THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL CHATMAN, Defendant-Appellee (Susan Riggio, Petitioner-Appellant).
No. 1-15-2395
Appellate Court of Illinois, First District, Fifth Division
September 30, 2016
2016 IL App (1st) 152395
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justice Reyes concurred in the judgment and opinion. Justice Lampkin specially concurred, with opinion.
Decision Under Review:
Jeremiah P. Connolly, Rachel D. Kiley, Daria A. Porta, and James M. Gale, all of Bollinger Connolly Krause LLC, of Chicago, for appellant.
Anita M. Alvarez, State‘s Attorney, of Chicago (Alan J. Spellberg and Paul Castiglione, Assistant State‘s Attorneys, of counsel), for the People.
Debra Loevy-Reyes, Russell Ainsworth, and Elizabeth Wang, all of Loevy & Loevy, of Chicago, for appellee Carl Chatman.
¶ 1 This appeal raises a purely legal question: does the complainant in a criminal case have standing to bring a petition, pursuant to
¶ 2 In the case at bar, petitioner Susan Riggio filed a
¶ 3 Petitioner argues that she has standing pursuant to the Illinois Constitution and various Illinois statutes,2 which provide rights to crime victims. However, as we explain below, she does not satisfy the definition of the term “[c]rime victim” provided by our legislature and quoted in her brief.
¶ 4 We are mindful that our decision today might not leave petitioner with a level playing field in a contemporaneous federal civil action, which was filed by defendant against petitioner and various state entities and officials for damages in connection with his prior conviction and incarceration. At oral argument on this matter, defendant‘s attorney forthrightly admitted that defendant is seeking to admit his Illinois certificate of innocence as evidence of his innocence, and therefore evidence of petitioner‘s alleged lies, in that federal action. However, pure speculation
BACKGROUND
¶ 5 Petitioner appeals, stating that this appeal presents a pure question of law, and we agree. Thus, we present here only the few procedural facts needed to understand the legal question at hand.
¶ 6 In September 2013, the State moved to vacate defendant‘s 2004 rape conviction and sentence in People v. Chatman, No. 02 CR 14572 (Cir. Ct. Cook Co.), a case in which petitioner had been the complainant. In its motion, the State asked “that the matter be reinstated and redocketed” so that it could “move to vacate the conviction and sentence and move to nolle pros the conviction” and “request that the defendant, Carl Chatman, be released immediately from the custody of the Illinois Department of Corrections.”
¶ 7 Petitioner concedes that she received prior notice of the State‘s decision to move to vacate defendant‘s conviction and sentence.3 Although the State‘s attorney had a duty to notify her by first-class mail,4 and petitioner was notified by telephone instead, petitioner does not challenge the method of notice here.
¶ 8 On September 10, 2013, the trial court issued a written order granting the State‘s motion, which stated in full:
“It is Hereby Ordered that pursuant to the State‘s motion to reinstate the matter, the conviction and sentence in the above-captioned matter are vacated and it is further ordered that Carl Chatman, Inmate Number ***, be released immediately from the Illinois Department of Corrections.”
¶ 9 The appellate record does not contain a transcript or bystander‘s report for these proceedings, and petitioner does not seek to challenge the order vacating defendant‘s conviction and releasing defendant.5
¶ 10 On October 25, 2013, defendant moved pursuant to
¶ 11 On December 29, 2014, petitioner filed her
¶ 12 On March 4, 2015, the State filed a response to the
¶ 13 On July 20, 2015, the trial court granted the State‘s and defendant‘s motions to dismiss on the ground that petitioner lacked standing. The trial court found that “[n]o notice of the petition for the certificate of innocence was given to [petitioner]” but concluded that petitioner was not entitled to noticе. Petitioner had argued that she was entitled to notice pursuant to both the Illinois Constitution and various statutes,10 which provide rights to crime victims. In response, the trial court observed in its written order:
“First, how is it established that one is, or is not, a ‘victim‘?11 Obviously, Riggio claims that she is and always has been. Curiously, the State once believed and alleged that Riggio was, and now they claim that she is not, or at least that she may not be, as evidenced by their motion to vacate Chatman‘s conviction, and seek his immediate release. Chatman presumably has always believed that she was not.
