NOTICE

NOTICE Decision filed 08/30/21. The This order was filed under text of this decision may be NO. 5-19-0086 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for Rehearing or the disposition of IN THE limited circumstances allowed under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Jefferson County. ) v. ) No. 06-CF-425 ) KRYSTA DONOHO, ) Honorable ) Eric J. Dirnbeck, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE WELCH delivered the judgment of the court. Justices Moore and Vaughan concurred in the judgment.

ORDER

¶1 Held: The trial court’s order dismissing the defendant’s petition for relief from judgment pursuant to 735 ILCS 5/2-1401(b-5) (West 2016) is affirmed where the plain language of the statute indicates that it only allows petitioners to seek relief two years after judgment of conviction and sentence is entered and where the defendant filed her petition for relief from judgment over two years after the underlying judgment was entered.

¶2 This is an appeal arising from an order of the circuit court of Jefferson County

dismissing the petition for relief from judgment pursuant to section 2-1401(b-5) of the

Code of Civil Procedure (Code) (735 ILCS 5/2-1401(b-5) (West 2016)) filed by the

defendant, Krysta Donoho. For the reasons that follow, we affirm.

1 ¶3 I. BACKGROUND

¶4 The defendant was charged by indictment with first degree murder and robbery

relating to events that occurred on July 1, 2006, which resulted in the death of the victim,

Randy Farrar. Following a jury trial, the defendant was convicted of first degree murder

and robbery. On March 18, 2008, the trial court sentenced the defendant to 45 years’

imprisonment, to be followed by 3 years of mandatory supervised release. Thereafter, the

defendant appealed, arguing that (1) the State failed to prove her guilty of felony murder

beyond a reasonable doubt, (2) the court failed to adequately inquire whether prospective

jurors understood the principles of Illinois Supreme Court Rule 431(b) (eff. May 1, 2007),

(3) the court abused its discretion by considering a factor inherent in the offense when

rendering its sentence, and (4) she was entitled to additional credit against her DNA fine

for time spent in presentence investigation. See People v. Donoho,

. On November 18, 2011, this court affirmed the defendant’s conviction and

sentence.

.

¶5 On September 4, 2012, the defendant filed her first pro se postconviction petition,

raising only the issue of whether the trial court erred in failing to grant defense’s motion

for change of venue. On November 29, 2012, the court dismissed the defendant’s petition

at the first stage. The defendant appealed, but later voluntarily dismissed the appeal.

¶6 Meanwhile, the defendant filed a successive postconviction petition on August 11,

2014, raising several issues irrelevant to this appeal. The trial court denied the successive

petition on the grounds that the issues raised therein could have been raised either on direct

appeal or in the first postconviction petition. The defendant appealed, and this court 2 affirmed, concluding that the defendant had “failed to establish cause for not raising her

ineffective assistance of trial counsel claims in her first postconviction petition,” and,

therefore, “failed to satisfy the cause-and-prejudice test.” See People v. Donoho,

, ¶¶ 20-21.

¶7 Relevant to this appeal, on December 6, 2017, the defendant filed a petition for relief

from judgment pursuant to section 2-1401(b-5) of the Code (735 ILCS 5/2-1401(b-5)

(West 2016)), which alleged that: (1) her participation in the murder and robbery of the

victim on July 1, 2006, was related to her previously having been a victim of domestic

violence as perpetrated by her intimate partner and codefendant, Demetrius Cole; (2) Cole

was 10 inches taller than her, outweighed her by 100 pounds, routinely slapped, punched,

and kicked her, made her afraid to stand up to him or try to leave him, and this domestic

violence helped to explain and mitigate her conduct; (3) no evidence of domestic violence

perpetrated against her was presented at her sentencing hearing; (4) because the mitigation

statute for domestic violence victims (730 ILCS 5/5-5-3.1(a)(15) (West 2016)) became law

on January 1, 2016, she was unaware of the mitigating nature of the evidence of domestic

violence at the time of sentencing and could not have learned of its significance sooner

through diligence; (5) the new evidence of domestic violence committed against her was

material and noncumulative to other evidence offered at the sentencing hearing, and was

of such a conclusive character that it would likely change the 45-year sentence imposed by

the trial court; and (6) if the sentencing court had known how violently Cole treated her,

the court likely would not have given her the same sentence that it gave him (45 years’

imprisonment). The defendant requested an evidentiary hearing on her petition. Attached 3 to the petition was an affidavit from her sister, Cynthia Christian, who stated that when the

defendant was dating Cole, he was almost always with the defendant and would not allow

her to be alone, and that the defendant said she felt trapped in her relationship with Cole.

On January 2, 2018, the State filed a motion to dismiss the defendant’s petition arguing

that it was not timely filed.

