People v. SosaniPeople v. Sosani
PRESIDING JUSTICE DELORT delivered the judgment of the court, with opinion.
Justices Hoffman and Cunningham concurred in the judgment and opinion.
OPINION
¶ 1 BACKGROUND
¶ 2 Defendant-appellant Joseph Sosani appeals orders of the circuit court of Cook
¶ 3 FACTS
¶ 4 These consolidated appeals involve two separate sets of criminal charges that were filed a year apart. We begin with the case with the lower appellate court docket number, although it involved acts occurring after those alleged in the other case.
¶ 5 Circuit Court Case No. 93-CR-6700 (Appellate Court Docket No. 1-21-0027)
¶ 6 Sosani was indicted in case No. 93-CR-6700 for possession of a controlled substance (cocaine) with intent to deliver (
¶ 7 After the circuit court set Sosani‘s bond pending trial, he filed a motion seeking reduction of the bond, stating, inter alia, “defendant is a legal alien with no passport.” (Emphasis added.) On May 23, 1995, he pleaded guilty to the charges and was sentenced to 10 years’ imprisonment on the cocaine charge and 3 years’ imprisonment on the cannabis charge, to run concurrently. On June 23, 1995, he filed a motion to withdraw his guilty plea, but the circuit court denied that motion. He appealed, and on May 10, 1996, this court granted his motion for summary reversal based on noncompliance with
¶ 8 After the remand, Sosani‘s lawyer filed an amended motion to withdraw his guilty plea, reciting that Sosani “was born in the country of Iran and he is subject to deportation” and that he “was unaware of the consequences at the time of the tender of the plea of guilty.” The motion included an affidavit from Sosani stating that at no time did his original lawyer advise him that a guilty plea could result in his deportation, even though the attorney knew Sosani was an alien and that a deportation proceeding was pending against him. In response to the motion, the State presented direct quotations from the transcript of a pre-plea hearing, attended by Sosani, in which the assistant state‘s attorney stated, “There is an INS factor which may require additional admonishment.” Sosani‘s attorney responded, “I have discussed it with Mr. Sosani. He has been granted political asylum. We have no idea exactly how INS will proceed on that.”
¶ 9 On September 23, 1997, the circuit court conducted a hearing, again attended by Sosani, during which his attorney presented a Rule 604(d) certificate and then withdrew the amended motion to vacate the guilty plea, stating that it was Sosani‘s “desire” to do so.
¶ 10 On July 10, 2020, Sosani filed a “motion” pursuant to
¶ 11 The petition contained two parts. In the first part, which Sosani characterized as a “standard” section 2-1401 petition, Sosani conceded that the petition was untimely because it was filed more than two years after the underlying judgment. However, he claimed that (1) the 1995 conviction was not final under
¶ 12 In the second part of the petition, Sosani argued that the judgment was void, so it could be vacated at any time, notwithstanding the usual two-year limitations period. In support of his voidness claim, Sosani asserted that his due process rights were violated because, among other things, the circuit court had denied a motion Sosani filed pro se when he was already represented by counsel. The petition was supported by an affidavit in which Sosani stated that he never understood that pleading guilty might carry permanent immigration consequences and that he did not want his attorney to withdraw the postremand amended petition to vacate his guilty plea.
¶ 13 The State filed a combined motion to dismiss the section 2-1401 petition pursuant to
¶ 14 Circuit Court Case No. 92-CR-19775 (Appellate Court Docket No. 1-21-0028)
¶ 15 On September 2, 1992, the Stated charged Sosani in case No. 92-CR-19775 by information with one count of possession of a controlled substance with intent to deliver cocaine (
¶ 16 On July 10, 2020, Sosani filed a section 2-1401 “motion” attacking his 1993 conviction, making assertions regarding
¶ 17 The State filed a combined section 2-619.1 motion to dismiss Sosani‘s petition, making arguments similar to those it made in the related case. The circuit court granted the State‘s motion and dismissed the petition on September 1, 2020. Again, Sosani filed a timely motion to reconsider, which the circuit court denied, and this appeal, docketed as appeal no. 1-21-0028, followed.
¶ 18 This court has consolidated the two appeals.
¶ 19 ANALYSIS
¶ 20 These appeals come before us in an unusual procedural posture. On appeal, Sosani has abandoned all the arguments he made in the circuit court below. He makes no claim that the circuit court erred by finding that the section 2-1401 petition was barred by the statute of limitations or by failing to apply equitable tolling. He also does not argue that the 1995 conviction order was not final when entered or that the convictions were void because of due process violations.
