People v. ShottsPeople v. Shotts
Justices Steigmann and Pope concurred in the judgment.
ORDER
¶ 1 Held: The office of the State Appellate Defender‘s motion to withdraw as counsel on appeal is granted and the trial court‘s judgments are affirmed as defendant can raise no meritorious issues in this appeal.
¶ 2 This appeal comes to us on the motion of the office of the State Appellate Defender (OSAD) to withdraw as counsel on appeal on the ground that no meritorious issues can be raised in this case. For the reasons that follow, we agree and affirm.
I. BACKGROUND
¶ 3 ¶ 4 Defendant, Terry E. Shotts, is currently serving consecutive prison sentences totaling 64 years for aggravated criminal sexual assault and criminal sexual assault. This is, by our count, his eighth appeal stemming from his prosecution for those crimes. The procedural history of this case is, as this court has noted in a previous appeal, tortuous.
¶ 6 In March 1993, defendant filed a pro se postconviction petition under the
¶ 7 At the May 1995 resentencing hearing, the trial court again imposed consecutive sentences totaling 64 years in prison. In January 1997, this court affirmed the reimposed sentences. People v. Shotts, No. 4-95-0716 (Jan. 16, 1997) (unpublished order under Supreme
¶ 8 In May 1997, defendant filed a pro se section “2-1401 PETITION FOR RELIEF OF JUDGMENT.” See
¶ 9 In June 1997, while his appeal was pending, defendant filed a pro se postconviction petition. More than one year later, in October 1998, defendant filed an amended pro se postconviction petition and moved for the trial court to appoint counsel for him. In November 1998, the court summarily dismissed the October 1998 amended postconviction petition on the grounds that the court lacked jurisdiction to consider the petition while defendant‘s earlier appeal regarding his May 1997 postjudgment petition was pending. On appeal, this court dismissed defendant‘s appeal for lack of jurisdiction, finding the November 1998 order was nonfinal as it did not dispose of the June 1997 petition. People v. Shotts, No. 4-98-0981 (Jan. 30, 2001) (unpublished summary order under Supreme Court Rule 23(c)(1) and (c)(2)).
¶ 10 In March 2001, the State filed a motion to dismiss the June 1997 petition. Later that month, the trial court dismissed the petition. In April 2003, this court reversed and remanded, concluding the trial court erred in not appointing counsel for defendant since more than 90 days had passed from the petition‘s June 1997 filing. People v. Shotts, No. 4-01-0374 (Apr. 8, 2003) (unpublished order under Supreme Court Rule 23).
¶ 12 More than five years later, in December 2010, defendant filed the motion for leave to file a successive postconviction petition at issue in this case. Defendant claimed that counsel in prior appeals had been ineffective for not arguing that trial counsel was ineffective for not objecting to certain off-record communications between the trial judge and the jury during deliberations. Defendant identified three jury communications appearing in the record that he alleged were improper: (1) in response to a question from the jury on accountability, the judge consulted with the parties’ attorneys and then reread the accountability instruction to the jurors in the courtroom; (2) in response to the jury‘s question whether the language “sexual conduct” in the issues instruction should have been “sexual penetration” instead, the judge corrected and resubmitted the instruction to the jurors after consulting with defense counsel; and (3) in response to a note from the jury asking whether a phrase was a misprint, the judge entered the jury room with permission of the parties’ attorneys to tell the jury the instruction accurately stated the law. Defendant further submitted a 1993 affidavit from a person who averred that his wife, who had served on the jury, said that she did not think it was right, when she and two other jurors felt that defendant was not guilty of the first three charges, that if they found him guilty of any following charges, he had to be found guilty of all charges. Although no such instruction is found in the record, defendant asserted that the trial judge communicated it to the jurors off the
¶ 13 In February 2011, while his motion for leave to file a successive postconviction petition was pending, defendant filed a “MEMORANDUM OF LAW IN SUPPORT OF THE PETITION FOR RELIEF FROM JUDGMENT PURSUANT TO
II. ANALYSIS
¶ 15 ¶ 16 OSAD argues this appeal presents no meritorious claim upon which defendant could realistically expect to obtain relief as the trial court properly dismissed defendant‘s petitions. We agree. Additionally, defendant‘s pro se response to OSAD‘s motion, in which he claims his convictions and sentences are void due to an alleged deficiency in the charging instrument, lacks merit.
¶ 17 OSAD identifies four potential arguments that it asserts would lack merit if raised on appeal. First, OSAD claims defendant could not reasonably argue that the trial court erred in dismissing his February 2011 section 2-1401 petition in that his term of mandatory supervised release was unconstitutional and void. We agree. Except for a life sentence, “every sentence shall include as though written therein a term [of mandatory supervised release] in addition to the term of imprisonment.”
