Petition for Writ of Certiorari — Ronald D. Smith, Petitioner v. Illinois

Supreme Court briefMar 2, 2021

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IN THE

SUPREME COURT OF THE UNITED STATE

RONALD D. SMITH PETITIONER

r7T>., ..' n•

•-

VS.

;

APPELLATE COURTTSECOND JUDICAL DISTRICT RESPONDENT

ILLINOIS SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

RONALD SMITH,LD

HILL CORRECTIONAL CENTER

P.O. BOX 1700

GALESBURG IL, 61402

FILED

MAR 0 2 2021

QUESTION(S) PRESENTED

Whether the legislature revived the firearm enhancement in

Section 720 ILCS 5/8-4 (B-D) (West 2000) amended by Public Act

91-404 that was declared unconstitutional in its entirety to be

available to prosecutors? The issue that was presented to the

appellate court is rather Public Act 96-710 revived the firearm

enhancement.Morgan, 2003 272 Ill. Dec. 160, 203 Ill. 2d 470,

786 N.E. 2d 994. states as followed, Enhanced penalties for

attempted first degree murder with a handgun as a class x felony.,

with mandatory addition of 15, 20, or 25years to life to a

sentence-were held unconstitutionally disproportionate under

Illinois Constitution Art. 1, subsection llbbyT5epplevvi.Morgan,

2003, 272 Ill. Dec. 160, 203 Ill. 2d 470, 786 N.E. 2d 994, because

a defendant can receive a harsher sentence if the victim survives

than if the victim dies. But, see People v Sharp, 216 Ill. 2d 481

(2005). See (Exhibit 2). Petitioner argue that the legislature

has not remedied the constitutional infirmity to revive the

firearm enhancement.-Therefore, constitue a denial of said

petitioner's constitutional rights to due process of the law.

No.

IN THE

SUPREME COURT OF THE UNITED STATES

TERM, 2021

RONALD D. SMITH-PETITIONER

VS.

PEOPLE OF THE STATE OF ILLINOIS

et al, RESPONDENT

INTRODUCTION

TO THE CHIEF JUSTICE OF THE UNITED STATES

AND TO THE ASSOCIATE JUSTICES OF THE SUPREME COURT

OF THE UNITED STATES:

MAY IT PLEASE THE COURT:

RONALD D. SMITH, RESPECTFULLY PRAYS THAT A WRIT OF CERTIORARI

ISSUE TO REVIEW THE DECISION OF THE ILLINOIS APPELLATE COURT,

SECOND JUDICIAL DISTRICT.

TABLE OF CONTENTS

INTRODUTION

■1&2

QUESTION; PRESENTED FOR REVIEW

OPINION BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

TABLE OF CONTENTS

s .3

TABLE OF AUTHORITIES CITED

REASON FOR GRANTING CERTIORARI

CONCLUSION

CONCISE ARGUMENT

INDEX TO APPENDICES

APPENDIX: (a) ILLINOIS APPELLATE COURT SECOND JUDICIAL DISTRICT

(COPY) OF ORDER, (ORDER NO. 2020 IL, App, (2d) 2^19-0196, ISSUED

JULY 28, 2020, AFFIRMING PETITIONER'S CONVICTION). Id

APPENDIX: (b) ILLINOIS SUPREME COURT, (COPY) OF ORDER, [ORDER NO.

126570, ISSUED JANUARY 27, 2021, DENYING PETITIONER'S REQUEST FOR

DISCRETIONARY REVIEW, PLA] . lo

TABLE OF AUTHORITIES CITED

Section 720 ILCS 5/8-4 (B-D) (West 2000)..5, 7, 8, 11, 14, 18, 19, 20

People v. Morgan, 2003 272 II. Dec. 160, 203 II.2d 470, 786 N.E..2d

5, 12, 13, 15, 21

994

Apprendi v. New Jersey, 530, U.S. 466, 447........................................19, 20

People v. Sharpe, 216 II'. 2d 481 (2005)........................................5, 18, 19

People v. Blair, 2013 II. 114122 (2013).............................................. 10, 14

Perlstein v. Wolk, 300 II. Dec. 480, 844 N.E. 2d 929..................10, 12

People v. Gersch, 135 II. 2d at 398-99....4..................................... 10, 22

People v. Lopez, 166 II. 2d 441 (1995).............................

