People v. Kwiatkowski

2021 IL App (4th) 190285-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT J. KWIATKOWSKI, Defendant-Appellant.

NO. 4-19-0285

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

May 20, 2021

NOTICE

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Champaign County

No. 88CF824

Honorable Roger B. Webber, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court.

Justices Turner and Cavanagh concurred in the judgment.

ORDER

¶ 1 Held: The trial court did not err in summarily dismissing defendant's postconviction petition because standing is a proper basis for dismissal at the first stage of postconviction proceedings.

¶ 2 In August 1988, defendant, Robert J. Kwiatkowski, pleaded guilty to aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, § 12-16(d)) and was sentenced to 24 months' probation. On August 13, 1990, the trial court entered an order discharging and releasing defendant from probation. In March 2019, defendant filed a petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)), which the court summarily dismissed, finding defendant lacked standing to institute proceedings under the Act. Defendant appeals, arguing the court erred in summarily dismissing his petition because standing is not a proper basis for dismissal at the first stage of postconviction proceedings. We affirm.

¶ 3 I. BACKGROUND

¶ 4 On June 10, 1988, the State charged defendant with battery (Ill. Rev. Stat. 1987, ch. 38, § 12-3), criminal trespass to a residence (Ill. Rev. Stat. 1987, ch. 38, § 19-4), and aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, § 12-16(d)) in Champaign County case No. 88-CF-824. In August 1988, defendant pleaded guilty to aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, § 12-16(d)) and was sentenced to 24 months' probation, to pay court costs, and to serve a period of 51 days in jail, with credit for 51 days already served. On August 13, 1990, the trial court entered an order discharging and releasing defendant from probation.

¶ 5 According to the record before us, the only docket entry made in case No. 88-CF-824 between August 13, 1990, and 2019 was on November 27, 2006, which entry states the records of defendant's 1988 conviction were microfilmed on that date.

¶ 6 In January 2019, defendant pro se filed a motion to withdraw his guilty plea and vacate his sentence, which the trial court denied.

¶ 7 In February 2019, defendant filed a motion for the appointment of counsel in case No. 88-CF-824 and case No. 17-CF-961 (this is the only reference to this case number contained in the record). Relevant to this appeal, in his motion, defendant alleged: "I have been incarcerated continuously since Oct[ober] 5[ ], 2017[,] and am presently held in custody and residing at the Dixon Correctional Center ***." The trial court denied defendant's motion.

¶ 8 On March 1, 2019, defendant pro se filed a petition for postconviction relief under the Act in case No. 88-CF-824. In his petition, defendant first recounted that, following his conviction, he "served 24 months['] probation, paid court costs, and received 51 days['] credit for time served." Defendant then claimed the trial court improperly sentenced him "undermisdemeanor law," the State failed to prove each element of the charged offense, he "did not understand the waiver of rights read to him in his pretrial" as a result of his "diminished comprehension and affliction of mental illness," and he received ineffective assistance of counsel. In support of the claims raised in his petition, defendant filed several psychiatric progress notes. One progress note, dated December 3, 2018, stated, inter alia: "54 yrs old on charge of Disorderly Conduct, Inc: 7/16/17, Out date: 1/17/19[.]" The postconviction petition included an affidavit in which defendant averred he was "a prisoner incarcerated at the Dixon Correctional Center" and that "[a]ll of the facts presented in [the] [p]etition [were] true and accurate to the best of [his] recollection."

¶ 9 In April 2019, the trial court summarily dismissed defendant's petition for postconviction relief as frivolous and patently without merit. In the order, the court found as follows:

"The [p]etitioner completed his sentence and was discharged on August 13, 1990, nearly thirty years ago. His liberty is no longer constrained by virtue of this conviction. Accordingly, he lacks standing to challenge this conviction pursuant to the [Act]."

¶ 10 This appeal followed.

¶ 11 II. ANALYSIS

¶ 12 On appeal, defendant argues the trial court erred in summarily dismissing his postconviction petition because standing is not a proper basis for dismissal at the first stage of postconviction proceedings. We review defendant's claim de novo. See People v. Tate, 2012 IL 112214, ¶ 10, 980 N.E.2d 1100 ("The summary dismissal of a postconviction petition is reviewed de novo.").