¶ 18 Second, OSAD asserts that defendant could not reasonably argue on appeal that the timing of the trial court‘s dismissal of his February 2011 postjudgment petition was improper. We agree. Because the State is given 30 days to answer or otherwise respond to a section 2-1401 petition, the trial court is prohibited from dismissing such petitions sua sponte before 30 days have lapsed. People v. Laugharn, 233 Ill. 2d 318, 323, 909 N.E.2d 802, 805 (2009). After the expiration of the 30-day period, the trial court may dismiss such petitions on its own motion. Id. In this case, the court waited more than 30 days before it dismissed defendant‘s section 2-1401 petition. Accordingly, defendant could not reasonably argue that the dismissal was premature.
¶ 19 Third, OSAD claims that defendant could not reasonably argue that the court erred in denying his December 2010 motion for leave to file a successive postconviction petition. We agree. Leave to file a successive postconviction petition is appropriate only where the defendant shows cause for his failure to bring the claim in the initial postconviction proceedings and resulting prejudice.
¶ 20 Defendant raised the issue of improper jury communications in both his original March 1993 postconviction petition and his June 1997 second postconviction petition, which was amended by appointed postconviction counsel in 2004. In the second petition, defendant for the
¶ 21 OSAD asserts that this court‘s “forfeiture holding was likely erroneous,” but we disagree. While defendant now claims that the reason he did not raise his jury-communications issue on direct appeal was ineffective assistance of counsel, defendant asserts no cause for failing to raise the issue in his May 1997 “section 2-1401” petition, which was essentially a postconviction petition. At any rate, OSAD concedes that “the issue was technically litigated” in defendant‘s June 1997 postconviction petition even though its merits were not reached.
¶ 22 Further, OSAD asserts that, even if the rules of res judicata and forfeiture were relaxed, defendant‘s claim would lack merit because he was not deprived of any substantive right when the trial judge discussed matters of jury instructions outside his presence but with consent of his trial counsel. People v. McLaurin, 235 Ill. 2d 478, 491, 922 N.E.2d 344, 352-53 (2009). Nor did defendant‘s trial counsel provide ineffective assistance by failing to object to the judge‘s off-record responses to the jury‘s questions. Ineffective assistance of counsel occurs when counsel‘s objectively unreasonable performance prejudices the defendant. Strickland v. Washington, 466 U.S. 668, 694 (1984). Here, defense counsel‘s failure to object did not
¶ 23 Fourth, OSAD asserts that defendant could not reasonably argue on appeal that the trial court erred in denying his motion for leave to file a successive postconviction petition with respect to his claim of a due-process violation based on the theft conviction of the judge who had summarily dismissed defendant‘s March 1993 postconviction petition. We agree. Defendant‘s claim of the judge‘s conviction lacks evidentiary support required by the
¶ 24 Finally, in his pro se additional points and authorities submitted in response to OSAD‘s motion to withdraw, defendant asserts that his convictions and sentences are void because the instruments charging him with the offenses against two of the victims were instituted by a sheriff‘s deputy rather than the State‘s Attorney. According to defendant, the deficiency in the charging instrument stripped the trial court of its jurisdiction to hear the State‘s claims. Assuming, for the purposes of argument, that defendant‘s factual allegation is true, this argument is res judicata as it could have been raised before. Generally, as an exception to the rules of res judicata and forfeiture, a void judgment can be challenged at any time and in any court, either directly or collaterally. People v. Thompson, 209 Ill. 2d 19, 25, 805 N.E.2d 1200, 1203 (2004). However, deficiencies in a charging instrument do not affect the trial court‘s jurisdiction or void the resulting judgment. People v. Benitez, 169 Ill. 2d 245, 256, 661 N.E.2d 344, 350 (1996). Because, even taking his allegations as true, the judgment against him is not void for the stated reasons, defendant cannot raise this claim for the first time in this appeal. Accordingly, this claim is barred by res judicata. People v. Flores, 153 Ill. 2d 264, 274, 606 N.E.2d 1078, 1083 (1992) (a ruling on an initial postconviction petition has a res judicata effect as to all claims that were raised or could have been raised).
¶ 25 ¶ 26 For the foregoing reasons, we conclude no meritorious issues can be raised on appeal in this case and, accordingly, we grant OSAD‘s motion to withdraw and affirm the trial court‘s judgments. As part of our judgment, we award the State its $50 statutory assessment against defendant as costs of this appeal.
¶ 27 Affirmed.