# Petition — Elrod v. Massarella > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1153%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 460 U.S. 1037 ## Text Supreme Court of the United States Octroszr Term, 1982 CS en ee a TYRONE O. FAHNER, Attorney General, State of Illinois, Petitioner, vs. BENEDETTO J. MASSARELLA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Tyrone C. Fanner Attorney General, State of IIlinois Micuaet B. WernsTern Assistant Attorney General 188 West Randolph Street, Suite 2200 Chicago, Illinois 60601 (312) 793-2570 Counsel for Petitioner E. James Grpea Special Assistant Attorney General 401 North Michigan Avenue, Suite 3400 Chicago, IIlinois 60611 (312) 222-0800 Of Counsel — — Üm-— —ʒꝛ•˙̃— n. —ę²—ii i —ᷣ Printed by Authority of the State of Illinois (P. O. 31223—55— 11-12-82) QUESTION PRESENTED FOR REVIEW Whether the opinion of the court of appeals holding that a habeas corpus petitioner’s voluntary election to be sentenced under a statute enacted after his offense violates the ex post facto clause conflicts with this Court’s decisions in Francis v. Henderson, Wainwright v. Sykes, and Engle v. Isaac. TABLE OF CONTENTS PAGE QUESTION PRESENTED FOR REVIEW . i TABLE OF CONTENTS. ii TABLE OF AUTHONMTIESS . Vv OPINIONS BELOW W - 1 JURISDICTION 3 CONSTITUTIONAL tad al AND STATUTES INVOLVED . 3 STATEMENT OF THE CASE. 7 REASONS FOR GRANTING THE PETITION FOR WRIT OF CERTIORARI: I. THE OPINION BELOW IS IN CONFLICT WITH THIS COURT’S HOLDINGS IN FRANCIS v. HENDERSON, WAINWRIGHT v. SYKES AND ENGLE v. ISAAC 10 II. TH OPINION BELOW DEFIES CON- TROLLING STATE DECISIONAL LAW AS TO THE CONSTRUCTION OF ILLINOIS STATUTES 11 III. THE COURT SHOULD RECONSIDER BROWN v. ALLEN AND FURTHER DE- FINE THE SCOPE OF COLLATERAL RE- VIEW UNDER 28 U.S.C. §2254 13 CONCLUSION iii IV. THE COURT OF APPEALS ERRED IN ITS CONSTRUCTION OF THE EX med FACTO CLAUSE V. THE COURT OF APPEALS SHIFTED 1——— OF PROOF TO RESPOND- VI. THE COURT OF APPEALS ERRED WHEN IT REVERSED WITHOUT MAKING A DE- TERMINATION THAT THE DISTRICT COURT'S FINDINGS OF FACT 2 CLEARLY ERRONEOUS VII. THE COURT OF APPEALS OPINION IS UNCLEAR AND AMBIGUOUS AND IN- VITES SUBSTANTIAL ADDITIONAL AP- PELLATE LITIGATION 14 15 16 17 19 iv APPENDICES: A. United States Of America ex rel. Benedetto J. Massarella v. Richard J. Elrod, Sheriff of Cook County, Illinois, and Tyrone Fahner, Attorney General of Illinois ( F. ad . .) (7th Cir. 1982) 1 Order of the United States Distriet Court for the Northern Distriet of Illinois denying petition for writ of habeas corpus . Opinion of the Illinois ——* Court in People v. Massarella, 80 Ill.App.3d 552, 400 „ Petition for Rehearing filed with the United States Court of Appeals for the Seventh Cir- 111 J. Massarella on August Motion for Stay of Mandate Pending Appli- cation For Writ Of Certiorari To The United States Supreme Court, filed by Benedetto J. Massarella on October 1, 1982 Judgment Order of the Circuit Court of Cook County, Illinois entered January 1, 1975 against Benedetto J. Massarella for the of- fense of perjury Excerpt of Count Three of Indictment No. 73-1758, of Circuit Court of Cook County, Illinois charging Benedetto J. Massarel with the offense of perjury ....... . Order of United States Court of Appeals for the Seventh Circuit denying petitions for rehearing PAGE la 1b le ld le if lh — TABLE OF AUTHORITIES CASEs: PAGE(S) Braxton v. Estelle, 641 F.2d 392 (5th Cir. 1981) ..... 15 Brown v. Allen, 344 U.S. 443 (1953) . 13, 14 Dobbert v. Florida, 482 U.S. 282 (1977) 15 Engle v. Isaac, ..... U. S. , 102 S.Ct. 1558 (1982) oa 10, 16, 17, 18 Francis v. Henderson, 425 U.S. 538 (1976) 10 Frank v. Mangum, 237 U.S. 309 (1914) 15 James v. Twomey, 466 F. 2d 718 (7th Cir. 1972) ..... 12, 16 Marks v. United States, 430 U.S. 188 (1977) ....... 15 People v. Collins, 37 III. App. 3d 202, 345 N.E.2d 730 (Ist Dist. 1976) 12 People v. Liebling, 36 Ill.App.3d 1073, 344 N.E.2d 520 (Ist Dist. 1976) 12 People v. Massarella, 53 Ill.App.3d 744, 368 N. E. 2d 507 (Ist Dist. 1977) 9 9 People v. Massarella, 72 III. 2d 531, 382 N.E.2d 262 (1978) People v. Massarella, 80 Ill.App.3d 552, 400 N. E. 2d 436 (ist Dist. 1979), appeal denied, 81 III. 2d 586 (1980), cert. denied, 449 U.S. 1077 (1981) ‘ 2,9 Shad v. Borough of Mount Ephraim, ..... 