People v. Henderson, 1–09–0923.

• Decision Date: 17 November 2011
• Docket Number: No. 1–09–0923.,1–09–0923.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Donte HENDERSON, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 090923
356 Ill.Dec. 311
961 N.E.2d 407

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Donte HENDERSON, Defendant–Appellant.

No. 1–09–0923.

Appellate Court of Illinois, First District, Fourth Division.

Nov. 17, 2011.

[961 N.E.2d 411]

Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender, Alan D. Goldberg, Deputy Defender, Pamela Rubeo, Assistant Appellate Defender, Chicago, for appellant.

Anita M. Alvarez, State's Attorney (Alan J. Spellberg, Brian K. Hodes, Assistant State's Attorneys, of counsel), for People.

[356 Ill.Dec. 315] OPINION Presiding Justice LAVIN delivered the judgment of the court, with opinion.

¶ 1 Defendant Donte Henderson appeals from the trial court's summary dismissal of his petition filed under the Post–Conviction Hearing Act (the Act) (725 ILCS 5/122–1 et seq. (West 2008)). In his petition, defendant challenged negotiated guilty pleas entered in three different cases because he was aggrieved at not being admitted to boot camp, as allegedly promised pursuant to the plea agreements. On appeal, defendant asserts that the trial court erroneously dismissed his petition because it presented a claim that was neither frivolous nor patently without merit. Defendant also argues for the first time that his conviction for delivery of a controlled substance within 1,000 feet of a school is void because the automatic transfer provision of the Juvenile Court Act of 1987 (the Juvenile Act) (705 ILCS 405/5–130(2)(a) (West 2004)) did not authorize his transfer from juvenile court to criminal court. We affirm.

¶ 2 I. BACKGROUND

¶ 3 In 2006, defendant entered negotiated guilty pleas to delivery of a controlled substance within 1,000 feet of a school (No. 05 C6 60799), possession of a controlled substance with intent to deliver (No. 06 CR 03910) and aggravated battery of a correctional officer (No. 06 CR 01515). At a hearing before Judge Kenneth Wadas on October 17, 2006, defense counsel represented that pursuant to an agreement with the State, defendant would plead guilty to aggravated battery of a correctional officer in exchange for three years in prison “with a Boot Camp recommendation” and that his sentence would be served concurrently with the sentences to be imposed in defendant's other two cases. When asked whether he had been promised anything other than a sentence of three years in prison with a “recommendation of impact incarceration, also known as Boot Camp,” defendant answered no. After defendant was admonished and the State recited the factual basis for the offense, the court accepted defendant's guilty plea and sentenced him to three years in prison, to run concurrently with his other two sentences, and a “[r]ecommendation of Impact Incarceration, also known as Boot Camp.” The written sentencing order reflects defendant's sentence as pronounced by the court and states, “recommended for bootcamp.”

¶ 4 At a hearing before Judge Christopher Donnelly the next day, defense counsel stated that defendant was entering guilty pleas in both controlled substance cases in exchange for “the recommended sentence of four years Illinois Department of Corrections with boot camp to run concurrent” with his sentence for aggravated battery of a correctional officer. In admonishing defendant, the court stated, [356 Ill.Dec. 316]

[961 N.E.2d 412]

“[o]ther than the plea agreement stated here in open court by your attorney, did anybody make any promises to you about what I would or would not do if you pled guilty today?” Defendant answered no. Following further admonishments and the recitation of the factual bases for defendant's offenses, the court accepted defendant's guilty pleas. The court subsequently sentenced defendant to “four years Illinois Department of Corrections with a boot camp recommendation,” to be served concurrently with each other as well as his sentence for aggravated battery of a correctional officer. At the end of the hearing, the following colloquy ensued:

“DEFENDANT: They told me I might not be able to get boot camp because I was on psych medication. If I don't be able to get it—

THE COURT: Then you will be brought back to this Court, and we will have to do something else.”

The sentencing orders regarding defendant's controlled substance convictions state “[i]t is further ordered that with boot camp.” Defendant did not file a direct appeal in any of the three cases.

¶ 5 On December 10, 2008, defendant filed a pro se petition for postconviction relief, in which he essentially alleged, in pertinent part, that his guilty pleas were involuntary and he did not receive the benefit of his bargain because he pled guilty specifically in exchange for the promise of boot camp, which he did not receive. Attached to the petition was an unnotarized affidavit signed by defendant, in which he swore to the truth of the allegations in his petition pursuant to section 1–109 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/1–109 (West 2008)). On February 9, 2009, Judge Frank Zelezinski summarily dismissed defendant's petition as untimely and frivolous and patently without merit. On July 21, 2011, this court entered a decision affirming the trial court's judgment. We subsequently granted the appellate defender's petition for rehearing and accordingly, we consider defendant's appeal once more.

