{ "id": 4275675, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE BALLE, Defendant-Appellant", "name_abbreviation": "People v. Balle", "decision_date": "2008-02-08", "docket_number": "No. 1-06-0302", "first_page": "146", "last_page": "153", "citations": [ { "type": "official", "cite": "379 Ill. App. 3d 146" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "218 Ill. 2d 148", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5735959 ], "year": 2006, "pin_cites": [ { "page": "155" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/218/0148-01" ] }, { "cite": "51 Ill. 2d 68", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392579 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "71" }, { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0068-01" ] }, { "cite": "132 Ill. 2d 178", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5589174 ], "year": 1989, "pin_cites": [ { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/132/0178-01" ] }, { "cite": "256 Ill. App. 3d 651", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5382022 ], "year": 1993, "pin_cites": [ { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/256/0651-01" ] }, { "cite": "168 Ill. 2d 107", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307263 ], "year": 1995, "pin_cites": [ { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0107-01" ] }, { "cite": "352 Ill. App. 3d 450", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5455013 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "453" }, { "page": "453" }, { "page": "455", "parenthetical": "when a \"defendant is unable to establish cause for his defaults he or she] fails to satisfy the requirements of the cause and prejudice test\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/352/0450-01" ] }, { "cite": "352 Ill. App. 3d 1095", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5455339 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/ill-app-3d/352/1095-01" ] }, { "cite": "371 Ill. App. 3d 1000", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4268235 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "1006" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/371/1000-01" ] }, { "cite": "153 Ill. 2d 264", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738560 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "273-74" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0264-01" ] }, { "cite": "216 Ill. 2d 45", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3828632 ], "weight": 8, "year": 2005, "pin_cites": [ { "page": "48" }, { "page": "49" }, { "page": "57" }, { "page": "57" }, { "page": "57-58" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/216/0045-01" ] }, { "cite": "256 Ill. App. 3d 963", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5384604 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/256/0963-01" ] }, { "cite": "225 Ill. 2d 640", "category": "reporters:state", "reporter": "Ill. 2d", "year": 2007, "opinion_index": 0 }, { "cite": "166 Ill. App. 3d 289", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5069697 ], "weight": 2, "year": 1987, "pin_cites": [ { "parenthetical": "People v. Balle, 225 Ill. 2d 640 (2007)" }, { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/166/0289-01" ] }, { "cite": "209 Ill. App. 3d 217", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2541719 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/209/0217-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "weight": 9, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/373/0083-01" ] } ], "analysis": { "cardinality": 621, "char_count": 16957, "ocr_confidence": 0.76, "pagerank": { "raw": 6.540526342670931e-08, "percentile": 0.40113632107508973 }, "sha256": "e6bd70cf2567900d793cf49aa914a702349f8fbe052ddb677454afa864abf94c", "simhash": "1:c7be3db661280673", "word_count": 2716 }, "last_updated": "2023-07-14T21:50:11.340315+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE BALLE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE TULLY\ndelivered the opinion of the court:\nOn October 3, 2005, defendant filed a second postconviction petition in which he alleged (1) that his trial counsel was ineffective for failing to obtain records from the psychiatric unit of the Cook County jail, which would have supported an insanity defense and a request for a fitness hearing; (2) that, in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), the State failed to turn over defendant\u2019s mental health records from the Cook County jail; and (3) that his natural life sentence is void because he was not eligible to be sentenced pursuant to the Habitual Criminal Act (720 ILCS 5/33B \u2014 1 et seq. (West 2002)). The circuit court dismissed defendant\u2019s petition, concluding that defendant\u2019s second postconviction petition failed to satisfy the cause-and-prejudice test. See 725 ILCS 5/122 \u2014 1(f) (West 2004).\nWe originally affirmed the dismissal of defendant\u2019s postconviction petition, but vacated his sentence and remanded to the circuit court for a new sentencing hearing. Subsequently, the Illinois Supreme Court exercised its supervisory authority and directed this court to reconsider its judgment in light of People v. Cardenas, 209 Ill. App. 3d 217 (1991), and People v. Sims, 166 Ill. App. 3d 289 (1987) (People v. Balle, 225 Ill. 2d 640 (2007)).