People v. Ryburn

2019 IL App (4th) 170779

134 N.E.3d 348

434 Ill.Dec. 47

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

v.Thomas V. RYBURN, Defendant-Appellant.

NO. 4-17-0779

Appellate Court of Illinois, Fourth District.

FILED August 22, 2019

James E. Chadd, Patricia Mysza, and Gilbert C. Lenz, of State Appellate Defender’s Office, of Chicago, for appellant.

Don Knapp, State’s Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and Allison Paige Brooks, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

JUSTICE TURNER delivered the judgment of the court, with opinion.

¶ 1 In November 2015, defendant, Thomas V. Ryburn, filed a pro se motion for leave to file a successive postconviction petition. The McLean County circuit court allowed defendant to file his successive postconviction petition and later moved the petition to the second stage of the postconviction proceedings. At the second stage, defendant was appointed counsel who filed an amended successive postconviction petition. The State filed a motion to dismiss defendant's amended successive postconviction petition. In September 2017, the court entered a written order dismissing defendant's successive postconviction petition.

¶ 2 Defendant appeals, contending the circuit court erred by dismissing his amended successive postconviction petition. We reverse and remand for further proceedings.

¶ 3 I. BACKGROUND

¶ 4 In October 1998, the State charged defendant with four counts each of aggravated criminal sexual assault ( 720 ILCS 5/12-14(a)(1) (West 1998)), criminal sexual assault ( 720 ILCS 5/12-13(a)(1) (West 1998)), and aggravated criminal sexual abuse ( 720 ILCS 5/12-16(d) (West 1998)) for his actions on September 8, 1998. At an October 1999 guilty-plea hearing, defendant pleaded guilty to three counts of aggravated criminal sexual assault pursuant to a plea agreement, under which the State agreed (1) to dismiss the remaining nine counts and other unrelated charges against defendant, (2) to recommend an aggregate sentence totaling no more than 60 years, and (3) the circuit court would not impose a fine on defendant. After fully admonishing defendant and hearing the State's factual basis, the circuit court accepted defendant's guilty pleas. At the plea hearing, defendant was represented by Assistant Public Defender Kim Campbell.

¶ 5 In November 1999, the circuit court sentenced defendant to 20 years in prison on each count of aggravated criminal sexual assault, with those sentences to be served consecutively ( 730 ILCS 5/5-8-4(a) (West 1998)). In December 1999, defendant filed a motion to withdraw his guilty pleas, alleging he did not enter them knowingly and voluntarily. Following a February 2000 hearing, the court denied defendant's postplea motion.

¶ 6 Defendant appealed and argued, inter alia , (1) section 5-8-4(a) of the Unified Code of Corrections ( 730 ILCS 5/5-8-4(a) (West 1998)), which required the imposition of consecutive sentences in his case, was unconstitutional under Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and (2) the circuit court erred by finding him fit. This court affirmed defendant's convictions and 60-year aggregate sentence. People v. Ryburn , 321 Ill. App. 3d 1068, 277 Ill.Dec. 905, 797 N.E.2d 252 (2001) (table) (unpublished order under Illinois Supreme Court Rule 23 ).

¶ 7 In June 2002, defendant filed pro se his first petition for relief under the Post-Conviction Hearing Act (Postconviction Act) ( 725 ILCS 5/122-1 et seq. (West 2002)). The petition raised the following constitutional claims: (1) defendant received ineffective assistance of guilty-plea counsel in that counsel (a) failed to raise a speedy-trial claim, (b) failed to call certain alibi witnesses, (c) failed to present evidence to corroborate the purported alibi, (d) failed to obtain police records that allegedly showed the victim had a motive to fabricate her complaint against defendant, and (e) stipulated defendant was fit to plead guilty and (2) he received ineffective assistance of appellate counsel because counsel failed to raise on appeal the aforementioned issues. Later in June 2002, the circuit court summarily dismissed the petition as frivolous and patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2002). Defendant filed a notice of appeal, and the circuit court appointed the Office of the State Appellate Defender (OSAD) to serve as defendant's counsel. In March 2003, OSAD moved to withdraw as counsel. This court granted OSAD's motion to withdraw as counsel on appeal and affirmed the circuit court's dismissal of defendant's initial postconviction petition. People v. Ryburn , No. 4-02-0552 (July 29, 2003) (unpublished order under Illinois Supreme Court Rule 23 ).

