FIRST DIVISION February 17, 2015

No. 1-13-1073

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) ) Nos. 94 CR 25257 ) 94 CR 25258 ) 94 CR 25259 v. ) 94 CR 25260 ) 94 CR 25261 ) 94 CR 28843 ) 94 CR 28844 ) 94 CR 29080 ) ROBERT COWART, ) Honorable ) Thomas V. Gainer, Jr., Defendant-Appellant. ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Cunningham concurred in the judgment and opinion.

OPINION

¶1 Defendant Robert Cowart appeals from an order of the circuit court of Cook County

granting the State's motion to dismiss his pro se petition for relief under the Post-Conviction

Hearing Act (the Act) (725 ILCS 5/122-1 (West 2010)). On appeal, defendant contends that the

reasoning used by the United States Supreme Court in Padilla v. Kentucky,

(2010),

and by the Illinois Supreme Court in People v. Hughes,

, required the plea court

to admonish him of the requirement that he register as a sex offender. He asks this court to

remand his case for an evidentiary hearing under the Act. We affirm. No. 1-13-1073

¶2 In late 1994, defendant was indicted with multiple crimes stemming from separate

residential break-ins. Defendant was charged with sexually assaulting or attempting to sexually

assault at least one woman at each of the break-ins. His indictments also included multiple

charges of home invasion, armed robbery, aggravated battery, and residential burglary.

Defendant initially pleaded not guilty to all charges. In January 1996, both the State and

defendant answered ready for trial on charges relating to one of the residential break-ins. Before

a jury was selected, defense counsel indicated that defendant wished to change his plea. After

brief negotiations between the State and defense counsel, the parties reached an agreement.

Defendant pleaded guilty on each of the eight cases and received concurrent sentences as

follows:

• No. 94 CR 25257–two counts of home invasion and two counts of aggravated

criminal sexual assault with a 65-year sentence;

• No. 94 CR 25258–one count of home invasion and one count of aggravated

criminal sexual assault with a 60-year sentence;

• No. 94 CR 25259–one count of home invasion and one count of aggravated

criminal sexual assault with a 60-year sentence;

• No. 94 CR 25260–one count of home invasion with a 60-year sentence;

• No. 94 CR 25261–one count of armed robbery, one count of home invasion, and

one count of attempted aggravated criminal sexual assault with a 65-year

sentence;

• No. 94 CR 28843–one count of home invasion and two counts of aggravated

criminal sexual assault with a 65-year sentence;

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• No. 94 CR 252844–one count of residential burglary and one count of attempted

aggravated criminal sexual assault with a 30-year sentence; and

• No. 94 CR 29080–one count of home invasion and one count of attempted

aggravated criminal sexual assault with a 65-year sentence.

¶3 The trial court advised defendant of the rights waived by pleading guilty, specified the

charges, and found that his pleas were knowingly and voluntarily entered. The State then gave

separate factual bases for each of the eight break-ins to which defendant stipulated. Neither the

trial court nor the State mentioned or admonished defendant that he would be required to register

as a sex offender under the Sex Offender Registration Act (730 ILCS 150/1 (West 1996)). The

court accepted defendant's pleas and sentenced defendant in accordance with his agreement with

the State.

¶4 Within 28 days of his guilty pleas, defendant filed a pro se motion to withdraw his pleas

and vacate his sentences, which the trial court denied. Defendant appealed, arguing that the trial

court had violated Illinois Supreme Court Rule 604(d) (eff. Aug. 1, 1992) by failing to appoint

counsel to assist him with his motion. This court summarily remanded defendant's case for

appointment of counsel. People v. Cowart, No. 1-96-2274 (1997) (dispositional order). On

remand, the trial court appointed counsel for defendant who filed an amended motion to

withdraw defendant's pleas. The court denied the amended motion.

