THE PEOPLE OF THE STATE OF ILLINOIS v. JAMES DOLIS
No. 1-13-1139
APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
September 30, 2015
2015 IL App (1st) 131139-U
JUSTICE LAVIN delivered the judgment of the court. Presiding Justice Mason concurred in the judgment. Justice Pucinski dissented.
THIRD DIVISION. 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).
¶ 1 Held: The trial court properly denied defendant leave to file a successive postconvictiоn petition where the defendant‘s ineffective assistance of counsel claim had been ruled on in a prior proceeding. In addition, any error pertaining to the order of protection entered did not render the judgment void, and thus, did not entitle defendant to relief in a collateral proceeding.
¶ 2 This appeal arises from the trial court‘s order denying defendant James Dolis leave to file a pro se successive petition under the Post-Conviction Hearing Act (Act).
I. BACKGROUND
¶ 4 Following a jury trial, defendant was convicted of two counts of home invasion, for which he was sentenced to concurrent 30-year prison terms, and one count of aggrаvated battery, for which he received a concurrent 5-year prison term. Defendant‘s convictions were based on his unauthorized entry into the dwelling place of Ellen Stefanits and her adult son, Glenn Podeszwa at 3340 North Kilpatrick. During this encounter on February 11, 1999, defendant stabbed Podeszwa with a knife. The court also entered an order of protection with respect to Stefanits, Podeszwa and the daughter of defendant and Stefanits. We affirmed the judgment on direct appeal, rejecting defendant‘s contention that the trial court failed to inquire into his claim that trial counsel was ineffective for not presenting witnesses favorable to the defense, pursuant to People v. Krankel, 102 Ill. 2d 181 (1984). The reviewing court also found defеndant had not named any potentially favorable witness or explained how their testimony would affect the outcome of his trial. Additionally, the reviewing court found there was no evidence that trial counsel neglected defendant‘s case and cited the landmark decision, Strickland v. Washington, 466 U.S. 668 (1984). See People v. Dolis, No. 1-00-0759 (2002) (unpublished order under Supreme Court Rule 23(c))).
¶ 5 In 2002, defendant filed a combined petition for relief under the Act and under section 2-1401 of the Code of Civil Procedure (the Code) (
¶ 6 In April 2007, defendant filed a petition for writ of habeas corpus, asserting among other things, that he was innocent of home invasion because he lived in Stefanits’ home. Defendant supplied several of the aforementioned affidavits as well as affidavits from Tim DeMarco and Bill Cellak, as well as defendant‘s mother. The federal district court denied the petition, finding the affidavits did not support a clear finding that defendant lived with Stefanits at the time of the incident. Dolis v. Gilson, No. 07 C 1816 (N.D. Ill. Dec. 23, 2009).
¶ 7 In 2010, defendant filed a second petition under section 2-1401, which ultimately led to the vacatur of one home invasion conviction. See People v. Dolis, No. 1-10-1632 (2012) (unpublished order under Supreme Court Rule 23)). Defendant also filed a petition seeking a declaratory judgment that the legislature lacked power to impose a mandatory supervised release (MSR) term. The trial court dismissed the petition, finding it to be without merit. On appeal, appointed counsel moved to withdraw because there were no arguable issues to be raised on appeаl, pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). In his pro se response, defendant argued he had a meritorious claim that the order of protection entered by the trial court was void absent statutory compliance and service of process. We agreed with counsel‘s assessment and affirmed that judgment, granting appointed counsel‘s motion to withdraw in the process. See People v. Dolis, 2012 IL App (1st) 110407-U.
¶ 8 Finally, in 2012, defendant filed the three petitions which led to this appeal. In defendant‘s April petition pursuant to section 2-1401 of the Code, defendant asserted that the order of protection imposed at sentencing failed to comply with statutory requirements and, thus, was void. In July, defendant filed yet another section 2-1401 petition, asserting that he was innocent of home invasion because he lived with Stefanits in February 1999. Defendant also attached several affidavits, all of which had apparently been submitted with defendant‘s State court petitions or his federal habeas corpus petition. The July petition was apparently treated as a supplement to the April petition.
