People v. Begay

• Decision Date: 28 June 2018
• Docket Number: No. 1–15–0446,1–15–0446
• Citation: 117 N.E.3d 264,2018 IL App (1st) 150446,426 Ill.Dec. 847
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Salvador BEGAY, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 150446

117 N.E.3d 264

426 Ill.Dec. 847

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Salvador BEGAY, Defendant–Appellant.

No. 1–15–0446

Appellate Court of Illinois, First District, FOURTH DIVISION.

Opinion filed June 28, 2018

Geneva L. Penson, of Aurora, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg and Jon Walters, Assistant State’s Attorneys, of counsel), for the People.

JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 Petitioner Salvador Begay was convicted after a jury trial of aggravated criminal sexual abuse and sentenced to three years of felony probation, with the first 90 days being served with the Cook County Department of Corrections. See People v. Begay , 2013 IL App (1st) 102216-U, ¶¶ 2, 17, 2013 WL 936606. No supervised release period was provided. This court affirmed his conviction on March 8, 2013 ( Begay , 2013 IL App (1st) 102216-U, ¶ 1 ), and his probation terminated satisfactorily on July 3, 2013.

¶ 2 Five months after the satisfactory termination of his probation, he filed a postconviction petition, which the trial court dismissed for lack of jurisdiction. In denying his motion to reconsider, the trial court found that the petition did not "even get to the first stage" due to its lack of jurisdiction and that his counsel's characterization of the dismissal as a first-stage dismissal was incorrect.

¶ 3 Petitioner now appeals the dismissal, claiming (1) that this was a first-stage summary dismissal and the trial court erred in entering it since first-stage dismissals are prohibited after 90 days and this dismissal occurred more than 90 days after the petition was filed and (2) that petitioner had standing to file a postconviction petition, although he had completed his sentence of probation, since he was still required to register as a sex offender.

¶ 4 For the following reasons we affirm.

¶ 5 BACKGROUND

¶ 6 Since we are faced with a purely legal question on this appeal and since we already set forth in detail the facts of the underlying offense in our prior order, we incorporate that prior order by reference. Begay , 2013 IL App (1st) 102216-U, ¶¶ 2–17.

¶ 7 As noted above, petitioner was convicted after a jury trial of aggravated criminal sexual abuse and sentenced to three years of felony probation. Begay , 2013 IL App (1st) 102216-U, ¶ 2. A "Termination Order," dated July 3, 2013, states that petitioner complied with the conditions of his probation and that "the period of probation is terminated."

¶ 8 On May 21, 2014, petitioner's counsel, filed a "Notice of Motion," that stated:

"On Friday, May 23, 2014, at 9:30 a.m., or as soon thereafter as counsel may be heard, I shall appear before the Honorable [trial judge], or any judge sitting in his stead, in Courtroom 110 of the Cook County Courthouse at [address] in Bridgeview, Illinois, and then and there inform him of the status of the post-conviction petition filed in this cause on December 6, 2013."

The notice is signed by petitioner's counsel, stamped "Filed" by the clerk of the circuit court on May 21, 2014, and stamped "Received" by the state's attorney's office on "May 21," with no year indicated. Attached to this notice is a "Petition for Post–Conviction Relief," also signed by counsel. The first page of the petition contains three stamps: a "Received" stamp by the state's attorney's office on December 6, 2013, a "Filed" stamp by the clerk of the circuit court on December 6, 2013, and another "Received" stamp by the state's attorney's office on "May 21," with no year indicated.

¶ 9 The last page of the petition is signed, but not dated, by counsel. There are three affidavits attached that are signed and notarized on the following dates: (1) October 27, 2013, (2) October 18, 2013, and (3) October 16, 2013.

¶ 10 The petition alleges that petitioner is actually innocent and that his trial counsel was ineffective for failing to interview and call at trial the three witnesses whose affidavits are attached. The substantive claims of the petition are not at issue at this time.

¶ 11 With respect to the filing date of his petition, the State in its appellate brief asserts that petitioner "filed a post-conviction petition with two dates on it: December 6, 2013, and May 21, 2014." Similarly, the trial court observed in open court that the petition had two filing dates. By contrast, petitioner in his brief asserts that his petition was "filed on December 6, 2013."

¶ 12 The State asserts that, "the very first day the petition was before [the trial court] for consideration" was July 18, 2014, and the court dismissed the petition on that day for lack of jurisdiction. By contrast, petitioner asserts that "[t]he court took no action on the petition until July 14, 2014, 225 days after the petition was filed. At that time, the court summarily dismissed [it.]"

