People v. Smith
| Decision Date | 10 September 2008 |
| Docket Number | No. 5-07-0199.,5-07-0199. |
| Citation | 898 N.E.2d 119,386 Ill. App. 3d 473 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tobby J. SMITH, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Daniel M. Kirwan, Deputy Defender, Edwin J. Anderson, Assistant Defender, Office of the State Appellate Defender, Mt. Vernon, IL, for Appellant.
Charles Zalar, Special Prosecutor, Office of the State's Attorneys Appellate Prosecutor, Springfield, IL; Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Kendra S. Peterson, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, IL; Ed Deters, State's Attorney, Effingham, IL, for Appellee.
Modified Upon Denial of Rehearing
On December 11, 2003, the defendant, Tobby J. Smith, was charged with two counts of first-degree murder for the death of Ronald Hood. On February 22, 2005, pursuant to a fully negotiated plea, the defendant pled guilty to the charge of first-degree murder (720 ILCS 5/9-1(a)(2) (West 2004)) in return for the State dismissing all the other pending matters against him, including a second charge of first-degree murder (720 ILCS 5/9-1(a)(1) (West 2004)) and the charges, in two other cases, of domestic battery, aggravated battery, and aggravated battery with a firearm. At the plea hearing, the State set out the terms of the plea agreement: the defendant would plead guilty to the charge of first-degree murder for an agreed sentence of 22 years' imprisonment in the Department of Corrections with credit for time served, pursuant to truth in sentencing he would serve 100% of his sentence, he would pay the costs of the proceedings in the murder case, he would submit to DNA testing, and his bond would be distributed for fees, fines, and costs. The State explained that in exchange for the guilty plea, all the other charges against the defendant would be dismissed. The defendant's counsel agreed with the State's description of the terms of the plea agreement. Neither the State nor defense counsel mentioned mandatory supervised release. The defendant received the following admonishment from the court:
When the court imposed the sentence, it stated as follows:
"THE COURT: Mr. Smith, I am then going to find that you understand the charge and possible penalties, that there is a factual basis, that the plea is voluntary you understand your rights to trial and the other rights I explained, that you give up those rights voluntarily, and I'm going to accept your guilty plea to Count II of the Indictment, December 18, 2003, and per your agreement with the State I'm going to sentence you on that Count II to 22 years in the Department of Corrections."
The court dismissed the other charges, entered a judgment on his plea to first-degree murder, sentenced him to 22 years' incarceration in the Department of Corrections with credit for time served, assessed court costs, required him to submit to DNA testing, and set out the distribution of his bond for fees, costs, and fines. When the court pronounced the sentence, it did not state that the defendant would be required to serve a term of mandatory supervised release. The written sentencing judgment made no reference to a term of mandatory supervised release.
The defendant filed no posttrial motions or direct appeal. On February 27, 2007, the defendant filed a pro se petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2006)), alleging that his constitutional right to due process and fundamental fairness was violated because he had not been informed that a 3-year mandatory-supervised-release term would apply to the 22-year prison sentence to which he pled guilty. The defendant did not challenge the validity of his plea, nor did he seek the withdrawal of his guilty plea. The defendant conceded that the statutory minimum for first-degree murder is 20 years' incarceration and that subtracting 3 years from his sentence would take it below the statutory minimum; therefore, he requested that his sentence be reduced to 20 years' imprisonment followed by a period of 3 years' mandatory supervised release. On March 6, 2007, the trial court, sua sponte, ordered the defendant's petition dismissed on the grounds that it was untimely filed and that it failed to plead facts upon which relief could be granted. The defendant filed a timely notice of appeal alleging that, pursuant to People v. Whitfield, 217 Ill.2d 177, 298 Ill.Dec. 545, 840 N.E.2d 658 (2005), his fully negotiated 22-year prison sentence must be modified to 20 years' imprisonment plus 3 years' mandatory supervised release, so that his sentence will approximate the sentence to which he pled guilty. We find that the circuit court erred in dismissing the petition based upon timeliness, in failing to recharacterize the petition as a postconviction petition, and in finding that the petition was without merit. We reverse and remand with directions.