Thus, whether [she is] afford[ed] standing in connection with this proceeding would presumably require some type of hearing to determine whether she is a
‘victim.’ That, however, is putting the cart before the horse, if she is then determined to be a ‘victim,’ then Chatman would resultantly be determined to be guilty of having viсtimized her, and thus not entitled to a certificate of innocence. Standing would thus be conferrable only to those who can ‘prove’ (in some manner not set out by the Constitution or any statute) that they are entitled to the relief they seek. This is circuitous. The concept of standing relates to the ability to make a claim. Standing is not synonymous with having a successful claim; it is having the ability conferred by our Constitution and the laws of this State to make the claim, whether or not it is thereafter succeeded upon.”
¶ 14 The trial court then observed that the law “affords no relief for any claimed violation” of its provisions for crime victims and that this was “consistent with the well-established precepts regarding responsibility of the maintenance of criminal prosecutions in this State” by the State‘s Attorney or the Attorney General but not by individual members of the public. The trial сourt concluded that petitioner was without standing to maintain her
¶ 15 Petitioner filed a notice of appeal on August 17, 2015, stating: “This is an appeal from an order granting the motions of [defendant] Carl Chatman and the Cook County State‘s Attorney‘s Office to dismiss Susan Riggio‘s petition pursuant to
ANALYSIS
¶ 17 In the case at bar, petitioner filed a
I. Section 2-1401
¶ 19 Petitioner filed her petition pursuant to
¶ 20 ”
II. Standard of Review
¶ 23 Where the success of a
¶ 24 In addition, when a trial court enters judgment on the pleadings alone or grants a motion to dismiss a
¶ 25 “A de novo review entails performing the same analysis a trial court would perform. That is, we accept all well-pleaded facts in the [petition] as true while disregarding legal or factual conclusions unsupported by allegations of fact. [Citation.] From the well-pleaded facts, we draw inferences in the [petitioner‘s] favor whenevеr it would be reasonably defensible to do so. [Citation.]” Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
III. Standing
¶ 27 The issue before us is whether petitioner has standing. “Under Illinois law, lack of standing is an affirmative defense. A plaintiff need not allege facts establishing that he [or she] has standing to proceed. Rather, it is the defendant‘s burden to plead and prove lack of standing.” Wexler v. Wirtz Corp., 211 Ill. 2d 18, 22 (2004). “Where a plaintiff has no standing, the proceedings must be dismissed” because “lack of standing negates a plaintiff‘s cause of action.” Wexler, 211 Ill. 2d at 22. The issue of a plaintiff‘s standing presents a question of law, which we also review de novo. Wexler, 211 Ill. 2d at 23.
IV. Statutory Interpretation
¶ 29 On this appeal, petitioner claims that
¶ 30 With both constitutional and statutory interpretation, our primary goal is to ascertain the drafters’ intent, and the best indication of their intent is the plain language of their words. MD Electrical Contractors, Inc. v. Abrams, 228 Ill. 2d 281, 287 (2008). However, when interpreting a constitution or statute, we do not read a portion of it in isolation; instead, we read it in its entirety, keeping in mind the subject it addresses and the drafters’ apparent objective in enacting it. MD Electrical Contractors, 228 Ill. 2d at 287.
V. Section 2-702
¶ 32 The State and defendant argue that
¶ 33
¶ 34
¶ 35 Even if we were to find that
¶ 36 Petitioner claims in her appellate brief that defendant‘s certificate of innocence “exposes her to considerable financial liability, including the potential for punitive damages.” However,
¶ 37 Thus, we do not find this claim persuasive.
