2022 IL App (1st) 210027
Ill. App. Ct.2022Background
- Two consolidated appeals from Cook County: convictions based on guilty pleas in 1993 (92-CR-19775) and 1995 (93-CR-6700). 1995 plea had been remanded earlier for Rule 604(d) defects.
- Defendant Joseph Sosani later claimed he was not advised that his pleas had immigration consequences; he alleged loss of lawful status and potential deportation consequences.
- On July 10, 2020 Sosani filed section 2-1401 petitions (styled as motions) seeking to vacate both guilty pleas based on immigration consequences and alleged due-process defects; he conceded the petitions were untimely.
- The State moved to dismiss under section 2-619.1; the trial court dismissed both petitions as time-barred; defendant’s circuit-court motions to reconsider were denied.
- While these appeals were pending, the legislature enacted Public Act 102-639 (effective Aug. 27, 2021), adding 735 ILCS 5/2-1401(c-5), permitting "any individual" to file a section 2-1401 petition at any time if a guilty or nolo plea has potential federal immigration consequences.
- On appeal defendant abandoned most trial-court arguments; the parties focused on whether subsection (c-5) applies retroactively to his already-concluded cases and pending appeals. The appellate court, relying on People v. Hunter, affirmed the dismissals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether newly enacted 2-1401(c-5) (PA 102-639) applies to petitions/appeals already concluded or pending | The amendment is not retroactive and cannot revive time‑barred petitions; applying it would create new proceedings improperly | The amendment allows filing at any time for pleas with immigration consequences and thus should apply to Sosani’s petitions | Not retroactive to concluded proceedings or to revive otherwise barred claims; amendment does not apply to these appeals (affirmed) |
| Whether defendant’s other claims (statute-of-limitations tolling, voidness, due-process errors) should be considered on appeal | Forfeiture: defendant failed to pursue/brief these arguments on appeal; they are forfeited | Defendant argued merits below but abandoned them on appeal and asked for relief via c-5 | Appellant forfeited those arguments by failing to brief them; court declined to address them |
Key Cases Cited
- People v. Hunter, 2017 IL 121306 (statute change did not apply where trial proceedings were concluded; no "ongoing proceedings" to which new procedure could practicably apply)
- Vancura v. Katris, 238 Ill. 2d 352 (issues not argued in opening brief are forfeited)
- People v. Lansing, 35 Ill. 2d 247 (legislative amendment will not revive an action previously barred absent clear intent)
- People v. Reed, 42 Ill. 2d 169 (statute of limitations applicable is the one in force at time of conviction for certain post‑conviction petitions)
- Holland v. Florida, 560 U.S. 631 (court of review’s role is to determine correctness of lower court decision; appellate courts should not create new proceedings to apply later procedural changes)