People v. Munz

Decision Date14 October 2021
Docket Number2-18-0873
Parties The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald M. MUNZ, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

James E. Chadd, Thomas A. Lilien, and Erin S. Johnson, of State Appellate Defender's Office, of Elgin, for appellant.

Marilyn Hite Ross, State's Attorney, of Rockford (Patrick Delfino, Edward R. Psenicka, and Stephanie Hoit Lee, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

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

¶ 1 Defendant, Donald M. Munz, appeals the summary dismissal of his petition for postconviction relief filed pursuant to the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2018)). On appeal, defendant argues that the circuit court erred in concluding that, because he filed his postconviction petition one day before he completed his term of mandatory supervised release (MSR), he lost standing to seek relief under the Act. Although we determine that the circuit court erred in concluding that defendant lacked standing under the Act, we affirm the summary dismissal of defendant's postconviction petition, because the claims advanced therein were frivolous and patently without merit.


¶ 3 We recount only the facts that are necessary to resolve this appeal. Defendant was convicted of stalking in violation of section 12-7.3(a)(2) of the Criminal Code of 2012 ( 720 ILCS 5/12-7.3(a)(2) (West 2012)) and sentenced to 2½ years’ imprisonment, to be followed by 4 years of MSR. We affirmed his conviction on direct appeal, having determined that (1) his conviction did not need to be vacated in light of People v. Relerford , 2017 IL 121094, 422 Ill.Dec. 774, 104 N.E.3d 341, (2) defendant's prior bad acts toward another woman were properly admitted because they showed how he acted after he was angered, and (3) evidence of a civil no-contact order obtained by the victim was properly admitted because it was relevant to show defendant's continuing and escalating conduct, even after he was served with a no-contact order. People v. Munz , 2018 IL App (2d) 160159-U, 2018 WL 5298629.

¶ 4 On September 11, 2018, while his direct appeal was pending, defendant filed a pro se petition for postconviction relief. A certificate of service included with the postconviction petition averred that, on August 9, 2018, defendant placed his petition into the prison mail system at the Dixon Correctional Center. Defendant alleged in his petition that his term of MSR stemming from his conviction would end on September 12, 2018, and, after that date, he would "no longer [be] able to file a postconviction [petition]." Thus, defendant's petition was filed one day before his MSR term ended.1

¶ 5 Defendant raised five claims in his postconviction petition. He argued that (1) the stalking statute under which he was convicted was overly broad, in violation of the first amendment; (2) his due process rights were violated when the trial judge, rather than the jury, decided if his behavior was constitutionally protected under the first amendment; (3) the phrase "communicates to or about," which our supreme court ruled was unconstitutionally overbroad in Illinois's stalking statute ( Relerford , 2017 IL 121094, ¶ 65, 422 Ill.Dec. 774, 104 N.E.3d 341 ), was improperly included in the jury instructions; (4) the standard for finding emotional distress in the stalking statute is lower than in civil cases and therefore violates the constitution; and (5) the assistant state's attorney who tried the case should have been disqualified because she was reprimanded by the Attorney Registration and Disciplinary Commission (ARDC) for failing to disclose exculpatory information in an unrelated case.

¶ 6 On October 5, 2018, the circuit court summarily dismissed the petition based on a lack of standing. It reasoned that, because defendant filed the petition at the "last minute," he had served his entire sentence, including his term of MSR, and "his liberty interests are no longer at risk and would not be affected by any invalidation of his conviction." It added that defendant's true aim was to purge the conviction from his record, which was an improper use of the Act.

¶ 7 Defendant filed a timely notice of appeal.


¶ 9 A. Standing

¶ 10 On appeal, defendant argues that the circuit court erred in concluding that, because he filed his postconviction petition one day before he completed his term of MSR, he lost standing to seek relief under the Act. Defendant offers no argument on appeal that his postconviction claims are not frivolous or patently without merit, and he does not argue that his postconviction petition presented the gist of a constitutional claim. Rather, he asserts that, because the circuit court erroneously dismissed his petition "at the first stage based only on a lack of standing," remand for automatic second-stage proceedings is required because the court failed to evaluate whether the petition was frivolous or patently without merit within the statutory 90-day window for reviewing first-stage postconviction petitions.

