People v. Begay
People v. Begay
Opinion
*850
¶ 1 Petitioner Salvador Begay was convicted after a jury trial of aggravated criminal sexual abuse and sentenced to three years of felony probation, with the first 90 days being served with the Cook County Department of Corrections. See
People v. Begay
,
¶ 2 Five months after the satisfactory termination of his probation, he filed a postconviction petition, which the trial court dismissed for lack of jurisdiction. In denying his motion to reconsider, the trial court found that the petition did not "even get to the first stage" due to its lack of jurisdiction and that his counsel's characterization of the dismissal as a first-stage dismissal was incorrect.
¶ 3 Petitioner now appeals the dismissal, claiming (1) that this was a first-stage summary dismissal and the trial court erred in entering it since first-stage dismissals are prohibited after 90 days and this dismissal occurred more than 90 days after the petition was filed and (2) that petitioner had standing to file a postconviction petition, although he had completed his sentence of probation, since he was still required to register as a sex offender.
¶ 4 For the following reasons we affirm.
¶ 5 BACKGROUND
¶ 6 Since we are faced with a purely legal question on this appeal and since we already set forth in detail the facts of the underlying offense in our prior order, we incorporate that prior order by reference.
Begay
,
¶ 7 As noted above, petitioner was convicted after a jury trial of aggravated criminal sexual abuse and sentenced to three years of felony probation.
Begay
,
¶ 8 On May 21, 2014, petitioner's counsel, filed a "Notice of Motion," that stated:
"On Friday, May 23, 2014, at 9:30 a.m., or as soon thereafter as counsel may be heard, I shall appear before the Honorable [trial judge], or any judge sitting in his stead, in Courtroom 110 of the Cook County Courthouse at [address] in Bridgeview, Illinois, and then and there inform him of the status of the post-conviction petition filed in this cause on December 6, 2013."
The notice is signed by petitioner's counsel, stamped "Filed" by the clerk of the circuit court on May 21, 2014, and stamped "Received" by the state's attorney's office on "May 21," with no year indicated. Attached *268 *851 to this notice is a "Petition for Post-Conviction Relief," also signed by counsel. The first page of the petition contains three stamps: a "Received" stamp by the state's attorney's office on December 6, 2013, a "Filed" stamp by the clerk of the circuit court on December 6, 2013, and another "Received" stamp by the state's attorney's office on "May 21," with no year indicated.
¶ 9 The last page of the petition is signed, but not dated, by counsel. There are three affidavits attached that are signed and notarized on the following dates: (1) October 27, 2013, (2) October 18, 2013, and (3) October 16, 2013.
¶ 10 The petition alleges that petitioner is actually innocent and that his trial counsel was ineffective for failing to interview and call at trial the three witnesses whose affidavits are attached. The substantive claims of the petition are not at issue at this time.
¶ 11 With respect to the filing date of his petition, the State in its appellate brief asserts that petitioner "filed a post-conviction petition with two dates on it: December 6, 2013, and May 21, 2014." Similarly, the trial court observed in open court that the petition had two filing dates. By contrast, petitioner in his brief asserts that his petition was "filed on December 6, 2013."
¶ 12 The State asserts that, "the very first day the petition was before [the trial court] for consideration" was July 18, 2014, and the court dismissed the petition on that day for lack of jurisdiction. By contrast, petitioner asserts that "[t]he court took no action on the petition until July 14, 2014, 225 days after the petition was filed. At that time, the court summarily dismissed [it.]"
¶ 13 The first notation appearing in the trial court's half-sheets after defendant's successful termination of probation on July 3, 2013, is for June 26, 2014. The notation for June 26, 2014, states, in relevant part: "DF Pet for P.C. relief 1st stage O/C 7/18/14 1st Stage."
¶ 14 The next transcript of proceedings is for July 18, 2014, and it shows that the State was not present. A counsel identified himself for the record and then explained that he was appearing on behalf of "the lawyer who filed the PC on behalf of [petitioner]." The trial court then ruled as follows, in full:
"THE COURT: Well, let her know that she filed this too late. [Petitioner], in order to file a post-conviction petition under the post-conviction act, and the most recent case that kind of lays this out in the Illinois Supreme Court is, People v. Jesus Carrera , C-a-r-r-e-r-a,239 Ill. 2d. 241 ,346 Ill.Dec. 507 ,940 N.E.2d 1111 , 2010 case.
But, it sets forth that the act provides that any person imprisoned in the penitentiary may institute a proceeding under this article. And, the court reiterated that you don't have to actually be in the penitentiary. The probation period is satisfactory.