288 101 S.Ct. 2176 (1981) 12 United States ex rel. Crump v. Sain, 295 F 2d 699, cert. denied 369 U.S. 830 (7th Cir. 1961) 16 United States ex rel. Massarella v. Elrod, 510 F. Supp. 1082 (N.D. III. 1981), ..... F.2d ...... (7th Cir. 1982) 2,9 Vendo Company v. Stoner, 58 IIl. 2d 289, 321 N. E. 2d 1 (1974) cert. denied 420 U.S. 975 (1975) 12 Wainwright v. Sykes, 434 U.S. 880 (1977) 1 Weaver v. Graham, ..... U.S. ....., 101 S.Ct. 980 15 Wolfrath v. LaValle, 576 F.2d 965, cert. denied 439 U.S. 933 (2nd Cir. 1978) 15 vi CONSTITUTIONAL PROVISIONS: United States Constitution, Article I, Section 10, Cl. 1 3 STATUTES: 28 U.S.C. §2101(c) . 3 28 U.S.C. §1254(1) 3 28 U.S.C. §2254 13, 14 Ill. Rev. Stat. 1971, Ch. 38, 627 3 Ill. Rev. Stat. 1971, Ch. 38, 62-11. 3 Ill. Rev. Stat. 1971, Ch. 38, §32-2 3 Ill. Rev. Stat. 1973, Ch. 38, 682-2 4 Ill. Rev. Stat. 1973, Ch. 38, 61005-1444 4 Ill. Rev. Stat. 1973, 38, 51005-5-3 4 Ill. Rev. Stat. 1973, 38, $1005-7-1 1 5 Ill. Rev. Stat. 1973, Ch. 38, §1005-8-1 1 5, 14 Ill. Rev. Stat. 1973, Ch. 38, §1008-2-4 ............ 6, 10, 16 Ill. Rev. Stat. 1973, Ch. 131, §4 (presently III. Rev. Stat. 1981, Ch. 1, 61103) 6, 10, 11, 12, 14, 16 PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT OPINIONS BELOW petitioner elected to be sentenced under subjected him to ~ enhanced collateral consequences, and it ordered the state to resentence him under the former statute without regard to the right of election provided for in the Illinois statutes. United States ex rel. Massarella v. Elrod, ...... F.2d ...... (7th Cir. 1982). (Appendix A at 5a). The court of appeals thereby reversed a decision of the United States District Court for the Northern District of Illinois which held that the petitioner’s election to be sentenced under the laws in effect at the time of sentenc- ing was in accordance with his desires and therefore not violative of the ex post facto clause. United States ex rel. Massarella v. Elrod, 510 F.Supp. 1082 (N.D. III. 1981). (Appendix B at 3b). Prior to the filing of the petition for writ of habeas corpus, the Illinois Appellate Court had affirmed the petitioner’s conviction for reasons similar to those ex- pressed by the federal district court. People v. Massarella, 80 Ill.App.3d 552, 400 N.E.2d 436 (Ist Dist. 1979). (Ap- pendix C at 5c). Also, the Illinois Supreme Court had denied, without comment, a petition for leave to appeal from the appellate court’s decision. People v. Massarella, 81 In. ad 586 (1980). This Court previously denied a petition for writ of cer- tiorari of the defendant seeking to reverse the decision of the Illinois Appellate Court. Massarella v. Illinois, 449 US. 1077 (1981). ~~ JURISDICTION The court of appeals’ decision was rendered on July 14, 1982. A petition for rehearing was denied September 23, 1982. This petition is sought to be filed within 90 days of the date the court of appeals denied the petition for rehearing as required by 28 U.S.C. §2101(c). This Court’s jurisdiction is invoked pursuant to 28 U.S.C. §1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED CONSTITUTIONAL PROVISIONS United States Constitution Article I, Section 10, Cl. 1: “No State shail . . pass any . . ex post facto law. STATUTES Illinois Revised Statutes, 1971 Chapter 38, Section 2-7: “Felony” means an offense punishable with death or imprisonment in the penitentiary.” * Chapter 38, Section 2-11: Chapter 38, Section 32-2: (a) A person commits perjury when, under oath or af- ina or in any other matter where by law such or affirmation is required, he makes a * false statement, material to the issue or point in question, which he does not believe to be true. pig st A person convicted of perjury shall be fined not to ex- ceed $1,000 or imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to 14 years, or both fined and im- prisoned Illinois Revised Statutes, 1973 Chapter 38, Section 32-2: (a) A person commits perjury when, under oath or af- firmation, in a — or in any other matter where by law such affirmation is required, he makes a false statement, material to the issue or point in question, which he does not believe to be true. (d) Sentence. Per jury is a Class 3 felony. Amended by P.A. 77-2638, § 1, eff. Jan. 1, 1973. Chapter 