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No. 3--01--0193
December 12, 2001

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IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

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JUSTICE SLATER delivered the opinion of the court:

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Following a bench trial, Sherman Morissette was convicted ofarmed robbery on December 27, 1983. Ill. Rev. Stat. 1983, ch.38, par. 18--2. Because of prior felony convictions, he wassentenced to life imprisonment under the Habitual Criminal Act(Act) (Ill. Rev. Stat. 1983, ch. 38, par. 33B--1 et seq.) onNovember 16, 1984. On November 25, 2000, he filed a petition forwrit of habeas corpus, arguing that the Act was unconstitutionalunder Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435,120 S. Ct. 2348 (2000). The trial court granted the State'ssection 2--615 motion to dismiss. 735 ILCS 5/2--615 (West 2000). Morissette appeals. We affirm.

BACKGROUND

On December 24, 1983, Morissette stole a cab from a taxidriver at gunpoint. Morissette was convicted of armed robbery bythe Cook County circuit court. At the sentencing hearing, theState petitioned for imposition of a natural life sentencepursuant to the Act. The State offered evidence that Morissettehad been convicted and sentenced for two counts of armed robberyin 1976 and another two counts of armed robbery in 1979. Thejudge concluded that the appropriate sentence in this case wasnatural life under the Act.

On November 25, 2000, Morissette filed a pro se petition forwrit of habeas corpus with the Will County circuit court. Heamended his petition on December 12, 2000. In his amendedpetition, Morissette named Kenneth Briley, warden of theStateville Correctional Center, as the defendant.

The State moved to dismiss Morissette's amended petitionpursuant to section 2--615 on January 17, 2001. On February 22,2001, the Will County circuit court granted the State's motionand dismissed Morissette's petition. It is from this ruling thatMorissette appeals.

ANALYSIS

The standard of review for a section 2--615 dismissal is denovo. The question presented to the trial court in a section 2--615 motion is whether the allegations of the complaint, whenviewed in the light most favorable to the plaintiff, aresufficient to state a cause of action upon which relief can begranted. Mosiman v. BMW Financial Services NA, Inc., 321 Ill.App. 3d 386, 748 N.E.2d 313 (2001).

A writ of habeas corpus is available to obtain the releaseof a prisoner where some occurrence after the prisoner'sconviction entitles him to release. Schlemm v. Cowen, 323 Ill.App. 3d 318, 752 N.E.2d 647 (2001). In this case, Morissetteargues the event that occurred after his conviction entitling himto release was the United State's Supreme Court's ruling inApprendi.

In Apprendi, the Supreme Court held that, except for a priorconviction, any fact that increases the penalty for a crimebeyond the statutory maximum must be submitted to the finder offact and proved beyond a reasonable doubt. Apprendi, 530 U.S.466, 147 L. Ed. 2d 435, 120 S. Ct. 2348. On appeal, Morissettecontends that even though the Act relies upon the fact of priorconvictions in imposing a natural life sentence, it also requiresproof of the number, the type, and the timing of these priorconvictions, which brings it under the rule of Apprendi.

The Habitual Criminal Act states that every person whopreviously has been convicted of two Class X felonies, and wholater is convicted of a third Class X felony, shall be sentencedto life imprisonment. Ill. Rev. Stat. 1983, ch. 38, pars. 33B--1(a), (e). The Act only applies if all of the followingconditions are met: (1) the second offense was committed afterconviction of the first, (2) the third offense was committedafter conviction of the second, (3) the third offense wascommitted within 20 years of judgment on the first, and (4) thethird offense was committed after the effective date of the Act. Ill. Rev. Stat. 1983, ch. 38, par. 33B--1(d). The Act firstbecame effective on February 1, 1978. Pub. Act 80--1099, eff.February 1, 1978 (adding Ill. Rev. Stat. 1983, ch. 38, par. 33B--1 et seq.). In this case, Morissette met all of the conditionsfor a mandatory natural life sentence under the Act, rather thanthe normal Class X sentencing range, which is from 6 to 30 years. Ill. Rev. Stat. 1983, ch. 38, par. 1005--8--1(a)(3).

Recently, the Illinois Appellate Court, Fifth District, heldthat the Act does not violate the rule of Apprendi in People v.Pickens, 323 Ill. App. 3d 429, 752 N.E.2d 1195 (2001). In itsApprendi analysis, the court drew analogies between therecidivism provisions in section 33B--1 and the recidivismprovisions of section 5--5--3(c)(8) (730 ILCS 5/5--5--3(c)(8)(West 2000)). Section 5--5--3(c)(8) requires a defendant to besentenced as a Class X offender if he has been convicted of twoClass 2 or greater felonies and then is convicted of a Class 1 orClass 2 felony. 730 ILCS 5/5--5--3(c)(8) (West 2000). Section5--5--3(c)(8) only applies if (1) the first felony was committedafter the effective date of the statute, (2) the second felonywas committed after conviction of the first, and (3) the thirdfelony was committed after conviction of the second. 730 ILCS5/5--5--3(c)(8) (West 2000).

Illinois Appellate Courts ruled that section 5--5--3(c)(8)does not violate Apprendi in People v. Lathon, 317 Ill. App. 3d573, 740 N.E.2d 377 (2000), and People v. Dixon, 319 Ill. App. 3d881, 747 N.E.2d 1 (2001). The Pickens court ruled that, byanalogy to the decisions in Lathon and Dixon, section 33B--1 isnot unconstitutional under Apprendi. The Illinois AppellateCourt, Second District, followed the ruling of Pickens in Peoplev. Boston, Ill. App. 3d , 755 N.E.2d 1058 (2001).

We note that section 5--5--3(c)(8) also requires proof ofthe number, the type, and the timing of prior convictions. Weconcur with the decisions in Pickens and Boston by holding thatsection 33B--1 does not violate the rule of Apprendi.

As in Pickens, the defendant in the instant case makes muchof language in the Apprendi decision that calls into questionthat Court's earlier decision in Almendarez-Torres v. UnitedStates, 523 U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998). The defendant argues that this obiter dictum in Apprendi requiresan opposite result in this case. We disagree.

The majority opinion in Apprendi made clear that it did notconsider recidivism to be a fact that falls within its holding. Apprendi, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348. Wefollow that Court's rulings as the final arbiter of the UnitedStates Constitution. See Marbury v. Madison, 5 U.S. 137, 2 L.Ed. 60 (1803).

Because section 33B--1 is not unconstitutional underApprendi, Morissette is not entitled to release from prison. Taking the facts in the light most favorable to the plaintiff,Morissette did not allege facts in his petition that would compelthe circuit court to grant him habeas corpus relief. Therefore,we hold as a matter of law that the court did not err by grantingthe State's section 2--615 motion to dismiss Morissette'spetition for writ of habeas corpus.

CONCLUSION

For the foregoing reasons, we affirm the ruling of the WillCounty circuit court.

Affirmed.

BRESLIN and HOLDRIDGE, J.J., concur.