People v. Jones

2012 IL App (1st) 093180

969 N.E.2d 482

360 Ill.Dec. 672

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Kenneith JONES, Defendant–Appellant.

No. 1–09–3180.

Appellate Court of Illinois, First District, Second Division.

May 1, 2012.

Rehearing Denied May 30, 2012.

Abishi C. Cunningham, Jr., Public Defender, Chicago (Denise Avant, Harold J. Winston, Assistant Public Defenders, of counsel), for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Joan Frazier, and Michele Grimaldi Stein, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice QUINN delivered the judgment of the court, with opinion.

[360 Ill.Dec. 676]¶ 1 Defendant, Kenneith Jones, appeals from a judgment entered by the trial court that dismissed his postconviction petition after a full evidentiary hearing. Jones filed a timely notice of appeal on November 9, 2009, and the appeal was fully briefed on January 4, 2012.

¶ 2 On appeal, defendant argues that: (1) he received an unfair postconviction hearing because of evidentiary errors committed by the court; (2) he was denied effective assistance of counsel at his criminal trial when his counsel failed to thoroughly investigate and call alibi witnesses and witnesses who could have corroborated statements one Dwight Washington made against his penal interests; (3) his conviction should be reversed because of his claim of innocence; and (4) the State committed a Brady violation ( Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)), which now entitles him to a new trial. The postconviction court held a hearing on the petition where 12 witnesses testified. After hearing all the testimony, the court denied the postconviction petition in all respects. This opinion addresses issues raised in defendant's brief after addressing the recent case of People v. Henderson, 2011 IL App (1st) 090923, 356 Ill.Dec. 311, 961 N.E.2d 407, and its application.

¶ 3 A preliminary review of this case revealed that Jones had fully served the sentence imposed for his conviction of first degree murder and he is no longer in the custody of the Illinois Department of Corrections (IDOC) or under their supervision as a parolee. This court is aware of the recent holding in People v. Henderson, 2011 IL App (1st) 090923, 356 Ill.Dec. 311, 961 N.E.2d 407, that dismissed Henderson's postconviction petition on appeal as moot when the appellate court determined that he had fully served his sentence. It reasoned that because the defendant no longer needed the assistance of the Post–Conviction Hearing Act (the Act)(725 ILCS 5/122–1 to 122–8 (West 2008)) to secure his liberty, he immediately lost standing under the Act. We ordered additional briefing to obtain the parties' positions as to whether the holding in Henderson requires the dismissal of this defendant's appeal as moot.

¶ 4 The State responded to the issue forthrightly by stating that it was the position of the State's Attorney's office that the Henderson court's dismissal of defendant's postconviction petition as moot on appeal was wrong and not grounded in established supreme court precedent. The State's position is that Henderson's release from parole subsequent to his timely filed petition did not eliminate his standing to obtain relief pursuant to the Act and render his petition moot. We disagree with the holding in Henderson for the following reasons.

¶ 5 I. Summary of Illinois's Postconviction Procedure and Analysis of Henderson's Applicability

¶ 6 In addition to review on direct appeal following a criminal conviction, certaincollateral, statutory remedies have been made available under which criminal convictions may be challenged. In Illinois the Act is one such remedy. Under the Act “[a]ny person imprisoned in the penitentiary may institute a proceeding.” 725 ILCS 5/122–1(a) (West 2008). While the entire Act consists of only 1 1/2 pages of text in the statute books, litigation stemming from the Act has resulted in an incredible number of court decisions since being enacted in 1951. One such area concerns the time limits within which a defendant must file his or her original petition. Under the current statutory framework, a postconviction petition must be filed by the earliest of the following two dates: (1) six months after the conclusion of any appeal to the United States Supreme Court or six months after the date for filing such appeal if none is filed; or (2) if no direct appeal is filed, three years from the date of conviction. 725 ILCS 5/122–1(c) (West 2008). In any instance, the petitioner may be excused from meeting these filing deadlines if it can be shown that the delay was not due to his or her culpable negligence. 725 ILCS 5/122–1(c) (West 2008). Legal proceedings under the Act have been deemed to be civil in nature. People v. Andretich, 244 Ill.App.3d 558, 185 Ill.Dec. 355, 614 N.E.2d 489 (1993). The time periods for filing a timely petition have been held to be statutes of limitations. People v. Allen, 322 Ill.App.3d 724, 725, 255 Ill.Dec. 676, 750 N.E.2d 257 (2001) (citing People v. Bates, 124 Ill.2d 81, 85–86, 124 Ill.Dec. 407, 529 N.E.2d 227 (1988)). A statutory civil cause of action that is timely filed cannot be declared moot by subsequent events.

