People v. Currey

• Docket Number: 2-23-0099
• Decision Date: 20 March 2024
• Citation: People v. Currey, 2024 IL App (2d) 230099, 2-23-0099 (Ill. App. Mar 20, 2024)
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACOB CURREY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

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2024 IL App (2d) 230099

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACOB CURREY, Defendant-Appellant.

No. 2-23-0099

Court of Appeals of Illinois, Second District

March 20, 2024

Appeal from the Circuit Court of Kendall County.Nos. 18-CF-6718-CF-65, 17-CF-216, 17-CM-665, 17-CM-401, 17-CM-240 &17-TR-3505Honorable Robert P. Pilmer, Judge, Presiding.

Attorneys for Appellant: James E. Chadd, Thomas A. Lilien and Jaime L. Montgomery, of State Appellate Defender's Office, of Elgin, for appellant.

Attorneys for Appellee: Eric C. Weis, State's Attorney, of Yorkville (Patrick Delfino, Edward R. Psenicka, and John G. Barrett, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

HUTCHINSON, JUSTICE delivered the judgment of the court, with opinion.Justices Kennedy and Mullen concurred in the judgment and opinion.

OPINION

HUTCHINSON, JUSTICE

¶ 1Defendant, Jacob Currey, appeals the trial court's first-stage dismissal of his petition filed under the Post-Conviction Hearing Act (Act)(725 ILCS 5/122-1 et seq.(West 2020)).He contends that summary dismissal, and the manner in which the trial court handled an amended pleading, was improper.Defendant also filed a motion under Illinois Supreme Court Rule 472(a)(3)(eff.May 17, 2019), seeking credit against his sentence for time spent confined at home while on bond, which the court denied.We agree with the trial court that defendant was not entitled to credit against his sentence; however, we agree with defendant that his postconviction petition should not have been summarily dismissed.Thus, we affirm in part, reverse in part, and remand with directions.

¶ 2 I. BACKGROUND

¶ 3 As the caption indicates, defendant was charged with multiple separate felony, misdemeanor, and traffic offenses in Kendall County.While defendant was on bond in some of those cases, he was arrested on February 26, 2018, and charged with armed violence (for stabbing his neighbor) and possession of a stolen firearm.

¶ 4 On August 16, 2021, the parties notified the court of a fully negotiated plea agreement that would resolve defendant's pending cases.At the hearing, defendant was represented by retained counsel, attorney Brian Erwin.Pursuant to the agreement, defendant pled guilty to armed violence (case No. 18-CF-67), possession of a stolen firearm (case No. 18-CF-67), and aggravated battery of a pregnant person (case No. 17-CF-216) in exchange for a 13-year aggregate sentence.Defendant also pled guilty to multiple misdemeanor and traffic offenses (two counts of domestic battery, violation of an order of protection, and driving on a suspended license), all of which were considered satisfied by time served in presentence custody.The trial court admonished defendant of his appeal rights pursuant to Illinois Supreme Court Rule 605(c)(eff. Oct. 1, 2001).

¶ 5 Two months after he pled guilty, defendant sent a letter to this court asserting that his guilty plea was involuntary.We forwarded defendant's correspondence to the trial court, which in turn treated the letter as a motion to withdraw defendant's plea and appointed counsel for him.The State filed a motion to dismiss as untimely because it was not filed within 30 days of the entry of the guilty plea, as required by Illinois Supreme Court Rule 604(d)(eff. July 1, 2017).SeePeople ex rel. Alvarez v. Skryd, 241 Ill.2d 34, 39-41(2011).The trial court agreed and denied defendant's motion.On the State's motion, the court modified its sentencing orders to reflect a two-year term of mandatory supervised release (MSR), rather than a three-year term.Defendant timely appealed the denial of his motion to withdraw his plea, but the appellate defender moved to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738(1967), finding no issue of arguable merit.We agreed with appellate counsel and affirmed.People v. Currey, No. 2-21-0731(2022)(unpublished summary order under Illinois Supreme Court Rule 23(c)).