38, Section as “Conditional means a sentence or disposi- tion of conditional revocable release without pro- bationary supervision but under such conditions as Chapter 38, Section 1005-5-3: (a) Every person convicted of an offense shall be sentenced as provided in this Section, except in cases of murder to which Section 5-8-1A of this Code is applicable. (d) When a defendant is convicted of a felony or demeanor, the court may sentence such defendant mis- to: ~~ (1) 0 parton rr rr except in cases of murder, rape, armed robbery violation of Sections 401(a), 402(a), 405(a) or 407 of the Illinois Controlled Su ces Act or violation of Section 9 of the Cannabis Control Act; (2) a term of periodic imprisonment; (3) a term of imprisonment; (4) a fine. However, a fine shall not be the sole disposition in felony cases but may be im in such cases only in addition to another disposition un- der paragraph (d) of this Section. Chapter 38, Section 1005-7-1: (a) A sentence of periodic imprisonment is a sentence of imprisonment during which the committed selena ir pena af A= night or for periods of days, or both. Unless the court 0 otherwise, the icular times of release shall be determined by the t of Corrections, the sheriff, or the Superintendent of the house of corrections, who is administering the program. 8 „ „* (e) The court may impose a sentence of periodie im- prisonment for a felony or misdemeanor on a person who is 17 years of age or older. The court shall not impose a sentence of periodic imprisonment if it imposes a sentence of imprisonment upon the defendant. (d) A sentence of periodic imprisonment be for a basis of the actual days spent in confinement. Chapter 38, Section 1005-8-1: (a) A sentence of imprisonment for a felony shall be F an Section. —4— (b) The maximum term shall be set according to the following limitations: (4) for a Class 3 felony, the maximum term shall be any term in excess of one year not exceeding 10 years. Chapter 38, Section 1008-2-4: Prosecution for any violation of law occurring prior to the effective date of this Act is not affected or abated this Act. If the offense being prosecuted has not reached the sentencing stage or a final adjudication, then for KIU if they are less than under the prior law upon whi prosecution was commenced. Chapter 131, Section 4: is statute is presently located in Chapter 1, 1103 of the 1981 Illinois Revised Statutes, without change.) No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture o + ee in- curred, or any right accrued, or claim ing under the former law, or in any way whatever to affect any such offense or act so committed or done, or any ty, forfeiture or punishment so incurred, or any crued, or claim arising III now law tebe alieet, save only that the roceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such ing. If any penalty, forfeiture or punishment be m by any provisions of a new law, such provi- to any j p effect. 1e express words or by implication, whether the repeal is in the act making any new provision upon the same subject or in any other act. 3 STATEMENT OF THE CASE On August 26, 27 and 30, 1971, Benedetto J. Massarella gave false testimony under oath in judicial proceedings which he himself commenced against the Illinois Depart- ment of Revenue and some of its employees in the Circuit Court of Cook County, Illinois, for the purpose of en- joining the defendants from continuing a criminal tax in- vestigation of Massarella and his solely owned corpora- tion, Bee Jay’s Truck Stop, Inc. On the dates when he gave false testimony, perjury un- der Illinois law was an offense that could be punished by a fine and, or, a penitentiary term of from one to 14 years, or by incarceration in a penal institution other than a penitentiary for up to one year. The alternative feature of punishment other than incarceration in a peni- tentiary resulted in the offense being classified a mis- demeanor under III inois law. In January, 1973, Illinois adopted a Unified Code of Corrections (the “Code”) in which perjury was classified a felony. This occurred 16 months after Massarella gave the false testimony. The statute of limitations, both before and after enactment of the Code, was 18 months for mis- demeanors and 