However, the Supreme Court has held that the act did not require actual incarceration. But, any person-the words, 'imprisoned in the penitentiary,' prevent those who have completed their sentence from using the act for [re]medial machinery solely to purge their criminal records. Rather only those whose liberty was actually restrained or entitled to the protection code [ sic ] for the act.
In this case, the defendant received probation-three years probation, on or about the date of July 9, of 2010. That probation was terminated satisfactorily on July 3rd, 2013.
This petition-there are two dates on this. They were never called up before the Court, by the way. She never came *269 *852 up before the Court on this. There are two stamps on this. One being May 21, 2014. But, the prior one was December 6, 2013. Even by the earlier stamp, the defendant was not considered imprisoned or in the penitentiary that is needed in the act in order to have jurisdiction.
So consequently, the Court does not have jurisdiction. And the motion for postconviction relief will be denied. You're all set."
Nothing further was stated that day in open court.
¶ 15 On August 18, 2014, petitioner's counsel filed a motion to reconsider. The motion, which was signed by counsel, stated: "The petition was hand-delivered to the clerk's office by Petitioner's Counsel." Immediately after those words, the following words are crossed out by hand: "and entered on the clerk's system (the court's official docket)." The petition states: "Despite filing the petition." Immediately after these words, the following words are crossed out: "and entering an entry indicating that it was filed." The petition states: "in this case, the petition was filed in the clerk's office [crossed-out words] December 6, 2013." The crossed-out words are: "and the clerk docketed the petition or entered it into the clerk's system on the same day in this case."
¶ 16 The petition further states: "The instant petition was never placed on this court's call until July 18, 2014, 225 days after the petition was filed [crossed-out words] in the clerk's office." The crossed-out words are: "and docketed." Similarly, the petition states: "this court wrongly entered a first-stage dismissal more than 90 days after the petition was received in the clerk's office [crossed-out words]." The crossed-out words are: "and docketed."
¶ 17 A footnote to the motion states, in relevant part, that:
"[B]etween May and July 2014, Petitioner's counsel (or her representative) twice went to the clerk's office and filed notices, noticing up the case, but the clerk failed to put the case on the call. Petitioner's counsel repeatedly called a supervisor named * * * to inquire as to why the clerk was not putting the case on the call, but counsel's many messages were never returned."
¶ 18 On September 5, 2014, counsel filed an amended motion to reconsider. The amended motion contains no cross-outs and alleges, in relevant part, that
"1. Petitioner filed his Petition for Post-Conviction Relief on December 6, 2013.
2. The petition was hand-delivered to the clerk's office by Petitioner's counsel, and entered on the court's official docket (marked file-stamped) that same day."
¶ 19 On October 3, 2014, the parties appeared in open court: both an assistant state's attorney, as well as the counsel who had filed the petition. With respect to the filing date, the court and counsel held the following colloquy:
"THE COURT: [Y]ou originally filed your motion for post-conviction relief back on December 6, 2013, am I correct there?
DEFENSE COUNSEL: That's correct, yes.
THE COURT: All right. And you also claimed that you gave notice to the State's Attorney on that date?
DEFENSE COUNSEL: Yes.
THE COURT: I see the stamp on here.
DEFENSE COUNSEL: Yes, I did.
THE COURT: For whatever reason it was refiled May 21, 2014. But the December 6th date of 2013 is the date we are talking about. All right?
*270 *853 DEFENSE COUNSEL: Yes."
¶ 20 The trial court observed that in her motion to reconsider she indicated that the trial court had dismissed the petition at the first stage. However, the trial court stated: "That's not what I did." In response, defense counsel argued that any "consideration as to timeliness" or "eligibility for post-conviction relief" could only be "made after a motion by the State." The trial court replied: "Negative. That's no." Then the trial court explained that being imprisoned or on probation or parole
"is a requirement. That's a first step before you can do this. * * * We don't even get to the first stage because he is not imprisoned under the statute. * * * we don't get to even the first stage here because he does not qualify, he does not meet the qualifications under the Act."
¶ 21 The trial court denied the motion to reconsider, stating:
"THE COURT: This is jurisdictional. You don't even have the right to file this because he hasn't met that. There is no way around it. It is iron clad.
The motion to reconsider is denied, and the prior order of July 18th to stand. Thank you."
¶ 22 On November 3, 2014, counsel filed a notice of appeal, and this appeal followed.
¶ 23 ANALYSIS
¶ 24 Petitioner appeals the dismissal of his postconviction petition, claiming (1) that the dismissal was a first-stage summary dismissal and the trial court erred in entering it more than 90 days after the petition was filed and (2) that he had standing to file a postconviction petition, although his sentence had terminated, since he was still subject to sex offender registration.