People v. Petersen, 198 II. 2d at 447...............................

County of Knox ex rel. Masterson v. Highlands L.L.C., 188 II. 2d

546, 557 (1999)......................................................................................................... 12

Whitfield, 217, II. 2d 177, 183 (2005)....................................................... 18

People ex rel Pauling v. Misevic, 32 II. 2d 11, 15 (1964).............

Carroccia, 352 II. App. 3d 1114, 1123 (2004).......................................... 18

People v. Tellez-Valencia, 723 N.E. 2d 225............... ..............................

People v. Cervantes, 189 II. 2d 80 (1999)................................................

Blagojevich v. Jorgensen, 211 II. 2d at 309............................................ 14

People v. Bradley, (1980), 79 II. 2d 410,......... ....................................... 14

People v. Manuel, 46 N.E. 2d 241............................................

14, 21

People v. Woodrum, 223 II. 2d 286 (2006)..........................

People v. Warren, 173 II. 2d 348 (1996).............................

Sample v. Diecks, 885 f. 2d 1099, 1114 (3rd Cir 1989)

Pennsylvania v. Finley, 481 U.S. 551 (1987)....................

Norton v. Shelby County, 118, U.S. 425 (1986)................

17, 21

People: v. -Hniischild, 226 II. 2d 63, 76 (2007)...............

People v. Johnson, 2015 II. App. 2d 140388......................

People v. Schraeberg, 347 II. 392, 394, (1932).............

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to

review the judgment below.

OPINIONS BELOW

The July 28, 2020 order of the Appellate Court of Illinois Second

Judicial District, Appeal No. 2-19-0196, which the Appellate counsel

entered a finley. Raising issues that was not of the appeal from

the trial court, in which dismiss said petitioner petition

2-1401, where the dicision of the trial court that P.A. 96-710.

In doing so, the Appellate Court of the Second Judicial DistrictJ

affirmed the trial court judgment. Order of summary is attached

hereto in Appendix-A:

The January 27, 2021, order of the Illinois Supreme Court denying

petitioner's Petition For Leave To Appeal, No. 126570, also

included herein in Appendix-B.

JURISDICTION

The final order of the Appellate Court of Illinois Second Judical

District, was entered on July 28, 2020. The writ of certiorari is

timely filed within ninety (90) days of the denial of petitioner's

request for review by the Illinois Supreme Court on January 27, 2021.

This court's jurisdiction is invoked under under 28 U.S.C. Section

1257 (3).

CONSTITUTIONAL AND STATUTORY PROVISION PROVIDED

The Eighth Amendment to the United States Constitution provides

in relevant part: in all criminal prosecutions, that excessive

bail shall not be required, nor cruel and unusual punishments

inflicted.

The Ninth Amendment to the United States Constitution provides

in relevant part: shall not be construed to deny or disparage

others retained by the people.

The Fourteenth Amendment to the United States Constitution

provides in relevant part:: That no state shall deprive any

person of life, liberty or property, without due process~6f law,

nor deny to any person within its jurisdiction the equal

protection of the law.

Article 1 Section 2; Due Process and equal protection of the

Constitution of the State of Illinois.