¶ 13 Section 122-1(a) of the Act provides, in pertinent part:

"Any person imprisoned in the penitentiary may institute a proceeding under [the Act] 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 2018).

Pursuant to section 122-1(a), a defendant has standing under the Act only if he was "imprisoned in the penitentiary" when he instituted the postconviction proceedings. See People v. Coe, 2018 IL App (4th) 170359, ¶ 43, 118 N.E.3d 1256. A petitioner loses standing to institute proceedings under the Act if he is not a "person imprisoned in the penitentiary" because he fully discharged his sentence for the conviction he seeks to challenge. People v. Carrera, 239 Ill. 2d 241, 253, 940 N.E.2d 1111, 1118 (2010); see People v. West, 145 Ill. 2d 517, 519, 584 N.E.2d 124, 125 (1991) (to be eligible for relief under the Act, a petitioner must be imprisoned "for the offense he is purporting to challenge"). However, section 122-1(a) does not require "actual incarceration as a strict prerequisite to instituting a proceeding under the Act." Carrera, 239 Ill. 2d at 246. Rather, the phrase "imprisoned in the penitentiary" includes "petitioners whose liberty, in some way or another, was curtailed to a degree by the [S]tate." Id. Thus, a person who was sentenced to probation may file a petition for relief under the Act. Id.

¶ 14 A defendant commences a proceeding under the Act by filing a petition with the clerk of the court in which the conviction took place. 725 ILCS 5/122-1(b) (West 2018). Once a postconviction petition is filed, it undergoes a three-stage adjudicatory process, as set forth in the Act. People v. Knapp, 2020 IL 124992, ¶ 43. At the first stage, the trial court "independentlyreviews the petition, taking the allegations as true, and determines if it is frivolous or patently without merit." People v. Grant, 2015 IL App (4th) 140971, ¶ 17, 33 N.E.3d 871. To that end, section 122-2.1(a)(2) of the Act provides: "If the petitioner is sentenced to imprisonment and the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision." 725 ILCS 5/122-2.1(a)(2) (West 2018). A petition is frivolous or patently without merit "only if the petition has no arguable basis either in law or in fact." People v. Hodges, 234 Ill. 2d 1, 11-12, 912 N.E.2d 1204, 1209 (2009). During first-stage review, the court is "foreclosed from engaging in any fact-finding or any review of matters beyond the allegations of the petition" ((internal quotation marks omitted) People v. Fathauer, 2019 IL App (4th) 180241, ¶ 56, 146 N.E.3d 175), although it may consider "the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding [(725 ILCS 5/122-2.1(c) (West 2018))]."

¶ 15 If the trial court does not dismiss the defendant's petition during the first stage of postconviction proceedings, the petition advances to the second stage, where counsel may be appointed for the defendant and where the State enters the litigation and may file a motion to dismiss the petition. Tate, 2012 IL 112214, ¶ 10 (citing 725 ILCS 5/122-4 to 122-6 (West 2008)). At this stage, the court must determine whether "the petition and any accompanying documentation make a substantial showing of a constitutional violation." (Internal quotation marks omitted.) Id. If such a showing is made, the petition is advanced to the third stage of proceedings where the court conducts an evidentiary hearing. People v. Edwards, 197 Ill. 2d 239, 246, 757 N.E.2d 442, 446 (2001).

¶ 16 In the present case, defendant acknowledges he was not imprisoned in thepenitentiary when he filed his postconviction petition. Accordingly, defendant does not contest the trial court's finding that he lacked standing under the Act. Instead, defendant only argues the court erred in dismissing his petition at the first stage of postconviction proceedings because lack of standing is not a proper ground for first-stage dismissal. In support, defendant relies upon People v. Boclair, 202 Ill. 2d 89, 789 N.E.2d 734 (2002), People v. Blair, 215 Ill. 2d 427, 831 N.E.2d 604 (2005), and People v. Hommerson, 2014 IL 115638, 4 N.E.3d 58. In response, the State cites People v. Johnson, 2019 IL App (1st) 163169, ¶ 12, 161 N.E.3d 258, in which the First District held that, if a defendant lacks standing to assert a claim under the Act, first-stage dismissal of his petition is appropriate. The defendant in Johnson appealed the First District's decision, and our supreme court granted certiorari. After both parties here submitted their briefs, the supreme court issued an opinion...