¶ 13 The first notation appearing in the trial court's half-sheets after defendant's successful termination of probation on July 3, 2013, is for June 26, 2014. The notation for June 26, 2014, states, in relevant part: "DF Pet for P.C. relief 1st stage O/C 7/18/14 1st Stage."

¶ 14 The next transcript of proceedings is for July 18, 2014, and it shows that the State was not present. A counsel identified himself for the record and then explained that he was appearing on behalf of "the lawyer who filed the PC on behalf of [petitioner]." The trial court then ruled as follows, in full:

"THE COURT: Well, let her know that she filed this too late. [Petitioner], in order to file a post-conviction petition under the post-conviction act, and the most recent case that kind of lays this out in the Illinois Supreme Court is, People v. Jesus Carrera , C-a-r-r-e-r-a, 239 Ill. 2d. 241, 346 Ill.Dec. 507, 940 N.E.2d 1111, 2010 case.

But, it sets forth that the act provides that any person imprisoned in the penitentiary may institute a proceeding under this article. And, the court reiterated that you don't have to actually be in the penitentiary. The probation period is satisfactory.

However, the Supreme Court has held that the act did not require actual incarceration. But, any person—the words, ‘imprisoned in the penitentiary,’ prevent those who have completed their sentence from using the act for [re]medial machinery solely to purge their criminal records. Rather only those whose liberty was actually restrained or entitled to the protection code [sic ] for the act.

In this case, the defendant received probation—three years probation, on or about the date of July 9, of 2010. That probation was terminated satisfactorily on July 3rd, 2013.

This petition—there are two dates on this. They were never called up before the Court, by the way. She never came up before the Court on this. There are two stamps on this. One being May 21, 2014. But, the prior one was December 6, 2013. Even by the earlier stamp, the defendant was not considered imprisoned or in the penitentiary that is needed in the act in order to have jurisdiction.

So consequently, the Court does not have jurisdiction. And the motion for postconviction relief will be denied. You're all set."

Nothing further was stated that day in open court.

¶ 15 On August 18, 2014, petitioner's counsel filed a motion to reconsider. The motion, which was signed by counsel, stated: "The petition was hand-delivered to the clerk's office by Petitioner's Counsel." Immediately after those words, the following words are crossed out by hand: "and entered on the clerk's system (the court's official docket)." The petition states: "Despite filing the petition." Immediately after these words, the following words are crossed out: "and entering an entry indicating that it was filed." The petition states: "in this case, the petition was filed in the clerk's office [crossed-out words] December 6, 2013." The crossed-out words are: "and the clerk docketed the petition or entered it into the clerk's system on the same day in this case."

¶ 16 The petition further states: "The instant petition was never placed on this court's call until July 18, 2014, 225 days after the petition was filed [crossed-out words] in the clerk's office." The crossed-out words are: "and docketed." Similarly, the petition states: "this court wrongly entered a first-stage dismissal more than 90 days after the petition was received in the clerk's office [crossed-out words]." The crossed-out words are: "and docketed."

¶ 17 A footnote to the motion states, in relevant part, that:

"[B]etween May and July 2014, Petitioner's counsel (or her representative) twice went to the clerk's office and filed notices, noticing up the case, but the clerk failed to put the case on the call. Petitioner's counsel repeatedly called a supervisor named * * * to inquire as to why the clerk was not putting the case on the call, but counsel's many messages were never returned."

¶ 18 On September 5, 2014, counsel filed an amended motion to reconsider. The amended motion contains no cross-outs and alleges, in relevant part, that

"1. Petitioner filed his Petition for Post–Conviction Relief on December 6, 2013.

2. The petition was hand-delivered to the clerk's office by Petitioner's counsel, and entered on the court's official docket (marked file-stamped) that same day."

¶ 19 On October 3, 2014, the parties appeared in open court: both an assistant state's attorney, as well as the counsel who had filed the petition. With respect to the filing date, the court and counsel held the following colloquy:

"THE COURT: [Y]ou originally filed your motion for post-conviction relief back on December 6, 2013, am I correct there?

DEFENSE COUNSEL: That's correct, yes.

THE COURT: All right. And you also claimed that you gave notice to the State's Attorney on that date?

DEFENSE COUNSEL: Yes.

THE COURT: I see the stamp on here.

DEFENSE COUNSEL: Yes, I did.

THE COURT: For whatever reason it was refiled May 21, 2014. But the December 6th date of 2013 is the date we are talking about. All right?

DEFENSE COUNSEL: Yes."

¶ 20 The trial...