People v. Corredor ( 2010 )

Nos. 2-08-0683 & 2-08-0684 cons. Filed: 4-5-10
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, )
)
v. ) No. 05--CF--509
)
JUAN CORREDOR, ) Honorable
) John J. Kinsella,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, )
)
v. ) No. 06--CF--1456
)
JUAN CORREDOR, ) Honorable
) John J. Kinsella,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUDSON delivered the opinion of the court:
Defendant, Juan Corredor, appeals from an order recharacterizing his motion for an order
nunc pro tunc as a petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq.
(West 2008)) and dismissing it. He contends that the court erred in recharacterizing the motion
without first giving him the admonitions required under People v. Shellstrom, 216 Ill. 2d 45 (2005).
We agree; accordingly, we vacate the dismissal and remand the matter for Shellstrom admonitions.
Nos. 2--08--0683 & 2--08--0684 cons.
I. BACKGROUND
In case No. 05--CF--509, on March 24, 2005, a grand jury indicted defendant on three counts
of aggravated criminal sexual abuse (720 ILCS 5/12--16(c)(1)(i) (West 1998)). On May 18, 2006,
a grand jury indicted him on three counts of predatory criminal sexual assault of a child (720 ILCS
5/12--14.1(a)(1) (West 1998)). On August 30, 2007, defendant pleaded guilty to the three
aggravated-criminal-sexual-abuse counts. On September 27, 2007, the court sentenced him to five
years' imprisonment, consecutive to his sentence in case No. 06--CF--1456.
In case No. 06--CF--1456, on June 8, 2006, a grand jury indicted defendant on three counts
of harassment of a witness (720 ILCS 5/32--4a(a)(2) (West 2006)). The charges stemmed from
defendant's contacts with witnesses in case No. 05--CF--509. On August 30, 2007, the same day that
defendant entered his plea in the other case, he entered a guilty plea to one count here. The court
sentenced him to three years' imprisonment on September 27, 2007, the same day that the court
sentenced him in the other case. Defendant filed a late pro se motion for reconsideration of his
sentence. The court ruled that it lacked jurisdiction and denied it.
On May 28, 2008, defendant filed a "Motion for Order Nunc pro Tunc" using a preprinted
form and referencing both cases. He asserted that he was entitled to 501 days' credit for time served
in each case. A handwritten portion of the motion alleged that the court had told him that he would
receive credit against each sentence and that the Department of Corrections was not calculating his
sentences accordingly. On June 17, 2008, the court entered an order stating that defendant's motion
was "treated as a postconviction motion [sic]" and dismissed. On July 22, 2008, defendant filed a
notice of appeal.
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Defendant later moved in this court for leave to file a late notice of appeal, a motion that this
court granted. He now argues that the rule in Shellstrom required the trial court to notify him that
it intended to recharacterize the pleading, warn him that the recharacterization would mean that any
subsequent postconviction petition would be subject to the restrictions on successive postconviction
petitions, and allow him to either withdraw the pleading or amend it. The State argues that
Shellstrom applies only to actions cognizable under Illinois law and that defendant's motion was not
such an action. Defendant has not argued here that the court's recharacterization of his motion was
an abuse of discretion.
II. ANALYSIS
We hold that the rule in Shellstrom mandated the admonitions under these circumstances.
We review de novo the question of whether the trial court has used the proper procedure. See
Woods v. Cole, 181 Ill. 2d 512, 516 (1998).
We start by examining the supreme court's reasoning in Shellstrom. The relevant part of that
decision opens with a discussion of a decision, Castro v. United States, 540 U.S. 375, 157 L. Ed. 2d
778, 124 S. Ct. 786 (2003), that dealt with restrictions on prisoners' rights to file multiple federal
habeas corpus motions. In Castro, the defendant filed something that he labeled a Rule 33 (Fed. R.
Crim. P. 33) motion for a new trial. Castro, 540 U.S. at 378, 157 L. Ed. 2d at 784, 124 S. Ct. at 789.
The district court treated it in part as a motion for habeas corpus relief under section 2255 of Title
28 of the United States Code (28 U.S.C. §2255 (2000)). Castro, 540 U.S. at 378, 157 L. Ed. 2d at
784, 124 S. Ct. at 789. When the defendant later filed something that he labeled as a motion for
habeas corpus relief, the district court dismissed it for failure to meet the requirements for a
successive habeas corpus motion. Castro, 540 U.S. at 378-79, 157 L. Ed. 2d at 785, 124 S. Ct. at
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790. The Supreme Court, recognizing the unfairness of the result, created a rule that became the
model for the Shellstrom rule:
"[A restriction must apply] when a court recharacterizes a pro se litigant's motion as
a first § 2255 motion. *** [T]he district court must notify the pro se litigant that it intends
to recharacterize the pleading, warn the litigant that this recharacterization means that any
subsequent § 2255 motion will be subject to the restrictions on 'second or successive'
motions, and provide the litigant an opportunity to withdraw the motion or to amend it so
that it contains all the § 2255 claims he believes he has." Castro, 540 U.S. at 383, 157 L. Ed.
2d at 787, 124 S. Ct. at 792.
In Shellstrom, the defendant filed a " 'Motion to Reduce Sentence, Alternatively, Petition for
Writ of Mandamus to Order Strict Compliance with Terms of Guilty Plea,' " which the trial court
recharacterized as a petition under the Act. Shellstrom, 216 Ill. 2d at 47. The issue on appeal was
whether the defendant was entitled to admonitions similar to those in Castro. The State suggested
that Castro was inapposite, arguing that Illinois's restrictions on successive postconviction petitions
are less onerous than the federal restrictions on successive section 2255 motions. Shellstrom, 216
Ill. 2d at 55. The court rejected that argument, holding that the cause-and-prejudice test for the filing
of a successive postconviction petition is similarly onerous. Shellstrom, 216 Ill. 2d at 55-56.
