Opposition Brief — Thrasher v. Illinois

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No. 85-235 |

In THE

Supreme Court of the Gnited

OctoBer Term, 1985

JAMES THRASHER,

Petitioner,

VS.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

On Petition For A Writ Of Certiorari To The

Appellate Court Of Illinois, Fourth District

RESPONDENT'S BRIEF IN OPPOSITION

NEIL F. HARTIGAN

Attorney General, State of Illinois

ROMA J. STEWART

Solicitor General, State of Illinois

MARK L. ROTERT *

Assistant Attorney General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-2570

Counsel for Respondent

KENNETH A. FEDINETS

Assistant Attorney Ceneral

Of Counsel * Counsel of Record

Printed by Authority of the State of Illinois (P.O. 32955—50—9-5-85)

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QUESTION PRESENTED FOR REVIEW

Whether petitioner’s failure to raise in the state trial

and appellate courts the constitutional claim now advanced

before this Court precludes review of the claim?

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TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ...

TABLE OF AUTHORITIES .................

Sogo ee Sere reer ee eee ere ee

JURISDICTIONAL STATEMENT ...........

STATEMENT OF THE CASE ...............

REASON FOR DENYING THE PETITION

FOR WRIT OF CERTIORARI:

PETITIONER’S FAILURE TO RAISE IN THE

STATE TRIAL AND APPELLATE COURTS

THE CONSTITUTIONAL CLAIM NOW AD.-

VANCED BEFORE THIS COURT PRECLUDES

REVIEW OF THE CLAIM ................

GT oe dd oo evan cdentins 4aenbuven ses

TABLE OF AUTHORITIES

Cases PAGE

Crowell v. Randell, 10 Pet. 368 (1836) ........ 5

Gates v. Illinois, 462 U.S. 213 (1983) ......... 4

Hankerson v. North Carolina, 423 U.S. 233 (1977) .. 5

Michigan v. Tyler, 436 U.S. 499 (1978) ....... 5

State Farm Mutual Automobile Insurance Co. v.

Duel, 324 U.S. 154 (1945) .................

Tacon v. Arizona, 410 U.S. 351 (1978) ........

or on

No. 85-235

In THE

Supreme Court of the Anited States

OcrosBEeR TERM, 1985

JAMES THRASHER,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

On Petition For A Writ Of .‘ertiorari To The

Appellate Court Of Illinois, Fourth District

RESPONDENT'S BRIEF IN OPPOSITION

OPINION BELOW

The order of the Illinois Appellate Court, Fourth Dis-

trict, is unreported pursuant to Illinois Supreme Court

Rule 23, Ill. Rev. Stat. ch. 110A, § 23. The order has been

submitted to this Court as an Appendix to the Petition

for Writ of Certiorari and, therefore, is not contained in

this Brief in Opposition.

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JURISDICTION

The jurisdiction of this Court is properly invoked under

28 U.S.C. § 1257(8).

STATEMENT OF THE CASE

Petitioner, James Thrasher, was convicted in the Circuit

Court of the Eleventh Judicial Circuit, McLean County,

on May 24, 1984, of indecent liberties with a child and

contributing to the sexual delinquency of a child in viola-

tion of Ill. Rev. Stat. 1983, ch. 38, §§ 11-4(a) and 11-5(a)

respectively. On July 1, 1984, these offenses were repealed

by Public Act 83-1067. Ill. Rev. Stat. (Supp. 1984), ch. 38,

§§ 11-1 to 11-5. In their place new offenses were enacted.

Ill. Rev. Stat. (Supp. 1984), ch. 38, §§ 12-13 to 12-16. Peti-

tioner on July 26, 1984, was sentenced under the old law

to four years imprisonment for indecent liberties with a

child and 364 days imprisonment for contributing to the

sexual delinquency of a child in that section 27 of the new

act provided:

Savings clause, construction. The abolition of any

offense by this Act does not affect any prosecution

pending, penalty, punishment, disqualification from

office or employment, forfeiture incurred, or rights,

powers or remedies accrued under any law in effect

immediately prior to the effective date of this amenda-

tory Act of 1983, which related to the abolished of-

fense. The provisions of this amendatory Act insofar

as they are the same or substantially the same as

those of any prior statute, shall be construed as a

continuation of such a prior statute and not as a new

enactment.

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This amendatory Act of 1983 shall only apply to

those persons who commit offenses prohibited under

Sections 12-13 through 12-16 of the Criminal Code of

1961, as amended, on or after the effective date of

this amendatory Act.

Ill. Rev. Stat. (Supp. 1984), ch. 38, foll. § 12-12. The sen-

tences were to run concurrently.

Petitioner appealed from a judgment of conviction to the

Illinois Appellate Court, Fourth District. The court on

March 6, 1985, affirmed the convictions in an unpublished

order. Subsequently, petitioner filed a Petition for Leave

to Appeal to the Illinois Supreme Court pursuant to Iili-

nois Supreme Court Rule 315. Ill. Rev. Stat. ch. 110A,

§ 315. The Illinois Supreme Court on June 4, 1985, denied

the petition.

