People v. Dolis

2013 IL App (1st) 101027

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES DOLIS, Defendant-Appellant.

No. 1-10-1027

No. 1-10-2603

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT FOURTH DIVISION

November 27, 2013

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the

Circuit Court of

Cook County.

Nos. 99 CR 9658, 99 CR 9659 &

99 CR 9660

The Honorable

Mary Margaret Brosnahan

Judge Presiding.

JUSTICE LAVIN delivered the judgment of the court.

Justice Epstein concurred in the judgment.

Justice Pucinski concurred in part and dissented in part.

ORDER

¶ 1 Held: (1) The invalidation of Public Act 88-680 did not render the judgment void; (2) Errors with respect to the entry of the order of protection did not render that order void; (3) The no-contact order entered with defendant's prison term lacked statutory authority and thus, was void; (4) Defendant forfeited his right to have guilty plea proceedings held in the courtroom, rather than in chambers; (5) Defendant was not entitled to relief pursuant to People v. Whitfield, 217 Ill. 2d 177, 185, 189-91 (2005); (6) The dismissal of defendant's petition was reversed and remanded for an evidentiary hearing where defendant made a substantial showing that counsel was ineffective for providing erroneous advice and abandoning defendant's direct appeal.

¶ 2 Defendant James Dolis pled guilty to three counts of communicating with a witness, for which he was sentenced to five-year prison terms, and three counts of violating an order of protection, for which he was sentenced to three-year prison terms. All sentences were to be served concurrently with each other but consecutively to a sentence entered in another case. Defendant's direct appeal was subsequently dismissed for want of prosecution. He then filed a petition for relief, under both the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2004)) and section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2004)), which the trial court dismissed without an evidentiary hearing. Thereafter, defendant filed another petition under section 2-1401, which was also dismissed. On appeal from the dismissal of both petitions, defendant asserts that the invalidation of Public Act 88-680 rendered the underlying judgment void, and that the order of protection and no-contact order entered by the trial court were also void. Defendant further asserts the trial court erred in denying him postconviction relief without an evidentiary hearing because his right to public guilty plea proceedings was violated, the trial court failed to admonish him of his mandatory supervised release (MSR) term, and his appointed counsel was ineffective where he erroneously advised defendant that he had an absolute right to withdraw his guilty plea and later abandoned his appeal. We address each contention in turn.

¶ 3 I. BACKGROUND

¶ 4 We recite only those facts necessary to resolve the issues raised on appeal. In April 1999, defendant was charged in three cases (Nos. 99 CR 9658, 99 CR 9659 & 99 CR 9660)with several offenses pertaining to victim Ellen Stefanitis.¹ Defendant was charged in each case with one count of communicating with Stefanitis, who was a witness in another pending circuit court case (99 CR 5180) (720 ILCS 5/32-4(b) (West 1998)), and with violating an order of protection (97 JA 3271) (720 ILCS 5/12-30 (West 1998)). In case number 99 CR 9659, defendant was charged with an additional count of intimidation (720 ILCS 5/12-6(a)(1) (West 1998)). The offenses alleged in the charges occurred between February and March 1999, by which time Public Act 88-680 (Pub. Act 88-680, eff. Jan. 1, 1995) had raised communicating with a witness (720 ILCS 5/32-4 (West 1998)) from a Class 4 to a Class 3 felony. After the offenses were committed, however, the supreme court held that Public Act 88-680 was unconstitutional because it violated the single subject rule. People v. Cervantes, 189 Ill. 2d 80, 82 (December 2, 1999). In response, Public Act 91-616 (Pub. Act 91-616, eff. Apr. 13, 2000) re-enacted communicating with a witness as a Class 3 felony.

