## 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 . Bell , 2013 IL App (3d) 120328

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellee , v. ED BEL L , Def

endant- Appellant.

District & N o. Third District Docke t No. 3-12-0328

Rule 23 Order

filed Motion to publ ish allowed Opinion filed April 2, 2013

May 23, 2013 May 23, 2013

Held (Note : This sy ll abus
con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o 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

. ) The trial court properly dismiss ed defe ndant’s fifth s ucce ssive postconviction petition alleg ing that his sentenc e for first degree murder
was void due to the absenc e of any thing in the rec ord showing that the gra nd jury was impaneled and sworn, since the Code of Crimin al Procedur e does not require a statement that the g rand jury was impaneled and sworn, and defe ndant failed to prese nt a sufficie nt rec ord supporting his claim that the g rand jury was not impaneled and sw o rn , n am el y , a transcript of the g rand jury proce eding s, a by standers repor t or an agree d statement of f

acts.

Dec ision Under Review Appea l from the Circuit Court of Peoria County , No. 95-CF- 248; the Hon. Stephen A. Kouri, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Ed Be ll, of J oliet, appellant pro se

.

J err y Br ady , State ’s Attorney , of Peoria (Ter ry A. Mertel and Nadia L

. Chaudhry , both of State’s Attorney s Ap p ell ate Prosecutor’ s Offic e, of counsel), f

or the People.

Panel J USTI CE CARTER delivered the judgment of the c ourt, with opinion. Presiding J ustice Wright and J ustice McDa de concur red in the judgme nt and opinion.

OP INION

¶ 1 In 1995, defe ndant, Ed Be ll, was convicted of first degree murder (720 I L CS 5/ 9-1(a )(2) (West 1994)) and se ntence d to life imprisonment. Defe ndant appe als from the tria l court’s denial of his motion for leave to file his fifth succe ssive postconviction petition. Def endant argues on appea l, for the first time, that his sentenc e is void beca use the rec ord does not show that the grand jury

was impane led and swor n. We affir

m.
¶ 2 FACTS ¶ 3 On Februar

y 28, 1995, defe ndant was ori gi n al l y ch ar ged b y i n formation with two alternative counts of first degree murder. 720 I L CS 5/9-1(a) (2) (West 1994). On Marc h 28, 1995, defe ndant was indicted by a g rand jury for the same two counts. On Marc h 30, 1995, defe ndant ac kn o wl edg ed rec eipt of the indictment and pled not guilty to the char g es. Following a jury trial , defe ndant was convicted of murder and sentenc ed to life imprisonment. ¶ 4 Following defe ndant’s direc t a p p e a ls ( Pe o p le v

. B ell , No. 3-96-0016 (1997) ( unpublished order under Supreme C o u rt Ru l e 23); People v. Bell , No. 3-98-0779 (1999) (unpublished order under Supre me Court Rule 23)), he filed multiple postconviction petitions . Relevant to this appea l, on Februar y 19, 2 0 1 2 , d ef

en dant filed a motion for leave to file his fifth
succe ssive postconviction petition, alleg ing that his natural life sente nce w as void be cause the sentenc ing rang e for murder was not 20 y ear s to life

. The trial court denied defe ndant’s reque st for leave. De fenda nt appea ls.

¶ 5 ANALYSI S ¶ 6 Def

endant argues, for the first time in these proce eding s, that his sentenc e is void be cause the rec ord does not show that the g rand jury was impaneled or sworn. Specifica lly , defe ndant argues that without a cer

tificate from the cler

k showing the impaneling of the g rand jury , as

-2-require d by I llinois Supreme C o u rt Rule 608(a) (2) (ef f. Dec

. 13, 2005), we must presume that the g rand jury was not impan el ed , an d thus could not have been sworn. Def endant further argues t hat i f t he gra nd jury was not sworn, it was with o ut jurisdiction to return an indictment, there by making his conviction on the indictment void. Def endant admits that he did not raise this i s s u e i n the court below or in his succe ssive postconviction petition; howeve r, an objection relating to the jurisdiction of the g rand jury can be raised at any time. See People v . Sullivan , 21 I ll. 2d 232 (1961). ¶ 7 An indictme n t i s p re s u m ed v alid, in the absenc e of evidenc e to the contra ry , when returne d by a l ega l ly constituted jury