¶ 6 Meanwhile, in June 2022, defendant filed in the trial court a pro se motion labeled "nunc pro tunc," seeking presentence custody credit for time spent on home detention.(We will treat this as a motion under Rule 472(a)(3), just as the trial court did.)Then in July 2022, defendant filed a two-page, handwritten, pro se postconviction petition.The petition made several distinct constitutional claims, including a violation of defendant's right to a speedy trial on the armed violence charge, ineffective assistance of counsel for failure to investigate certain defenses, and ineffective assistance of counsel for failing to move to withdraw his plea.On that last point, defendant stated as follows: "In addition counsel was instructed to withdraw my plea on or about Sept 13th 21 [sic] and failed to do so my earlier request on Aug 30th 21 [sic] was ignored."The document abruptly cuts off shortly after that statement.There was also no affidavit attached to the petition or an explanation for its absence.

¶ 7 Twenty-four days later, defendant filed a motion in the trial court titled, "Motion for Appointment of Counsel," specifically for the "attachedPetition for Post-Conviction Relief."(Emphasis added.)The first page of that filing was typed, followed by two handwritten pages of similar miscellaneous claims, including one alleging that plea counsel"failed to file withdraw [sic] of pleas."Attached to the petition were 15 pages of case law printed out from Westlaw followed by defendant's two-page affidavit.

¶ 8 Ninety days after defendant's original two-page pleading was docketed, the trial court issued a brief order summarily dismissing the petition.The court then issued a separate order summarily dismissing the second petition as meritless.Defendant then filed a motion to reconsider stating that his July petition was incomplete and that he did not know why only two pages of his initial petition were filed.Defendant also attached an affidavit to this motion, stating that he filed a pro se motion to withdraw his guilty plea by placing the motion in the mail at the Kendall County Jail on August 30, 2021, addressed to the circuit clerk.The motion, if docketed, would have been timely, but defendant reiterated that he did not know why it was never docketed.

¶ 9The trial court issued a writ from custody, and defendant appeared before the court on November 1, 2022.The court and defendant held a discussion on the record, wherein defendant struggled, rather obviously, with precisely identifying his pleadings.At one point, defendant referred to both his motion to reconsider and his second petition as "a supplement brief *** for the first post [sic]," and the trial court cut defendant off, stating, "Well, if I've denied it"-referring to the initial postconviction petition-"it's too late to supplement it."Defendant then asked to file a notice of appeal instanter; the court sought to clarify that defendant"had filed two petitions" and whether he was seeking to appeal from both denials.Defendant answered that he was attempting to appeal both denials and his timely notice of appeal was filed.

¶ 10We docketed that appeal.However, because defendant's motion for presentence custody credit was still pending, we granted the appellate defender's motion to dismiss the appeal as premature.People v. Currey, No. 2-22-0391(2023)(unpublished minute order).Again, back in the trial court, in his pro se motion, defendant asserted that he was entitled to credit for his participation in several programs while in the county jail.Defendant then filed another motion asserting he was entitled to 481 days of credit for time spent in custody while he was on electronic home monitoring (EHM) as a condition of bond under recent revisions to section 5-4.5-100(b) of the Unified Code of Corrections(730 ILCS 5/5-4.5-100(b)(West 2020)).The court held a hearing on the motions at which the prosecutor conceded that defendant was entitled to 560 days' credit for programming, and the court entered a modified sentencing order.However, on the issue of home detention, the court found that the credit was discretionary, not mandatory, and declined to grant it.Defendant then filed the same motion again and a motion to reconsider the denial of his postconviction petition.All of the motions were denied, and defendant timely appealed.

¶ 11 II.ANALYSIS

¶ 12 As noted, defendant contends that the trial court erred in summarily dismissing his postconviction petitions and denying his motion for home confinement credit.On the issue of defendant's postconviction petition, the State asserts defendant forfeited his postconviction claims because his first petition was unverified, and because he failed to show "cause" in his "second" petition for not including the claim in his first petition.The State also argues that defendant is not entitled to presentence custody credit.We review de novo both the petition's dismissal as well as the denial of presentence custody credit.SeePeople v. Garcia, 2022 IL App (2d) 210488, ¶ 10;People v. Donahue, 2022 IL App (5th) 200274, ¶ 10.

¶ 13We turn first to defendant's postconviction petition.The Act provides a means by which a defendant may challenge his conviction or sentence based on violations of federal or state constitutional rights.People v. Pendleton223 Ill.2d 458, 471(2006).There is a three-stage process for the adjudication of a defendant's postconviction petition.Id. at 471-72.At the first stage of postconviction proceedings, the trial court has 90 days to examine the petition and may within that period summarily dismiss the petition if the court finds the allegations are frivolous and patently without merit.725 ILCS 5/122-2.1(a)(2)(West 2020);P...