720 ILCS 5/8-4 ( B - D ) (West 2000), amended by Public Act 91-404.

STATEMENT OF THE CASE

Procedural History

In support thereof petitioner states the following facts: In

2014, petitioner Ronald D. Smith, entered a negotiated guilty 7'....

plea-, to attempted first degree murder (720 ILCS 5/8-4(a), (c)

(1)(B)(West; 2010) and aggravated discharge of a firearm

(-id. ssubsection;~24-:112 , (a)(2) ) • Petitioner was sebsequently

sentenced to a term of 31yrs. in the Illinois Department of

Corrections. 6yrs. for aggravated discharge of a firearm-Dir of

anther person or occupied vehicle, which included a mandatory

20yrs. firearm enhancement, on the attempt first degree murder

conviction. In December 2016, petitioner filed a prose petition

for relief from judgment under section 2-1401 petition of the

code of civil procedure 735 ILCS 5/2-1401 (West 2016). Petitioner

relied on Morgan, that his sentence is void because the statute

did not provide the opportunity to have mitigating evidence. The

state moved to dismiss, arguing the judgment was valid underamended version of the effective statute at the time of the crime.

The trial court granted the motion. In November 2018, petitioner

filed another 2-1401 petition, relying on his 20yr firearm

enhancement is void, because the legislature has not remedied

the constitutional infirmity in section 720 ILCS 5/8-4 (B-D)

(west 200), amended by Public Act 91-404 declared void in its

entirety to revive the firearm enhancement. And petitioner can

not be prosecuted under an unconstitutional act. The state moved

to dismiss, relying on Public Act 96-710 which added section (E)

to the attempt statute, noted as followed, that it addressed v

concerns raised in Morgan, by essentially acknowledging a

"second degree" attempt. The circuit court granted the motion.

In which petitioner timely appealed, and was appointed a State

Appellate Defender by the trial court. In so doing, the .appellate

defender movedto withdraw, and entered a finley. Raising issues

that petitioner did not have arguable merits. As well as that

Sharp cured the constitutional infirmity and revived the firearm

enhancement by overruling Morgan, and that petitioner is barred

by res judicata. On July 28, 2020 the appellate court granted

the motion and affirmed the trial court judgment. Petitioner

moved to appeal to the Illinois Supreme Court to resolve this

question of law to be addressed by the court of law.

REASON FOR GRANTING THE WRIT

It violates the Eighth, Ninth.and/or the Fourteenth Amendments

of the United States Constitution for an Appellate Court tO' adopt

the Appellate.1's versions of the facts in determining what's

constitutional, unconstitutional or revived, when that version

is contested by both the Defendant, State and Trial Court.

As noted above, there's a shape dispute about the facts involved

in this case, with the state claiming that the issue was addressed

in Morgan with Public Act 96-710, Defendant claiming that the

issue has not been revived through legislature, for reasons that

attempted second degree murder remains a non recognized offense

in the state of Illinois. And that the Appellate Defender claiming

that Sharpe remedied the constutional infirmity and resjjudicata.

In which is an impossibility in the void ab initio doctrine, that

the legislature has to remedy the constitutional infirmity through

the comparison or challenging statute, and not through another

statute. People v. Blair, 2013 IL. 114122 at 25 (See Exhibit 22).

As well as, individuals are not required or empowered to determine

whether the law is constitutional. That duty belongs to the

judiciary, Perlstein v. Wolk, 300 Ill. Dec. 480,'5844 N.E. 2d 929

(Quoting Gersch, 135 Ill. 2d at 398-99, 142 Ill. Dec. 767, 553 N.E.

2d 281) (See Exhibit 30).

Petitioner asserted that the firearm enhancement remain void

in its entirety, and that the state's version of the statute

does not revive the enhancement, as well as the appellate c

defender's version for having the appellate court not to review

my appeal with the justice committee as de novo by not addressing

the issue of the appeal.

Here, the appellate court endorsed the appellate defender's

version of the facts and not state nor the petitioner's version,

and in so:.doing, the appellate court violated

petitioner's

rights under the, Eighth, Ninth and Fourteenth amendments.