¶5 In October of 2006, defendant filed a pro se petition under the Act. 725 ILCS 5/122-1

(West 2004). In that petition, he argued, inter alia, that the trial court's failure "to admonish him

of the condition of registering as a sex offender upon supervised release term" substantially

violated his constitutional rights. The trial court dismissed the petition as frivolous and patently

without merit. Defendant appealed the dismissal to this court. He argued, in relevant part, that

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the lower court erred in dismissing his petition because it stated the gist of an argument that his

convictions violated his constitutional rights. This court, in a published opinion, concluded

defendant's petition "was neither frivolous nor patently without merit" and reversed the

dismissal, remanding the entire petition for further proceedings under the Act. People v. Cowart,

(2009). This court also vacated one of defendant's home invasion

charges and reduced the extended-term sentences on several of defendant's charges.

Defendant's aggregate 65-year term remained unchanged.

¶6 Following remand, the trial court appointed counsel for defendant who filed a supplement

to defendant's pro se petition. The supplement listed several new sentencing issues and reiterated

the claims of defendant's pro se petition. The State moved to dismiss the motion arguing, in

relevant part, that the petition was untimely and the trial court was not required to admonish

defendant regarding his mandatory registration as a sex offender because it was only a collateral

consequence of his plea. The trial court dismissed defendant's petition, concluding that

defendant's untimely filing of his postconviction petition was "a sufficient ground for dismissal."

The court then alternatively held, "As the State correctly explains, it is well-stated that

registration as a sex offender is a collateral consequence of petitioner's guilty plea, of which the

court had no duty to admonish him. [Citation.] This claim is without merit and must fail."

Defendant appeals.

¶7 Defendant contends that his postconviction petition made a substantial showing that his

constitutional rights were violated, and thus the trial court erred when it dismissed his petition

without holding an evidentiary hearing. He notes that it is clear from the record that the lower

court never admonished him that his guilty pleas would require him to register as a sex offender.

He argues that rulings by the United States Supreme Court, in Padilla v. Kentucky,

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(2010), and by the Illinois Supreme Court, in People v. Hughes,

, supersede

Illinois Appellate Court cases holding that registration as a sex offender is a collateral

consequence of conviction and that admonishment is required for only direct, not collateral

consequences. See, e.g., People v. Fredericks,

, ¶ 41.

¶8 The State first responds that defendant forfeited this issue by failing to include it in his

original appeal and that defendant's petition fails to meet the affidavit requirements of Section

122-2 of the Act. 725 ILCS 5/122-2 (West 2010). Alternatively, the State argues that defendant

failed to make a substantial showing of a constitutional violation, because the lower court was

not required to admonish him of the collateral consequences of his plea. We first address the

State's two procedural arguments in turn before analyzing defendant's claim on its merits.

¶9 The State first argues that defendant forfeited the issue of admonishment by failing to

include it in his original appeal to this court. It notes that in his direct appeal, defendant only

argued that his motion to withdraw his guilty plea had not been reviewed in accordance with

Supreme Court Rule 604(d). In defendant's second appeal, the State raised a similar forfeiture

argument in regards to a different issue raised in defendant's postconviction petition. Cowart,

. We find our reasoning in the prior appeal equally applicable here. Any

claims made in a postconviction petition that could have been raised on direct appeal are

procedurally defaulted. People v. Williams,

(2004). However, a

defendant's failure to appeal does not forfeit such issues. People v. Flores,

(1992). In postconviction forfeiture analysis, a summary remand for noncompliance with Rule

604(d) is treated as if the defendant filed no appeal at all. Cowart,

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(citing People v. Teague,

(1980)). Since defendant's original appeal is

the equivalent of filing no appeal, he has not forfeited his claim regarding failure to admonish.

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¶ 10 Next, the State argues that defendant's petition fails to meet the requirements of section

122-2 of the Act. 725 ILCS 5/122-2 (West 2010). The State asserts that defendant has provided

no affidavit or other support to show that he would not have pleaded guilty if he had been

admonished of his duty to register. It notes that his claim is predicated only on an affidavit by the

defendant stating that he told his trial counsel that he was "dissatisfied" with the plea offer.

Defendant responds that the State has waived this argument by failing to include it in its motion

to dismiss. We agree.