VI. Section 2-408
¶ 38 Petitioner argues that both
¶ 39 On this appeal, petitioner argues that
¶ 40 The reply brief is not the placе to raise new arguments and switch positions, and normally arguments raised there for the first time are considered forfeited.16 Nonetheless, since the State and defendant were permitted to submit briefs in the trial court after petitioner‘s reply brief, and the parties argued the issue at the hearing before the trial court, we will consider it.
¶ 41 Petitioner argues that
“(2) when the representation of the applicant‘s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action.”
735 ILCS 5/2-408(a)(2) (West 2014) .
To qualify under the above subsection, petitioner must show that she “may be bound by an order *** in the action.” (Emphasis added.)
¶ 43 Petitioner also argues that she has standing under the portion of subsection (b) which provides for intervention “in the discretion of the court“:
“(1) when a statute confers a conditional right to intervene; or (2) when an applicant‘s claim or defense and the main action have a question of law or fact in common.”
735 ILCS 5/2-408(b) (West 2014) .
Petitioner argues that she has standing under subsection (1), quoted above, because
¶ 44 As for subsection (2), quoted above, there is no question that an abuse of discretion standard applies, since the statute specifically states that the intervention is
¶ 45 Petitioner argues that the trial court abused its discretion in denying her a permissive intervention under subsection (2) because defendant‘s federal section 1983 suit has “questions of fact in common” with the prior certificate-of-innocence petition. Petitioner makes this argument in one line in her brief without any cases or secondary authority cited in support. In response, defendant argues that petitioner does not make “even a pretense of arguing” the point and does not cite authority because “[t]here is no authority for finding that a court abuses its discretion for failing to find standing and reopen a completed case merely because there were possible factual issues in common with another” subsequent suit.19 Like both petitioner and defendant, we also cannot find authority in support and thus do not find this argument persuasive. Birkett, 202 Ill. 2d at 57 (“The purpose” of the civil intervention statute is “to avoid, upon timely application, the relitigation of issues in a second suit which were being litigated in a pending action.” (Emphasis added.)).
VII. Illinois Constitution
¶ 47 Petitioner also argues that
¶ 48
“(a) Crime victims, as defined by law, shall have the following rights as provided by law:
***
(2) The right to notification of court proceedings.
***
(5) The right to information about the conviction, sentence, imprisonment, and release of the accused. ***
(8) The right to be present at the trial and all other court proceedings on the same basis as the accused, unless the victim is to testify and the court determines that the victim‘s testimony would be materially affected if the victim hears other testimony at the trial.
(9) The right to have present at all court proceedings, subject to the rules of evidence, an advocate or other support person of the victim‘s choice.”
Ill. Const. 1970, art. I, § 8.1(a) (amended 1992).
¶ 49 On November 4, 2014, which was just over a month before petitioner filed her
“(a) Crime victims, as defined by law, shall have the following rights:
***
(3) The right to timely notification of all court proceedings.
***
(6) The right to be notified of the conviction, the sentence, the imprisonment, and the release of the accused.
***
(10) The right to be present at the trial and all other court proceedings on the same basis as the accused, unless the victim is to testify and the court determines that the victim‘s testimony would be materially affected if the victim hears other testimony at the trial.
(11) The right to have prеsent at all court proceedings, subject to the rules of evidence, an advocate and other support person of the victim‘s choice.” (Emphases added.)
Ill. Const. 1970, art. I, § 8.1(a) (amended 2014).
¶ 50 In addition, the following section was added to
“(b) The victim has standing to assert the rights enumerated in subsection (a) in any court exercising jurisdiction over the case. The court shall promptly rule on a victim‘s request. The victim does not have party status. The accused does not have standing to assert the rights of a victim. The court shall not appoint an attorney for the victim under this Section. Nothing in this Section shall be construed to alter the powers, duties, and responsibilities of the prosecuting attorney.”
Ill. Const. 1970, art. I, § 8.1(b) (amended 2014).
¶ 51 Before the trial court and before this court, petitioner argues that the 2014 amendments have retroactive application to defendant‘s certificate of innocence, which the trial court granted in 2013.
