Petition for Writ of Certiorari — Aramian Scott, Petitioner v. Illinois

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filed

JUN 1 6 2024

IN THE

SUPREME COURT OF THE UNITED STATES*

ARAMIAN SCOTT, Petitioner,

IFSJEE

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vs.

KIM FOXX, (State’s Attorney),

VINCENT M. GAUGHAN, (Trial Court Judge)

BRITTNEY GREENE, (Warden).

PETITION FOR WRIT OF CERTIORARI

(TO THE SUPREME COURT FOR THE STATE OF ILLINOIS)

ARAMIAN H. SCOTT SR., B-37232

W.I.C.C. 2500 Rt.99 South

Mount Sterling, IL. 62353

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QUESTION PRESENTED

IS PETITIONER’S 25-YEAR SENTENCE ENHANCEMENT, FOR PERSONAL

DISCHARGE OF A FIREARM VOID, WHERE THE STATE COURT LACKED SUBJECT

MATTER JURISDICTION TO ENTER JUDGMENT, WHERE PETITIONER WAS NOT

GIVEN WRITTEN NOTICE OF THE AGGRAVATING FACTOR IN HIS INDICTMENT

AND/OR BEFORE TRIAL, AND WHERE THE AGGRAVATING FACTOR WAS NEVER

SUBMITTED TO THE JURY AS AN AGGRAVATING FACTOR; IN VIOLATION OF

STATE STATUTORY LAW, AND PETITIONER’S SUBSTANTIVE DUE PROCESS

RIGHTS UNDER ART. 1 SEC. 2 AND 8, IL CONST.; AND THE 5th, 6th,

AND 14th AMEND. UNDER THE U.S. CONST.

LIST OF PARTIES

All parties appear in the caption of the case on the cover

page.

TABLE OF CONTENTS

TABLE OF AUTHORITIES

i

OPINIONS

ii

STATEMENT OF JURISDICTION

iii

CONSTITUTIONAL AND STATUTORY PROVISION INVOLVED...iv

STATEMENT OF THE CASE

1

ARGUMENT

2-9

APPENDIX

Exhibits A-H

TABLE OF AUTHORITIES

Zaabel v. Konetski

282 Ill. Dec. 748 (2004); Page 4

People v. Carey, 2018 IL 121371, fl20; Page 5

People v. Edwards, 2021 IL App. (4th) 210116-U; Page 5

People v. Edwards, 2019 IL 123370

fl31; Page 5

U.S. v. Arnold, 485 F.3d 290, (2007); Page 5 and 6

People v. Edgecombe, 2011 IL/App. (1st) 092690; Page 6

People v. Ellis, 2012 IL App. (2d) 110815-U; Page 6

Alleyne v. U.S., 133 S.Ct. 2151 (2013); Page 7 and 8

In re Winship, 397 U.S. 358, (1970); Page 8

Jackson v. Virginia, 443 U.S. 307, (1979); Page 8....

i

OP INI ON/'BELOW

October 3, 2022, the State Trial Court entered an opinion

see attached hereto, at App. exh. A

September 28, 2023, the State Appellate Court entered an

opinion, see attached hereto 5 at App. exh. C

March 27 > 2024, the Illinios Supreme Court entered an opinion,

see attached hereto, at App. exh. D

ii

JURISDICTION

On the date of March 27, 2024, the Illinois Supreme Court

entered judgment; and no petition for rehearing was filed.

Hence, the Jurisdiction of this Court is invoked,? under 28

U.S.C. § 1257.

iii

CONSTITUTIONAL AND STATUTORY PROVISION INVOLVED

725 ILCS 5/111-3 (c-5); Pages 2,3,4 3 and 7

Article 1 Sections 2 and 8, of the Ill. Const. Pages 2,3,5,6,

and. 8

Amendents 5, 6, and 14, of the U.S. Const. Pages 2,3,6 3 and 8

720 ILCS 5/9-1 (a)(1) and 9-1 (a)(2); Pages 3,4,5, and 6

730 ILCS 5/5-8-1 (a)(1)(d) (iii) Pages 3,5

725 ILCS 5/111-3 (a)(l)(2) and (3); Page 5

Pattern Jury Istruction 28.06; Pages 6 and 7

iv

and 6

STATEMENT OF THE CASE

On the date of October 3, 2022; the Trial Court entered judgment,

where the court held in relevant part:

