People of The State of Ill. v. MESCALL
| Decision Date | 26 August 2010 |
| Docket Number | No. 2-08-0773.,2-08-0773. |
| Citation | 403 Ill.App.3d 956,343 Ill.Dec. 521,935 N.E.2d 529 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas R. MESCALL, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
403 Ill.App.3d 956
935 N.E.2d 529
343 Ill.Dec. 521
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Thomas R. MESCALL, Defendant-Appellant.
No. 2-08-0773.
Appellate Court of Illinois,Second District.
Aug. 26, 2010.
COPYRIGHT MATERIAL OMITTED.
Thomas A. Lilien, Deputy Defender, Yasemin Eken, Office of the State Appellate Defender, for Appellant.
Michelle J. Courier, Boone County State's Attorney, Lawrence M. Bauer, Deputy Director, Marshall M. Stevens,
Joan M. Kripke, State's Attorneys Appellate Prosecutor, for Appellee.
Justice BURKE delivered the opinion of the court:
Defendant, Thomas R. Mescall, appeals from the summary dismissal of his pro se postconviction petition pursuant to section 122-2.1(a)(2) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-2.1 (a)(2) (West 2008)). On October 11, 1996, defendant was charged by information with one count of aggravated criminal sexual abuse (720 ILCS 5/ 12-16(c)(1)(i) (West 1996)) and four counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 1996)). The State subsequently filed an amended information prior to trial. However, no modifications were made. The amended
information alleged that the offenses took place between June 1995 and September 1996. A jury convicted defendant on all counts, and the court sentenced him to four consecutive eight-year terms of imprisonment and one concurrent five-year term. Defendant filed his first pro se postconviction petition on June 30, 2008, alleging ineffective assistance of trial and appellate counsel. The trial court summarily dismissed the postconviction petition. Defendant appeals, contending that his petition was not frivolous or patently without merit, because he presented an arguable claim that he received ineffective assistance of trial and appellate counsel for failing to challenge: (1) the trial court's error in imposing mandatory consecutive sentences, and (2) the defective information that charged him with the offenses, some of which occurred before the effective date of the statute creating the offense. Defendant further contends that he raised an arguable claim of ineffective assistance of trial counsel for failing to investigate critical witnesses who would prove that defendant was actually innocent of the charges against him. For the reasons that follow, we reverse the trial court's judgment dismissing defendant's postconviction petition and remand for further proceedings on the ground that defendant presented an arguable basis that counsel was ineffective for failing to challenge the trial court's error in imposing mandatory consecutive sentences. Because we reverse on this issue, we need not address the other issues. See People v. Rivera, 198 Ill.2d 364, 370-74, 261 Ill.Dec. 336, 763 N.E.2d 306 (2001); People v. Rogers, 372 Ill.App.3d 859, 868, 310 Ill.Dec. 654, 866 N.E.2d 1256 (2007).
The procedural history of this matter comprises over 14 years of litigation and numerous appeals. For the sake of brevity, we have attempted to limit the background of the case to the procedural history. Any facts necessary to an understanding of the case will be addressed in the analysis.
Following defendant's convictions and sentences, he directly appealed, raising various contentions, including that the trial court erred in making his terms of imprisonment subject to the truth-in-sentencing provisions. We affirmed the convictions but modified the sentences to allow defendant to receive pre-truth-in-sentencing good-conduct credits. People v. Mescall, No. 2-97-0925 (1999) (unpublished order under Supreme Court Rule 23).
On January 23, 2003, defendant filed a petition, pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2006)), from an allegedly void judgment. He argued that courts had misinterpreted the mandatory supervised release (MSR) and the sentencing credit provisions to make terms of imprisonment
exclusive of MSR. The trial court sua sponte and without notice to defendant
dismissed the petition with prejudice, finding that it was untimely. Defendant appealed the dismissal, arguing for the first time that the judgment of conviction of predatory criminal sexual assault of a child was void as based on a defective charging instrument, because some of the conduct was alleged to have occurred before the effective date of the statute creating the offense. People v. Mescall, 347 Ill.App.3d 995, 283 Ill.Dec. 813, 808 N.E.2d 1101 (2004). We did not reach the issue regarding whether the judgment of conviction of predatory criminal sexual assault of a child was void, because we found that we lacked personal jurisdiction over the State. Mescall, 347 Ill.App.3d at 997, 283 Ill.Dec. 813, 808 N.E.2d 1101. In addressing the second issue, however, we held that the trial court erred in dismissing defendant's petition sua sponte and without notice. We therefore vacated the order and remanded the cause for further proceedings. Mescall, 347 Ill.App.3d at 1001, 283 Ill.Dec. 813, 808 N.E.2d 1101.