¶ 7 Additionally, just as our supreme court has determined that the matter of timeliness of a postconviction petition should be left for the State to assert ( People v. Boclair, 202 Ill.2d 89, 102, 273 Ill.Dec. 560, 789 N.E.2d 734 (2002)), in People v. Hager, 202 Ill.2d 143, 269 Ill.Dec. 370, 780 N.E.2d 1094 (2002), issued the same day as Boclair, the supreme court reversed the appellate court's sua sponte dismissal of a postconviction petition as untimely and ordered the appellate court to limit its review on remand to whether or not the petition was “frivolous or patently without merit.” People v. Hager, 202 Ill.2d at 149–50, 269 Ill.Dec. 370, 780 N.E.2d 1094. It would appear from these two decisions that the appellate court should refrain from considering the issue of timeliness, absent a motion to dismiss by the State and a ruling by the trial court. It would follow that the appellate court should not decide issues of mootness of the entire petition absent allowing the petitioner to respond.

¶ 8 Application of the Henderson decision which allowed for appellate court dismissal of a petition merely because the petitioner has served his sentence is troubling for another important reason. Many of these petitions frequently experience delays not found in other categories of cases before they receive final review. For instance, in the instant case, the defendant was sentenced in 1999. Defendant's conviction was affirmed in 2000 on direct appeal after the filing of an Anders brief. People v. Jones, No. 1–99–1235, 316 Ill.App.3d 1291, 268 Ill.Dec. 908, 779 N.E.2d 522 (Sept. 29, 2000) (unpublished order under Supreme Court Rule 23). In March 2001, defendant filed his postconviction petition, which was summarily dismissed by the trial court in June 2001. On appeal, this court remanded the case for appointment of counsel and further proceedings in June 2005. People v. Jones, 364 Ill.App.3d 1, 301 Ill.Dec. 344, 846 N.E.2d 947 (2005). Two years later, the public defender's office filed a supplemental petition to the pro se petition on Kenneith Jones's behalf. On remand, the trial court held an evidentiary hearing on the petition on various dates from March 19, 2008 to November 4, 2009, when the circuit court denied defendant any relief pursuant to his postconviction petition. On appeal, it took over two years for this case to be fully briefed and ready for decision.

¶ 9 The public offices charged with representing the parties in these postconviction petitions suffer from understaffing and underfunding, which predictably result in severe backlogs. While the instant defendant, Kenneth Jones, is represented on appeal by the Cook County Public Defender's office, the State Appellate Defender's office represents the vast majority of appellants in criminal cases, including Henderson. A recent motion for extension of time filed by an assistant State Appellate Defender represented to this court that while her “office has eighty (80) full-time and fourteen (14) part-time assistant defenders working on cases,” they are currently experiencing “a backlog of approximately 1043 unbriefed cases.” People v. Brown, No. 1–11–2009 (pending appeal; motion for extension of time to file brief for appellant, pages 1–2, paragraph 8, filed February 24, 2012). The State's Attorney's office's appellate staff has also represented that its office is experiencing “a backlog of over 200 unassigned cases, and an understaffed Criminal Appeals Division * * * which is currently down 37 assistant state's attorneys and one paralegal.” People v. McKinney, No. 1–10–3696 (pending appeal; motion for an extension of time for the filing of the people's brief, page 2, paragraph 10, filed February 28, 2012).

¶ 10 We hold that the instant postconviction petition was timely filed and, as such, is not moot. Our decision rests on a foundation of prior Illinois Supreme Court cases where the court has made clear that all that is required is that a petitioner must still be serving any sentence imposed, including any period of mandatory supervised release, at the time of the initial timely filing of his petition. People v. Davis, 39 Ill.2d 325, 235 N.E.2d 634 (1968); People v. Carrera, 239 Ill.2d 241, 346 Ill.Dec. 507, 940 N.E.2d 1111 (2010).

¶ 11 Specifically, the Davis court directly addressed this issue, as follows:

“From the outset of the post-conviction hearing the State has asserted that the petition should be dismissed because Davis was not incarcerated at the time the cause was heard. The State relies on the wording of the Post–Conviction Hearing Act which gives ‘any person imprisoned in the penitentiary’ the right to allege a substantial denial of constitutional rights [c...