36 months for felonies. Massarella was indicted along with several others for conspiracy, perjury, and theft of $425,407 of state motor fuel taxes on June 8, 1973, 22 months after his commis- sion of perjury. He moved to dismiss the perjury charges, alleging that the indictment was returned beyond the 18- 2 — of ahr not only 1 ee as ineareoration but as to the right to purus certain leensed oc- cupations and to vote. * month statute of limitations. The trial judge held that the statute had been extended to 36 months before it had run as to Massarella’s criminal acts. Massarella was tried by a jury in 1974, and verdicts of guilty were returned against him for conspiracy, perjury and theft of $425,407 in state motor fuel tax funds. II- linois law requires the merger of substantive and in- choate offenses at sentencing, and therefore the con- epiracy conviction was vacated. When Massarella appeared for sentencing on January 8, 1975, the trial judge, in accordance with the provisions of the Code with respect to superseding mitigating penalties, offered him the option of being sentenced un- der the statutes in effect at the time his criminal acts were committed or under the Code. The Code attempted to unify and organize various statutes relating to crimes and punishments. It provided for certain lesser alter- native forms of punishments such as “conditional dis- charge” and “periodic imprisonment” not found in the prior statutes. It reduced the maximum penitentiary term for the offense of perjury from 14 years to 10 years but increased the possible fine from $1,000 to $10,000. After conferring with his attorney, Massarella elected to be sentenced under the provisions of the Code. The trial judge sentenced Massarella on the cheft charge to five years’ probation conditioned on his serving two of those years in periodic imprisonment, imposed a $10,000 fine, and ordered him to pay restitution to the State in the amount of $425,407. As to the perjury con- viction, the judge sentenced Massarella to a penitentiary term of from one to three years and imposed a fine of $10,000. The judge also ordered that the term of periodic imprisonment for theft run concurrently with the peni- tentiary sentence for perjury and that any time served under periodic imprisonment be credited against the penitentiary term. —~o— Massarella appealed the convictions and sentences to the Illinois Appellate Court. That court first reversed, holding that the Illinois Attorney General, who had prosecuted the case, did not have statutory power to prosecute such offenses under Illinois law. People v. Massarella, 53 Ill.App.38d 774, 368 N.E.2d 507 (Ist Dist. 1977). The Illinois Supreme Court subsequently re- versed and remanded for consideration of other issues which had not been decided by the appellate court. 72 III. 2d 531, 382 N.E.2d 262 (1978). On remand, the appellate court affirmed all convictions in a 26 page opinion. 80 III. App.3d 552, 400 N.E.2d 436 (Ist Dist. 1979). (Appen- dix C). The Illinois Supreme Court denied Massarella’s petition for leave to appeal. 81 III. 2d 586 (1980). This Court denied a petition for writ of certiorari. 449 U.S. 1077 (1981). Massarella then filed a petition for writ of habeas cor- pus in the United States District Court for the Northern District of Illinois. The district court judge denied the petition. 510 F. Supp. 1082 (N. D. III. 1981) (Appendix B). The United States Court of Appeals for the Seventh Circuit, on July 14, 1982, reversed and remanded, hold- ing that although there was no er post facto violation resulting from the extension of the statute of limitations, the reclassification of perjury under the Code meant that Massarella stood convicted of a felony for which he was subject to adverse collateral consequences. The court of appeals ordered the district court to issue the writ and to order the state to resentence Massarella under “the law in place when [the] crime occurred.” ...... F.2d ...... (7th Cir. 1982) (Appendix A at 5a). However, 'linois law still gives Massarella the option to elect under which statute he wishes to be sentenced. Thus an apparent conflict exists between state law and the court of appeals’ mandate. Both the petitioner and respondent filed petitions