If it please this court: It should grant this Certiorari; to

consider and address the current conflict amongst Illinois

Appellate Second District Court decision's that are (1); applicable

to void judgment of the firearm enhancement in section 720 ILCS

5/8-4 (B-D) (West 2000), amended by Public Act 91-404 void in

its entirety. (2) The appellate defender, is in:direct conflict

with the state and trial court, petitioner, and applicable

decision's and established federal law of this court.

This case is important for review because it shows with ease,

the lacking in balance and proportionality with which an Appellate

Court can improperly invoke what constitutes inadequate performace

performance and sufficient perjudice that are required to make

the requisite showing of effective or ineffective decision through

their Appellate Districts.

The fact that a void ab initio doctrine can only be cured

or remedied by the legislature, by a change of the law, and not

by judicial construction. Perlstein v. Wolk, 218 Ill. 2d 448,300

Ill. Dec. 480, 844 N.E. 2d 928, (quoting Petersen, 198 Ill. 2d

at 447, 261 Ill. Dec. 728, 764 N.E. 2d 19, quoting county of Knox

ex rel. Masterson v. The Highland L.L.C.,::188 Ill. 2d 546, 557,

243 Ill. Dec. 224, 723 N.E. 2d 256 (1999), quoting People ex rel.

Pauling v. Misevic, 32 Ill. 2d 11, 15, 203 N.E. 2d 393 (1964).

(See Exhibit 8,9 & 10).

Petitioner points out the difficulty with the states position

concerning the non applicability of Morgan to his prosecution.

Is that section 720 ILCS 5/8-4 (B-D) (West 2000), amendede by

Public Act 91-404 declared void in its entirety, was and is not

amended or repealed by the legislature to revive the firearm

enhancement. Public Act 96-710 upon which the state relies,

specifically the adding of subsection (E).to the Attempt statute

as to essentially

acknowledgihgga-r"3(§eGtrd:.degree" attempt, that

remains a non existing and/or recognized offense. (Please see

Exhibit 1 -& 4). Thereby, has not remedied the unconstitutional

penalty disparity that exist between (i.e., First and Second

Degree Murder). (Please see Exhibit 3 & 35). Petitioner

respectfully acknowledges that the state reliance on the

fortuitous effect of P.A. 96-710 amendment of section (E) to the

attempt statute, was to change the firearm enhancement, sentencing

scheme, so as addressing concerns raised in Morgan. Thus, not

remedying the unconstitutional disparity, (i.e, void in its

entirety). Although, petitioner

does not agree or acknowledges

by adding subsection (E) to the attempt statute can operate to

and/or in essence remedy the constitutional infirmity to revive

the firearm enhancement that the Illinois Supreme Court declared

unconstitutional in its entirety, because a defendant charged

with attempted fist degree murder, will never have the

opportunity to present mitigating evidence which would be a

defence to a charge of second degree murder, 203 Ill. 2d at 491,

272 Ill. Dec. at 172, 786 N.E. 2d at 1006. (Please see Exhibit 11).

Therefore, the firearm enhancement for attempted first degree

murder in section 720 ILCS 5/8-4 (B-D) (West 2000), amended.by

P.A. 91-404 remains void in its entirety and unavailable to the

citizens and prosecutors of Illinois.

Therefore, violates all due process of the law to give the

firearm enhancement for attempted first degree murder, until the

legislature remedy the constitutional infirmity to revive (B-D)

of the attempt section.

Petitioner notes cases that has been declared unconstitutional

and remedied by the legislature to amended::and/or repeal their

constitutional infirmities. There's no case law presented to show

that the legislature remedied the\:firearm enhancement for attempto;

first degree murder in section 720 ILCS 5/8-4 (B-D) (West 2000),

amended by Public Act .91-404 tbafeks.tvdid'lfen-ci t stiffsti-fcetjctt:.r

As followed; (1) Public Act 89-462 reenacted the offense of

predatory criminal sexual assualt of a child. (See Exhibit 34 in

People v. Tellez-Valencia, 723 N.E. 2d 225. (2) Public Act 91-696

reenacted the attempt statute. (See Exhibit 1 in People v.