\nFACTS\nFollowing a jury trial, defendant was convicted of one count of aggravated criminal sexual assault and one count of armed robbery. Pursuant to the Habitual Criminal Act (720 ILCS 5/33B \u2014 1 et seq. (West 2002)), the circuit court determined that defendant was a habitual criminal and sentenced him to a term of natural life. Defendant filed a direct appeal with this court and we affirmed defendant\u2019s conviction and sentence on November 29, 1993. People v. Balle, 256 Ill. App. 3d 963 (1993).\nOn May 29, 2003, defendant filed a petition for habeas corpus. In his petition, defendant asserted that the circuit court lacked jurisdiction to impose a natural life sentence under the Habitual Criminal Act based on guilty pleas defendant made in 1976 and 1981 and defendant asserted that he never was advised that these pleas could lead to harsher penalties for future convictions. The circuit court determined that, rather than a petition for habeas corpus, defendant\u2019s petition should be recharacterized as a postconviction petition. After recharacterizing defendant\u2019s petition as a postconviction petition, the circuit court dismissed the petition as frivolous and patently without merit. On December 10, 2004, this court affirmed the circuit court\u2019s dismissal of defendant\u2019s postconviction petition. People v. Balle, No. 1\u201403\u20142411 (2004) (unpublished order under Supreme Court Rule 23).\nOn October 3, 2005, defendant filed a second postconviction petition, which he labeled \u201cSucces[s]or Post-Conviction Petition Seeking Relief.\u201d In this petition, defendant alleged that his trial counsel was ineffective for failing to obtain records regarding defendant\u2019s pretrial incarceration in the psychiatric unit of the Cook County jail, which would have supported an insanity defense or a request for a fitness hearing. Defendant also alleged that, by failing to turn over his mental health records from the Cook County jail, the State failed to comply with Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). After confirming that defendant\u2019s petition was a second post-conviction petition, the circuit court determined that defendant failed to meet the cause-and-prejudice test. See 725 ILCS 5/122 \u2014 1(f) (West 2004). Following the circuit court\u2019s dismissal of his second postconviction petition, defendant filed this appeal.\nDISCUSSION\nDefendant\u2019s first argument on appeal is that the circuit court erred when it determined that the petition he filed on October 3, 2005, which he labeled \u201cSucces[s]or Post-Conviction Petition Seeking Relief,\u201d was his second postconviction petition. Specifically, defendant asserts that, pursuant to our supreme court\u2019s decision in People v. Shellstrom, 216 Ill. 2d 45 (2005), the postconviction petition he filed in this case should be considered his first postconviction petition and, therefore, the circuit court erred when it applied the \u201ccause-and-prejudice\u201d test rather than the \u201cgist of a constitutional claim\u201d test. We disagree.\nThe Act contemplates the filing of only one postconviction petition. People v. Flores, 153 Ill. 2d 264 (1992). A defendant may file a second postconviction petition only if he receives leave of court. Flores, 153 Ill. 2d at 273-74. The circuit court may grant such leave only if the defendant can satisfy the cause-and-prejudice test; that is, the defendant must demonstrate cause for his failure to bring the claim in his initial postconviction proceeding and must demonstrate prejudice in that the claim not raised in his initial postconviction petition proceedings so infected the trial that the resulting conviction or sentence violated due process. 725 ILCS 5/122 \u2014 1(f) (West 2004).\nIn Shellstrom, the defendant filed a pro se document entitled, \u201c \u2018Motion to Reduce Sentence, Alternatively, Petition for Writ of Mandamus to Order Strict Compliance with Terms of Guilty Plea.\u2019 \u201d Shellstrom, 216 Ill. 2d at 48. The circuit court, sua sponte, recharacterized the pleading as a first postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 et seq. (West 2002)) and summarily dismissed it. Shellstrom, 216 Ill. 2d at 49. In vacating the circuit court\u2019s order, our supreme court first reaffirmed the well-settled principle that where a pro se pleading alleges a deprivation of constitutional rights cognizable under the Act, a circuit court may treat the pleading as a postconviction petition, even where labeled differently. Shellstrom, 216 Ill. 2d at 53 n.1. The court found, however, that before a circuit court recharacterizes a defendant\u2019s pleading as a first postconviction petition, the defendant must be given notice. Shellstrom, 216 Ill. 2d at 57. Specifically, our supreme court stated:\n\u201cPursuant to our supervisory authority, we hold that, in the future, when a circuit court is recharacterizing a first postconviction petition a pleading that a pro se litigant has labeled as a different action cognizable under Illinois law, the circuit court must (1) notify the pro se litigant that the court intends to recharacterize the pleading, (2) warn the litigant that this recharacterization means that any subsequent postconviction petition will be subject to the restrictions on successive postconviction petitions, and (3) provide the litigant an opportunity to withdraw the pleading or to amend it so that it contains all the claims appropriate to a postconviction petition that the litigant believes he or she has. If the court fails to do so, the pleading cannot be considered to have become a postconviction pleading for purposes of applying to later pleadings the Act\u2019s restrictions on successive postconviction petitions.