2000), which held that any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum, other than the fact of a prior conviction, must be
submitted to a jury and proven beyond a reasonable doubt. The
Court stated that “[w]hen a judge’s finding based on a mere

preponderance of the evidence authorizes an increase in the maximum


(“We therefore hold that, as in this case, when a defendant is
found eligible for the death penalty by proof beyond a reasonable
doubt, the imposition of an extended-term prison sentence under
sections 5-5-3.2(b) (2) and 5-8-2(a) (1) of the Code complies with
the rule announced in Apprendi.”). The State in this case
therefore urges that the rule announced in Ford renders any
Apprendi error harmless with respect to petitioner White since he
also faced the death penalty.

However, returning to Apprendi, the defendant there faced a
maximum possible sentence of 20 years in the absence of any
sentence enhancement. Such a sentence could have resulted had the
maximum sentence been imposed on the two second-degree counts and
had these sentences been ordered to run consecutively. Apprendi,
530 U.S. at 470. Instead, the defendant in Apprendi received an
extended sentence of 12 years for one of the second-degree counts
(the possession of a firearm for an unlawful purpose), and shorter
concurrent sentences on the other counts. Id. at 471. Thus, the
trial judge in Apprendi was statutorily authorized to impose a
sentence in excess of the sentence actually imposed. The U.S.
Supreme Court in Apprendi explicitly recognized this fact, id. at
474, but nonetheless found error because the sentence imposed on a
particular count exceeded the statutory maximum for that count, and
this increase was based on factual findings not made using a

“beyond a reasonable doubt” standard. Id. at 491.

=~ 20 ~


287 F.3d 667, 669 (7th Cir. 2002); United States v. Noble, 299 F.3d
907, 909 (7th Cir. 2002). Thus, we would not expect the Illinois
appellate court to resolve the consecutive sentencing issue the
same way today as it did in its opinion No. 1-99-0441 dated
March 23, 2001. For this reason, there is scant need to remand
this issue to the Illinois courts, and White’s habeas corpus
petition is therefore denied with respect to his consecutive
sentencing claims.

With regard to White’s claim regarding his extended sentence
for first degree murder, there is ample authority in Illinois to
find harmless error with regard to the judge’s determination of
“exceptionally brutal or heinous” made under a preponderance of the
evidence standard. See, e.g., People v. Crespo, 788 N.E.2d 1117,
1123-25 (Ill. 2001) supplemental opinion on denial of reh’g (2003);
People v. Gholston, 772 N.E.2d 880, 887-88 (Ill. App. Ct. 2002),
appeal denied by 803 N.E. 2d 489 (Ill. 2003); People v. Colin, 799
N.B.2d 451 (T1l. App. Ct. 2003). For example, in Crespo, the
Illinois Supreme Court considered a 75-year extended sentence of a
defendant who had been charged and convicted of first degree murder
for stabbing a victim approximately 24 times. See Crespo, 788
N.E.2d at 1123-25. In Crespo, the defendant murdered his victim by
stabbing her repeatedly with an eight-inch-long knife, using “such
force that after his assault the knife blade was bent at a 90-

degree angle.” Id. at 1124. After trial and conviction, the

- 22 -


included in the indictment nor admitted or stipulated to by the
defendant, a defendant who pleads guilty does not waive his
Apprendi rights to have those facts proven beyond a reasonable
doubt. See United States v. Bjorkman, 270 F.3d 482, 492 (7th Cir.
2001) (“By pleading guilty [the defendants] did not waive the
requirement of Apprendi that drug type and quantity be determined
by the trier of fact beyond a reasonable doubt (to the extent they
affect the statutory maximum), for sentencing came after the
plea.”). Other circuits agree with this stance. See United States
v. Rebmann, 226 F.3d 521, 524 (6th Cir. 2000) (finding that although
a defendant’s guilty plea waived her right to a jury trial, it “did
not waive the right to have a court decide any remaining elements
of the offense beyond a reasonable doubt, as opposed to making
those determinations by a mere preponderance of the evidence”);
United States v. Doe, 297 F.3d 76, 88-89, 91 (2d Cir. 2002)
(finding that a guilty plea alone cannot be construed to convey an
admission of drug quantity or a waiver of the defendant’s right to
beyond a reasonable doubt proof as to drug quantity, even where the
defendant acknowledged the possibility of an extended sentence
during the plea allocution). The Illinois appellate court's
finding that the petitioner waived his Apprendi claims is therefore
contrary to and involves an unreasonable application of federal

law.