¶8 On May 4, 2018, the defendant filed a pro se “Reply Brief,” which essentially

quoted section 2-1401(b-5) (735 ILCS 5/2-1401(b-5) (West 2016)). She also cited to case

law relevant to the filing of postconviction petitions, rather than section 2-1401 petitions,

and argued that petitioners have been allowed to file beyond the limitations deadline when

their claims were based on changes in the law that were not announced until after the

statutory deadline had passed.

¶9 On June 18, 2018, the State filed a “Reply to Defendant’s Reply Brief,” arguing,

inter alia, that Public Act 99-384 (eff. Jan. 1, 2016), the enacting measure for subsection

(b-5), expressed the legislative intent that the opportunity to reopen sentencing hearings

based on the new law only extended to judgments less than two years old as of January 1,

2016, and if the legislature intended the provision to otherwise apply, it would have so

stated. The State requested that the trial court follow the body of law referenced and

summarized in People v. Hunter,

. The State asserted that, as in

this case, Hunter involved a statutory amendment that required consideration of newly

enumerated factors in mitigation, the amendment contained an explicit effective date, and

it did not apply retroactively. As a result, the State requested that the trial court enter an

order dismissing the defendant’s petition as untimely. 4 ¶ 10 On August 7, 2018, the trial court appointed counsel to represent the defendant. On

February 5, 2019, the defendant’s counsel filed a memorandum in support of the

defendant’s petition. Citing to a Cook County circuit court ruling announced from the

bench on August 28, 2018 (People v. Benford, No. 95-CR-4733, Cir. Ct. Cook County)

and an unpublished Rule 23 order from the Second District Appellate Court (People v. Lee,

), counsel argued, inter alia, that since 2016, the interpretation

of the amendment to section 2-1401(b-5) has divided the courts, causing a split over the

retroactivity of the amendment. Counsel further asserted that “[t]he basis for the relief

created by the amendment in subsection (b-5) is comparable to a legal disability or

concealment because of the pre-existing legal prohibition on the presentation of domestic

violence evidence,” and that “a two-year limitation on petitions under subsection (b-5)

should not be applied to this amendment.” Therefore, counsel maintained that since the

defendant filed her petition within two years of the passage of the 2016 amendment, the

court should find that it was timely filed.

¶ 11 On February 5, 2019, a hearing was held on the State’s motion to dismiss the

defendant’s petition. The State reiterated what it argued in its “Reply to Defendant’s Reply

Brief,” that by choosing section 2-1401 of the Code as the vehicle to codify this change in

the law, the legislature acted with knowledge of those consequences, and, therefore, it did

not intend the domestic violence mitigation provision to be available for more than two

years after sentencing. If the legislature intended the provision to apply retroactively, the

State argued, it would have so stated “instead of including an effective date *** in a

mechanism that has by itself a statutory two-year period.” The defendant’s counsel 5 essentially relied on the same arguments made in the memorandum. Upon hearing

counsels’ arguments, the trial court indicated that it would take the matter under

advisement.

¶ 12 On February 19, 2019, the trial court granted the State’s motion to dismiss the

defendant’s petition by docket entry. The court stated:

“The Attorneys herein agree that there is no binding authority to guide this Court in its interpretation of 735 ILCS 2-1401(b-5) as it relates to the State’s motion to dismiss defendant’s 2-1401 Petition as untimely. Accordingly, the State’s Motion to Dismiss must be decided by applying the rules of statutory construction. It should be noted that Supreme Court Rule 23(e)(1) makes it clear that an ‘order entered under subpart (b) or (c) of [said] rule is not precedential and may not be cited by any party ...’ (There are exceptions that follow that do not apply). The case of People v. Lee,

is just such a case, i.e., it was disposed of by the issuance of a Rule 23 Order. While the provisions of Rule 23 may prevent parties from citing such an opinion as precedent, this court has opted to refer to People v. Lee for the purpose of not having to ‘re-invent the wheel.’ The facts, relevant procedural history and arguments in People v. Lee are very similar and this Court agrees with the analysis of the timeliness issue as stated by the Second District Appellate Court. Accordingly, the State’s Motion to Dismiss is granted.”

¶ 13 On February 26, 2019, the trial court entered a written order granting the State’s

motion to dismiss the defendant’s petition for relief from judgment pursuant to section 2-

1401(b-5) stating, in relevant part, that the petition “was not filed within the 2-year period

provided for at 735 ILCS 5/2-1401(c)”; the defendant “was not under legal disability or

duress during the applicable 2-year period”; “the grounds for relief were not fraudulently

concealed from Defendant during the applicable 2-year period”; and “the provisions of 735

ILCS 5/2-1401(b-5) do not apply retroactively to the Defendant.”

¶ 14 The defendant filed a notice of appeal on February 25, 2019, and an amended notice

of appeal was filed on March 1, 2019.

6 ¶ 15 II. ANALYSIS

¶ 16 The purpose of a section 2-1401 petition is to bring before the trial court facts not

appearing in the record which, if known to the court at the time the judgment was entered,

would have prevented entry of the judgment. People v. Haynes,

(2000).