¶ 8 In July 2004, defendant filed a petition under section 2-1401 of the Code of Civil Procedure ( 735 ILCS 5/2-1401 (West 2004) ), seeking to set aside his October 1999 guilty pleas. Defendant first argued he received ineffective assistance of guilty-plea counsel in that counsel (1) "fraudulently concealed [the circuit court's] violation of the guilty plea" agreement when the court imposed fines and ordered that defendant pay restitution; (2) violated several rules of professional conduct; (3) did not consult with him about what issues he wanted to raise in his motion to withdraw his guilty pleas; (4) filed an Illinois Supreme Court Rule 604(d) (eff. Aug. 1, 1992) certificate that was "suspect"; (5) "fraudulently concealed" defendant's medical records, mental-health history, and certain exculpatory evidence; (6) failed to argue his consecutive sentences were improper; and (7) failed to argue defendant's "legal innocents [sic ]" in his motion to withdraw his guilty pleas. Defendant also contended the circuit court violated several supreme court rules by failing to provide him with a free transcript of proceedings and his consecutive sentences violated Apprendi. In August 2004, the circuit court sua sponte dismissed defendant's section 2-1401 petition, finding it was frivolous and without merit. Defendant appealed, and this court affirmed. People v. Ryburn , 362 Ill. App. 3d 870, 299 Ill.Dec. 281, 841 N.E.2d 1013 (2005). Defendant filed a petition for leave to appeal to the supreme court. On September 26, 2007, the Illinois Supreme Court denied defendant's petition for leave to appeal but directed this court to vacate our judgment and to reconsider it in light of People v. Vincent , 226 Ill. 2d 1, 312 Ill.Dec. 617, 871 N.E.2d 17 (2007). People v. Ryburn , 225 Ill. 2d 666, 314 Ill.Dec. 2, 873 N.E.2d 932 (2007) (supervisory order). In accordance with the supreme court's directions, this court vacated our prior judgment, reconsidered it in light of Vincent , and again affirmed the circuit court's dismissal. People v. Ryburn , 378 Ill. App. 3d 972, 318 Ill.Dec. 907, 884 N.E.2d 1178 (2008).

¶ 9 Defendant continued to file numerous motions and petitions attacking his guilty pleas. The ones brought under the Postconviction Act are set forth below.

¶ 10 In July 2010, defendant filed his first motion for leave to file a successive postconviction petition, arguing, inter alia , actual innocence based on the defense of involuntary intoxication. The circuit court denied defendant's motion and struck the amended motion for leave to file a successive postconviction petition that was filed after the court's judgment on the original motion. Defendant appealed, but on defendant's own motion, this court dismissed the appeal. People v. Ryburn , No. 4-10-0980 (Jan. 27, 2012) (nonprecedential motion order).

¶ 11 In December 2011, defendant filed a second motion for leave to file a successive postconviction petition, again raising a claim of involuntary intoxication and an argument the court imposed mandatory fines without any admonishments. Defendant filed an amended motion for leave to file a successive postconviction petition in April 2012, which asserted his plea agreement was void because his sentence exceeded the agreed upon cap due to a mandatory supervised release term of three years. In February 2013, defendant filed a second amended motion for leave to file a successive postconviction petition. On August 2013, the circuit court entered an order denying defendant's second amended motion for leave to file a successive postconviction petition. Defendant appealed the denial, but on defendant's own motion, this court dismissed the appeal. People v. Ryburn , No. 4-13-0778 (Mar. 31, 2015).

¶ 12 In December 2014, defendant filed his third motion for leave to file a successive postconviction petition, contending his plea agreement was void because a May 1999 forensic report indicated no evidence existed supporting the second and third counts of his indictment. The circuit court denied defendant's third motion for leave to file a successive postconviction petition. Defendant appealed the denial. However, he again moved to dismiss his appeal, and this court dismissed the appeal. People v. Ryburn , No. 4-15-0132 (May 31, 2017).

¶ 13 In November 2015, defendant filed his fourth motion for leave to file a successive postconviction petition, which is at issue in this appeal. In his successive postconviction petition, defendant alleged he filed a complaint against Campbell with the Attorney Registration and Disciplinary Commission (ARDC). In her August 2014 response to ARDC, Campbell stated the State had tendered a plea offer of 24 years' imprisonment on December 9, 1998. Defendant alleged he had not been informed of the December 1998 offer. In June 2015, defendant submitted a request under the Freedom of Information Act (FOIA) ( 5 ILCS 140/1 et seq. (West 2014)) to the McLean County State's Attorney, seeking information about the December 1998 offer. The state's attorney granted defendant's request, and defendant received a document showing the 24-year offer was formally made to the McLean County public defender's office on December 9, 1998. Defendant asserted no one at ...