People v. Sosani , 2022 IL App (1st) 210027 ( 2022 )

2022 IL App (1st) 210027FIFTH DIVISION
June 10, 2022
Nos. 1-21-0027, 1-21-0028 cons.
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeals from the Circuit Court
) of Cook County
Plaintiff-Appellee, )
) No. 92 CR 19775
) (Appeal no. 1-21-0028)
v. )
) No. 93 CR 6700
) (Appeal no. 1-21-0027)
JOSEPH SOSANI, )
) Honorable Alfredo Maldonado,
Defendant-Appellant. ) Judge, presiding.
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 County
dismissing petitions he filed pursuant to section 2-1401 of the Code of Civil Procedure (Code)
(735 ILCS 5/2-1401 (West 2018)). The petitions sought to vacate guilty pleas he made in 1993
and 1995 in the course of two separate criminal prosecutions. We affirm.
1-21-0027, 1-21-0028 (cons.)
¶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 (Ill. Rev. Stat. 1989, ch. 56½, ¶ 1401(a)(2)(B)) and possession of
cannabis with intent to deliver (id. ¶ 705(e)), relating to acts that allegedly occurred on or about
March 6, 1993.
¶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 Illinois Supreme Court Rule 604(d) (eff. Aug. 1, 1992), with respect
to his guilty plea. People v. Sosani, No. 1-95-2907 (1996) (unpublished summary order under
Illinois Supreme Court Rule 23(c)). This court remanded the case with instructions to allow
defendant “to file an amended motion to withdraw his guilty plea and/or a motion to reconsider
his sentence and for a hearing on the motion filed.” Id.¶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
-2-
1-21-0027, 1-21-0028 (cons.)
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 section 2-1401 of the Code (735
ILCS 5/2-1401 (West 2018)), to vacate his 1995 conviction. 1 It alleged that Sosani was a citizen
of Iran living legally in the United States under a program called “withholding of removal” and
that his previously status as a legal permanent resident of the United States terminated due to his
conviction. It also alleged that Sosani’s attorney inexplicably withdrew the postremand amended
motion to withdraw the guilty plea.
¶ 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 Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) because
1
A party seeking relief pursuant to section 2-1401 of the Code must file a petition, not a motion.
See 735 ILCS 2-1401(a) (West 2018). Since the content of a pleading governs over its label, this error was
not fatal. Casteel v. Jiminez, 2022 IL App (1st) 201288, ¶ 20 (noting that this mischaracterization is a
“common error”). For sake of clarity and consistency with the governing statute and established case law,
we will refer to Sosani’s section 2-1401 motions as “petitions.”
-3-
1-21-0027, 1-21-0028 (cons.)
Sosani had filed a pro se postconviction motion to vacate his plea and therefore not all claims had
been adjudicated, rendering the conviction nonfinal and subject to further review by the circuit
court and (2) the court could equitably toll the statute of limitations because his case “fell through
the proverbial cracks” and it presented “extraordinary circumstances.”
¶ 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
section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2018)). The State argued that the petition
was untimely and that the conviction was not void. On September 1, 2020, after briefing, the circuit
court conducted consolidated arguments on both the section 2-1401 petition filed in this case and
in the related case. The court granted the State’s motions to dismiss and dismissed both section 2-
1401 petitions, stating that it found, among other things, that the petition was barred by the two-
year statute of limitations. The court’s written order does not indicate whether the dismissal was
with prejudice. On November 16, 2020, the circuit court denied Sosani’s motion to reconsider.
Sosani filed a timely appeal, which this court docketed as appeal no. 1-21-0027.
¶ 14 Circuit Court Case No. 92-CR-19775 (Appellate Court Docket No. 1-21-0028)
¶ 15 On September 2, 1992, the State charged Sosani in case No. 92-CR-19775 by information
with one count of possession of a controlled substance with intent to deliver cocaine (Ill. Rev. Stat.
-4-
1-21-0027, 1-21-0028 (cons.)
