People v. Johnson

• Decision Date: 31 December 2019
• Docket Number: No. 1-16-3169,1-16-3169
• Citation: 443 Ill.Dec. 134,161 N.E.3d 258,2019 IL App (1st) 163169
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Recardo JOHNSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 163169

161 N.E.3d 258

443 Ill.Dec. 134

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

v.Recardo JOHNSON, Defendant-Appellant.

No. 1-16-3169

Appellate Court of Illinois, First District, SIXTH DIVISION.

December 31, 2019

James E. Chadd, Patricia Mysza, and Maggie A. Heim, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Brian K. Hodes, Assistant State's Attorneys, of counsel), for the People.

PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion.

¶ 1 In this appeal, defendant Recardo Johnson argues that the circuit court erred in summarily dismissing his pro se petition for relief pursuant to the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 (West 2016) ) on the basis of standing. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 In October 2007, Mr. Johnson pleaded guilty in case No. 07 CR 17223 to the offense of unlawful restraint (see 720 ILCS 5/10-3 (West 2006) ) in exchange for a sentence of two years' imprisonment. Before Mr. Johnson entered his plea, the court informed him:

"Mr. Johnson, you are charged with the offense of unlawful restraint * * *.

That in the State of Illinois is what is referred to as a Class 4 felony, which means it's punishable by 1 to 3 years in the Illinois State Penitentiary. If I find you have been found guilty of the same or greater class felony within the last ten years, the maximum penitentiary time in this case can increase all the way up to 6 years.

In addition, upon your release from the penitentiary there would be a period of 1 year mandatory supervised release. That's sometimes referred to as parole."

¶ 4 Upon entering his plea, Mr. Johnson said he understood he was giving up certain rights by pleading guilty, including his right to plead not guilty and have a jury trial. Mr. Johnson said he was not threatened or promised anything in exchange for his plea.

¶ 5 The State provided a factual basis for the plea, the circuit court found that Mr. Johnson pleaded guilty to the charge freely and voluntarily, and the court accepted the plea. The court then sentenced Mr. Johnson to two years in prison and admonished him of his right to a direct appeal. Mr. Johnson did not avail himself of that right.

¶ 6 On July 18, 2016, Mr. Johnson, pro se , moved the circuit court to file a late postconviction petition. In the petition, Mr. Johnson said that he was presently incarcerated, he had been incarcerated for approximately one year, and the lateness of his filing was not due to his culpable negligence. Mr. Johnson filed his petition under case No. 07 CR 1722301, the case in which he had pleaded guilty to unlawful restraint in October 2007. Mr. Johnson argued in his petition that the age of the victim in his case was never stated in court, the circuit court never informed him that he would need to register under the Child Murderer and Violent Offender Against Youth Registration Act (Violent Offender Act) (see 730 ILCS 154/1 et seq. (West 2006)), and that his plea counsel was ineffective for failing to tell him he would need to register under the Violent Offender Act.

¶ 7 On September 30, 2016, the circuit court summarily dismissed Mr. Johnson's petition. The court noted that Mr. Johnson had not withdrawn his 2007 guilty plea or appealed that conviction and had already served the term of imprisonment and mandatory supervised release (MSR) to which he was sentenced in case No. 07 CR 1722301. The circuit court noted that at the time he filed his petition, Mr. Johnson was independently serving "a term of two years of imprisonment for failure to register" under the Violent Offender Act in case No. 14 CR 1312801. The circuit court's opinion indicated that it obtained this information from the website for the Illinois Department of Corrections. Citing People v. Pack , 224 Ill. 2d 144, 150, 308 Ill.Dec. 735, 862 N.E.2d 938 (2007), the circuit court stated that the Act "and its remedies are not available to petitioners who have completed their sentences and merely seek to purge their criminal records." The court found that, because Mr. Johnson was "no longer imprisoned or otherwise in the custody of the [Illinois Department of Corrections]" as it related to the case in which he claimed error in his petition, the petition was frivolous and patently without merit.

¶ 8 II. JURISDICTION

¶ 9 Mr. Johnson timely filed his notice of appeal on September 30, 2016. We have jurisdiction pursuant to article VI, section 6, of the Illinois Constitution ( Ill. Const. 1970, art. VI, § 6 ) and Illinois Supreme Court Rules 606 and 651, governing criminal appeals and appeals from final judgments in postconviction proceedings ( Ill. S. Ct. R. 606 (eff. Mar. 20, 2009); R. 651(a) (eff. Dec. 1, 1984)).

¶ 10 III. ANALYSIS

¶ 11 On appeal, Mr. Johnson argues that the circuit court erred in dismissing his petition at the first stage on the basis of standing. However, this single argument gives rise to two separate questions: (1) whether standing is ever an appropriate consideration at the first stage of postconviction proceedings and, if so, (2) whether, in this case, Mr. Johnson's argument that he has standing is frivolous or patently without merit. We consider each question in turn.