Although a petition brought pursuant to the statute is usually characterized as a civil

remedy, its remedial powers extend to criminal cases. People v. Vincent,

(2007). A defendant may present a meritorious claim under section 2-1401(b-5) if she

establishes that: (1) she was convicted of a forcible felony; (2) her participation in the

offense was related to her being a victim of domestic violence; (3) no evidence of domestic

violence was presented at the sentencing hearing; (4) she was unaware of the mitigating

nature of the domestic violence and could not have learned of its significance sooner

through diligence; and (5) the new evidence is material, noncumulative, and so conclusive

that it likely would have changed the sentence. 735 ILCS 5/2-1401(b-5) (West 2016).

¶ 17 On appeal, the defendant contends that the trial court erred in dismissing her petition

for relief from judgment as untimely because the limitations period was tolled until January

1, 2016, when section 2-1401(b-5) became law. An issue

involving statutory interpretation is a question of law subject to de novo review. Gibbs v.

Madison County Sheriff’s Department,

(2001). The primary goal

of statutory interpretation is to ascertain and give effect to the true intent of the legislature.

. The best evidence of legislative intent is the language of the statute itself.

“Where the language is clear and unambiguous, we must apply the statute without resort

to further aids of statutory construction.” Krohe v. City of Bloomington,

, 7 395 (2003). If the statute is ambiguous, however, courts may look to other sources, such

as legislative history, to ascertain the legislature’s intent.

Nonetheless, when reviewing

a statute, we presume that the legislature did not intend to create absurd, unjust, or

inconvenient results. Fisher v. Waldrop,

(2006). “Courts should

consider a statute in its entirety, keeping in mind the subject it addresses and the

legislature’s apparent objective in enacting it and avoiding constructions which would

render any term meaningless or superfluous.”

Reviewing courts should not depart from

the plain and unambiguous language of the statute by reading into it exceptions, conditions,

or limitations that the legislature did not express. Gibbs,

.

¶ 18 Under section 2-1401(c), a petition for relief from a judgment must be filed no later

than two years after the entry of the relevant order or judgment. 735 ILCS 5/2-1401(c)

(West 2016). However, the time period during which a person seeking relief is under legal

disability or duress, or the ground for relief is fraudulently concealed, 1 shall be excluded

in calculating the two-year period.

In this case, it is undisputed that the defendant

sought relief from a judgment that was entered in 2008, well over two years old.

Nevertheless, she claims that she was under a legal disability until section 2-1401(b-5) took

effect and should be exempted from the two-year limitations period.

¶ 19 The record in this case does not indicate that the defendant was under any cognizable

legal disability. In fact, she has not alleged that she could not bring her claim because of

incompetence, serious mental disorder, or minority. See In re Doe,

,

1 The defendant has not alleged that there was any duress or fraudulent concealment that prevented her from bringing her claim within the two-year period. 8 126-27 (1998); In re Adoption of Rayborn,

(1975). Instead, the

defendant contends that her “literal inability” to bring her claim because section 2-1401(b-

5) was not enacted until January 1, 2016, and that “the legal basis for the claim had not yet

come into existence,” should be found equivalent to a legal disability. We disagree, as we

find that the temporal limits of section 2-1401(c) would effectively be rendered

meaningless if legal disability included the absence of a statute or amendment. See Fisher,

. To adopt the defendant’s position would be to depart from the plain

language of the statute and read into it an exception to the limitations period that the

legislature did not express, which we cannot do. See Gibbs,

.

¶ 20 In support of her position, the defendant cites to In re Marriage of Vanek,

(1993), a case that dealt with a petition for relief from judgment filed

after a change in the law. However, we note that the portion of the Vanek decision that the

defendant relies upon, that the absence of a legal basis for a claim amounts to a legal

disability, constitutes dicta and is not controlling over our disposition of the present appeal.

We also note that the Vanek decision was issued by the First District Appellate Court,

which we are not bound to follow. See, e.g., State Farm Fire & Casualty Co. v. Yapejian,

(1992) (a decision by an appellate court is not binding on the other

appellate court districts). Further, we have found that the language of section 2-1401(c) is

clear and unambiguous, and, as a result, we do not need to resort to case law, legislative

history, or rules of statutory construction to aid in our interpretation of the statute. See

Krohe,

; Barrall v. Board of Trustees of John A. Logan Community

College,

. 9 ¶ 21 Based on the foregoing, we find the plain language of section 2-1401 indicates that

petitioners may only seek relief under subsection (b-5) two years after judgment of

conviction and sentence is entered. As the defendant filed her petition for relief from

judgment over two years after the underlying judgment was entered, the trial court did not

err in dismissing the defendant’s petition as untimely.

¶ 22 III. CONCLUSION

¶ 23 For the foregoing reasons, the judgment of the circuit court of Jefferson County is

hereby affirmed.

¶ 24 Affirmed.

10