¶ 21 That does end our task, however. While these appeals were pending before this court, and before Sosani filed his opening brief, the General Assembly passed a bill that became law as Public Act 102-639 (eff. Aug. 27, 2021). That act amended the Code to add a new provision, section 2-1401(c-5), to the Code. The new provision states:
“Any individual may at any time file a petition and institute proceedings under this Section, if his or her final order or judgment, which was entered based on a plea of guilty or nolo contendere, has potential consequences under federal immigration law.” Pub. Act 102-639, § 15 (eff. Aug. 27, 2021) (adding
735 ILCS 5/2-1401(c-5) ).
Section c-5 became effective immediately upon its approval by the Governor on August 27, 2021.
¶ 22 In this court, the parties’ sole arguments focus on whether the judgments of the circuit court should be reversed based on this new subsection c-5. In so doing, they have exhaustively briefed the law regarding retroactivity of new statutes. However, because there is a recent Illinois Supreme Court case on point, we need not delve into this historical case law to the extent the parties have.
¶ 23 We begin our analysis with
“No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture or punishment incurred,
or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding. If any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect. This section shall extend to all repeals, either by express words or by implication, whether the repeal is in the act making any new provision upon the same subject or in any other act.” 5 ILCS 70/4 (West 2018) .
¶ 24 Whether subsection c-5 can apply retroactively to Sosani‘s current appeal presents an issue of statutory construction that we consider de novo. People v. Hunter, 2017 IL 121306, ¶ 15 (citing People ex rel. Madigan v. J.T. Einoder, Inc., 2015 IL 117193, ¶ 27, and People v. Amigon, 239 Ill. 2d 71, 84 (2010)).
¶ 25 Our supreme court‘s recent decision in Hunter is not merely instructive but dispositive. There, the court was called upon to determine whether a change in procedure that was enacted after a defendant‘s conviction but while his direct appeal was pending could inure to the defendant‘s benefit. Id. ¶¶ 6-9. The change at issue in Hunter provided that certain criminal defendants who were charged with crimes allegedly committed when they were juveniles would no longer have their cases automatically transferred to adult court from juvenile court. Id. ¶¶ 1, 7-9. The defendant, Hunter, was convicted in adult court but, while his appeal was pending, a statutory change became effective allowing defendants such as Hunter to have their prosecutions heard in juvenile court. Id. ¶ 8.
¶ 26 The Hunter court began its analysis with the provision in
“No ‘ongoing proceedings’ exist to which the amended statute could apply. Thus ***, this is not a case where we must decide whether the defendant should ‘continue’ to be prosecuted in adult court. This is also not a case where remand for further proceedings is necessitated by reversible error at trial.” Id. ¶ 32.
The court explained:
“Simply stated, there are no ‘proceedings thereafter’ capable of ‘conform[ing]’ to the amended statute. [Citation.] Nothing remains to be done.
Because Hunter‘s trial court proceedings have been concluded and no further trial court proceedings are necessitated by reversible error, applying the amended statute retroactively to Hunter‘s case would result in this court effectively creating new proceedings for the sole purpose of applying a procedural statute that postdates his trial and sentence. We have grave concerns about such a result.” Id. ¶¶ 32-33.
¶ 27 Sosani‘s arguments fail because this is a court of review, not first view. See Holland v. Florida, 560 U.S. 631, 654 (2010). In Hunter, our supreme court clearly expressed the doctrine that the role of a court of review is to determine whether the court below was correct, based on the law before it when it entered its judgment. This is because, once the circuit court enters its judgment and an appeal is filed, the proceedings are no longer “ongoing” within the meaning of
¶ 28 In addition, we can find nothing in the statute, as amended, that expresses a legislative intent to revive an otherwise time-barred action. As such, we are compelled to hold that the amendment cannot apply to Sosani‘s petition. See People v. Lansing, 35 Ill. 2d 247, 250 (1966) (holding that, since there was nothing in the language of a 1965 amendment to the Post-Conviction Hearing Act (
¶ 29 Sosani argues nonetheless that this court must consider the application of section c-5 because if he starts over by filing a new section 2-1401(c-5) petition—grounded in the same basic facts relating to his ignorance of the immigration consequences of his guilty pleas—it would be barred by res judicata. Whether a new petition based on section c-5 would be barred by res judicata is a hypothetical question upon which we decline to opine.
¶ 30 CONCLUSION
¶ 31 We affirm the judgments of the circuit court dismissing the section 2-1401 petitions.
¶ 32 Affirmed.
Jacob Briskman and Adam R. Whitesel Cassingham, both of Chicago, for appellant.
Kimberly M. Foxx, State‘s Attorney, of Chicago (Enrique Abraham, David H. Iskowich, and Su Wang, Assistant State‘s Attorneys, of counsel), for the People.