¶ 9 In July, defendant filed an “Actual Innocence Post Conviction Petition and Addendum to Supplement 5/2-1401(f) Petitions,” essentially arguing that he was actually innocent and that no strategy could have justified failing to call the witnesses who later provided affidavits. In response, the State moved for the trial court to deny defendant leave to file his successive
¶ 10 Following arguments at a hearing, the trial court granted the State‘s motion to dismiss defendant‘s section 2-1401 petition, finding the petition was untimely and that issues in the petition had been raised before. In addition, the trial сourt denied defendant leave to file his successive petition under the Act, finding defendant could not demonstrate actual innocence. In reaching this decision, the court cited the federal district court‘s determination that defendant failed to demonstrate it was more likely than not that no reasonable juror would have convicted him. The triаl court subsequently denied defendant‘s motion to reconsider.
II. ANALYSIS
A. THE ACT
¶ 13 On appeal, defendant asserts the trial court erred in denying him leave to file a successive postconviction petition because he raised a viable claim that trial counsel was ineffective for failing to call witnesses who would testify he lived with Stefanits at the time of the offense. Defendant acknowledges that he raised this claim in his first postconviction petition, but asserts it was “never fully addressed.” We review the denial of leave to file a successive petition de novo. People v. Adams, 2013 IL App (1st) 111081, ¶ 30. Accordingly, we may affirm the judgment on any basis in the record, regardless of the trial court‘s reasoning. People v. Anderson, 401 Ill. App. 3d 134, 138 (2010).
¶ 14 Pursuant to section 122-1(f) of the Act, generally, only one petition may be filed without leave of court.
¶ 15 Second, the trial court may grant leave where the petitioner‘s pleadings demonstrate cause for his failure to raise his claim in his first postconviction petition and resulting prejudice. People v. Smith, 2014 IL 115946, ¶ 33. Specifically, a petitioner demonstrates cause by identifying an objective factor that impeded his “ability to raise a specific claim during his or her initial post-conviction proceedings.”
¶ 16 Here, the trial court properly denied defendant leave to file his successive petition. Defendant cannot establish cause because he could, and did, raise this issue earlier. Specifically, defendant‘s initial postconviction petition asserted that trial counsel failed to subpoena or call
¶ 17 We are unpersuaded by defendant‘s reliance on People v. Britt-El, 206 Ill. 2d 331, 337-38 (2002). There, the supreme court rejected the defendant‘s assertion that his second petition was not truly successive because the trial court dismissed the first petition as untimely, rather than dismissing it on the merits. See also Id. at 337-38. The supreme court found with respect to the first petition that the defendant was accorded a full and final resolution on whether he had demonstrated a lack of culpable negligence for the untimeliness of his first petition. Id. Thus, Britt-El demonstrates that proceedings on a first postconviction petition are not rendered incomplete merely because the pеtition was dismissed on a purely procedural basis. This in no way furthers defendant‘s contention. Accordingly, the trial court properly denied defendant leave to file his successive petition.
B. ORDER OF PROTECTION
¶ 19 Next, defendant asserts the order of protection originally entered with his conviction must be vacated as void because it was entered without statutory authоrity. Specifically, defendant contends that no written petition for an order of protection naming Stefanits, her daughter and Podeszwa as petitioners was filed. See
¶ 20 A void order may be attacked at any time. People v. Jackson, 2011 IL 110615, ¶ 10. In addition, a judgment is void where entered without jurisdiction. People v. Moran, 2012 IL App (1st) 111165, ¶ 15. With that said, subject matter jurisdiction relates to a court‘s power to “determine cases of the general class to which the proceeding in question belongs.” People v. Hughes, 2012 IL 112817, ¶ 20; see also In re Marriage of Baniak, 2011 IL App (1st) 092017, ¶ 15 (observing that jurisdiction is conferred by the constitution, not the legislature but that the authority to exercise jurisdiction is commenced by filing a complaint). Once the trial court has acquired jurisdiction, no subsequent error will oust it. People v. Davis, 156 Ill. 2d 149, 156 (1993). Instead, merely erroneous orders are only voidable and not subject to collateral attack. In re M.W., 232 Ill. 2d 408, 414 (2009). Furthermore, even due prоcess violations do not render a judgment void. Hughes, 2012 IL 112817, ¶ 29; but see In re Hoffman, 49 Ill. App. 2d 436, 440-41 (1964) (suggesting that due process violations may leave a court without personal jurisdiction, rendering a judgment void).