Boerckel, 526 U.S. 838, 842, 144 L. Ed. 2d 1, 119 S. Ct. 1728
(1999).

In this case, White presented his claim to the Illinois
appellate court that the trial court violated his Fifth, Sixth, and
Fourteenth Amendment rights to notice, jury trial, and the due
process of law, as delineated in Apprendi. The appellate court
first vacated petitioner’s sentences as a violation of federal law
under Apprendi, then later vacated its judgment and reinstated the
trial court’s sentence in response to a Supervisory Order by the
Illinois Supreme Court instructing the appellate court to
reconsider its decision in light of its decision in Jackson.
Petitioner then appealed the appellate court's decision to the
Illinois Supreme Court, which refused to grant petitioner leave to
appeal. White has no other means by which to litigate this
constitutional claim. Because his claim is not of a jurisdictional
nature, state habeas corpus relief is unavailable to him. 735 Ith.
Comp. Star. 5/10-101 et seq. (West 2003). He may not file a
petition for post-conviction relief because he is prohibited by
principles of res judicata from raising constitutional issues that
were litigated and rejected on direct appeal in a post-conviction
petition. 725 Inu. Comp. Star. 5/122-1 et seq. (West 2002); see
also, People v. Haynes, 737 N.E.2d 169, 184 (111. 2000). White
has exhausted his state remedies and the Court may accordingly

address the merits of his claim.


sentenced did not require that he be given notice of the facts that
subjected him to the increased penalties he received, nor did they
require a determination that those facts existed upon proof beyond
a reasonable doubt. The petitioner did not specifically contest
the finding of brutal and heinous behavior at trial.

The Illinois First District Appellate Court subsequently
vacated the trial court’s extended 80-year term for petitioner’s
murder conviction, as well as the consecutive sentences, and
ordered the petitioner’s sentence reduced to a 60-year term, the
maximum allowable penalty for first degree murder in Illinois
absent additional findings of fact. Upon appeal, the Illinois
State Supreme Court issued a Supervisory Order directing the
appellate court to reconsider its previous opinion in light of that
Court’s decision in People v. Jackson, 769 N.B.2d 21 (111. 2002).

In Jackson, the Illinois Supreme Court confronted a case where
the defendant had been sentenced under the same statutes as
petitioner White, i.e., 730 ILCS 5/5-5-3.2(b) (2), 5-8-2(a) (West
1996). Id. at 25. After a plea of guilty was entered, the trial
court found the defendant’s crimes to be exceptionally brutal
behavior indicative of wanton cruelty, a finding on which the
burden of proof was merely a preponderance of the evidence. Id.
On appeal, the Illinois Supreme Court acknowledged that according
to Apprendi, “[e]very fact necessary to establish the range within

which a defendant may be sentenced is an element of the crime and


punishment, it is appropriately characterized as ‘a tail which wags
the dog of the substantive offense.’” Jd. at 495, quoting McMillan
v. Pennsylvania, 477 U.S. 79, 88 (1986).

At the time of petitioner’s trial, one convicted of first
degree murder in Illinois was subject to a term of imprisonment of
not less than 20 and not more than 60 years. 730 ILCS 5/5-8-
l(a) (1) (a) (West 1996). However, an extended term of not less than
60 and not more than 100 years could be imposed if the court found
by a preponderance of the evidence that the offense was accompanied
by exceptionally brutal or heinous behavior indicative of wanton
cruelty. 730 ILCS 5/5-8-2(a) (1) (West 1996); 730 ILCS 5/5-5-
3.2(b) (2) (West 1996); see People v. Swift, 781 N.E.2d 292, 296-98
(Ill. 2002).