("Petitioner’s contention regarding the constitutionality of

25-year enhancement penalty was reviewed by this court and this

court found that the jury instructions included the language that

Petitioner 'personally discharged a firearm' and was required to

be proven beyond a reasonable doubt. Because the jury was correctly

instructed to prove beyond a reasonable doubt that Petitioner per­

sonally discharged a firearm and the enhancement was correctly

applied to the Petitioner’s sentence Petitioner’s contention here

is frivolous and without merit.

This Court agrees with the previous order and opines the 25-year

enhancement was both properly charged under 725 ILCS 5/111-3 (c-5)

and applied in petitioner’s case. Therefore, the 25-year enhancement

cannot be said to be void and Petitioner is not entitled to relief

sought.") See Appendix exh. A, (Trial Court’s order).

On Appeal, appellate counsel filed a Finley motion, where

counsel discounted Petitioner’s claim. In counsel’s Finley motion,

counsel stated, in relevant part:

./(('Because the indictment properly apprised Scott of the firearm

enhancement, and because the fact supporting the firearm enhancement

was submitted to the jury and found proven beyond a reasonable doubt,

Scott’s argument fails on the merits, and he is not entitled to man­

damus to strike the firearm enhancement from his sentence.") See App.

exh. B, (Apprllate Counsel’siFinley motion, see pages 7-11).

On September 28

2023; the Appellate Court granted counsel’s

Finley motion, and dismissed Petitioner’s appeal. See App. exh. C,

(Appelate Court’s order).

Petitioner filed a timely Petition for Leave to Appeal to the

Supreme Court of Illinois, and on March 27, 2024; Petitioner’s

Petition for Leave to Appeal to the Supreme Court of Illinois was

denied. See App. exh. D, (Supreme Court order).

v

Here, Petitioner believes, that the State’s notion will be;''

that the mere statement "personally discharged a firearm", was

enough information to put Petitioner on notice that.-fact would

be considered in aggravation, during sentencing.

Petitioner is raising, that where the^State’s indictment stated

"personally discharged a firearm in the course of the offense", and

only cited 720 ACT 5 SECTION 9-1 (a)(1) and 720 ACT 5 SECTION 9-1

(a)(2); there was no way for Petitioner to apprehend from the face

of the indictment that his minimum sentence would be increased by

25 years, and up to a term of natural life, if Petitioner went to

trial and got found guilty.

vi

ARGUMENT

IS PETITIONER’S 25-YEAR FIREARM ENHANCEMENT VOID; WHEREIN THE

STATE COURT EXCEEDED ITS STATUTORY AUTHORITY, AND LACKED JURISDIC­

TION TO ENTER JUDGMENT. BECAUSE THE PROSECUTION NEVER COMMENCED,

AND/OR PUT PETITIONER ON NOTICE IN THEIR INDICTMENT, OR BEFORE

TRIAL THAT THEY WOULD BE SEEKING AN ENHANCED SENTENCE, BASED ON

PERSONAL DISCHARGE OF A FIREARM; NOR DID THE PROSECUTION SUBMIT

SAID ISSUE TO THE JURY AS AN AGGRAVATING FACTOR. IN VIOLATION OF

STATE STATUTORY LAW (725 ILCS 5/111-3 (c-5); AND PETITIONER’S

SUBSTANTIVE DUE PROCESS RIGHTS, UNDER ART. 1, § 2 AND 8, OF THE ILL.

CONST.; AND THE S;th, 6th, AND 14th AMEND. UNDER THE U.S. CONST.

1. 725 ILCS 5/111-3 (c-5) (West. 2002); provides in relevant

part:

("Notwithstanding any other provisions of lav/, in all cases in

which the imposition of the death penalty is not a possibility, if

an alleged fact (other than a prior conviction) isJ.not an element

of an offense but sought to be used to increase the range of penal­

ties for an offense, the alleged fact [must] be included in the

charging instrument or otherwise provided to defendant through a

written notification before trial, submitted to the trior of fact

as an aggravating factor, and proved beyond a reasonable doubt.