\u201d Shellstrom, 216 Ill. 2d at 57.\nBecause the circuit court failed to give the defendant all three of these admonishments, our supreme court vacated the circuit court\u2019s judgment and remanded the cause with instructions. Shellstrom, 216 Ill. 2d at 57-58.\nHere, on May 29, 2003, defendant filed his petition for habeas corpus, which the court recharacterized as a postconviction petition. Over two years later, on July 21, 2005, our supreme court decided Shellstrom, 216 Ill. 2d 45. Defendant asserts that Shellstrom should apply retroactively to his case and, because he did not receive the admonishments required by Shellstrom, the May 29, 2003, postconviction petition should be disregarded and the postconviction petition in this case should be treated as if it was his first postconviction petition. Contrary to defendant\u2019s argument that Shellstrom should apply retroactively, this court\u2019s recent decision in People v. Spears, 371 Ill. App. 3d 1000, 1006 (2007), confirmed that our supreme court in Shellstrom \u201cintended its holding to apply prospectively.\u201d Therefore, we reject defendant\u2019s contention that Shellstrom should apply retroactively to his May 29, 2003, petition for habeas corpus, which the circuit court recharacterized as a postconviction petition.\nSince Shellstrom does not apply retroactively to defendant\u2019s case (see People v. Spears, 371 Ill. App. 3d 1000 (2007)), defendant\u2019s October 3, 2005, postconviction petition was his second postconviction petition. Therefore, in order to receive leave of court to file this petition, defendant must satisfy the cause-and-prejudice test. See 725 ILCS 5/122 \u2014 1(f) (West 2004).\nPursuant to the cause-and-prejudice test, the defendant must show \u201ccause\u201d for failing to raise the issue in a prior proceeding and \u201cprejudice\u201d resulting from the claimed error. People v. Smith, 352 Ill. App. 3d 1095 (2004). \u201c \u2018Cause\u2019 is defined as an objective factor external to the defense that impeded defense counsel\u2019s attempts to raise the claim in an earlier proceeding.\u201d People v. Leason, 352 Ill. App. 3d 450, 453 (2004). \u201c \u2018Prejudice\u2019 is defined as an error so infectious to the trial proceeding that the resulting conviction violates due process.\u201d Leason, 352 Ill. App. 3d at 453.\nIn this case, defendant has failed to show \u201ccause\u201d for failing to raise in an earlier proceeding his claims of ineffective assistance of counsel, which included claims regarding trial counsel\u2019s failure to obtain his mental health records and trial counsel\u2019s failure to argue an insanity defense or request a fitness hearing. Furthermore, defendant has failed to show \u201ccause\u201d for failing to raise in an earlier proceeding his claims that the State failed to turn over defendant\u2019s mental health records, which defendant asserts amounted to a violation of the United States Supreme Court\u2019s decision in Brady, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194. Indeed, defendant has offered no plausible explanation as to why he failed to raise these issues either on direct appeal to this court or in his May 29, 2003, petition for habeas corpus, which the circuit court recharacterized as a postconviction petition. Since defendant has failed to demonstrate \u201ccause\u201d for his default, we need not address the \u201cprejudice\u201d element of the cause-and-prejudice test. See Leason, 352 Ill. App. 3d at 455 (when a \u201cdefendant is unable to establish cause for his defaults he or she] fails to satisfy the requirements of the cause and prejudice test\u201d).\nDefendant\u2019s final argument on appeal is that his life sentence is void since he was not eligible to be sentenced pursuant to the Habitual Criminal Act. 720 ILCS 5/33B \u2014 1 et seq. (West 2002). Specifically, defendant asserts that deviate sexual assault, for which defendant was convicted in 1976 and which served as a basis for the circuit court\u2019s determination that he should be sentenced as a habitual criminal, was not a conviction that could be considered under the applicable version of the Habitual Criminal Act.\n\u201cA sentence that does not conform to a statutory requirement is void\u201d (People v. Arna, 168 Ill. 2d 107, 113 (1995)) and \u201cChallenges to void judgments may be raised at any time, irrespective of the principle of waiver\u201d (People v. Simmons, 256 Ill. App. 3d 651, 653 (1993), citing People v. Terrell, 132 Ill. 2d 178, 230 (1989)). Here, since defendant has asserted that his sentence is void in that the sentence did not comply with the statutory requirements provided by the Habitual Criminal Act (720 ILCS 5/33B \u2014 1 et seq. (West 2002)), we review defendant\u2019s sentence to assess whether his sentence is, in fact, void.