Similarly, if the trial court found that a defendant acted
during a “single course of conduct during which there was no
substantial change in the nature of the criminal objective,” and
that the defendant inflicted “severe bodily injury” during the
commission of a Class X or Class 1 felony, the sentences must run
consecutively. 730 ILCS 5/5-8-4 (a) (West 1996).

In light of Apprendi, White filed a petition for rehearing on
July 14, 2000, arguing that the statutory provisions under which he
was sentenced to an extended term and consecutive sentences were
constitutionally invalid. White claimed that his sentence should

be struck down or reduced because the statutes under which he was


B. Plain or Harmless Error Analysis

The inquiry is not over, however. In a claim under 28 U.S.C.
§ 2254, even where the defendant shows that his custody is in error
due to a violation the Constitution, there must still be a showing
of plain error or harmless error, depending on the procedural
posture of the case. Where a defendant has raised the error at
trial (and the State in fact committed error), the proper standard
of review is for harmless error, and the State bears the burden of
showing that the error was harmless. See Aleman v. Sternes, 320
F.3d 687, 690 (7th Cir. 2003). Specifically, the State must show
beyond a reasonable doubt that the error complained of did not have
a “substantial and injurious effect or influence” on the challenged
outcome. Chapman v. California, 386 U.S. 18, 24 (1967); see also
Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986) (“An otherwise
valid conviction should not be set aside if the reviewing court may
confidently say, on the whole record, that the constitutional error
was harmless beyond a reasonable doubt.”). Where a defendant
failed to raise an argument at trial - which appears to be the case
here - the proper standard of review is for plain error, and the
defendant bears the burden of showing that such error affects
substantial rights and seriously affects the fairness, integrity or
public reputation of the judicial proceedings. See United States
v. Cotton, 535 U.S. 625 (2002). Under either standard of review,

the Court is convinced there is no error that had a substantial

- 18 -


challenges under Apprendi is contrary to federal law as established
by the U.S. Supreme Court. ,
II. DISCUSSION

Section 2254 of the Anti-Terrorism and Effective Death Penalty
Act of 1996 (the “AEDPA”) entitles a prisoner to a writ of habeas
corpus if he is being held in prison pursuant to a state court
judgment obtained in violation of rights guaranteed by the United
States Constitution. 28 U.S.C. § 2254; see Williams v. Taylor, 529
U.S. 362, 375 (2000). A federal court may not grant a writ of
habeas corpus for any claim that was adjudicated on the merits in
state court proceedings, unless the state court decision: (1) was
contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceeding. 28 U.S.C. § 2254 (da) (1)
and (2); see Ellsworth v. Levenhagen, 248 F.3d 634, 638 (7th Cir.
2001). Additionally, a federal court may not address the merits of
a claim contained in a habeas corpus petition unless the petitioner
can show that he has exhausted his state remedies and avoided
procedural default. 28 U.S.C. § 2254(b) (1) (A); see Bell v.
Pierson, 267 F.3d 544, 551 (7th Cir. 2001). A petitioner exhausts
his state remedies and avoids procedural default by presenting his

claims fully and fairly to the state courts. See O'Sullivan v.


presiding over White’s sentencing stated that the murder at issue
was one of the most brutal and heinous crimes that he had heard in
his experience on the bench. The undisputed testimony shows that
after plunging (and breaking) a knife deep into the back of Valerie
Drain, White then stabbed and slashed Cole’s throat repeatedly
with significant brutality to sever the jugular vein and carotid
artery. In light of this record, this Court is certain that had
the trial court been asked to find that White’s crime was brutal
and heinous using a reasonable doubt standard, it would not have
hesitated to find so. Accordingly, White cannot show that he was
prejudiced in any fashion by the Apprendi error, nor can there be
any showing that any error seriously affected the fairness,
integrity or public reputation of the judicial proceedings.
III. CONCLUSTO!

