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Modified filed:  January 16, 2002

No. 3--00--0049

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

Modified Upon Denial of Rehearing
JUSTICE HOMER delivered the opinion of the court:

The defendant, William Cabrera, was convicted of firstdegree murder and was sentenced to natural life imprisonment. Ill. Rev. Stat. 1989, ch. 38, par. 9--1(a)(2). His sentence wasordered to be served consecutively with a previous sentence. Thedefendant's conviction and sentence were affirmed by this courton direct appeal. People v. Cabrera, No. 3--95--0148 (1998)(unpublished order under Supreme Court Rule 23). Subsequently,the defendant filed a postconviction petition, which the Statemoved to dismiss. The court granted a partial dismissal of hispetition and held an evidentiary hearing on the remainingportion. After the hearing, the court dismissed his petition. On appeal, the defendant argues that: (1) his sentence wasunconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147L. Ed. 2d 435, 120 S. Ct. 2348 (2000); (2) he was denied dueprocess when Illinois Department of Corrections (DOC) personnelcoerced an exculpatory witness not to testify; and (3) the courtshould have held an evidentiary hearing on the dismissed portionof his petition, which alleged that his trial attorneys wereineffective for failing to call two exculpatory witnesses. Weaffirm in part, reverse in part and remand for furtherproceedings.

BACKGROUND

The defendant was charged by indictment with the firstdegree murder of Lawrence Kush, a DOC correctional officer. Theindictment alleged that Salvatore Giancana, David Starks, and thedefendant caused the death of Kush at the Stateville CorrectionalCenter by beating him about the head and body with pipes.

According to testimony at trial, the defendant was a memberof the Latin Kings street gang. The defendant held the high-ranking position of "nation enforcer" within the Latin Kings"nation." He was responsible for enforcing the rules or "laws"for the entire "nation."

Officer Kush was known to be very thorough when conducting"shakedowns" of prison cells at Stateville to find contrabandsuch as drugs, makeshift weapons, and money. During one of these"shakedowns," the other correctional officer, who was conductingthe "shakedown" with Kush, overheard inmate Gino Colon say thatboth Kush and the other officer were going to get what was comingto them. Colon was one of the two highest-ranking members of theLatin Kings "nation."

Testimony at trial indicated that Colon ordered a "hit" onKush because his "shakedowns" were interfering with the LatinKings' drug business. The State presented evidence that thedefendant was in charge of enforcing the "hit" on Kush, and thathe directed Starks and Giancana to carry out the "hit."

On July 1, 1989, Starks and Giancana put on prisonjumpsuits, gloves, and stocking caps with holes cut in them suchthat the stocking caps looked like ski masks. Starks andGiancana ambushed Kush and beat him about the head and body withpipes. When other prisoners and prison officials discovered Kushand came to his assistance, he was vomiting and bleeding from thetop of his head. By the time Kush arrived at the hospital, hewas brain dead from the injuries he sustained in this beating. The pipes, jumpsuits, gloves, and ski masks used by Starks andGiancana were later recovered by investigators on the prisongrounds.

At the conclusion of the defendant's trial, the jury foundhim guilty of first degree murder. Ill. Rev. Stat. 1989, ch. 38,par. 9--1(a)(2). During the death penalty phase, the jurydirected the court not to impose the death penalty.

At the sentencing hearing, the trial judge consideredwhether the defendant was eligible for a natural life sentence. First, the judge considered the discretionary factors whereby thecourt could impose a natural life sentence for this defendant. Ill. Rev. Stat. 1989, ch. 38, par. 1005--8--1(a)(1)(b). Thejudge stated that he did not find that the murder was accompaniedby exceptionally brutal or heinous behavior. The judge did,however, consider several aggravating factors listed insubsection (b) of section 9--1 of the Criminal Code of 1961(Criminal Code). Ill. Rev. Stat. 1989, ch. 38, par. 9--1(b). The judge noted that a natural life sentence could be imposedbecause the murdered individual was an employee of the DOC. Ill.Rev. Stat. 1989, ch. 38, par. 9--1(b)(2). The judge also notedthe possible involvement of aggravating factors listed insubsections (8), (9), and (10). Ill. Rev. Stat. 1989, ch. 38,pars. 9--1(b)(8),(b)(9),(b)(10).

Next, the judge found that the defendant previously had beenconvicted of first degree murder. The judge concluded that"whether it is mandatory or whether it is discretionary, I amexercising my discretion to sentence this defendant and he ishereby sentenced to a term of natural life." See Ill. Rev.Stat. 1989, ch. 38, par. 1005--8--1(a)(1)(c).

The judge further stated that the defendant's sentence wasto be served consecutively to his prior sentence. He stated thata consecutive sentence was mandatory under section 5--8--4(f) ofthe Unified Code of Corrections (Code of Corrections), becausethe defendant was committed to the DOC at the time he committedthe instant offense. Ill. Rev. Stat. 1989, ch. 38, par. 1005--8--4(f).