Cervantes, 189 Ill.2d 80 (1999),)(3) P.A. 92-607 which suspended

the 2003 Cola constitutionally infirm and void ab initio, (in

Jorgensen, 211 I11.^2d at 309

285 Ill. Dec 165, 811 N.E. 2d 652,

see Exhibit 12), (4) P.A. 95-688 the "legislature" revivedd

unconstitutional statute by curring the proportionality violation

through amendment of the comparison statute, (in People v. Blair,

2013 Ill. 114122 See Exhibit 13) (5) P.A. 81-583 thereby, remedied

the unconstitutional penalty disparity that had previously existed

between delivery and possession of the same type of controlled

substance, (in People v. Bradley (1980), 79 Ill. 2d 410, 418, 38

Ill. Dec. 575, 403 N.E. 2d 1029 See Exhibit 14), (6) P.A. 82-968

eff. Sept. 7

1982 had the "legislature" amended section 404, as

it now has, (in People v. Manuel, 46 N.E. 2d 241

See Exhibit 15),

(7) P.A. 97-160 amended the provision in section 720 ILCS 5/10-5

(West 1995) (in People v. Woodrum, 223 Ill. 2d 286 (2006),

See Exhibit 16), (8) P.A. 96-710 removed the offending provision

in section 720 ILCS 5/10.5-5 ( in People v. Warren, 173 Ill. 2d

348 (1996), See Exhibit 17). Let the record reflect that P.A. 96710 is the same Public Act the state relied on to have revived

and/or addressed concerns raised in Morgan by essentially

acknowledging a " second degree " attempt the dismiss my 2-1401,

and revive the firearm enhancement in section 720 ILCS 5/8-4 (B-D)

(West 2000), amended by P.A. 91-404 that's void in its entirety.

Yet, as stated above, there's no case law showing the legislature

has remedied the void ab initio and constitutionally infirm in

People v. Morgan, 203 Ill. 2d 470 (2003) to have revived'..the

firearm enhancement. To amend P.A. 91-404 Of it;'s voidness.

Petitioner request that this honorable court clariry the standards

of an appeal that's to be reviewed de novo by the Appellate Court

in assessing the trial courts decision and achieving uniformity

of what constitutes arguable merits of the appellate defenders

and actual facts and judgment handed down by the trial courts.

Thus, points involved in the case at bar and a host of other;cases

fiercely contesting the very issues within Illinois Appellate

Courts presently.

Thus, here again.; the appellate court's ruling of reasonable

and sound strategy relied upon the credibility and determinations

in favor of the state and appellate defender, weighed evidence of

the appellate defender's position'forhthetdefendant drew inferences

adverse, to petitioner., ignored evidence or facts contrary to its

position and without a coherent explanation';of*how Appellate

Counsel's failure to present the facts or pay attention to the

fact.that petitioner's argument that a claim of voidness due to

an unconstitutional statute that has not been remedied the

legislature. And the duty of the judiciary and not of the appellate

counsel.

If the appellate court's method of determining that the

appellate counsel ignored the facts or decision presented by.the

lower^courts, and reasoning for appealing that courts judgment.

And the appellate counsel act as the.prosecuting team and a road

block to the justice, by entering a finley contrary to the trial

court''s judgment. This deprives a defender of his/her Due-process

of the law. Which is its doctrine to ratify a lower court.'s

judgment that arrived in violation of well-established constitu^..

tional principles, constitutional rights become empty of content,

mere words, honored in the breach rather than the observance.

At stake in this case are constitutional protections of

surpassing importance: the proscription of any deprivation of

liberty without due process,

Taken together, these rights indisputably entitle a criminal

defendant to Due Process of the Law, (See Sample v. Diecks, 885

f. 2d 1099, 1114 (3rd Cir. 1989)), (if officials authorized

a system to deprive person of life, liberty, or property

it is

irrelevant whether they intended thatrit violated due process).

(See Exhibit 24).