For the reasons stated herein, t Petitign for Writ of Habeas

Corpus is DENIED.

IT IS SO ORDERED.

Harry D, Leitvenweber, Judge
United States District Court

sate: aula Leaae


Minute Order Form (06/97)

od

United States District Court, Northern District of Illinois

Naine of Assigned Judge Harry D. Leinenweber Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 03 C 1897 DATE 12712004
CASE USA ex. rel. Lawrence White vs. Kenneth Briley, Warden
TITLE
{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
qd) B Filed motion of [ use listing in “Motion” box above.]
(2) ao Brief in support of motion due __
(3) a Answer brief to motion due, . Reply to answer brief due.
(4) a Ruling/Hearingon____ssetfor__— at _ .
(5) a Status hearing{held/continued to) [set for/re-set for] on set for at
(6) oO Pretrial conference{held/continued to] [set for/re-set for] on set for at
(7) aq Trial[set for/re-set for] on at
(8) ob {Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) =O Local Rule 41.1 OO FRCP41(a)(1) O FRCP41(a)(2).
ao [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: The Petition for Writ
of Habeas Corpus is DENIED.
a1) ff {For further detail see order attached to the original minute order.}
No notices required, advised in open court. Document
No noti ‘red Number
© notices required. number of notices tent
Notices mailed by judge’s staff,
Notified counsel by telephone, 4.3 8- DY
v Docketing to mail notices. C
| Mail AO 430 torm a decking ey tins
Copy to judge/magistrate judge. .
courttoom date mated notice
war deputy’s
initials
Date/time received in
central Clerk's Office anaing deputy initials

@)


Upon entering a plea of guilty in a state criminal trial, a
defendant waives the federal constitutional right to trial by jury,
the right to confront one’s accusers, and the privilege against
compulsory self~incrimination. See, e.g., Boykin, 395 U.S. at 243.
To be valid, the guilty plea must be affirmatively shown to be
voluntary and intelligent. Boykin, 395 U.S. at 242. The
requirement that pleas be knowing and voluntary is especially
important because a plea of guilty is not only an admission of
various acts, but is itself a conviction, leaving only the passing
of judgment and the determination of punishment. Boykin, 395 U.S.
at 242. In addressing the degree of comprehension required of the
defendant making a guilty plea, the Supreme Court has stated that
“[bJ]ecause a guilty plea is an admission of all the elements of a
formal criminal charge, it cannot be truly voluntary and knowing
unless the defendant possesses an understanding of the law in
relation to the facts.” McCarthy, 394 U.S. at 466 (interpreting
FED. R. Crim. P. 11 regarding guilty pleas in federal court). With
regard to state criminal proceedings, the Supreme Court instructs
that a guilty plea is not valid unless a defendant “enters his plea
knowing what the elements of the crime charged are.” Henderson v.
Morgan, 426 U.S. 637, 691 (1976) (White, J., concurring).

It stands to reason that waivers resulting from guilty pleas
must likewise be voluntary and knowing. And indeed, the Supreme

Court has stated that a waiver is “an intentional relinquishment or


A. Apprendi Analysis

White brings his claim under § 2254(d)(1) and contends that
the appellate court's decision, finding his constitutional Apprendi
claims precluded by his guilty plea, was contrary to, or involved
an unreasonable application of, federal law. Because the appellate
court acted in accordance with a supervisory order directing it to
reconsider its prior decision in light of the Illinois Supreme
Court’s Jackson decision, petitioner likewise claims that Jackson
is contrary to federal law.