\nOur supreme court has confirmed that a defendant has a right to be sentenced under either the law in effect on the date he or she committed the crime or the law in effect on the date he or she is sentenced. People v. Hollins, 51 Ill. 2d 68, 71 (1972). \u201c[I]n the absence of a showing that [the defendant] was advised of his right to elect under which statute he should be sentenced, and an express waiver of that right, [the defendant] was denied due process of law.\u201d Hollins, 51 Ill. 2d at 71. In general, the Habitual Criminal Act, which is the statute pursuant to which defendant was sentenced, mandates the imposition of a natural life sentence if a defendant is convicted of three temporally separate Class X offenses, or other eligible serious felonies, within a 20-year period. 720 ILCS 5/33B \u2014 1 et seq. (West 2002); People v. Palmer, 218 Ill. 2d 148, 155 (2006). Two different versions of the Habitual Criminal Act were in effect between the date defendant committed the crimes for which he was convicted in this case and the date defendant was sentenced. Specifically, on December 12, 1987, which was the date on which defendant committed the aggravated criminal sexual assault and the armed robbery at issue in this postconviction petition, the Habitual Criminal Act provided that a defendant should be sentenced to natural life imprisonment if he or she previously had been convicted of two offenses that \u201ccontain! ] the same elements as an offense now classified in Illinois as a Class X felony or first degree murder.\u201d Ill. Rev. Stat., 1986 Supp., ch. 38, par. 33B \u2014 1(a). On January 1, 1988, which was approximately two months after defendant committed the crimes at issue in the present case, a new version of the Habitual Criminal Act went into effect. This new version of the Habitual Criminal Act, which was the version of the Act that the circuit court applied at defendant\u2019s sentencing hearing, provided that a defendant could be sentenced to natural life imprisonment if he or she previously had been convicted of two offenses that \u201ccontain! ] the same elements as an offense now classified in Illinois as a Class X felony, criminal sexual assault or first degree murder.\u201d (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 33B \u2014 1(a). Therefore, it is clear that there were substantive differences between the Habitual Criminal Act in effect on the date defendant committed the crimes at issue in this case and the Habitual Criminal Act in effect on the date defendant was sentenced in this case. Furthermore, it is clear from this record that defendant was not advised by the circuit court of his right to elect to be sentenced under the law in effect at the time the offenses were committed rather than the law in effect at the time he was sentenced. As such, we must assess whether the circuit court\u2019s failure to advise defendant of his right to choose under which statute he wished to be sentenced denied defendant of his due process rights or simply was harmless error.\nA review of this record confirms that, in 1976, defendant was convicted of robbery and deviate sexual assault. Deviate sexual assault has the same elements as a crime subsequently named criminal sexual assault. Furthermore, in 1981, defendant was convicted of rape, deviate sexual assault, armed robbery, and aggravated battery. Finally, in 1988, defendant was convicted of aggravated criminal sexual assault and armed robbery. Defendant and the State agree that both the 1981 conviction for rape and the 1988 conviction for aggravated criminal sexual assault were Class X felonies and, therefore, both were convictions that could be considered when evaluating whether defendant was habitual criminal, regardless of which version of the Habitual Criminal Act was in effect. Defendant and the State disagree, however, as to whether the 1976 convictions, for either robbery or deviate sexual assault (i.e., criminal sexual assault), could properly serve as a basis for sentencing defendant under the Habitual Criminal Act.\nThis court has held that a conviction for deviate sexual assault, despite being reclassified as criminal sexual assault, a Class I felony, in a 1984 amendment (Ill. Rev. Stat. 1985, ch. 38, par. 12 \u2014 13(a)(1)), is sufficient to satisfy the sentencing conditions under the Habitual Criminal Act prior to its 1988 amendment. See People v. Sims, 166 Ill. App. 3d 289, 303 (1987); see also People v. Cardenas, 209 Ill. App. 3d 217, 232 (1991). Because this argument has been considered and rejected by this court in both Sims and Cardenas, we find that the circuit court\u2019s failure to advise defendant of his right to choose under which statute he wished to be sentenced was, under these circumstances, harmless error.\nCONCLUSION\nFor the foregoing reasons, we affirm the judgment of the circuit court of Cook County.\nAffirmed.\nFITZGERALD SMITH, EJ, and GALLAGHER, J., concur.", "type": "majority", "author": "JUSTICE TULLY" } ], "attorneys": [ "Michael J. Pelletier and Douglas R. Hoff, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Alan J. Spellberg, and Clare Wesolik Connolly, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE BALLE, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201406\u20140302\nOpinion filed February 8, 2008.\nMichael J. Pelletier and Douglas R. Hoff, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Alan J. Spellberg, and Clare Wesolik Connolly, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0146-01", "first_page_order": 162, "last_page_order": 169 }