¶ 11 The State forfeits a nonjurisdictional procedural challenge to a postconviction petition

when it fails to raise that challenge in a motion to dismiss. People v. Turner,

. In Turner, the defendant failed to include a verification affidavit with his

postconviction petition. Id. ¶ 35. While the State argued on appeal that the Turner defendant's

petition should be dismissed because of that failure, it had not included that argument in its

motion to dismiss. Id. ¶ 42. The reviewing court reasoned that had the State included the

argument in its motion, the defendant could have sought leave to rectify the deficiency. Id. ¶ 43.

The Turner court held the State had forfeited the issue. Id. ¶ 44. We find Turner persuasive. Had

the State raised defendant's lack of supporting affidavits in its motion to dismiss, defendant could

have supplied the affidavits. In failing to do so, the State has procedurally defaulted the issue and

we need not determine whether the dismissal can be affirmed on that basis. Id.

¶ 12 We now turn to the substantive merits of defendant's claim. At the second stage of a

postconviction proceeding, as in this case, the State may either file an answer to the defendant's

petition or a motion to dismiss it. People v. Lofton,

. Before a

postconviction petition moves to the third stage, an evidentiary hearing, the trial court must

determine if the petition and any attached documents "make a substantial showing of a

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constitutional violation." People v. Edwards,

(2001). In making this

determination the court takes all well-pleaded facts in the petition and attached documents as

true, unless contradicted by the record. People v. Coleman,

(1998). When

a petition is dismissed at the second stage, review is de novo.

.

¶ 13 Due process requires that all pleas be knowing and voluntary. People v. Fuller,

(2002); Boykin v. Alabama,

(1969). Therefore, plea courts

must admonish a defendant of the direct consequences of his or her plea. See People v. Hughes,

; People v. Fredericks,

. Courts need not

admonish defendants as to consequences that are merely collateral. Hughes,

. A direct consequence "has a definite, immediate and largely automatic effect" on the

defendant's punishment. Hughes,

(citing People v. Williams,

(1999)). Illinois courts have held that mandatory sex offender registration is a collateral

consequence, rather than a direct one. See Fredericks,

; People v.

Downin,

(2009); see also People v. Starnes,

(1995). Registration is neither a restraint on liberty nor a punishment. People v. Malchow,

(2000); Fredericks,

; Downin,

.

¶ 14 Defendant argues that the reasoning used by the United States Supreme Court in Padilla

and adopted by the Illinois Supreme Court in Hughes should be extended to require a trial court

to admonish a defendant of mandatory lifetime sex offender registration.

¶ 15 In Padilla, the defendant, a resident alien, pleaded guilty to drug distribution charges.

Padilla,

. The defendant alleged his attorney provided ineffective counsel when

he did not advise the defendant that the conviction made him eligible for deportation, and had

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told him not to worry about deportation.

The Kentucky Supreme Court affirmed the

defendant's conviction, holding that the sixth amendment did not apply because deportation was

a civil, and therefore, collateral consequence.

. The United States Supreme Court

reasoned that even though deportation is a civil consequence of a guilty plea, it could not be

"categorically removed" from defense counsel's duties, given deportation's increased

enmeshment with the criminal process.

. The Court then remanded the defendant's case

for further consideration under sixth amendment doctrine.

.

¶ 16 The Illinois Supreme Court considered Padilla's reasoning in Hughes. The Hughes

defendant pleaded guilty to an aggravated sexual abuse charge in exchange for the State's

dropping of other charges, withdrawal of a petition to commit the defendant as a sexually

dangerous person, and a sentence recommendation. Hughes,

. After the

defendant's plea was accepted, the State filed a petition to commit him as a sexually violent

person under a separate statute and the defendant filed a motion to withdraw his guilty plea. Id.