A petitioner may only obtain habeas corpus relief under
§ 2254(d) (1) if he demonstrates that the decision handed down by
the last state court to consider the claim, in this case the
Illinois appellate court, is “contrary to, or involved an
unreasonable application of, clearly established Federal law as
determined by the Supreme Court of the United States.”
§ 2254(d) (1). The question of an effective waiver of a federal
constitutional right in a proceeding is indeed governed by federal
standards. Boykin v. Alabama, 395 U.S. 238, 243 (1969) (citing
Douglas v. Alabama, 380 U.S. 415, 422 (1965). Thus, the law
applicable in this case is the standard for determining which
constitutional rights a defendant has waived by pleading guilty to
the crimes alleged in an indictment as set out in Boykin, Johnson

v. Zerbst, 314 U.S. 458 (1938), and their progeny.


thus falls within the constitutional rights of a jury trial and
proof beyond a reasonable doubt, made applicable to the states by
the due process clause of the fourteenth amendment.” Id. at 27.
But by pleading guilty, the Jackson Court explained, a defendant is
explicitly giving up the right to a jury trial and proof beyond a
reasonable doubt. fd. (“A knowing relinguishment of the right to
a trial by jury is the sine qua non of a guilty plea.”) Thus, the
Court determined that a criminal defendant’s guilty plea waives
Apprendi-based sentencing objections on appeal. Id. at 26.

On reconsideration of petitioner White’s case in light of
Jackson, the First District Appellate Court subsequently held that
petitioner’s guilty plea waived any challenge to the
constitutionality of his extended-term and consecutive sentences.
Petitioner White filed a petition for leave to appeal to the
Supreme Court of Illinois that was denied on December 5, 2002. On
March 14, 2003, White timely filed the instant petition for writ of
habeas corpus.

In his pro se petition, White claims that his extended-term
80-year sentence, and his consecutive sentences, each violate his
right to notice, a jury trial and the due process of law because
the enhanced sentence is based on facts not alleged in the
indictment, submitted to a jury, or proven beyond a reasonable
doubt. Petitioner further claims that the Illinois Supreme Court’s

Jackson decision that a guilty plea precludes constitutional


Upon a close comparison of Ford and Apprendi, this Court can
find no difference between the two underlying factual scenarios
significant to the issue at hand. When their crimes are viewed
cumulatively, both defendants were subject to higher potential
sentences than the sentences they ultimately received. At the
discretion of the trial courts, both defendants received lesser
sentences than these aggregate maximums. But most importantly,
both defendants received a higher sentence on at least one count
than was statutorily authorized without an additional factual
finding by the trial judge. In the case of Apprendi, this finding
was that the defendant acted with racial bias. In Ford, the crime
was determined to be exceptionally brutal or heinous. In neither
case, however, were these findings made beyond a reasonable doubt,
which is precisely the error identified by the Supreme Court in
Apprendi. This court therefore declines to rely on Ford as a
reason to find the waiver error harmless.

Although neither party has made strong arguments on the
harmless error issue, the Court cannot overlook the fact that
Apprendi jurisprudence has evolved in both the federal and Illinois
courts since the Illinois Appellate court first determined White’s
original Apprendi claims. For example, it is abundantly clear that
both the Illinois and federal courts have determined that Apprendi
is not implicated in consecutive sentencing claims. State v.

Wagener, 752 N.E.2d 430, 441 (Ill. 2001); United States v. Knox,

- 21 -



petitioner’s prior convictions for possession of a stolen motor
vehicle and theft. Dr. Michael E. Stone, a licensed clinical
psychologist, testified that based on his investigations he
concluded that the petitioner was suffering from chronic post-
traumatic stress disorder, dependent disorder, lifestyle
depression, very severe cocaine dependence, alcohol dependence, and
an avoidant personality disorder. In his opinion, petitioner was
suffering from these conditions at the time of the crime, and he
would benefit from a structured environment and psychotropic
medications. Dr. Stone said he believed that petitioner would be
“productive” if confined for a very long period of time, and that
petitioner understood the seriousness of what had happened, was
remorseful, and was taking steps to improve his situation.

The court found petitioner eligible for the death penalty, but
found that the murder was committed while defendant was under the
influence of extreme mental or emotional disturbance, and that
there was sufficient mitigation to preclude the death sentence or
life in prison. In considering the sentence to be imposed, the
court regarded petitioner’s cocaine addiction a mitigating factor,
but determined that an extended term sentence was warranted because
of the heinous and brutal conduct of defendant.