On remand, defendant filed an amended section 2-1401 petition in which he reiterated his contention that the judgment of conviction of predatory criminal sexual assault was void. The trial court rejected the argument, noting that, in the information, some of the dates on which the conduct was alleged to have occurred were after the effective date of the statute creating the offense. The court also noted that each count of predatory criminal sexual assault included the same defect. Because the testimony at trial would support a factual finding of guilt on the predatory-criminal-sexual-assault counts without reference to the conduct alleged to have occurred before the effective date, the court concluded that the judgment was not void but voidable and that therefore the petition was subject to the time limitations of section 2-1401. The court dismissed the petition because defendant failed to show that the untimely filing of his petition was not due to his culpable negligence and because he failed to show any of the other grounds for tolling the limitations period under section 2-1401(c).
Defendant appealed the dismissal of the amended section 2-1401 petition, arguing that his judgment of conviction of predatory criminal sexual assault of a child was void and that he could challenge the judgment after the limitations period pursuant to section 2-1401(c) because the judgment was based on a defective charging instrument. Defendant alleged, as he did previously, that the information was defective because some of the conduct complained of was alleged to have occurred before the effective date of the predatory-criminal-sexual-assault-of-a-child statute. We disagreed and affirmed the trial court. People v. Mescall, 379 Ill.App.3d 670, 318 Ill.Dec. 381, 883 N.E.2d 612 (2008). We found that the trial court had jurisdiction to render a judgment against defendant and that any problem with the information did not deprive the trial
court of jurisdiction; it merely rendered the judgment voidable, subject to correction on review only if a timely appeal had been taken. However, because defendant failed to timely file a section 2-1401 petition or prove any grounds to excuse his untimeliness, review of his petition was barred. Mescall, 379 Ill.App.3d at 675, 678-79, 318 Ill.Dec. 381, 883 N.E.2d 612.
On June 30, 2008, defendant filed a pro se postconviction petition alleging ineffective assistance of trial and appellate counsel. In this petition, defendant again raised the argument that he had previously raised in his section 2-1401 petition, challenging the predatory-criminal-sexual-assault charges as defective because some of the dates on which the conduct was alleged to have occurred were before the effective date of the statute creating the
offense. Only this time, he couched the issue in terms of ineffective assistance of counsel. Defendant also alleged that his trial and appellate counsel were ineffective for failing to raise the issue that the trial court improperly imposed mandatory consecutive sentences, because, at the time of the offenses, consecutive sentences were mandatory only if the trial court found that the charged acts occurred during a single course of conduct. Defendant also maintained that trial counsel was ineffective for failing to investigate witnesses who would have supported his claim of innocence.
The trial court summarily dismissed the petition. The court determined that defendant's claims regarding the defective information and sentencing were “mere conclusions.” As to the defective information, the court stated that “[a]lthough somewhat unclear,” the claim might be an attempt to raise the same issue that defendant previously raised in his section 2-1401 petition. If so, the court stated that the appellate court previously ruled on this issue and that the same issue should not be allowed to be relitigated in this new petition. The court also dismissed defendant's claim that consecutive sentences were improper because defendant cited no authority for his proposition that the sentencing was not permissible and, as a matter of law, consecutive sentences were mandated. The court further stated that, “if for some reason the consecutive sentences were not mandated, they would be permissible under 730 ILCS 5/5-8-4(b).” As to the issue regarding the failure to investigate critical witnesses, the court held that defendant failed to identify who the witnesses were or what they would testify to at trial. The court held that whether to call a witness at trial is a matter of trial strategy and not a basis to grant a postconviction petition.
Following the denial of defendant's motion to reconsider, defendant timely appeals.
ANALYSIS
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