¶ 6 II. THE ACT

¶ 7 On appeal, defendant first asserts the trial court erred in summarily dismissing his petition because he alleged a constitutional claim which was neither frivolous nor patently without merit. Specifically, defendant contends that he presented sufficient allegations showing that he did not knowingly and voluntarily enter his guilty plea and did not receive the benefit of his bargain because he was falsely promised boot camp. The State contends, however, that the trial court's summary dismissal of defendant's petition was warranted because the petition was not verified by affidavit, as required by section 122–1(b) of the Act. 725 ILCS 5/122–1(b) (West 2008). The State does not dispute that defendant attached to his petition a document labeled as an “affidavit,” declaring the truth of the allegations in his petition, but contends that this document does not constitute an affidavit because it was not notarized. Before we address the parties' arguments, an additional threshold matter has arisen pending a final judgment on appeal.

¶ 8 The parties do not dispute that defendant has completed his prison term. It has also come to our attention that pending a final judgment on appeal, defendant has successfully completed his mandatory supervised release (MSR) terms and, thus, is no longer serving a sentence in any of the three cases at issue. In the beginning of October, the website of the Illinois Department of Corrections (IDOC) indicated that defendant was scheduled to be fully discharged from MSR on October 19, 2011. [356 Ill.Dec. 317]

[961 N.E.2d 413]

As of that date, the website no longer shows that defendant is in the custody of the IDOC. See People v. McKinney, 399 Ill.App.3d 77, 79, 339 Ill.Dec. 575, 927 N.E.2d 116 (2010) (finding that the reviewing court can take judicial notice of the IDOC's website). Because defendant's liberty is no longer encumbered by his convictions, we must consider whether the parties' contentions under the Act have been rendered moot.

¶ 9 Illinois appellate courts generally will not review moot issues. People v. Kelly, 397 Ill.App.3d 232, 248, 336 Ill.Dec. 719, 921 N.E.2d 333 (2009). The purpose of the rule is for courts to avoid considering cases where the parties no longer have a personal stake in the case's outcome. Id. at 249, 336 Ill.Dec. 719, 921 N.E.2d 333. In addition, an issue may become moot where circumstances change while an appeal is pending and prevent the reviewing court from being able to render effectual relief. People v. Shum, 207 Ill.2d 47, 51, 278 Ill.Dec. 14, 797 N.E.2d 609 (2003). Intervening events may eliminate issues involved in the trial court. People v. Roberson, 212 Ill.2d 430, 435, 289 Ill.Dec. 265, 819 N.E.2d 761 (2004). The question before us is whether defendant, who is in no way serving a sentence, may obtain relief under the Act or whether his release from MSR eliminates his standing to obtain relief under the Act, rendering the parties' arguments under the Act moot.

¶ 10 Section 122–1 of the Act states, in pertinent part, that “[a]ny person imprisoned in the penitentiary may institute a proceeding under this Article.” (Emphasis added.) 725 ILCS 5/122–1 (West 2008). A remedy under the Act is only available to persons who are actually being deprived of their liberty, not persons who have completely served their sentences and merely wish to purge their criminal records of past convictions. People v. Carrera, 239 Ill.2d 241, 257, 346 Ill.Dec. 507, 940 N.E.2d 1111 (2010); People v. Martin–Trigona, 111 Ill.2d 295, 299, 95 Ill.Dec. 492, 489 N.E.2d 1356 (1986) (citing People v. Dale, 406 Ill. 238, 246, 92 N.E.2d 761 (1950)). Thus, a defendant's liberty interest is paramount under the Act. People v. Pack, 224 Ill.2d 144, 150, 308 Ill.Dec. 735, 862 N.E.2d 938 (2007).

¶ 11 A defendant's liberty is constrained if he is always on a string that the State may pull when it pleases. People v. Rajagopal, 381 Ill.App.3d 326, 329, 319 Ill.Dec. 472, 885 N.E.2d 1152 (2008). Thus, a defendant retains standing under the Act so long as he is challenging a conviction for which he continues to serve some form of sentence so that his liberty would be directly affected by invalidating his conviction. People v. Dent, 408 Ill.App.3d 650, 654, 350 Ill.Dec. 178, 948 N.E.2d 247 (2011). As with incarceration, restraints on a person's liberty accompanying parole, probation and release on appeal bond are unacceptable when imposed in violation of his constitutional rights. Martin–Trigona, 111 Ill.2d at 300, 95 Ill.Dec. 492, 489 N.E.2d 1356. A defendant who is no longer on parole, however, lacks standing to...