1989, ch. 56½, ¶ 1401(c)(2)), and a second count of possession of cannabis with intent to deliver
(id. ¶ 705(d)), both of which related to acts allegedly occurring on or about July 3, 1992. On June
17, 1993, Sosani pleaded guilty to the charges and was sentenced to pay a fine and court costs, and
serve a term of two years’ probation.
¶ 16 On July 10, 2020, Sosani filed a section 2-1401 “motion” attacking his 1993 conviction,
making assertions regarding his immigration status similar to those he made in the petition in the
related case. Again, he conceded that the petition was untimely, but he argued that the two-year
statute of limitations did not apply because his conviction was void, as he was never admonished
of “any” of his rights before pleading guilty. He supported this petition with an affidavit similar to
the one he filed in the related case.
¶ 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. Illinois
Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020) provides that an appellant’s brief must contain
“the contentions of the appellant and the reasons therefor, with citation of the authorities and the
-5-
1-21-0027, 1-21-0028 (cons.)
pages of the record relied on.” Furthermore, if a point is not argued, it is forfeited and cannot be
raised in a reply brief, oral argument, or petition for rehearing. Id. Accordingly, Sosani has
forfeited those arguments for failure to cite relevant authority. See Vancura v. Katris, 238 Ill. 2d
352, 369 (2010) (failure to argue a point in the appellant’s opening brief results in forfeiture of the
issue).
¶ 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 section 4 of the Statute on Statutes, which provides:
“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
-6-
1-21-0027, 1-21-0028 (cons.)
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
-7-
1-21-0027, 1-21-0028 (cons.)
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 section 4 of the Statute on Statutes
specifying that “ ‘the proceedings thereafter’—after the enactment of the new procedural statute—
‘shall conform, so far as practicable, to the laws in force at the time of such proceeding.’ ”
(Emphasis in original.) Id. ¶ 31 (quoting 5 ILCS 70/4 (West 2016)). The court stated that the phrase
“ongoing proceedings” “contemplates the existence of proceedings after the new or amended
statute is effective to which the new procedure could apply.” Id. In the Hunter case, however, the
defendant had already been convicted and sentenced. Accordingly, the court explained:
“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
-8-
1-21-0027, 1-21-0028 (cons.)
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.
The court further found that remanding the case for retrial in juvenile court would not, in the words
of section 4 of the Statute on Statutes, be “practicable” because the defendant was now 22 years
old and thus outside the juvenile court’s jurisdiction. Id. ¶ 38.
¶ 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
section 4 of the Statute on Statutes.
¶ 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 (Ill. Rev. Stat. 1965, ch. 38, ¶ 122-1) “indicating an intent on the part of the legislature
to revive an action which had been previously barred,” the 1965 amendment could not be applied
to the petitioner’s previously dismissed cause of action). This holds equally true where, as here,
the appeal from the dismissal of Sosani’s petition was pending at the time of the amendment. Id.;
see People v. Reed, 42 Ill. 2d 169, 171-72 (1969) (holding that, with respect to petitions for relief
filed under the Post-Conviction Hearing Act, the court should apply the statute of limitations in
effect on the date of the petitioner’s conviction and not a subsequently amended statute in effect
-9-
1-21-0027, 1-21-0028 (cons.)
at the time the petition is filed). Accordingly, in accordance with Hunter, we must decline Sosani’s
invitation to apply section c-5 to the present appeal.
¶ 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.
- 10 -
1-21-0027, 1-21-0028 (cons.)
2022 IL App (1st) 210027Decision Under Review: Appeal from the Circuit Court of Cook County, Nos. 92-CR-
19775, 93-CR-6700; the Hon. Alfredo Maldonado, Judge,
presiding.
Attorneys Jacob Briskman and Adam R. Whitesel Cassingham, both of
for Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, David H. Iskowich, and Su Wang, Assistant State’s
Appellee: Attorneys, of counsel), for the People.
- 11 -