¶ 25 For the following reasons, we affirm.
¶ 26 I. Stages of a Postconviction Proceeding
¶ 27 The Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1
et seq.
(West 2016) ) "provides a method by which persons under criminal sentence in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both."
People v. Hodges
,
"(a) Any person imprisoned in the penitentiary may institute a proceeding under this Article if the person asserts that:
(1) in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both[.]" 725 ILCS 5/122-1(a) (West 2016).
¶ 28 Although the Act uses the words "in the penitentiary," our supreme court has found that the Act also applies to a person serving a sentence of probation or on mandatory supervised release or parole.
People v. Carrera
,
*271
*854
¶ 29 To be entitled to postconviction relief, a petitioner bears the burden of establishing that a substantial deprivation of his constitutional rights occurred "in the proceedings that produced the conviction or sentence being challenged."
Pendleton
,
¶ 30 In noncapital cases, the Act contemplates three stages.
Pendleton
,
¶ 31 If the petition survives this initial review, the process moves to the second-stage, where the trial court appoints counsel for the petitioner who cannot afford counsel. 725 ILCS 5/122-4 (West 2016). Appointed counsel may make any amendments that are "necessary" to the petition previously filed by the
pro se
defendant.
People v. Perkins
,
¶ 32 At a second-stage dismissal hearing, a trial court is foreclosed from engaging in any fact finding because all well-pleaded facts must be taken as true at the second stage.
Wheeler
,
¶ 33 If the petition proceeds, it advances to a third-stage evidentiary hearing. "[W]hen a petitioner's claims are based upon matters outside the record, the Postconviction Act does not intend such claims [to] be adjudicated on the pleadings."
People v. Snow
,
¶ 34 When a matter is decided without an evidentiary hearing, we review the trial court's decision under a
de novo
standard of review.
People v. Hommerson
,
¶ 35 In addition, a reviewing court may affirm on any basis found in the record.
In re Gabriel W.
,
¶ 36 II. Statutory Interpretation
¶ 37 This appeal requires us to interpret the words of the Act and decide what the Act requires.
¶ 38 "With statutory construction, our primary goal is to ascertain the legislat[ors'] intent, and the best indication of their intent is the plain and ordinary meaning of the words they chose to use."
Miles
,
¶ 39 "In addition, whenever possible, every word, clause, and sentence is to be given reasonable meaning and shall not be treated as superfluous or rendered void."
Mulry v. Berrios
,
¶ 40 Questions of statutory interpretation are reviewed
de novo
.
People v. Schlosser
,
¶ 41 III. 90-Day Time Limit
¶ 42 Petitioner argues, first, that the trial court summarily dismissed the petitioner more than 90 days after it was filed, which he claims that the Act prohibits. In response, the State argues that the trial court dismissed the petition within 90 days after docketing, thereby satisfying the statute.
*273 *856 ¶ 43 The Act provides that "[a] proceeding shall be commenced by filing with the clerk of the court" a petition. 725 ILCS 5/122-1(b) (West 2016). "Petitioner shall also serve another copy upon the State's Attorney * * *." 725 ILCS 5/122-1(b) (West 2016). "The clerk shall docket the petition for consideration by the court * * * upon his or her receipt thereof and bring the same promptly to the attention of the court." 725 ILCS 5/122-1(b) (West 2016). "Within 90 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section." (Emphases added.) 725 ILCS 5/122-2.1(a) (West 2016). "If the petition is not dismissed pursuant to this Section, the court shall order the petition to be docketed for further consideration * * *." 725 ILCS 5/122-2.1(b) (West 2016).
¶ 44 As to the two filing dates, the trial court found, as a matter of fact, and after questioning counsel, that the petition was filed on December 6, 2013, and the State does not dispute this factual finding. 1 Thus, the next question for this court is whether the 90-day period is counted from the filing or the docketing of the petition.
¶ 45 This division already considered this same question and found that the 90-day period is counted from the docketing of the petition.
People v. Shief
,
"The remedy of automatic advancement [to the second stage] would force the hand of the judge based on the actions of a distinct governmental official, the clerk. Circuit judges would lose control of their docket based on something entirely outside their control. While that may feel like a distinction without a difference to a prisoner awaiting the adjudication of his postconviction petition, it might be one reason why the General Assembly imposed a consequence for the circuit court's failure to promptly act on a postconviction petition while not imposing such a remedy for the clerk's inaction." (Emphasis in original.) Shief ,2016 IL App (1st) 141022 , ¶ 32,407 Ill.Dec. 232 ,62 N.E.3d 1154 .
