People v. Dalton, Appeal No. 3-15-0213

• Decision Date: 09 June 2017
• Docket Number: Appeal No. 3-15-0213
• Citation: 79 N.E.3d 883,2017 IL App (3d) 150213
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert DALTON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (3d) 150213

79 N.E.3d 883

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

v.Robert DALTON, Defendant-Appellant.

Appeal No. 3-15-0213

Appellate Court of Illinois, Third District.

Opinion filed June 9, 2017

Michael J. Pelletier and Fletcher P. Hamill, of State Appellate Defender's Office, of Elgin, for appellant.

Karen K. Donnelly, State's Attorney, of Ottawa (Mark A. Austill, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

JUSTICE McDADEdelivered the judgment of the court, with opinion.

¶ 1Defendant, Robert Dalton, appeals from the denial of his postconviction petition at the third stage.Defendant also appeals the sua sponte dismissal of his section 2-1401 petition.We reverse and remand for further proceedings.

¶ 2 FACTS

¶ 3 On December 30, 2003, defendant was arrested and charged by information with two counts of aggravated criminal sexual abuse ( 720 ILCS 5/12-16(d)(West 2000)), a Class 2 felony.Count I alleged that on July 16, 2001, defendant committed an act of sexual conduct with M.C., a minor between the ages of 13 and 17, by placing his penis in M.C.'s vagina.Count II alleged that defendant committed the same conduct with M.C. on November 7, 2001.The State later filed an indictment raising identical charges.

¶ 4 On May 17, 2004(more than 120 days after the original charges were filed), the State filed an amended information adding four new charges.Counts III, IV, and V were different from the original charges in that they alleged that defendant committed the act of criminal sexual assault (720 ILCS 12-13(a)(3)(West 2000)) on three different occasions when M.C. and defendant resided in the same household continuously for at least one year.Count VI was identical to count I in that both counts were based on the same act alleged to have occurred on July 16, 2001, but count VI charged the greater Class 1 offense of criminal sexual assault and addedan allegation that defendant committed the offense at a time when he and M.C. had resided in the same household continuously for at least one year.

¶ 5 Next, the parties met for a final pretrial conference.At the hearing, the parties informed the court that they wished to let the previously scheduled trial date remain unchanged.The court noted that there was a "time limit period," and asked if there would be an issue if the parties let the trial date stand.Defense counsel responded that he wanted the trial date to remain the same and told the court, "[t]here'll be no speedy trial issue."

¶ 6 Following a trial, the jury found defendant guilty of counts III, IV, V, and VI.The trial court sentenced defendant to consecutive prison terms of 4, 6, 12, and 15 years, respectively.The jury did not receive an instruction on counts I and II, and the jury did not make a finding of guilt regarding those charges.

¶ 7Defendant's trial counsel filed a motion for new trial, which the trial court denied.Defendant then retained new counsel for the posttrial proceedings.Posttrial counsel filed a second motion for new trial and a motion to reconsider sentence.Initially, the court granted defendant's motion for new trial and ordered a new trial.However, the court later granted the State's motion to reconsider and reinstated defendant's convictions and sentences.None of the posttrial motions alleged that trial counsel provided ineffective assistance in failing to raise a speedy trial claim.

¶ 8Defendant appealed.On appeal, counsel for defendant filed a motion to withdraw pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967).Counsel's motion considered the following issues (and determined that they lacked merit): (1) whether the evidence was sufficient to sustain defendant's conviction, (2) whether the trial court abused its discretion in allowing the admission of certain State exhibits, (3) whether the trial court abused its discretion in allowing M.C. to testify regarding sexual assaults that occurred in De Kalb County, (4) whether the decisions identified in posttrial counsel's motion for new trial established claims of ineffective assistance of trial counsel, and (5) whether any error occurred at sentencing.This court granted appellate counsel's motion and dismissed the appeal.People v. Dalton , No. 3-06-0041, 374 Ill.App.3d 1139, 375 Ill.App.3d 1153, 348 Ill.Dec. 689, 944 N.E.2d 930(2007)(unpublished order under Supreme Court Rule 23 ).

