People v. Lofton

2018 IL App (4th) 150743-UB

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN A. LOFTON, Defendant-Appellant.

NO. 4-15-0743

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

November 28, 2018

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 Circuit Court of Champaign County

No. 01CF826

Honorable Thomas J. Difanis, Judge Presiding.

JUSTICE TURNER delivered the judgment of the court.

Presiding Justice Harris and Justice DeArmond concurred in the judgment.

ORDER

¶ 1 Held: Defendant's due process rights were violated when the circuit court granted the State's motion to dismiss defendant's petition without giving defendant an opportunity to respond, but the error was harmless.

¶ 2 In May 2015, defendant, John A. Lofton, filed a pro se petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-1401 (West 2014)). On June 5, 2015, the Champaign County circuit court gave the State 30 days to respond to defendant's petition. On July 20, 2015, the State filed a motion to dismiss defendant's section 2-1401 petition. Two days later, the court entered a written order dismissing defendant's petition. On August 10, 2015, defendant filed a document entitled "Supplemental Pleadings" and a motion to reconsider, noting, inter alia, he never got a chance to respond to the State's motion to dismiss. The court denied defendant's motion to reconsider.

¶ 3 Defendant appealed and asserted (1) his due process rights were violated because the circuit court dismissed his section 2-1401 petition without giving him an opportunity to respond, (2) the court dismissed his petition before it was ripe for adjudication, and (3) the circuit clerk improperly imposed numerous fines and fees against him. In April 2018, this court affirmed the circuit court's dismissal of defendant's May 2015 section 2-1401 petition but vacated five of defendant's fines because they were imposed by the circuit clerk. Defendant filed a petition for leave to appeal to the Illinois Supreme Court. In September 2018, the supreme court denied defendant's petition; however, in the exercise of its supervisory authority, it directed this court to vacate our judgment and, in light of People v. Vara, 2018 IL 121823, consider whether this court has jurisdiction to address and vacate the clerk-imposed fines in this matter. People v. Lofton, No. 123580 (Ill. Sept. 26, 2018) (nonprecedential supervisory order on denial of petition for leave to appeal). Accordingly, we vacated our original judgment, and we again affirm the circuit court's dismissal of the section 2-1401 petition but do not vacate the clerk-imposed fines.

¶ 4 I. BACKGROUND

¶ 5 In May 2001, the State charged defendant by information with one count of unlawful possession of cannabis with the intent to deliver (720 ILCS 550/5(g) (West 2000)), alleging that, on May 10, 2001, defendant knowingly and unlawfully possessed with the intent to deliver more than 5000 grams of a substance containing cannabis. In January 2002, the State added a second count, charging defendant with unlawful possession with the intent to deliver more than 2000 grams but not more than 5000 grams of a substance containing cannabis (720 ILCS 550/5(f) (West 2000)). The parties had entered into a plea agreement, under which defendant would plead guilty to the second count and the State would request dismissal of the first count and recommend a sentence of 24 years. At the January 2002 plea hearing, defendantinitially pleaded guilty to the second count. After the circuit court heard the factual basis, defendant indicated he no longer wanted to plead guilty. After talking with his attorney and wife, defendant persisted in not pleading guilty. At the State's request, the court dismissed the second count.

¶ 6 The parties later entered into a second plea agreement, under which defendant would plead guilty to a reinstated second count of unlawful possession of cannabis with the intent to deliver and the State would seek dismissal of the first count and recommend a sentence of 30 years' imprisonment. The State refiled its original second count; and at an October 2005 plea hearing, the circuit court accepted defendant's plea to count II, dismissed count I, and sentenced defendant to 30 years in prison as a Class X offender (730 ILCS 5/5-5-3(c)(8) (West 2000)). Defendant did not file a direct appeal.

¶ 7 On November 7, 2006, defendant filed a pro se petition for postconviction relief under the Post-Conviction Hearing Act (Postconviction Act) (725 ILCS 5/art. 122 (West 2006)), alleging a freestanding claim of actual innocence and a denial of his right to effective assistance of counsel. On November 13, 2006, the circuit court found the petition frivolous and patently without merit and denied defendant's postconviction petition. On November 20, 2006, defendant filed a second pro se postconviction petition, raising claims similar to the first petition. Eight days later, the circuit court dismissed defendant's second postconviction petition, finding it was identical to the first postconviction petition that had already been denied. Defendant appealed both judgments in the same late notice of appeal. This court affirmed the circuit court. People v. Lofton, No. 4-06-1107 (Dec. 31, 2007) (unpublished order under Illinois Supreme Court Rule 23).