¶ 11 The Act provides a three-stage process for a defendant to challenge his or her conviction as being the result of a substantial denial of his or her rights under the United States Constitution, the Constitution of the State of Illinois, or both. People v. Mendez , 402 Ill. App. 3d 95, 98, 341 Ill.Dec. 700, 931 N.E.2d 308 (2010). The Act is not intended to be a substitute for a direct appeal, but rather, it is a collateral proceeding, which attacks a final judgment. People v. Johnson , 2019 IL App (1st) 162999, ¶ 44, 442 Ill.Dec. 875, 160 N.E.3d 1055. The purpose of a postconviction proceeding is to allow inquiry into constitutional issues relating to the conviction or sentence that were not, and could not have been, determined on direct appeal. People v. Wilborn , 2011 IL App (1st) 092802, ¶ 52, 356 Ill.Dec. 843, 962 N.E.2d 528.

¶ 12 Under the Act, the defendant files a postconviction petition in the court where his or her original proceeding was held. Mendez , 402 Ill. App. 3d at 98, 341 Ill.Dec. 700, 931 N.E.2d 308. At the first stage of postconviction proceedings, the circuit court must determine whether the petition is frivolous or patently without merit. The defendant need present only a limited amount of detail, and the allegations are to be liberally construed and taken as true ( People v. Edwards , 197 Ill. 2d 239, 244, 258 Ill.Dec. 753, 757 N.E.2d 442 (2001) ), so long as they are not affirmatively rebutted by the record ( People v. Gerow , 388 Ill. App. 3d 524, 526, 328 Ill.Dec. 110, 903 N.E.2d 770 (2009) ). At this stage, the petition need not set forth the claim in its entirety or include legal arguments or citations to legal authority. People v. Edwards , 197 Ill. 2d 239, 244, 258 Ill.Dec. 753, 757 N.E.2d 442 (2001). The threshold that a postconviction petition must meet to survive the first stage of review is low because most postconviction petitions are drafted by pro se petitioners. People v. Knapp , 2020 IL 124992, ¶ 44, 450 Ill.Dec. 523, 181 N.E.3d 875. At the first stage, the circuit court reviews the defendant's petition independently, without input from the parties. People v. Luciano , 2013 IL App (2d) 110792, ¶ 83, 370 Ill.Dec. 587, 988 N.E.2d 943.

¶ 13 If the court determines that the petition is frivolous or patently without merit, it must dismiss it. 725 ILCS 5/122-2.1(a)(2) (West 2018); Knapp , 2020 IL 124992, ¶ 43, 450 Ill.Dec. 523, 181 N.E.3d 875. A postconviction petition is "frivolous or patently without merit only if it has no ‘arguable basis either in law or in fact.’ " People v. Petrenko , 237 Ill. 2d 490, 496, 342 Ill.Dec. 15, 931 N.E.2d 1198 (2010) (quoting People v. Hodges , 234 Ill. 2d 1, 16, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009) ). A petition lacks an arguable basis in either law or fact if it is based on an indisputably meritless legal theory or fanciful factual allegations. Luciano , 2013 IL App (2d) 110792, ¶ 83, 370 Ill.Dec. 587, 988 N.E.2d 943. "[A] meritless legal theory is one completely contradicted by the record, while fanciful factual allegations may be fantastic or delusional." (Internal quotation marks omitted.) Knapp , 2020 IL 124992, ¶ 45, 450 Ill.Dec. 523, 181 N.E.3d 875. If the circuit court does not dismiss the petition as either frivolous or patently without merit, it advances to the second stage, where counsel may be appointed for an indigent defendant and where the State may file a motion to dismiss the petition or file an answer. Hodges , 234 Ill. 2d at 10-11, 332 Ill.Dec. 318, 912 N.E.2d 1204 ; 725 ILCS 5/122-4, 122-5 (West 2018).

¶ 14 A circuit court's compliance with statutory procedures is a question of law, which we review de novo. People v. Barber , 381 Ill. App. 3d 558, 559, 319 Ill.Dec. 916, 886 N.E.2d 1040 (2008). Likewise, any dismissal of a postconviction petition prior to an evidentiary hearing is reviewed de novo. People v. Johnson , 206 Ill. 2d 348, 357, 276 Ill.Dec. 399, 794 N.E.2d 294 (2002). "We decide de novo whether defendant's discharge from the Department's custody renders moot a petition for postconviction relief that he filed while still in custody." People v. Coe , 2018 IL App (4th) 170359, ¶ 17, 427 Ill.Dec. 585, 118 N.E.3d 1256.

¶ 15 Here, there is no dispute that defendant was, in fact, "imprisoned in the penitentiary" as contemplated in section 122-1(a) when he filed his postconviction petition. Section 122-1(a) of the Act ( 725 ILCS 5/122-1(a) (West 2018)) governs standing to initiate a petition seeking postconviction relief. This section provides that "[a]ny person imprisoned in the penitentiary may institute a proceeding under this Article." Id. Notwithstanding the requirement that the individual be "imprisoned in the penitentiary," our supreme court has made clear that "actual incarceration is not a...

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