for rehearing in banc, which were denied on September 23, 1982. (Appendix H) —10— REASONS FOR GRANTING PETITION FOR WRIT OF CERTIORARI THE OPINION BELOW IS IN CONFLICT WITH THIS COURT'S HOLDINGS IN FRANCIS v. HENDERSON, WAINWRIGHT v. SYKES AND ENGLE v. ISAAC. When he denied the petition for writ of habeas corpus, the district court judge held that Massarella, having been afforded the option of being sentenced under either of two statutes, had made a reasoned election to be sentenced under the superseding one and therefore did not suffer a deprivation of his constitutional! rights as regards the ex post facto clause. (Appendix B at 1b-3b). The [Illinois Appellate Court had also so held. (Appendix C at 5c). Illinois statutes give a criminal defendant the right to make an election of laws whenever an applicable statute has been changed after commission of an offense but before sentencing. III. Rev. Stat., 1973, Ch. 131, §4; see also, III. Rev. Stat., 1973, Ch. 38, §1008-2-4. Thus Mas- sarella’s voluntary election to be sentenced under the Code was one that he shared with all other defendants similarly situated. This election on the part of Massarella should have foreclosed federal habeas corpus review in this case. When he elected to be sentenced under the Code, he voluntarily rejected his right to be sentenced under the repealed statute. Francis v. Henderson, 425 U.S. 538 (1976), Wainwright v. Sykes, 434 U.S. 880 (1977) and Engle v. Isaac, ...... US. ......, 102 S.Ct. 1558 (1982) were, and are, pertinent since even the court below recog- nized that Massarella “rationally chose to be sentenced under the later law, which set a higher fine but a lower maximum sentence for perjury,” (Appendix A at 3a), and a the district court judge found that Massarella “must have considered himself benefited by the sentencing regimen of the new act or presumably he would have chosen the old one.” (Appendix B at 3b). Massarella’s voluntary selection of optionai sentencing statutes should have been held to foreclose habeas corpus relief. II. THE OPINION BELOW DEFIES CONTROLLING STATE DECISIONAL LAW AS TO THE CONSTRUC- TION OF ILLINOIS STATUTES. The court below found that Massarella’s sentence carried with it the consequences of a felony conviction un- der Illinois law. Since the State of Illinois has never at- tempted to assert any of the collateral consequences inci- dent to felony convictions against Massarella, both he and the court of appeals only speculate that such a result will follow from the state criminal proceedings. This is patent- ly erroneous. The court below ignored an Illinois stat- ute which precludes retroactive application of enhanced classifications of crimes. Former III. Rev. Stat., 1973, Ch. 131, §4 (presently III. Rev. Stat., 1981, Ch. 1, 51108) pro- hibits any retroactive substantive legislative changes ex- cept provisions mitigating penalties, forfeitures or punish- ment when consented % hy the defendant. According to the judgment order (See Appendix F), Massarella was con- victed only as charged in the indictment, which was for violating the 1970 statute classifying the offense of per- jury as a misdemeanor. (Appendix G) In another earlier opinion, the court below held that the last mentioned statute precludes ex post facto applica- tion of a criminal law and that it only allows for retroac- tive application of mitigating effects, if consented to by ~~. we the defendant. James v. Twomey, 466 F.2d 718, 721 (th Cir. 1972). The opinion below is inconsistent with that opinion. Twomey correctly perceived Illinois law in the way that the Illinois courts have interpreted it: People v. Collins, 37 Ill.App.38d 202, 345 N.E.2d 730, 732-3 (ist Dist. 1976) (holding that a misdemeanor cannot be retroactive- ly made a felony); People v. Liebling, 36 Ill.App.3d 1073, 344 N.E.2d 520, 523 (Ist Dist. 1976) (holding that there can be no ex post facto application of a new h. to the detriment of a defendant); and Vendo Company v. Stoner, 58 I11.2d 289, 310, 321 N.E.2d 1, 12, cert. denied 420 U.S. 975 (1974) (holding that no statute is retroactive unless expressly made so). The Code was not expressly made retroactive except as to mitigating punishments (Ill. Rev. Stat., 1973, Ch. 38, §1008-2-4), and by virtue of Ch. 131, §4, such retroactive application was further conditioned on defendant’s consent. The court below therefore erred in failing to defer to controlling Illinois decisional and statutory law. Cf. Shad v. Borough of Mount Ephraim, ....... 