¶ 12 First, Mr. Johnson argues that standing is never an appropriate basis for dismissal at the first stage of postconviction proceedings. The State, on the other hand, argues that the circuit court properly dismissed Mr. Johnson's petition based on standing at the first stage because if it is clear that a defendant lacks standing, his petition is necessarily frivolous and patently without merit. We agree with the State.

¶ 13 The Act "provides a three-stage process for adjudicating postconviction petitions." People v. Hommerson , 2014 IL 115638, ¶ 7, 378 Ill.Dec. 459, 4 N.E.3d 58. At the first stage the circuit court determines whether the petition is frivolous or patently without merit, which our supreme court has defined as "having no basis in law or fact and obviously without legal significance." People v. Blair , 215 Ill. 2d 427, 445, 294 Ill.Dec. 654, 831 N.E.2d 604 (2005). If the court finds the petition to be frivolous or patently without merit, it dismisses the petition; if not, the petition proceeds to the second stage of proceedings, at which point the court may appoint counsel to represent an indigent defendant. Hommerson , 2014 IL 115638, ¶¶ 7-8, 378 Ill.Dec. 459, 4 N.E.3d 58. We review the dismissal of a postconviction petition de novo . Id. ¶ 6.

¶ 14 What the circuit court may consider at the first stage of postconviction proceedings is a question our supreme court has focused on primarily in three cases: People v. Boclair , 202 Ill. 2d 89, 273 Ill.Dec. 560, 789 N.E.2d 734 (2002) ; Blair , 215 Ill. 2d 427, 294 Ill.Dec. 654, 831 N.E.2d 604 ; and Hommerson , 2014 IL 115638, 378 Ill.Dec. 459, 4 N.E.3d 58. In Boclair , the court found that the timeliness of a petition was not a proper subject for consideration at the first stage of postconviction proceedings. Boclair , 202 Ill. 2d at 97, 273 Ill.Dec. 560, 789 N.E.2d 734. In so holding, the supreme court noted first that timeliness and frivolousness are addressed by two separate sections of the Act (see 725 ILCS 5/122-1(c) (West 2000) (timeliness); id. § 122-2.1(a)(2) (frivolousness)). Boclair , 202 Ill. 2d at 100, 273 Ill.Dec. 560, 789 N.E.2d 734. The court continued:

"Under a plain reading of section 122-2.1(a)(2), the circuit court may dismiss a post-conviction petition at the initial stage only if the petition is deemed to be ‘frivolous or * * * patently without merit,’ not if it is untimely filed. * * * By addressing timeliness and frivolousness in separate provisions of the Act, the legislature plainly intended to draw a distinction between these two flaws of post-conviction petitions.

To accept the argument that the circuit court has the authority to dismiss a petition pursuant to section 122-2.1(a)(2) of the Act we would have to hold, contrary to the language of the Act, that the phrase ‘frivolous or * * * patently without merit’ encompasses untimely petitions. We will not ignore the Act's language and adopt this interpretation. If a petition is untimely that does not necessarily mean that the petition lacks merit." Id. at 100-01, 273 Ill.Dec. 560, 789 N.E.2d 734.

¶ 15 The supreme court then went on to define the words used in section 122-2.1(a)(2): " ‘[f]rivolous’ has been defined as ‘of little weight or importance: having no basis in law or fact.’ [Citations.] ‘[P]atently’ means ‘CLEARLY, OBVIOUSLY, PLAINLY.’ [Citations.] ‘Merit’ means ‘legal significance, standing, or importance.’ [Citations.]" Id. at 101, 273 Ill.Dec. 560, 789 N.E.2d 734. Importantly, the court concluded that "[t]hese terms do not include issues of timeliness." Id. "Further, time is not an inherent element of the right to bring a post-conviction petition. [Citation.] For that reason, time limitations in the Act should be considered as an affirmative defense and can be raised, waived, or forfeited, by the State." (Emphasis in original.) Id.

¶ 16 In Blair , our supreme court held that a circuit court may consider at the first stage whether claims in a petition are barred by res judicata or forfeiture. Blair , 215 Ill. 2d at 429-30, 294 Ill.Dec. 654, 831 N.E.2d 604. The court noted that both res judicata and forfeiture are "inherently legal determinations which may bar relief under the Act. Thus, an otherwise meritorious claim has no basis in law if res judicata or forfeiture bar the claim." Id. at 445, 294 Ill.Dec. 654, 831 N.E.2d 604. And because "res judicata and forfeiture preclude a defendant from obtaining relief, such a claim is necessarily ‘frivolous’ or ‘patently without merit.’ " Id. The court therefore concluded that "the legislature intended that the court be allowed to make legal determinations based on both res judicata and forfeiture" and that "[t]o hold otherwise, w...