The circuit court sentenced petitioner to an extended 80-year
prison term for the murder of Charles Cole. The court also

sentenced petitioner to a 15-year prison term for the attempted



at 27. Thus, under Illinois law the state is not required to
delineate specifically every element of the crime charged prior to
accepting a guilty plea, provided that the defendant is made to
understand the charges against him. Once this is done and a guilty
plea is entered, according to the Court in Jackson, the state is
thereafter “absolved of its burden of proving any elements of the

“

crime,” whether beyond a reasonable doubt or otherwise, since this
is one of the fundamental rights being waived by a defendant who
pleads guilty. Jackson, 769 N.E.2d at 29.

The legal question in this case is whether, in satisfying the
notice requirement under Illinois law to apprise the defendant of
the true nature or substance of the charges against him, the State
also satisfies the requirement of a knowing and voluntary waiver.
So long as sufficient notice is given, the respondent claims that
the State has no further obligation to inform a defendant of any
specific elements, whether those elements raise the statutory
maximum penalty or not. While the Supreme Court has stopped short
of stating that the notice requirement entails a description of
every element of the offense charged, Henderson, 426 U.S. at 647,
n.18, the Court has made clear the critical importance of those
elements that dictate the defendant’s maximum possible sentence.
Id, at 651 (White, J., concurring) (*. . . the defendant's guilt is
not deemed established by entry of a guilty plea, unless he either

admits that he committed the crime charged, or enters his plea


hate crime statute that produced the extended sentence. Apprendi,
530 U.S. at 470. This reservation, according to the Jackson court,
disclaimed any waiver made via the defendant’s guilty plea
regarding the factors that led to the extended sentence. Jackson,
769 N.E.2d at 28. The Tilinois Supreme Court believed the Apprendi
issue was moot in Jackson because the defendant there did not
reserve any such right to challenge the statute that provided for
his extended sentence, contrary to Apprendi. Id. (“The petitioner
in Apprendi preserved his argument; defendant did not.”)

The Supreme Court in Apprendi, however, only made passing
reference of the defendant’s reservation of rights, and did so only
in passing in the description of the procedural history of the
case. The Court certainly did not make any note that this fact was
important to its reasoning. See Apprendi, 530 U.S. at 470.
Moreover, this court has been unable to locate a single federal
case that relies on this explicit reservation of rights as a
significant distinction in deciding when to administer Apprendi
protections. Thus, this court is unwilling to embrace the
distinction relied upon in Jackson without further controlling
federal authority.

To the contrary, federal authority appears to oppose the
interpretation advanced by the Illinois Supreme Court. The Seventh
Circuit holds that when a fact that increases the maximum

punishment to which a defendant may be subjected is neither

- 16 -


petitioner White entered an open plea of guilty to first degree
murder, residential burglary, armed robbery, home invasion, armed
violence, aggravated battery, aggravated unlawful restraint, and
unlawful restraint. To establish a factual basis for the plea, the
parties stipulated that a witness, Valerie Drain, would testify
that on November 26, 1994, she was present in an apartment with
Charles Cole when the petitioner and two other men forcefully
entered. The three men proceeded to tie up Drain and Cole, then
ransacked the apartment taking money, jewelry, and a color
television set that was removed from the apartment. A short time
later, White returned to the apartment and plunged a knife into
Drain’s back with sufficient force to cause the knife handle to
break. White then grabbed Cole by the hair, lifted his head from
the floor and fatally slit his throat with a knife. Dr. An, a
pathologist, testified that he performed an autopsy on the
deceased, Cole, and found numerous stab wounds about the neck area.
The deceased died as a result of multiple stab wounds to the neck
that lacerated Cole’s jugular vein and carotid artery.