¶ 52 However, before we can determine whether petitioner can benefit from the 2014 amendments, we must determine if she qualifies as a “victim.” In both the 1992 and 2014 versions,
¶ 54 At that time, the Act defined the term “[c]rime victim,” in relevant part, as follows:
“(a) ‘Crime victim’ and ‘victim’ mean (1) a person physically injured in this State as a result of a violent crime perpetuated or attempted against that person or (2) a person who suffers injury to or loss of property as a result of a violent crime perpetuated or attempted against that person or *** (4) any person against whom a violent crime has been committed ***.”
725 ILCS 120/3(a) (West 2012) .
¶ 55 Before the trial court, petitioner argued that she qualified as a victim under subsections (1) and (4), quoted above. People v. Chatman, No. 02 CR 14572, slip op. at 4 (Cir. Ct. Cook Co.) (discussing petitioner‘s argument).22
¶ 56 Before this court, petitioner argues that she qualifies as a victim under the definition provided in the same section but in the version which became effective on August 20, 2015. The trial court granted defendant‘s and the State‘s motions to dismiss on July 20, 2015, and exactly a month later, a new definition took effect on August 20, 2015.23 It is this 2015 definition that petitioner sets forth in her brief to this court,24 and it states in relevant part:
“(a) ‘Crime victim’ or ‘victim’ means: (1) any natural person determined by the prosecutor or the court to have suffered direct physical or psychological hаrm as a result of a violent crime perpetuated or attempted against that person ***.”
Pub. Act 99-413 (eff. Aug. 20, 2015) (amending725 ILCS 120/3(a) (West 2014) ).
¶ 57 It is interesting that petitioner would argue for the 2015 definition when, by the time that defendant sought his certificate of innocence, it had been “determined by the prosecutor” that petitioner had not suffered harm “as a result of a violent crime.”
¶ 58 However, petitioner faces a conundrum. She cannot argue for the retroactivity of the new constitutional amendment about standing, without also arguing for the retroactivity of the new statutory amendment that implements it.25 Petitioner
¶ 59 Recognizing this fact, petitioner argues for the new constitutional amendment that grants standing and the new statute that implements it. Thus, we will address the argument that petitioner now makes to us on appeal.
¶ 60 Since we should turn to constitutional issues only as a last resort, we will examine the implementing statute first. In re E.H., 224 Ill. 2d at 178 (“cases should be decided on nonconstitutional grounds whenever possible, reaching constitutional issues only as a last resort“). Interpreting the new definition is a question of first impression.
¶ 61 The new definition gives the courts and the prosecutor the power to decide who is, and is not, a victim. The old definition used the term “victim” but left open the question of who had the power to decide that complаinants qualified as “victim[s].” In essence, the new implementing statute, which became law on August 20, 2015, answered the question which the trial court posed on July 20, 2015: “how is it established that one is, or is not, a ‘victim‘? Obviously, [petitioner] claims that she is and always has been [while] *** [defendant] has always believed that she was not.” People v. Chatman, No. 02 CR 14572, slip op. at 4 (Cir. Ct. Cook Co.).
¶ 62 Although petitioner was definitely the complainant in the underlying criminal action, that does not necessarily mean that she was a victim. The terms “complainant” and “victim” are not the same. A “complainant” or “complaining witness” is “the party who makes the complaint in a legal action or proceeding” (Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/complainant (last visited Aug. 22, 2016), while a “victim” is someone who is “determined *** to have suffered” actual harm.
¶ 63 On appeal, petitioner argues that the courts and prosecutor “determined” that she was a victim when the prosecutor indicted defendant, a jury convicted him and the appellate court affirmed his conviction on appeal. See
¶ 64 Petitioner is correct that the significance of a nolle prosequi can be ambiguous. A nolle prosequi is a “formal entry of record” of the decision by a prosecutor that he or she is no lоnger willing to prosecute a charge, and that decision can occur for any number of different reasons. People v. Hughes, 2012 IL 112817, ¶ 22 (a nolle prosequi signifies only a prosecutor‘s “unwillingness to prosecute a charge“); People v. Artis, 232 Ill. 2d 156, 169 (2009) (same).