¶ 8 In February 2009, defendant filed a third pro se postconviction petition,contending he was never admonished during his guilty-plea hearing as to the term of mandatory supervised release applicable to his sentence. The circuit court dismissed the petition pursuant to section 122-1(f) of the Postconviction Act (725 ILCS 5/122-1(f) (West 2008)). Defendant appealed, and the office of the State Appellate Defender (OSAD) was appointed to represent him. On appeal, this court granted OSAD's motion to withdraw as counsel and affirmed the circuit court's judgment. People v. Lofton, No. 4-09-0213 (Dec. 24, 2009) (unpublished order under Illinois Supreme Court Rule 23).

¶ 9 In April 2012, defendant filed a pro se petition for relief from judgment pursuant to section 2-1401 of the Procedure Code (735 ILCS 5/2-1401 (West 2012)). Defendant argued the judgment was void because the circuit court failed to comply with Illinois Supreme Court Rule 402(d)(2) (eff. July 1, 1997) in failing to warn him that if he failed to accept an initial plea agreement for a 24-year sentence, he would later face a 30-year sentence. Defendant also argued his counsel was ineffective for failing to present a defense. In June 2012, the State filed a response to defendant's petition and argued it should be dismissed because it was untimely filed, the claims did not support a finding of a void judgment, and the claims were forfeited or barred by the doctrine of res judicata. The circuit court dismissed the petition, finding it frivolous and patently without merit. Defendant filed a motion to reconsider, and the court held its ruling would stand. On appeal, this court granted OSAD's motion to withdraw as counsel and affirmed the circuit court's judgment. People v. Lofton, No. 4-12-0675 (Oct. 1, 2013) (unpublished summary order under Illinois Supreme Court Rule 23(c)).

¶ 10 On May 26, 2015, defendant filed a second petition for relief from judgment pursuant to section 2-1401 of the Procedure Code (735 ILCS 5/2-1401 (West 2014)), which is the basis of this appeal. In his second section 2-1401 petition, defendant asserts the circuit courtabused its discretion by allowing him to withdraw his guilty plea at the January 2002 plea hearing and all subsequent judgments were void. On June 5, 2015, the circuit court gave the State 30 days to respond. On July 20, 2015, the State filed a motion to dismiss under section 2-619.1 of the Procedure Code (735 ILCS 5/2-619.1 (West 2014)) defendant's second 2-1401 petition, asserting (1) defendant's claim was substantially insufficient in law, (2) his petition was not timely filed, (3) defendant's claim was barred by res judicata, and (4) defendant failed to plead due diligence. Two days later, the circuit court entered a written order agreeing with the State's contentions and dismissing defendant's section 2-1401 petition.

¶ 11 On August 10, 2015, defendant filed a motion to reconsider, asserting (1) the State defaulted because its motion to dismiss was not filed within 30 days and (2) he never received an opportunity to respond to defendant's motion. He also filed a document entitled "Supplemental Pleadings," in which he sought to supplement his section 2-1401 petition with a claim of vindictive prosecution. In an August 18, 2015, docket entry, the circuit court denied defendant's motion to reconsider. The court did not expressly address defendant's "Supplemental Pleadings" document but implicitly denied defendant an opportunity to supplement in denying his motion to reconsider.

¶ 12 On August 31, 2015, defendant filed a notice of appeal, which failed to list the name of the order appealed from. On September 9, 2015, defendant filed a timely amended notice of appeal in sufficient compliance with Illinois Supreme Court Rule 303 (eff. Jan. 1, 2015). See Ill. S. Ct. R. 303(b)(5) (eff. Jan. 1, 2015) (allowing for the amendment of the notice of appeal within the original 30-day period for filing the notice of appeal). Accordingly, we have jurisdiction of defendant's appeal from the July 22, 2015, dismissal of his May 2015 section 2-1401 petition.

¶ 13 II. ANALYSIS

¶ 14 A. Due Process

¶ 15 Defendant first asserts his due process rights were violated when the circuit court granted the State's motion to dismiss without giving him an opportunity to respond. The State concedes defendant's due process rights were violated but contends any error was harmless.

¶ 16 1. Due Process Violation

¶ 17 In People v. Bradley, 2017 IL App (4th) 150527, ¶ 19, 85 N.E.3d 591, this court...