The trial court entered the guilty plea, then held a death
penalty hearing. During the hearing, Detective John R. Duckhorn
testified that he found the deceased face down in a large pool of
blood “hog tied” with telephone wires with his legs and arms behind
him. There were huge gash wounds and gaping holes in his neck

The court admitted victim impact statements and evidence of


FOR THE NORTHERN DISTRICT OF ILLINOI
EASTERN DIVISION

IN THE UNITED STATES DISTRICT roore H I iE D

APR 27 2004

UNITED STATES OF AMERICA, ex

rel LAWRENCE WHITE, JUDGE HARRY , LEINENWEBER

US. DISTRICT COURT JUDGE

Plaintiff,
Case NO. 03 C 1897
v.
Hon. Harry D. Leinenweber
KENNETH BRILEY, Warden,

Defendant.

28 2004

MEMORANDUM OPINION AND ORDER

Lawrence White (hereinafter, “White”) is incarcerated at
Stateville Correctional Center, serving a ninety-~five-year sentence
for first degree murder, attempted murder, armed robbery, and
residential burglary. After an unsuccessful direct appeal, White
filed this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254, asserting that the state trial court violated his Fifth,
Sixth, and Fourteenth Amendment rights to Due Process, Notice, and
Trial by Jury upon proof beyond a reasonable doubt by basing his
sentence on factual findings made by the trial court, but never
alleged in the indictment, submitted to a jury, or proven beyond a
reasonable doubt. For the following reasons, the petition is
denied.

I. BACKGROUND
White was indicted for murder in the stabbing death of Charles

Cole. In the Circuit Court of Cook County on December 4, 1996,


abandonment of a known right or privilege.” Johnson, 314 U.S. at
464 (emphasis added). A waiver is considered knowing and
intelligent, and the defendant is considered sufficiently aware, if
the defendant “fully understands the nature of the right and how it
would likely apply in general in the circumstances ~- even though
the defendant may not know the specific detailed consequences of
invoking it.” United States v. Ruiz, 536 U.S. 622, 629 (2002).
At issue in this case is the waiver of the right to have
proven beyond a reasonable doubt all the elements of the charged
crime. This right is encompassed in the right to trial by jury.
United States v. Gaudin, 515 U.S. 506, 510 (1995) (stating that the
Fifth and Sixth Amendments together “require criminal convictions
to rest upon a jury determination that the defendant is guilty of
every element of the crime with which he is charged, beyond a
reasonable doubt”). White alleges that his constitutional rights
to notice and to have the facts against him proven beyond a
reasonable doubt were violated. According to White, because the
“exceptionally brutal or heinous” finding by the trial court led to
an increased maximum sentence, it should have been treated as an
element of the offense and either charged prior to his guilty plea
or proven beyond a reasonable doubt in accordance with Apprendi.
This characterization of Apprendi does not appear to run afoul of
the Illinois Supreme Court’s decision in Jackson, as the Court

stated “[e]lvery fact necessary to establish the range within which

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knowing what the elements of the crime charged are.”). The Supreme
Court’s decision in Apprendi further highlighted the importance of
those elements specifically capable of raising a defendant’s
maximum statutory punishment.

In light of Henderson and Apprendi, to find waiver in the
absence of affirmatively showing that the defendant was aware of
those elements charged that raise the statutory maximum penalty
would seemingly eviscerate the requirement that a guilty plea be
voluntary and knowing as dictated by Boykin and Henderson.
Moreover, if the waiver is to be an intentional abandonment of a
known right as required by Johnson, the defendant must understand
the nature of the right and how it would likely apply in general.
Ruiz, 536 U.S. at 629. Apprendi identified the right to require
the State to prove beyond a reasonable doubt all facts necessary to
establish the range of penalties potentially applicable to the
defendant. Neither the respondent in this case nor Jackson
explains how the defendants in either case could possibly have
understood the nature of this right when it had not even been
identified by the Supreme Court until after the defendants’ plea
and sentencing hearings.

As pointed out by the respondent, Jackson attempted to
distinguish Apprendi by seizing on the terms of the plea agreement
in Apprendi. Jackson, 769 N.E.2d at 28. In Apprendi, the

defendant pleaded guilty, but reserved the right to challenge the

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