¶ 5 A jury trial was scheduled to begin in the three aforementioned cases, as well as least one other case against defendant, on September 10, 2003. On that day, Michael Greco, a private attorney who had been appointed to represent defendant, answered not ready for trial due to difficulty finding witnesses and the need to obtain access to the juvenile file in case number 97 JA 3271. Greco stated that the protection order entered in the juvenile case was to remain in effect "until further order" and as a result, counsel wanted a week'scontinuance to investigate what additional orders had been entered. In addition, Greco asked the trial court to issue a subpoena for the juvenile court to turn over the complete records in the juvenile case because Greco experienced difficulty obtaining those records through his own inquiry. Greco argued that the question of whether the protection order was vacated prior to 1999 was germane to the present charges of violating that protection order. Furthermore, Greco stated that defendant had believed the order of protection in case number 97 JA 3271 had been vacated in 1997. The State objected to the motion for a continuance, arguing, in part, that this issue had been raised and resolved in another case against defendant. After the court denied the motion, the assistant State's Attorney (ASA) stated that it would nol-pros the intimidation count in case number 99 CR 9659 as well as the charges filed in a fourth case.

¶ 6 The remaining trial court proceedings occurred in chambers but on the record, without objection from either party. A conference ensued pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 1997), during which the ASA alleged certain details concerning the facts leading to the charges, defendant's relationship with Stefanitis, with whom he had a daughter, and information pertinent to sentencing. In addition, the ASA explained that it had withdrawn its prior offer of three concurrent two-year prison terms, to be served consecutively to defendant's prior sentence for home invasion, because that sentence would be woefully inadequate. The ASA stated that communicating with a witness was a Class 3 offense, that the sentence was "extendible," and that defendant could be sentenced to a maximum of 10 years' imprisonment. As a result, the ASA asked that defendant "besentenced to the maximum extension which would be ten years on each of those and ask that they be consecutive to each other which would be 30 years." In exchange, the State would dismiss defendant's remaining five cases, which were also subject to extended-term sentences. Greco responded that while communicating with a witness was a Class 3 offense, defendant would not agree to a cumulative 30-year sentence.

¶ 7 Following arguments, the court stated, "I would be willing to offer five years consecutive to Judge Kazmierski and take care of all cases." When the ASA sought clarification as to whether the sentences in the present cases would be consecutive to each other as well, the court answered, "[n]o, just Class 3, five years total." The case was passed for defendant to discuss the court's offer with Greco. When the proceedings continued, Greco again questioned the validity of the protection order in 97 JA 3271, stating as follows:

"I don't believe that it was brought out at the trial of the home invasion and aggravated battery that he was told by the judge sitting in Branch 50 on the 9th of September 1998 that the order of protection that's case 98-M1-10386301 he was told by the judge on that date Edward O'Brien that the record showed that the 97-JA-3271 order of protection had been vacated which is not demonstrated by the transcript unfortunately."

The trial court found it difficult to believe defendant's suggestion that Judge O'Brien had made the statement off the record.

¶ 8 After another brief break, defendant pled guilty to all counts of communicating with a witness and violating an order of protection in case numbers 99 CR 9658, 99 CR 9659and 99 CR 9660. The court admonished defendant as follows:

"The charge of communicating with a witness that is a Class 3 offense. Holding a penalty not less than two years not greater than five years in the state penitentiary.

You could also be subject to extended term which is not less than five years, not greater than ten years in the state penitentiary."

The court further admonished defendant regarding the sentencing range for the Class 4 offense of violating an order of protection and asked, "[k]nowing what the possible penalties are is it still your wish to plead guilty to this charge [sic]?" Defendant answered in the affirmative. Defendant also stated that he was pleading guilty of his own free will but was basically forced to plead guilty "[b]ecause it would be a sham to go to trial with the witnesses and evidence that exists [sic]." The court ultimately accepted defendant's guilty pleas and proceeded to sentencing.

¶ 9 The ASA disagreed with the court's proposed sentence, asked that an order of protection be entered under the Illinois Domestic Violence Act of 1986 (the Domestic Act) (750 ILCS 60/101 et seq. (West 2004)), and asked that defendant be prohibited from contacting Stefanitis, her daughter, and her son, as well as Albert Zaucha and Nick Karentakis, two individuals who apparently neither resided with nor were related to Stefanitis but whom defendant was alleged to have threatened. Greco objected to the inclusion of Zaucha and Karentakis in the order of protection.

¶ 10 When the court asked if defendant wished to say anything further, he said that he had "lied" when he pled guilty but could not go to trial. Defendant nonetheless confirmed thathe was exercising his right to plead guilty. In...