Failure to prove the fact beyond a reasonable doubt is not a bar

to a conviction for the commission of the offense, but is a bar to

increasing, based on that fact, the range of penalties for the off­

ense beyond the statutory maximum that could otherwise be imposed

for that offense.") Id;

2. ("The fundamental rule of statutory interpretation is to

give effect to the intention of the legislature... 'When the

statutory language is clear, it must be given effect without

resorting to other tools of interpretation.'") Quoting, Zaabel v.

Konetski, 282 Ill.'Dec..748; (2004). Hence, the State should defer

to the plain language of the statutory provisions under 725 ILCS

5/111-3 (c-5).

3. The State’s notion has been, that the mere statement (person­

ally discharged a firearm) was enough information to put Petitioner

on notice, that said issue would be used to seek an enhanced sent­

ence. In the State’s indictment it only cites the first degree mur­

der statute (720 Act 5 § 9-1 (a)(1), and (a)(2); the State did not

cite any sentence enhancement statutes, or mention anything about

seeking an enhanceid . sentence.

1

Petitioner raises, that the State’s, failure to specifi'cally

cite 730 ACT 5 SECTION 5-8-1 (a)(1)(d) (iii), in conjunction with

720 ACT 5 SECTION 5/9-1 (a)(1) and (a)(2); left Petitioner no way

to apprehend from the face of the indictment, that the State was

seeking an enhanced sentence, and that Petitioner’s minimum sentence

would be increased by 25 years.

[5. j ("A criminal defendant has a fundamental right to be

informed of the nature and cause of criminal accusations made

against him. See U.S. Const., amend. VI; Ill. Const. 1970, art.

1, § 8. In Illinois, this right is implemented by section 111-3

of the Code (725 ILCS 5/111-3 (West 2016), which sets forth spe­

cific pleading requirements for a criminal charge. Carey, 2018 IL

121371, 1120, 423 Ill. Dec. 61, 104 N.E.3d 1150. In relevant part,

section 111-3 (a) requiers any criminal charge to (1) '[state]

the name of the offense,' (2) '[cite] the statutory provision

alleged to have been violated,' and (3) '[set] forth the nature

and elements of the offense charged.' 725 ILCS 5/111-3 (a)(1) to

(a)(3) (West 2016).") Quoting, People v. Edwards, 2021 IL App (4th)

210116-U. Also see, People v. Edwards, 2019 IL 123370, H31, 433 Ill.

Dec. 142, 131 N.E.3d 500 (referring to the State’s failure to cite

the statutory penalty provision as a "fundamental defect")

j 6 H Also, in U.S. v. Arnold, 485 F-. 3d 290 (2007); the Court held,

in relevant part:

("Government’s statutory citation error in its pre-trial

sentencing enhancement notice which announced government’s inten­

tion to seek a sentence of ten years to life, instead of the mand­

atory life sentence it was actually seeking, was prejudicial, since

without notice that he would face a mandatory life sentence, defen­

dant did not have adequate information to decide whether to enter a

plea or go to trial.") Id.

2

'I

7•^ Petitioner raises that under 720 ILCS 5/9-1 (a)(1) and

(a)(2); (the only statute cited in the State’s indictment) holds,

to wit: a person convicted under said statute, shall not be sent­

enced to less than 20 years, and not more than 60 years. The State

did not cite 730 ILCS 5-8-1 (a)(1)(d) (iii); which holds to wit:

that if in the commission of an offense a person personally disch­

arges a firearm that proximately causes the death, a term of 25

years up to natural life shall be added to the sentence. Also, the

State did not mention in their indictment, or provide written noti­

fication before trial, that they were seeking an enhanced sentence.

Hence, Petitioner was prejudice, because without notice that he

would face a mandatory minimum of 45 years, Petitioner did not have

adequate information to decide whether to enter a plea or go to .

trial. See U.S. Const., amend. VI; Ill. Const. 1970, art. 1, § 8;

see also, People v. Edgecombe, 2011 IL App. (1st) 092690 at 25,

("The alleged fact [must] be included in the charging instrument

*** submitted to a trier of fact as an aggravating factor, and

proved beyond a reasonable doubt."); People v. Ellis, 2012 IL App.