Prior to this court's decision on his direct appeal, thedefendant submitted a pro se postconviction petition, which laterwas amended by court-appointed counsel. In his amended petition,the defendant alleged that (1) his trial attorneys wereineffective because, contrary to his request, his attorneysrefused to call David Starks and Wilfredo Rosario, who wereexculpatory witnesses, and (2) he was denied due process becauseDOC personnel intimidated Brian Nelson such that he refused totestify for the defense.

The State moved to dismiss his amended petition at thesecond stage of postconviction proceedings. The court dismissedthat portion of his petition concerning Starks and Rosario, butallowed the petition to proceed to an evidentiary hearing on hisallegations regarding Brian Nelson. After the evidentiaryhearing, the court dismissed his amended petition. The defendantappeals.

Additional facts will be introduced as they are relevant toindividual issues.

ANALYSIS

I. Apprendi Issues

A. The defendant's natural life sentence

When assessing the constitutionality of a statute, thestandard of review is de novo. People v. Williamson, 319 Ill.App. 3d 891, 747 N.E.2d 26 (2001).

The sentence for first degree murder ordinarily is 20 to 60years of imprisonment. Ill. Rev. Stat. 1989, ch. 38, par. 1005--8--1(a)(1)(a). However, if the court finds the presence of anyof the aggravating factors listed in section 9--1(b) of theCriminal Code, the court may sentence the defendant to naturallife imprisonment. Ill. Rev. Stat. 1989, ch. 38, par. 1005--8--1(a)(1)(b). Among the aggravating factors listed in section 9--1(b) is that the murdered individual was an employee of the DOC. Ill. Rev. Stat. 1989, ch. 38, par. 9--1(b)(2). Moreover, if thedefendant previously has been convicted of first degree murder,the court shall sentence the defendant to natural lifeimprisonment. Ill. Rev. Stat. 1989, ch. 38, par. 1005--8--1(a)(1)(c).

In Apprendi, the United States. Supreme Court held that"[o]ther than the fact of a prior conviction, any fact thatincreases the penalty for a crime beyond the prescribed statutorymaximum must be submitted to a jury, and proved beyond areasonable doubt." Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at455, 120 S. Ct. at 2362-63.

In the present case, the judge ruled that the defendantcould be sentenced to natural life in prison because the murderedindividual was a DOC employee (discretionary sentence undersection 5--8--1(a)(1)(b)), or because the defendant previouslyhad been convicted of first degree murder (mandatory sentenceunder section 5--8--1(a)(1)(c)). Because our analysis of theappropriateness of the defendant's mandatory life sentence undersection 5--8--1(a)(1)(c) is dispositive, we need not address thecourt's imposition of a natural life sentence under thediscretionary provisions of section 5--8--1(a)(1)(b).

The issue of whether a natural life sentence imposed undersection 5--8--1(a)(1)(c) of the Code of Corrections violatesApprendi appears to be one of first impression in Illinois. However, the imposition of enhanced and extended-term sentencesbased on a defendant's recidivism has been upheld under Apprendiby Illinois courts.

In People v. Lathon, 317 Ill. App. 3d 573, 740 N.E.2d 377(2000), the court held that while section 5--5--3(c)(8) (730 ILCS5/5--5--3(c)(8) (West 1998)) authorizes an increase in adefendant's sentence if the defendant is convicted of a Class 1or Class 2 felony after having twice been convicted of any Class2 or greater class felonies, recidivism should not be treated asan essential element of the offense.

In People v. Childress, 321 Ill. App. 3d 13, 746 N.E.2d 783(2001), the court considered the defendant's extended-termsentence which was imposed under section 5--8--2(a)(3) of theCode of Corrections (730 ILCS 5/5--8--2(a)(3) (West 1998)). Under this sentencing statute, a defendant can be sentenced to anextended term if the court finds the presence of aggravatingfactors listed in section 5--5--3.2(b) of the Code of Corrections(730 ILCS 5/5--5--3.2(b) (West 1998)). In Childress, theaggravating factor was the defendant's prior conviction of thesame, a similar, or a greater class felony within 10 years of theinstant conviction (730 ILCS 5/5--5--3.2(b)(1) (West 1998)). TheChildress court upheld the statute by stating that Apprendi doesnot render recidivist provisions unconstitutional.

We find the recidivist sentencing provisions of section 5--8--1(a)(1)(c) (Ill. Rev. Stat. 1989, ch. 38, par. 1005--8--1(a)(1)(c) (West) to be analogous to those considered in Lathonand Childress. In this case, the defendant's sentence wasincreased to natural life from the range of 20 to 60 yearsbecause the defendant previously had been convicted of firstdegree murder. By analogy with the holdings of Lathon andChildress, such an increase in the defendant's sentence becauseof recidivism was not unconstitutional under Apprendi. Therefore, we hold, as a matter of law, that the trial court didnot err by sentencing the defendant to natural life imprisonment. Because we base our ruling on the mandatory sentencing factorconsidered by the trial judge, we need not address thediscretionary natural life sentencing factors considered by thetrial court.