Based on
Shief
, we find that the 90-day period is counted from docketing.
2
See also
People v. Swamynathan
,
¶ 46 The next issue is when that key moment of docketing occurs. In
People v. Brooks
,
¶ 47 In the case at bar, the trial court observed that the petition was "never called up before the Court." After the petition's filing on December 6, 2013, the half-sheet shows that the petition was not docketed and not set for a hearing. "A half-sheet is a sheet on which the clerk's office enters chronological notations indicating the procedural events of a case."
People v. Jones
,
¶ 48
People v. Lentz
,
*275
*858
¶ 49 The
Lentz
court found that to docket meant "to note the filing of a postconviction petition in the official record or docket of a case," which the
Lentz
court observed would usually, but not always, occur on the same day as filing.
Lentz
,
¶ 50 IV. Timing of the Dismissal
¶ 51 The trial court found that the statutory 90-day period was not relevant because the lack of jurisdiction meant that the statute did not even apply. " '[B]ecause circuit court jurisdiction is granted by the constitution, it cannot be the case that the failure to satisfy a certain statutory requirement or prerequisite can deprive the circuit court of its "power" or jurisdiction to hear a cause of action.' "
People v. Castleberry
,
¶ 52 In
Hommerson
, our supreme court explained what can and cannot be considered at the first stage of postconviction proceedings. It found that, "at the first stage of proceedings, the court should only determine whether the petition alleges constitutional deprivations."
Hommerson
,
¶ 53 In the case at bar, the trial court found that there was a step, even before this first stage, at which the trial court considers its own jurisdiction. The trial court found that a determination of whether a petitioner qualified as "imprisoned" under the Act was required to determine the court's own subject matter jurisdiction. 725 ILCS 5/122-1(a) (West 2016). The question is whether this matter is a procedural consideration prohibited by Hommerson .
¶ 54 In some respects, the case at bar is similar to
Carrera
. In
Carrera
, our supreme court found that a petitioner had no remedy under the Act where his probation had already terminated satisfactorily (
Carrera
,
¶ 55 However, the petitioner in the case at bar suffered little prejudice
5
by an earlier review.
Shief
,
¶ 56 V. Not Imprisoned
¶ 57 For the reasons discussed below, we find that sex offender registration status does not qualify as "imprisoned" under the Act. 725 ILCS 5/122-1(a) (West 2016).
¶ 58 As this division recently explained in
*277
*860
People v. Jones
,
¶ 59 However, with respect to sex offender registration, our supreme court has stated "it is worth repeating that sex offender registration is not punishment."
People v. Cardona
,
¶ 60 The supreme court's decision in
Carrera
is instructive. In
Carrera
, as in our case, the defendant was sentenced to probation.
Carrera
,
¶ 61 Since sex offender registration is not punishment, we cannot find that a petitioner subject to it is thereby "imprisoned" under the Act. 725 ILCS 5/122-1(a) (West 2016); accord
People v. Downin
,
¶ 62 In
People v. Ortiz
,
¶ 63 While the result here may seem harsh because petitioner no longer has the remedies provided by the Act, and "[w]hile [we are] sympathetic to defendant's plight, this court cannot expand the remedy set forth in the Act in order to bring defendant's case within the reach of the Act."
Carrera
,
¶ 64 CONCLUSION
¶ 65 For the foregoing reasons, we affirm the dismissal of petitioner's postconviction petition.
¶ 66 Affirmed.
Presiding Justice Burke and Justice Ellis concurred in the judgment and opinion.
The State's appellate brief acknowledges that the stamps on the petition "indicat[e] it was received and filed on December 6, 2013."
In
Shief
, the parties agreed that, the first time that defendant mailed in his
pro se
petition, the clerk did not docket it "or notify the court that defendant had sent in a postconviction petition."
Shief
,
In
Swamynathan
,
After discussing both
McCaskill
and
Gibson
, the
Lentz
court observed: "it is the supreme court's teaching-its stated definition of docketing, and its
ratio decidendi
, or reasoning-that we must follow."
Lentz
,
While the State may have chosen at the second stage not to move to dismiss on this basis, defendant cannot object "on behalf of the State" that the State no longer had the choice whether to make a motion once the trial court dismissed.
Cf.
People v. Matthews
,
Reference
- Full Case Name
- The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Salvador BEGAY, Defendant-Appellant.
- Cited By
- 5 cases
- Status
- Unpublished