. People v. W hitlow , 89 I ll. 2d 322 (1982). Her e, the indictment appea

rs valid on its fac e, having been returne d in open cour t , s i g ned by the fore man of the grand jury as a true bill, and also signe d by the trial judge and two assistant State’s Attorney s. ¶ 8 We ac kn o wl ed ge t hat section 112-2 of the Code of Criminal Procedur e of 1963 (the Code) mandates that the g rand jury be impaneled and sworn by the court. 725 I L CS 5/112-2 (West 1994). The indictment, howeve r, is not require d to show compliance with this provision of the statute. See 725 I L CS 5/111-3 (West 1994) (providing t h at the form of a char g e is s u ff

i ci en t when it is in writing , states the name of the offe nse and statutory provision, and sets forth the nature and elements of the offe nse, the date and county in which it occur red, and names the acc used); People v. Cleveland, 104 I ll. App. 2d 415 (1969) (noting that fac e of indictment need not rec ite compliance with sections 112-1 to 112-4 of the Code); People v. Smith , 66 I ll. App. 2d 257 (1966) (n o t i n g that in 1964, the prior version of the Code was supplan t ed b y section 111-3, which contains no require ment that the
commence ment of an indictm en t b e i n any particula r form or contain any particula r languag e). ¶ 9 Wit h no err or showin g o n the face of the i ndictment, defe ndant has failed to provide a sufficie nt rec ord for this court to decide his argument on appea l. In particula r, defe ndant has
no t p ro v i d ed a rec ord of the g rand jury proce eding s. The rec ord shows that in 2008, defe ndant reque sted copies of the grand jury transcripts from the office of the circ uit c lerk, for use in a prior succe ssive postconviction petition. The cler k informed defe ndant it did not have the transcripts beca

use no transcripts had been prepa red. The cler

k then g ave defe ndant the addre ss of the supervisor of court repor ters to contac t. Despite defe n d ant’s having
rec e iv e d this contac t information, there is no evidenc e that defe ndant reque sted that the g rand jury proce eding s be transcribed or that such proce eding s be included in the rec ord on appea l. It is defe ndant’ s burden as the appellant to provide the revie wing court with a complete
rec ord sufficie nt to support his claims of err or, an d any doubts that arise from the incompleteness of the rec ord will be resolved ag ainst him. See People v. Lopez , 229 I ll. 2d 322 (2008). ¶ 10 Fur

thermore , if defe ndant deter mined that there wer e no g rand jury transcripts available, defe ndant should have submitt ed a by stander’ s repor t or an agree d statement of fac ts. See I ll. S. Ct. R. 323(c) , (d) (ef

f. Dec

. 13, 2005); People v. Toft , 355 I ll. App. 3d 1102 (2005) (stating that wher e an issue on appea l relates to the conduct of a hearing or proce eding , the issue will not be revie wed absent a repor t of the proce eding s or at least a by stander’ s repor t or agree d statement of fac ts if no transcript exis ts); People v. Brag g , 1 2 6 I l l

. App. 3d 826 (1984)

-3-(h o l ding that any doubt in a g rand jury proce eding relating to whether the g rand j u ry wa s

proper ly admonished is r esolved ag ainst defe ndant when he fails to file a transcript). In the absenc e of such a rec ord, we will not presume that section 112-2 of the Code was not complied with. Cf

. P eo p l e v. Gibbs , 413 I ll. 154 (1952) (noting that wher e defe ndant challeng ed the leg ality of t he gra nd jury b as ed on the absence of a gra nd jury list from the
rec ord, it was incumbent upon defe ndant to support his contention with positive proof of the
err or). Acc ording ly , we will not presume that the g rand jury was without author ity to act when it re turned de fenda

nt’s indictment; therefor e, we aff irm defe ndant’s convic tion.

¶ 11 CONCLUSI ON ¶ 12 For the fore g oing rea sons, the judgme nt of the circ uit court of Peoria County is affirme d.

¶ 13 Affir

med.

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