6 , 101 S. Ct. 2176, 2181 (1981). This Court in Engle v. Isaac discussed the costs im- posed on our federal system by improvident grants of writs of habeas corpus. Massarella’s election to be sentenced under one statute during state criminal pro- ceedings and his subsequent complaint about alleged incidental consequences of that election smack of gamesmanship. Consider his strategy: 1) In his Petition for Rehearing to the Court of Appeals he states: Secondly, defendant was made to elect in the trial court w to be sentenced under the new law or the old law. . 2295-97, 2302). He chose the new law. (See Sl. Op. p. fn. 3). The Court’s decision, re- quiring that he be resentenced under the old law, . cannot be carried out without doing grave violence to defendant’s most basic constitutional rights. (Appendix D at 7d-8d). As part of a Motion for Stay of Mandate Pending Application for Writ of Certiorari To The Supreme Court, Massarella’s appellate counsel in an affidavit states: [II resentence time comes at the State level . . . [a]ppellant would argue that no sentence at all could be imposed.” (Appendix E at 2e-3e). These statements foretell that Massarella will, when the case is returned for rezentencing, insist that state law gives him the right to elect sentencing statutes and that federal constitutional law restricts that right—at least as interpreted by the court of appeals in this case—and therefore the State of Illinois cannot sentence him under any circumstances. The opinion below should be reversed to prevent this type of abuse of the writ of habeas corpus. III. THE COURT SHOULD RECONSIDER BROWN v. ALLEN AND FURTHER DEFINE THE SCOPE OF COLLATERAL REVIEW UNDER 28 U.S.C. §2254. Massarella had a full and complete review of the er post facto question in the state courts. The adequacy and fairness of the state process are unassailable; the only meaningful issue brought over to the federal courts was the correctness of the judicial conclusions as to the application of the ex post facto clause to the cir- cumstances in this case. The court of appeals disagreed with both the state courts and the district court judge as to whether there was, in fact, an ex post facto violation. Regardless of the correctness of the opposing conclusions, Massarella was afforded an adequate and fair review of his constitutional claims prior to filing his habeas corpus petition. The 0 issue upon which the court of appeals ordered the writ did not involve the fact-finding process of determining guilt or innocence. This Court should reconsider the implications of its opin- ion in Brown v. Allen, 344 U.S. 443 (1953), and in view of the extent to which courts have gone in interpreting that opinion, should formulate further guidelines, consistent with the objectives of 28 U.S.C. §2254, which will avoid excessive collateral review of state judicial proceedings. IV THE COURT OF APPEALS ERRED IN iTS CON- STRUCTION OF THE EX POST FACTO CLAUSE. The Illinois Uniform Code of Corrections states that “(p)rosecution for any violation of law occurring prior to the effective date of this Act is not affected or abated by this Act.” Ill. Rev. Stat., 1973, Ch. 38, §1005-8-1. Also, Chapter 131, §4 (presently Ch. 1, §1103) stated that: If , forfeiture or punishment be miti- 29498. of ‘none law, such pro- vision , the consent of the ‘ be lied to judgment p after the new law takes The court below in James v. Twomey, supra, at 721, said as to the last mentioned statute: “Almost by defini- tion, this prevents [a new criminal statute] from being a constitutionally proscribed ex post facto law.” Thus, the only basis for the court of appeals’ decision was that an “ex post facto violation” occurred during the course of the judicial proceedings and not by reason of the legislative enactment of the Code. But, judicial action does not implicate the ex post facto clause. As this Cc art stated more than half a century ago: [The constitutional : “No state shall. r appli ny ae Frank v. un 