B. Constitutionality of the defendant's consecutive sentence

As noted, the court ordered the defendant's natural lifesentence imposed in this case to be served consecutively with hisprior sentence. The defendant contends that the imposition of consecutive sentencing in this case offends Apprendi. Pursuantto section 5--8--4(f) of the Code of Corrections, an offender'ssentence shall be served consecutively to the sentence he wasserving if the offense occurred while the offender was being heldby the DOC. Ill. Rev. Stat. 1989, ch. 38, par. 1005--8--4(f)(West).

Consideration of the constitutionality of section 5--8--4(f)under Apprendi also seems to be one of first impression. However, in People v. Wagener, 196 Ill. 2d 269, 752 N.E.2d 430(2001), the Illinois Supreme Court recently subjected consecutivesentences imposed through section 5--8--4(b) to an Apprendianalysis. In Wagener, the court stated that consecutivesentences are not unconstitutional under Apprendi because each ofthe individual sentences imposed is within the statutory rangeestablished by the legislature. We find the rationale of Wagenerto also apply to consecutive sentences imposed under section 5--8--4(f). Therefore, we hold as a matter of law that the trialcourt did not err by imposing consecutive sentences upon thedefendant.

II. Due Process Claim

Next, the defendant contends that he was denied due processwhen DOC personnel coerced an exculpatory witness, Brian Nelson,not to testify. Brian Nelson was an inmate at Stateville duringthe time that Kush was murdered. At trial, when Brian Nelson wascalled as a witness for the defense, he was belligerent in courtand refused to be sworn to testify. He directed an obscenity atthe court when ordered to answer questions, whereupon the judgefound him in criminal contempt. Defense counsel attempted toelicit unsworn testimony from him, but he gave nonresponsiveanswers. Eventually, defense counsel ceased asking Brian Nelsonquestions and he was remanded to the DOC.

At trial, Victor Spiezio, another inmate, had testified thatthe defendant was responsible for enforcing the "hit" on OfficerKush. At the postconviction evidentiary hearing, Brian Nelsontestified that Spiezio told him that he ordered the "hit" onKush. Brian Nelson also testified that Spiezio never mentionedto him the defendant in connection with the incident. BrianNelson further testified that correctional officers haddiscovered heroin and cannabis during a "shakedown" of his cellafter Kush's death. He testified that he was not prosecuted forpossession of either of the drugs, but that he was placed insegregation for possession of cannabis. On cross-examination, headmitted that the prison's report on this incident mentionedcannabis but not heroin.

Brian Nelson further testified that Russell Nelson, a DOCinvestigator, and other correctional officers threatened to bringfederal charges against him for possession of heroin if hetestified for the defendant at trial. He stated that thesecorrectional officers advised him that possession of the amountof heroin he had in his cell carried a natural life sentence. Brian claimed that another inmate, Toby Phillips, was presentduring Russell's threat.

Russell Nelson testified at the postconviction evidentiaryhearing that his conversation with Brian Nelson did not includeany threats.

Michelle Hansen also testified at the evidentiary hearing. She had been the second chair defense counsel at trial. Shestated that during pretrial preparation, Stan Markun worked as aninvestigator for the defense. Markun had taken a statement fromBrian Nelson that Spiezio told Brian that someone other than thedefendant committed the offense against Kush. Hansen interviewedBrian prior to trial and Brian refused to testify. Brian toldHansen that correctional officers had threatened to bring chargesagainst him for something that occurred while he was incarceratedif he testified for the defendant.

After the evidentiary hearing, the court's written orderdismissed the defendant's amended petition. The court found thatBrian Nelson's testimony was not credible and was notcorroborated by independent testimony.

On appeal, the defendant argues that he was denied dueprocess because Brian Nelson was coerced by DOC employees intorefusing to testify for the defendant. He asserts that Brian'stestimony would have been exculpatory because it directlycontradicted Spiezio's testimony at trial. The defendant claimsthat Brian's testimony was corroborated by Hansen's testimony andwas bolstered by the statement Brian gave to Markun. Further,the defendant states that it was the State's burden to rebutBrian's testimony at the evidentiary hearing. We disagree.

The Illinois Post-Conviction Hearing Act allows a personimprisoned in the penitentiary to collaterally attack hisconviction based on the substantial denial of his constitutionalrights. 725 ILCS 5/122--1 (West 1998). Following a third-stageevidentiary hearing on a postconviction petition, we subject thetrial court's factual findings to a manifest weight of theevidence standard of review. People v. Childress, 191 Ill. 2d168, 730 N.E.2d 32 (2000).

The State shall not deprive any person of liberty withoutdue process of law. U.S. Const., amend. XIV; Ill. Const. 1970,art. I,