The defendant argues that the trial court erred in dismissing, sua sponte, his section 2-1401 petition on timeliness grounds, because the petition alleged a valid legal claim for relief. A trial court may, sua sponte, dismiss a section 2-1401 petition when the petitioner's claim is without merit. People v. Vincent, 226 Ill.2d 1, 13, 312 Ill.Dec. 617, 871 N.E.2d 17, 26 (2007). However, the two-year time period contained in section 2-1401 is a statute of limitation and not a jurisdictional prerequisite. People v. Malloy, 374 Ill.App.3d 820, 823, 313 Ill.Dec. 380, 872 N.E.2d 140, 143 (2007). As a statute of limitation, the State must assert the time period as an affirmative defense, and the trial court may not, sua sponte, dismiss the petition on the basis of timeliness. Malloy, 374 Ill.App.3d at 823, 313 Ill.Dec. 380, 872 N.E.2d at 143. The defendant filed his section 2-1401 petition five days after the two-year time limit. In dismissing the defendant's petition sua sponte, the trial court stated that the petition was not timely filed and that the defendant "failed to set forth any reason for the late filing under this section." The trial court erred in dismissing the defendant's section 2-1401 petition on the basis of timeliness.
We also find that the trial court erred in failing to recharacterize the defendant's pro se pleading as a postconviction petition. It has long been recognized that a lack of legal knowledge might cause a pro se prisoner to select the wrong method to collaterally attack his conviction. People ex rel. Palmer v. Twomey, 53 Ill.2d 479, 484, 292 N.E.2d 379, 382 (1973). Prior to the adoption of the Post-Conviction Hearing Act, a conviction could be attacked by writ of error, habeas corpus, and coram nobis. People v. Slaughter, 39 Ill.2d 278, 284, 235 N.E.2d 566, 569 (1968); Ill.Rev.Stat.1965, ch. 38, par. 122-1 et seq. (now 725 ILCS 5/122-1 et seq. (West 2006)). This troubled the United States Supreme Court "because no matter which method a prisoner pursued, he appeared always to be met by a claim that he should have pursued a different remedy." Slaughter, 39 Ill.2d at 284, 235 N.E.2d at 569 (citing Marino v. Ragen, 332 U.S. 561, 570, 68 S.Ct. 240, 245, 92 L.Ed. 170, 176 (1947)). A statutory postconviction remedy that later became the Post-Conviction Hearing Act was enacted in response. Slaughter, 39 Ill.2d at 284, 235 N.E.2d at 569; Ill.Rev.Stat.1949, ch. 38, pars. 826-832.
Consistent with the intent of the Post-Conviction Hearing Act (the Act) to provide a comprehensive postconviction procedure and to end the merry-go-round of collateral attacks on convictions by prisoners, the supreme court held that the circuit court should evaluate whether a pro se petition, however labeled or inartfully worded, alleged a violation of the petitioner's rights cognizable under the Act. Palmer, 53 Ill.2d at 484, 292 N.E.2d at 382. The court was also urged to read pro se petitions more liberally than formal pleadings prepared by counsel. People v. Smith, 268 Ill.App.3d 574, 580, 206 Ill.Dec. 308, 645 N.E.2d 313, 318 (1994). Under this analysis, if the petition alleged a violation cognizable under the Act, the court was instructed to treat it as a postconviction petition, allowing the appointment of counsel to properly frame the issues and to facilitate the adjudication in one proceeding with finality. Palmer, 53 Ill.2d at 483-84, 292 N.E.2d at 382.
In 1997, however, the Act was amended by Public Act 89-609, which added subsection (d) to section 122-1. Pub. Act 89-609, § 5, eff. January 1, 1997 (1997 Ill. Laws 2674) ( 725 ILCS 5/122-1 (West 1994)). That subsection provides that a trial court reviewing a petition which does not state that it is filed under the Act "need not evaluate the petition to determine whether it could otherwise have stated some grounds for relief under" the Act. 725 ILCS 5/122-1(d) (West 2006). While the supreme court has stated in a footnote that under the statute...
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