309, 344 (1944). See also Marks v. United States, 430 U.S. 188, 191-92 (1977). The subject to because he decided which of the two penalty provisions he would be sentenced under. he was the option either then or now would in THE COURT OF APPEALS ERRONEOUSLY SHIFTED THE BURDEN OF PROOF TO RESPOND- cert. denied 489 U.S. 983 (2nd Cir. 1978); Brazton v. — Without requiring any other showing from Massarella that felony convietion consequences attended the defen- dant's election, the court of appeals ruled that it was the state’s burden to prove the negative of the petitioner s claims, that is, that Massarella would not suffer adverse collateral consequences by virtue of the reclassification aspect of the new statute. (Appendix A at 4a-5a). The court of appeals’ holding erroneously shifted the burden of proof to the respondents, while at the same time re- jeet ing ir arguments as to the safeguards afforded by Ill. Rev. . t., 1973, Ch. 131, §4, and Ch. 38, §1008-2-4. VI. THE COURT OF AP?EALS ERRED WHEN IT habeas corpus in a six-page written order. (Appendix B). In pertinent part, he found that the defendant, by voluntarily electing to be sentenced under the new statute, relinquished any ex post facto claims. Id. at 3b. rr cade os Twomey, 466 F. 2d 718, 720-21 (7th Cir. 1972); c, Engle v. Isaac. . U.S. , 102 S.Ct. 1558, 1570-72 (1982). * VII THE COURT OF APPEALS’ OPINION IS UNCLEAR AND AMBIGUOUS AND INVITES SUBSTANTIAL AD- DITIONAL APPELLATE LITIGATION. The court of appeals’ opinion, considered in its entirety, holds that the defendant’s conviction for perjury was proper, but orders the case to be remanded for resentenc- ing because of what it believes to be the possibility of ex post facto felony consequences. The court ordered the case remanded to the state trial court “to permit the state court to apply, if possible, the law in place when his crime occurred.” Appendix A at 5a. Yet in the course of its opinion, the court states that: We hold, therefore, that Massarella’s conviction of the retroactively reclassified offense of perjury violated the ex post facto clause. (Emphasis added) Appendix A at 5a. In addition, the court of appeals’ order to the state court to apply the law in place when the crime occurred creates an apparent conflict with state law, which requires that any miti- gating provisions of superseding statutes be made avail- able to defendants. Thus, no matter what sentence is im- posed by the state court, the ambiguity of the court of appeals’ opinion will cause years of additional state and federal appellate litigation in addition to the eight years that have already passed and creates unnecessary friction in federal-state relations. This Court recently warned that the writ of habeas cor- pus entails significant costs to the state and federal judicial systems, and that “the writ undermines the usual principles of finality of litigation, . . . degrades the prominence of the trial itself, . . . [and] frustrateſs] both the states’ sovereign power to punish offenders, and their —18— good faith attempts to honor constitutional rights.” Engle v. Isa, U.S. , 102 S.Ct. at 1570-72. The defendant in this case was convicted eight years ago and, as matters now stand, the only thing that can be said is that the case will require even further examina- tion to decide whether the Illinois courts can withhold the right of election from this defendant as they have been ordered to do by the court below. This result is not sensi- ble. The case does not involve “manifest injustice,” affecting guilt or innocence. Massarella was fairly tried in the state court and allowed to choose which of the two sentenc- ing statutes he wanted to be sentenced under. —19— CONCLUSION For the foregoing reasons, the State of Illinois respect- fully urges this Court to grant this petition for writ of certiorari and, upon review, to reverse the court of appeals’ decision ordering the issuance of a writ of habeas corpus. Respectfully submitted, Tyrone C. Fanner Attorney General, State of Illinois Micuast B. Wermsrem 401 North Michigan Avenue, Suite 3400 Chicago, Illinois 60611 (312) 222-0800 Of Counsel November 12, 1982 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1153%3A1. Public record. Not legal advice.