Further, it expressed its concern that the loss of the opportunity to knowingly file an initial petition
was unfair:
"Under the summary procedure urged by the State, a circuit court in Illinois could
summarily recharacterize as a first postconviction petition a pro se litigant's pleading that was
labeled differently. The litigant would not be given notice or an opportunity to respond. As
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a result, the pleading that was transformed into the litigant's first postconviction petition
would present only those arguments that the litigant had chosen to include before realizing
that he was, in effect, filing a postconviction petition. Any additional arguments that the
litigant might have included in a first postconviction petition would be barred from
successive petitions unless the litigant could demonstrate cause for failing to bring them and
prejudice resulting from that failure.
We find this prospect as troubling as did the Supreme Court in Castro when faced
with a similar circumstance regarding § 2255 motions." (Emphasis in original.) Shellstrom,
216 Ill. 2d at 56-57.
The court therefore created a requirement similar to that created in Castro:
"Pursuant to our supervisory authority, we hold that, in the future, when a circuit
court is recharacterizing as a first postconviction petition a pleading that a pro se litigant has
labeled as a different action cognizable under Illinois law, the circuit court must (1) notify
the pro se litigant that the court intends to recharacterize the pleading, (2) warn the litigant
that this recharacterization means that any subsequent postconviction petition will be subject
to the restrictions on successive postconviction petitions, and (3) provide the litigant an
opportunity to withdraw the pleading or to amend it so that it contains all the claims
appropriate to a postconviction petition that the litigant believes he or she has. If the court
fails to do so, the pleading cannot be considered to have become a postconviction petition
for purposes of applying to later pleadings the Act's restrictions on successive postconviction
petitions." (Emphases added.) Shellstrom, 216 Ill. 2d at 57.
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The State argues that, because defendant's motion was not a cognizable action, this rule is
inapplicable. The State asserts that, if the trial court lacks jurisdiction over a filing as the filer
characterized it, that filing is not cognizable, and the trial court can recharacterize it to create
jurisdiction without needing to give the Shellstrom admonitions. It argues that the trial court lacked
jurisdiction to consider defendant's motion as he characterized it here.
The obvious problem with the State's argument is that the trial court did have jurisdiction to
consider defendant's motion as he characterized it. The court retains jurisdiction to conform the
record to the judgment actually entered. See People v. Flowers, 208 Ill. 2d 291, 306-07 (2003) ("The
only continuing power the circuit court possessed over the case [after the passage of 30 days from
the final judgment] was limited to enforcement of the judgment or correction of clerical errors or
matters of form so that the record conformed to the judgment actually rendered"). One method by
which such correction is sought is a motion for an order nunc pro tunc. E.g., Phillips v. Gannotti,
327 Ill. App. 3d 512, 517-18 (2002). Another is a motion to correct the mittimus. People v. O'Neill,
367 Ill. App. 3d 439, 440 (2006). By entitling his filing a "Motion for Order Nunc pro Tunc" and
by referring to an alleged discrepancy between the court's expressed intentions and the result,
defendant plainly invoked this limited continuing jurisdiction.
Beyond that problem with the State's argument, we are not persuaded that the supreme court
intended the rule in Shellstrom to be limited to filings over which the trial court has jurisdiction or,
for that matter, ones that are pleadings initiating actions. We doubt that the supreme court intended
a glaring mismatch between the problem it recognized--accidental loss of the right to file an initial
petition--and a remedy that would protect only those who happened to file initial pleadings. The risk
of accidental loss of claims is likely at its highest when a defendant has filed something that he or
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she thinks of as a mere motion, for instance, a motion for reduction of sentence that slightly misses
the filing deadline.
We note that, in People v. Swamynathan, 236 Ill. 2d 103 (2010), the supreme court addressed
the issue of when a recharacterized filing becomes a petition under the Act as that question relates
to the trial court's deadline for dismissing a petition under the Act. The recharacterized filing was
a pro se motion to withdraw a guilty plea and vacate the sentence; the defendant filed the motion
almost two years after his sentencing. Swamynathan, 236 Ill. 2d at 106. Although the trial court
would have lacked jurisdiction over this filing as a motion and although the defendant did not label
the filing as a pleading initiating an action, the supreme court nevertheless cited Shellstrom for the
proposition that "[i]f a trial court determines that recharacterization is appropriate, the court must
take certain steps [(the Shellstrom admonitions)] to insure that the defendant is admonished of the
consequences of recharacterization." Swamynathan, 236 Ill. 2d at 112. The supreme court did not
suggest that the admonitions were unneeded given the nature of the defendant's filing. Admittedly,
the State did not raise the applicability of Shellstrom. Nevertheless, for the supreme court to say in
that context that recharacterization requires Shellstrom admonitions does suggest that the court did
not intend to limit the rule to recharacterization of filings that, as initial pleadings, vest the trial court
with jurisdiction.
III. CONCLUSION
Defendant was entitled to the admonitions specified in Shellstrom before recharacterization
of his motion as a postconviction petition. We therefore vacate the dismissal and remand the matter
for such admonitions.
Vacated and remanded with instructions.
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ZENOFF, P.J., and HUTCHINSON, J., concur.
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