¶ 65 However, what happened here was not simply a nol pros, although the prosecutor used that phrase in his motion. “[T]he power of the prosecutor to nol-pros a charge extends throughout the trial proceedings” and “up until” the moment that “sentence is imposed.” Artis, 232 Ill. 2d at 169. In the case at bar, not only was sentence already imposed but the appeal was over, and there were no criminal proceedings pending in state court28 when the State moved to vacate defendant‘s conviction.29 This was not simply a
court, which is presumed to know thе law, did not use that phrase in its order. People v. Phillips, 392 Ill. App. 3d 243, 265 (2009) (“a trial court is presumed to know the law and apply it properly“); In re N.B., 191 Ill. 2d 338, 345 (2000) (“The circuit court is presumed to know the law and apply it properly, absent an affirmative showing to the contrary in the record.“); People v. Howery, 178 Ill. 2d 1, 32 (1997) (“the trial court is presumed to know the law and apply it properly“; only “when the record contains strong affirmative evidence to the contrary” is “that presumption *** rebutted“).
¶ 66 Petitioner does not contest the propriety of the trial court‘s decision and does not provide a transcript or bystander‘s report for those proceedings. Thus, we must presume that the order was properly entered. Foutch, 99 Ill. 2d at 391-92 (“an appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error, and in the absence of such a record on appeal, it will be presumed that the order entered by the trial court was in conformity with law and had a sufficient factual basis“).
¶ 67 In light of the subsequent determination by the court and prosecutor30 to vacate defendant‘s conviction and sentence, petitioner was no longer a victim and hence was no longer an intended beneficiary of the new implementing statute.
¶ 68 Since the new implementing statute does not aid petitioner, we do not need to consider its retroactive effect, and since petitioner has abandoned on appeal any arguments under the old statute, those have been forfeited for our consideration. E.g., People v. Montes, 2015 IL App (2d) 140485, ¶ 15 n.1 (“Defendant abandons this claim on appeal and, therefore, we do not address it further.“). See also People v. Pendleton, 223 Ill. 2d 458, 476 (2006) (any issue that an appellant fails to raise in the appellate court is forfeited for further review). Thus, we must conclude that the petitioner lacks standing under the enabling statute where she fails to meet the definition of a victim.
VIII. Necessary Party and Nonparty
¶ 70 Petitioner also argues that she is both a necessary party and a qualifying nonparty. Petitioner claims (1) that she was a necessary party to defendant‘s action for a certificate of innocence because she had “‘a present, substantial interest in the matter being litigated‘” (City of Elgin v. Arch Insurance Co., 2015 IL App (2d) 150013, ¶ 34 (quoting Cameron v. Bartels, 214 Ill. App. 3d 69, 75-76 (1991))) and (2) that she has standing as a nonparty to file a
present interest” stem from (1) her “interest in not seeing her rapist released from prison” and the ensuing damage to her reputation and (2) the possibility that the certificate of innocence “may” affect her success in the subsequently filed federal action. First, the order that released defendant from prison wаs not the certificate of innocence, which is at issue in this appeal, but the order vacating his conviction, which petitioner does not challenge. Second, as we discussed above, the certificate of innocence was granted pursuant to
¶ 71 Our supreme court has held that where a statutory section lists “those that are necessary parties to the proceedings,” the omission of “others from that list should be understood as an exclusion.” See In re C.C., 2011 IL 111795, ¶ 34. Petitioner‘s “necessary party” and “nonparty” arguments are just another way of re-arguing her
CONCLUSION
¶ 73 For the foregoing reasons, we affirm the trial court‘s order dismissing petitioner‘s
¶ 74 Affirmed.
¶ 75 JUSTICE LAMPKIN, specially concurring.
¶ 76 I concur in the judgment only.