In doing so, once the appellate counsel acted as a prosecutor

and overruled the decision of the trial court's judgment to

dismiss said petitioner's 2-1401, and entered a Finley, and

raised a total different issue that was the order of the lower

courts, made the determination to act as the judiciary in

determine that Sharpe revived the firearm enhancement for attempt

first degree murder violated my Due Process of the Law. And has

used Pennsylvania v. Finley, 481 U.S. 551 (1987) as an authorized

system to deprive petitioner life, liberty, or property. Acting

as a road block to the justice to determine if the legislature

actually or have not remedied the constitutional infirmity to

revive the firearm enhancement. Thus, in references state

application of Pennsylvania v. Finley, 481 U.S. 551 (1987), also

denies defendant(s) procedural as well as substantive "DUE PROCESS"

of the law including access to the courts. Petitioner respectfully

request that this honorable court grant certiorari to make the

factual findings necessary to sanction Appellate Court's to follow

the well established precedent relied upon this Honorable Court

in deciding; Norton v. Shelby County, 118 U.S. 425, 6 s. ct. 1121,

30 L.Ed. 178 (1986).

Concise Argument

The Appellate Court Second Judical District, in their order

affirming petitioner's conviction and denying the void judgment

of the 20year firearm enhancement claim, cites five relevant

cases as precedent in supporting the rational of their opinion.

Sharpe, 215 Ill. 2d 481 (2005), Houschild, 226 Ill. 2d 63, 76

(2007) Johnson, 2015 Ill. App (2d) 140388, quoting Carroccia,

352 Ill. App. 3d 1114, 1123 (2004), quoting Whitfield, 217 Ill.

2d 177, 183 (2005). Neither of which considered the exact points

involved in this case.

While the cases used Sharpe, Houschild, Johnson, Carroccia

and whitfield, may or may not be arguably distinguishable from

the facts presented by the appellate counsel; The decisions has

been used or may not have been used in others by the second

district, and several other Appellate District Courts in Illinois

to hold that the constitutional infirmities in the attempt first

degree murder in section 720 ILCS 5/8-4 (B-D) (West 2000),

amended by P.A. 91-404 void in its entirety, However, res judicata

and/or Shape was not the trial court's decision to dismiss my

2-1401, none of the reasonings in those opinionsssupport such a

reading that the firearm enhancement has been revived by the

legislature to make it available to the prosecutors of the state

of Illinois.

Clearly, there's conflict among the Illinois Appellate District

Courts, appellate counsel and the trial court on the exact points

involved in determining the proper standard defining if the

legislature revive the firearm enhancement in section 720 ILCS

5/8-4 (B-D) (West 2000), amended by P.A. 91-404, that's void in

its entirety. As well as acknowledgment when there are clear

constitutional violations of the statute's constitutional i:.

inf irmit:y?.s.

In the case of Sharpe, 215 Ill. 2d 481 (2005); the Illinois

Supreme Court, held that a defendant cannot challenge the

proportionate penalties through different elements, that doesn't

cure the.constitutional infirmities, thus, First and Second degree

murder has the same elements People v. Lopez, 166 Ill. 2d 441,

655 N.E. 2d 864 (1995) HN7, that second degree murder is simply

a lesser mitigated offense, a concept new to Illinois. (Se.^

Just as in Apprendi v. New Jersey, 530 U.S. 466, 147 L, ed.

2d 435, 120 S. CT. 2348, argued that due process required that

the element of "racial motive" by formally charged and resolved

at trial by a jury based on proof beyond a reasonable doubt. In

this case, due process- require that the justice of the Appellate

Court determine if the firearm enhancement has been remedied

through the legislature to be revived by Public Act 96-710 and

not the opinion of the appellate counsel, by bringing in a whole

new issue contrary to the trial court.'s judgment.