(2d) 110815-U; and U.S. v. Arnold, 485 F.3d 290 (2007).

The State also contends, that the jury was intructed on

the aggravating factor, the State’s notion is, where the jury

instruction given to find first degree murder, stated "personally

discharged a firearm", that the issue was submitted to the jury as

an aggravating factor. See App. exh. F (1-3); (copy of jury instr­

uctions ) .

Petitioner raises, to submit a sentence enhancing element

to the jury, the State should have given a special jury instruction

form (Illinois Pattern Jury Instruction 28.06); for the jury to

specifically find the element of the offense, being used in aggra­

vation, to enhance the sentence. See App. exh. G (copy of an exam­

ple of jury instruction 28.06, Enhancement Instruction); also see,

exh. H (copy of the jury’s verdict form).

3-L

*

jlO. I Petitioner raises, that the jury only returned a verdict

form for first degree murder, and that the.State’s failure to

submit a sentence enhancement jury instruction (28.06), barred

the State Court'.from imposing an enhanced sentence, based on

personal discharge of a firearm. See People v. Edgecombe, 2011

IL App. (1st) 092690 at 25, ("The alleged fact [must] be included

in the charging instrument *** submitted to a trier of fact as an

aggravating factor, and proved beyond a reasonable doubt."); also

see 725 ILCS 5/111-3 (c-5).

jll 7*| Moreover, in Alleyne v. U.S., 133 S.Ct. 2151 (2013); the

United States Supreme Court held that only a jury can determine

facts which increase a mandatory minimum sentence because "a fact

triggering a mandatory minimum alerts the prescribed range of

sentences to which a criminal defendant is exposed." Id. 133 S.Ct.

at 2160. This is because facts that increase a prescribed range of

penalties are "part of the substantive offense," which under the

due process clause, cannot be found by a judge without the consent

of the defendant. Id.

The U.S. Supreme Court concluded in Alleyne that the distinction

between mandatory minimum and maximum was illussory, and enunicated

a simple rule of law: "Any fact that, by lav/ increases the penalty

for a crime is an 'element' that must be submitted to the jury and

found beyond a reasonable doubt." Alleyne, 133 S.Ct. at 2163. In

addition to recognizing as unconstitutional, judicial fact finding

to establish mandatory minimum sentences, the Supreme Court’s deci­

sion in Alleyne announced a new constitutional rule by redefining

what a "crime" is in the context of the sixth amendment; acknowled­

ging that the historic relationship between crime and punishment

compels that any fact which by law increases the range of punish­

ment to which a criminal defendant is exposed is an element of a

new offense. "Afdistinct and aggravated crime." Therefore elements

are entitled the full panoply of constitutional protections under

the sixth amendment in conjunction with due process. Id.

4

12. Petitioner maintains, that Alleyne stands wholly and solidly

on its own, as it is embeded into his rights as codified in the

sixth amendment. Alleyne represents a "watershed rule" of Constit­

utional lav/ on equal standing as In re Winship, 397 U.S. 358, 364,

90 S.Ct. 1068, 25 L.Ed.2d<!368 (1970) and Jackson v. Virginia, 443

U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979).

Accordingly, Alleyne must be given full retroactive effect and be

treated as a watershed rule. The failure to observe same, jeopard­

izes Petitioner’s Constitutional rigrts where he was subjected to a

sentencing law which dose not require Notice, Submission to the Jury,

or Proof beyond a Reasonable Doubt. In violation of Petitioner’s

Constitutional Rights under; 'U.S. Const., Amend. 5, 6

Ill. Const. 1970, Art. 1, § 2 and 8.

5

' )

and 14; and

CONCLUSION

WHEREFORE, Petitioner Aramian H. Scott, Sr., prays this

Honorable Court grants him Writ of Certiorari, to the Supreme

Court for the State of Illinois.

Respectfully Submitted,

dnfmrr? ifLTib // JtaM r Ia

Aramian H. Scott Sr.

I.D.# B37232

W.I.C.C. 2500 Rt.99 South

Mount Sterling, IL. 62353

6