REASON FOR DENYING THE PETITION

FOR WRIT OF CERTIORARI

The respondent respectfully requests this Court to deny

the Petition for Writ of Certiorari to review the decision

of the Illinois appellate court.

PETITIONER’S FAILURE TO RAISE IN THE STATE

TRIAL AND APPELLATE COURTS THE CONSTITU-

TIONAL CLAIM NOW ADVANCED BEFORE THIS COURT

PRECLUDES REVIEW OF THE CLAIM.

Petitioner in support of his petition for a writ of cer-

tiorari claims “that he has been denied the equal protec-

tion of the laws by the saving clause of the Sex Crimes

Act, Ill. Rev. Stat., Ch. 38, Sections 12-12 to 18 (1984

Supp.)”. (Petition for Writ of Certiorari at 8) Unaer the

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savings clause, petitioner was to be sentenced under the

law in effect at the time of the commission of the offenses,

rather than under the provisions of the Sex Crimes Act.

However, on direct appeal to the Illinois appellate court

petitioner simply argued that “he should have been given

the option to be sentenced under the law regarding sex

offenses which was in effect at the time of sentencing.”

(Petition for Writ of Certiorari, Appendix at 1a) It is in-

teresting that petitioner would now advance an equal pro-

tection claim before this Court, when in the circuit and

appellate courts of Illinois petitioner failed to raise the

issue. Petitioner admits the failure in his Petition for Writ

of Certiorari before this Court in his Statement of the

Case: “The equal protection argument was not raised

either in the trial court or the Appellate Court.” (Peti-

tion for Writ of Certiorari at 7)

Most recently, in Gates v. Illinois, 462 U.S. 213 (1983),

this Court, after receiving briefs and hearing oral argu-

ment on the application of the Fourth Amendment to a

magistrate’s issuance of a search warrant on the basis of

a partially corroborated anonymous informant’s tip, re-

quested the parties to address an additional question for

review:

[W]hether the rule requiring the exclusion at a

criminal trial of evidence obtained in violation of the

Fourth Amendment, Mapp v. Ohio, 367 U.S. 643. . .

(1961); Weeks v. United States, 232 U.S. 383...

(1914), should to any extent be modified, so as, for

example, not to require the exclusion of evidence ob-

tained in the reasonable belief that the search and

seizure at issue was consistent with the Fourth Amend-

ment.

Id. at 217. However, this Court held that it would not

decide this later issue since it was not presented to or

decided by the Illinois courts. This decision was made on

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the basis of the rule that if both of the requirements that

a federal question has been raised and decided in the state

court below do not appear on the record, the jurisdiction

of the Supreme Court fails. Crowell v. Randell, 10 Pet.

368, 391 (1836). This Court in Gates thus reaffirmed the

jurisdictional character of the rule against deciding claims

“not pressed nor passed upon”’ in state court as reflected

in State Farm Mutual Automobile Insurance Co. v. Duel,

324 U.S. 154, 160 (1945). Such lack of jurisdiction accounts

for the statement that this Court “cannot decide issue

raised for the first time here.” Tacon v. Arizona, 410 U.S.

351, 352 (1978).

Similarly, in Michigan v. Tyler, 486 U.S. 499, 512 n.7

(1978), petitioner sought to advance before this Court the

argument that respondent lacked standing to object to the

unconstitutional searches and seizures. However, the Mich-

igan Supreme Court had refused to consider this issue

because the prosecution failed to raise the issue in the

courts below. Consequently, this Court held that the

failure to present a federal question in conformance with

state procedure constituted an adequate and independent

ground of decision barring review in this Court. Similar

reasoning was employed by this Court in Hankerson v.

North Carolina, 423 U.S. 233, 236 (1977). This Court held

that a question raised in a petition for writ of certiorari

would not be reached where the North Carolina Supreme

Court held that the issue had not been “properly pre-

sented” to it.

In the case at bar, respondent maintains this Court

should not grant the petition for writ of certiorari where

the issue has not been preserved for review in the courts

below. As in Gates, Tyler, and Hankerson, the failure of

petitioner in the case at bar to preserve the issue for

review, precludes review of the issue by this Court. Thus,

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where the equal protection issue was neither pressed by

the petitioner in the courts below, nor passed upon by

those courts, this Court should deny the petition for writ

of certiorari.

CONCLUSION

In view of the foregoing reasons, respondent respectfully

requests the petition for writ of certiorari be denied.

Respectfully submitted,

NEIL F. HARTIGAN

Attorney General, State of Illinois

ROMA J. STEWART

Solicitor General, State of Illinois

MARK L. ROTERT*

Assistant Attorney General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-2570

Counsel for Respondent

KENNETH A. FEDINETS

Assistant Attorney General

Of Counsel * Counsel of Record

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