¶ 10. He alleged that his plea was involuntary because the trial court failed to admonish that he

could be committed under the other statute, and alternatively, because his trial counsel's failure

to advise of the same possibility constituted ineffective assistance of counsel. Id. The Illinois

Supreme Court first addressed the trial court's failure to admonish, holding that an

admonishment from the trial court was not required, as commitment was a collateral

consequence of the conviction. Id. ¶ 40. The court reasoned that collateral consequences "lack [a]

definite, immediate or automatic effect on the sentence imposed." Id. ¶ 36. It focused on the fact

that involuntary civil commitment was not automatic and imposed by an outside agency, not the

court. Id. ¶¶ 37-39. The Illinois Supreme Court did not discuss Padilla anywhere in its

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discussion of admonishments. The Hughes court discussed Padilla only when addressing the

defendant's ineffective assistance of counsel claim. See Id. ¶ 43.

¶ 17 In Fredericks, decided after the decisions in Padilla and Hughes, this court considered

whether a trial court was required to admonish a defendant of the requirement to register as a sex

offender following a guilty plea. Fredericks,

. In Fredericks, the

defendant pleaded guilty to methamphetamine possession and, as a result of an earlier aggravated

criminal sexual abuse conviction, was required to register as a sex offender. Id. ¶ 1. The

defendant filed a motion to withdraw his plea, arguing, inter alia, upon the trial court's failure to

admonish him of the mandatory registration. Id. ¶ 2. The trial court denied the motion and the

defendant appealed. Id. On appeal, the defendant argued that Padilla required a trial court to

admonish a pleading defendant of the requirement to register as a sex offender. Id. ¶ 41. This

court declined to extend Padilla, explaining that the Illinois Supreme Court had continued to use

the collateral/direct consequence distinction following Padilla. Id. ¶ 42 (citing Hughes,

, and People v. Delvillar,

(2009)). 1 Our opinion also

distinguished Padilla because it dealt with a claim of ineffective assistance of counsel, rather

than one of a trial court's failure to admonish.

¶ 18 We find Fredericks to be persuasive. In Hughes, the Illinois Supreme Court reaffirmed

the distinction between direct and collateral consequences, noting that direct consequences have

definite and automatic effects on a defendant's punishment. Hughes,

(citing People v. Williams,

(1999)).The requirement to register as a sex

offender is definite and automatic. However, it does not affect the defendant's punishment.

1 Defendant correctly notes that Delvillar, contrary to this court's assertion in Fredericks, was published before Padilla. However, Frederick's reliance on Hughes is accurate, despite the error in regard to Delvillar.

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Unlike deportation or involuntary civil commitment, the registration of sex offenders is not a

punishment or a restraint of a liberty interest. See Malchow,

. Therefore, the

registration requirement remains a collateral consequence under Hughes's definition, and the

lower court was not required to admonish defendant on it.

¶ 19 As in Fredericks, we decline to extend the reasoning of Padilla to the issue of trial court

admonishments. Padilla concerns an ineffective representation of counsel under the sixth

amendment. Defendant does not argue that his attorney failed to advise; he argues that the plea

court failed to admonish him. The Illinois Supreme Court had the opportunity to apply Padilla's

reasoning to admonishment cases in Hughes, but did not. In Hughes, the court first addressed

whether the trial court should have admonished the defendant using the direct or collateral

consequence distinction. Hughes,

. The court did not mention Padilla

until it had finished discussing admonishment and turned to the defendant's claim of ineffective

assistance of counsel. Id. ¶ 43. Thus, we are bound by Hughes's admonishment analysis and its

continued distinction between collateral and direct consequences.

¶ 20 As we find the plea court was not required to admonish defendant in regard to

registration as a sex offender, the absence of such admonishment does not render his plea

unknowing or involuntary. Fredericks,

, ¶ 40. As such, even when all

of the factual allegations in defendant's petition are taken as true, he has failed to "make a

substantial showing of a constitutional violation." People v. Edwards,

(2001).

¶ 21 We note briefly that the court below also found that defendant's petition was untimely as

an alternative ground for dismissal. Neither defendant nor the State addressed this alternative

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finding in their briefs. As we affirm the dismissal of defendant's petition on its merits, we need

not address the question of its timeliness.

¶ 22 For the foregoing reasons, we find that defendant has failed to make a substantial

showing of a constitutional violation. Accordingly, the judgment of the circuit court of Cook

County is affirmed.

¶ 23 Affirmed.

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