¶ 9 Subsequently, defendant filed a pro se petition for postconviction relief.The trial court docketed the petition and appointed counsel to represent defendant.After several amendments to the petition, counsel filed an amended petition, adopting defendant's pro se claims and adding the claim that defendant's prior attorneys all provided ineffective assistance for failing to raise the issue that defendant's speedy trial rights had been violated regarding counts III, IV, V, and VI.The State filed a motion to dismiss, arguing that defendant's right to a speedy trial was not violated because the newly added counts alleged separate acts on different dates than those alleged in the original counts.The State acknowledged that there "may be an issue" with respect to count VI because it was based on the same act alleged in count I.However, the State argued that the late filing of count VI did not implicate defendant's speedy trial right because the new count merely alleged an "upgraded" version of the charge in count I.

¶ 10 At a hearing on the State's motion to dismissdefendant's amended postconviction petition, the trial court found that defendant's speedy trial claim warranted a third-stage postconviction hearing.The court continued the cause and allowed the parties to file additional briefs on the issue.

¶ 11 Prior to the third-stage hearing on defendant's amended postconviction petition, defendant filed a pro se document captioned " 725 ILCS 5/122-1(c)(a)(2) /735 ILCS 5/2-1401 Supplement-Addition Motion."Defendant's pro se motion alleged a new claim of newly discovered evidence that established both a "412 Brady violation" and defendant's actual innocence.

¶ 12 On March 26, 2015, the parties appeared in court for the third-stage hearing on defendant's amended postconviction petition.At the hearing, the trial court noted defendant's newly filed pro se document.Appointed counsel told the court that he did not adopt the claims in the pro se petition.Defendant then explained that he intended the newly filed pro se document to be a separate filing from counsel's amended postconviction petition.Specifically, defendant argued:

"By law, Illinois Constitutional law and I says underneath 21401 new evidence and then underneath actual innocence claimed 725 ILSC[sic ] and then 735 ILSC[sic ] 21401 that I can at any time pro se file a motion underneath the new evidence if it becomes available to me which I can likely prove that it did."

¶ 13The trial court allowed defendant to file his pro se petition, referring to the petition as a "2nd post-conviction" petition.The court summarily dismissed the petition as it failed to raise any newly discovered evidence.The State did not provide any input regarding defendant's pro se petition.

¶ 14 Next, the trial court considered appointed counsel's amended postconviction petition.The court found that the late filing of counts III, IV, and V did not violate defendant's speedy trial rights as the new counts charged different offenses based on distinct acts.The court also found that the late filing of count VI did not violate defendant's speedy trial right, even though count VI charged an offense based on the same act as count I, because it was merely an "upgraded" version of count I.The court denied defendant's amended postconviction petition.

¶ 15 ANALYSIS

¶ 16 At the outset, we note that during the pendency of this appeal, defendant filed a letter in this court asking that he be allowed to supplement appointed counsel's brief."If a defendant is represented by appellate counsel, whether appointed or privately retained, he has no right to a ‘hybrid appeal’ in which he alternates between being represented by counsel and proceeding pro se through the filing of a supplemental pro se brief.[Citation.]Defendant, therefore, has no right to present his pro se arguments to this court[citations] * * *."People v. Thompson , 331 Ill. App. 3d 948, 951-52, 265 Ill.Dec. 653, 773 N.E.2d 15(2002).Accordingly, we deny defendant's request to supplement appointed counsel's brief.

¶ 17 On appeal, defendant contends that the trial court erred when it denied his amended postconviction petition at the third stage.In addition, defendant contends the court erred in sua sponte dismissing his separate pro se"section 2-1401" petition because it was not ripe for adjudication.Upon review, we find defendant is entitled to postconviction relief where appellate counsel provided ineffective assistance in failing to raise a meritorious speedy trial claim.As to defendant's claim regarding his section 2-1401 petition, we find the trial court erred in suasponte dismissing the petition prior to the expiration of the 30-day period during which the State may move to dismiss or otherwise plead.

¶ 18 I. Postconviction Petition

¶ 19 As to defendant's first argument, we initially note that at the third stage of postconviction proceedings, defendant bears the burden of making a substantial showing of a constitutional violation.People v. Coleman , 206 Ill. 2d 261, 277, 276 Ill.Dec. 380, 794 N.E.2d 275(2002).In instances such as the present, where no new evidence is presented and the issues presented are pure questions of law, we apply a de novo standard of review.People v. Caballero , 206 Ill. 2d 65, 87-88, 276 Ill.Dec. 356, 794 N.E.2d 251(2002).

¶ 20Defendant contends that his speedy trial rights were violated when the State filed count VI more than 120 days after it filed the original charges.¹Thus, defendant concludes that he made a...