¶ 21 Here, the trial court‘s authority to exercise jurisdiction commenced when the State filed criminal charges against defendant. In addition, defendant does not dispute that the trial court had jurisdiction tо adjudicate the charges against him. Cf. In re S.A.C., 147 Ill. App. 3d 656, 657 (1986) (the respondent successfully argued that the trial court lacked jurisdiction where the sole matter before the court was a protection order). Furthermore, defendant does not dispute that orders of protection are within the general class of cases the trial court had the power to
¶ 22 In reaching this decision, we reject defendant‘s reliance on the direct appeal at issue in People v. Cuevas, 371 Ill. App. 3d 192, 197 (2007). There, the reviewing court had no need to determine whether the error at issue would render the order of protection void, as the error was not raised in the context of collateral proceedings. Id.; see also People ex rel. Minteer v. Kozin, 297 Ill. App. 3d 1038, 1044 (1998); In re Marriage of Henry, 297 Ill. App. 3d 139, 143 (1998). We also reject defendant‘s reliance on case law that applies to sentencing. Although sentencing orders that exceed the scope of statutory requirements may be void (Jackson, 2011 IL 110615, ¶ 10), the primary purpose of orders of protection is to protect, not tо punish. Defendant fails to acknowledge the fundamentally different nature of the two orders and has not persuaded us to expand existing sentencing precedent to include orders of protection.
III. CONCLUSION
¶ 24 The trial court properly denied defendant leave to file a successive postconviction petition raising an issue that has alreаdy been decided. In addition, defendant cannot challenge any errors regarding the order of protection in this collateral proceeding.
¶ 25 For the foregoing reasons, we affirm the trial court‘s judgment.
¶ 26 Affirmed.
THE PEOPLE OF THE STATE OF ILLINOIS v. JAMES DOLIS
No. 1-13-1139
APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
September 30, 2015
¶ 28 Once again, as in the direct appeal (2013 IL App (1st) 101027-U), I am at odds with my respected colleagues in the majority on the matter of the Order of Protection.
¶ 29 Illinois law is very clear: “Actions for orders of protection are commenced in conjunction with a delinquency petition or a criminal prosecution by filing a petition for an order of
¶ 30 So, one defendant, one case number, two actions.
¶ 31 This is because: “(a) Any proceedings to obtain, modify, reopen or appeal an order of protection, whether commenced alone or in conjunction with a civil or criminal proceeding, shall be governed by the rules of civil procedure of this State.” (
¶ 32 In this case the State‘s Attorney and the judge took a shortcut which is unsupported by the statute. Without a petition there is no cause of action. And while “each circuit court in Illinois has the power to issue orders of protection” (
¶ 33 Further, every order of protection requires the court to make specific statutory findings in writing or orally but transcribed into the record of proceеdings. This court did not make the specific statutory findings.
¶ 34 The order of protection in this matter is void because there was no petition, but even if that could somehow be excused, the order of protection is still clearly voidable since there were no specific statutory findings.
¶ 35 Even assuming that the petition isn‘t necessary, and that the testimony in the criminal case may have supported an order of protection, the court still had to pronounce the specific order of protection findings to enter one.
¶ 36 For example, there was no finding that the Petitioner was a protected person under the Illinois Domestic Violence Act; no finding that there was abuse, no finding that “the nature sevеrity, pattern and consequences of the respondent‘s past abuse ***and the likelihood of danger of future abuse” (
¶ 37 The order of protection in this case should be reversed.