2-U

However

although the Illinois Appellate Court Second District,

in the case at bar, acknowledges the potential constitutional

claim made by petitioner's contentions of the constitutional

infirmities in prior cases, specifically Cervantes, and Morgan,

yet, The Second District Court ruled in consistent with the

controlling precedent set forth in this case addressing void ab

initio (i.e., void in its entirety)of Morgan's decision and

Sharpe's decision, as well as not addressing whether Public Act

96-710 revived the firearm enhancement and if the legislature cured

the constitutional infirmity in section 720 ILCS 5/8-4 (B-D)

(West 2000), amended by Public Act 91-404, that was declared void

in its entirety.

In essence, the Second District Court and appellate counsel

is proclaiming its own view of what constitutes the judgment of

the lower courts.

There is no doubt that the reasoning of Apprendi v. New Jersey,

530 U.S. 466, 147 L. ed. 2d 435, 120 S. CT. 2348, all of which

was decided by this court, would be difficult, if not impossible,

to reconcile with the decision of the Illinois Appellate Court's

precedent.

Yet, in adding error upon error by allowing the constitutional

violation being committed by the courts of Illinois, who made the

original unsound and erroneous determination of the firearm

enhancement in section 720 ILCS 5/8-4 (B-D) (2000), amended by

Public Act 91-404 declared void in its entirety, which would have

clearly supported petitioner's void sentence of 20 years

enhancement. To allow such error to stand, leaves petitioner

with no remedy for addressing the constitutional violation now

being committed by appellate counsel's determination that the

legislature cured the constitutional infirmity in section 720

ILCS 5/8-4 (B-D) (West 2000), amended by Public Act 91-404 void

in its entirety.,.

Despite the many cases decided by Illinois Appellate Court's

year after year, to a large extent; there are no uniformity

that are followed in the courts which clearly defines the issue

at bar, unconstitutional statutes or.Public Act void in its

entirety. That's particularly relevant in this case

it' s. stated

in this court's precedent in Norton v. Shelby county, 118 U.S.

425.

It's very clear that Morgan, 203 Ill. 2d 470 (2003), was rendered

void ab initio (i.e., void in its entirety), and remains unavailable

at sentencing until the legislature remedy the infirmity. People

v. Manuel, 94 Ill. 2d 242, 446 N.E. 2d 240 (se Exhibit 6). When

a statute is unconstitutional in its entirety

it is void ab initio.

The void ab initio doctrine is based on the theory that: " An

unconstitutional act is not a law; it confers no rights; it imposes

no duties; it affords no protection; it create no office; it is

in legal.contemplation, as inopertive as though it has never

been passed." Norton v. Shelby county, 118 U.S. 442, 6 S. C't. at

1125, 30 L.ed. at 186. (See Exhibit 7).

Also see People v. Gersch, 135 Ill. 2d 384, 399, 142 Ill. Dec.

767, 553 N.E. 2d 281 (1990) Perlstein v. Wolk, 218 Ill. 2d 448, 445,

300 Ill. Dec. 480, 844 N.E. 2d 926 (2006) Id at 455, 300, quoting

Gersch, 135 Ill. 2d 384, 399, 142

"An unconstitutional law confers

no right, imposes no duty and affords no protection. It is as though

no such law had ever been passed," quoting People v. Schraeberg, £

347 Ill. 392, 394, 179 N.E. 829 (1932). Therefore, the appellate

court's affirming the trial court judgment’.cannot stand until it

can be established that the legislature remedied the constitutional

infirmity. And res judicata can't protect a law that affords no

protections.

CONCLUSION

Wherefore, petitioner, Ronald D. Smith, pro se, respectfully

request that this Honorable court grant his petition for writ of

certiorari to review the decision of the Illinois Supreme Court

which denied Leave to Appeal from the order of judgment of the

Illinois Appellate Court affirming petitioner's conviction and

sentence.

Date: l"Cb > ^ -b

2"1

Respectfully Submitted

Ronald D. Smith

Reg No. M-49583

Hill Correctional Center

P.0. Box 1700

Galesburg II. 61402

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