People v. Seybold ( 2021 )

NOTICE 2021 IL App (4th) 200136-U FILED
This Order was filed under September 21, 2021
Supreme Court Rule 23 and is NO. 4-20-0136 Carla Bender
not precedent except in the th
4 District Appellate
limited circumstances allowed IN THE APPELLATE COURT Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
JOSEPHUS E. SEYBOLD, ) No. 16CF264
Defendant-Appellant. )
) Honorable
) Jennifer H. Bauknecht,
) Judge Presiding.
______________________________________________________________________________
JUSTICE HARRIS delivered the judgment of the court.
Justices Turner and Cavanagh concurred in the judgment.
ORDER
¶1 Held: The motion of the Office of the State Appellate Defender to withdraw as
defendant’s appellate counsel is granted, and the trial court’s dismissal of
defendant’s pro se postconviction petition is affirmed.
¶2 Defendant, Josephus E. Seybold, appeals following the trial court’s first-stage
dismissal of his pro se postconviction petition. On appeal, the Office of the State Appellate
Defender (OSAD) was appointed to represent defendant. OSAD has filed a motion to withdraw as
defendant’s appellate counsel, arguing an appeal would be meritless. We grant OSAD’s motion
and affirm the court’s summary dismissal of defendant’s postconviction petition.
¶3 I. BACKGROUND
¶4 On December 1, 2016, the State charged defendant with driving with a suspended
license (625 ILCS 5/6-303(a) (West 2016)). Later, the State amended the charge to driving with a
revoked license (id.). In the information, the State alleged that, at the time defendant committed
this offense, his license was revoked as a result of a previous conviction for driving under the
influence (625 ILCS 5/11-501 (West 2016)) and that defendant had previously been convicted of
driving with a revoked or suspended license at least four times. Based on these allegations, the
present offense was charged as a Class 4 felony.
¶5 Following a preliminary hearing, at which defendant was represented by the public
defender, the trial court determined probable cause existed to believe that defendant had committed
the offense. Following the preliminary hearing, defendant requested and received multiple
continuances in order to retain private counsel, which he eventually did.
¶6 In May 2017, defendant waived his right to a jury trial. Following a bench trial in
March 2018, defendant was found guilty of driving with a revoked license.
¶7 On May 10, 2018, a presentence investigation report (PSI) was filed. The PSI
reported that defendant had previously been convicted of 4 felony offenses and 17 misdemeanor
offenses, had been on probation at the time he committed the present offense, and had not spent
any time in custody for the present offense. According to the PSI, defendant self-reported that he
had been diagnosed with attention deficit/hyperactivity disorder, post-traumatic stress disorder,
and bipolar disorder, and that his father had abused alcohol while defendant was growing up. The
PSI additionally stated that defendant reportedly owned his own contracting business and had a
positive relationship with most of his family members.
¶8 On November 8, 2018, the trial court conducted defendant’s sentencing hearing.
Neither party presented evidence at the sentencing hearing, instead relying on the PSI. Based on
the arguments of counsel and on its own review of the PSI, the court determined “the aggravating
factors greatly outweigh[ed] the mitigating factors” and that “a sentence of probation would
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deprecate the serious nature of the charges and would be inconsistent with the ends of justice.”
Ultimately, the court sentenced defendant to two years and six months in prison to run
consecutively to another prison sentence he was then serving.
¶9 On December 20, 2018, defendant pro se filed a motion to reconsider sentence. In
his motion, defendant acknowledged that his filing was not timely but described that the delay was
due to his difficulty in obtaining an address for the Livingston County courthouse. In the
substantive portion of his motion, defendant generally alleged his sentence was excessive. Four
days later, the trial court dismissed defendant’s motion. In a docket entry, the court stated:
“Court receives defendant’s motion for reconsideration of sentence—
motion not dated, nor any certificate of service as to when it was placed in the
mail—defendant acknowledges motion not timely—this court no longer has
jurisdiction since more than 30 days have elapsed since the judgment was entered—
motion dismissed—docket to stand as order—clerk is directed to send a copy of
this docket entry to defendant.”
¶ 10 On September 23, 2019, defendant pro se filed a two-page document titled “Appeal
of Circuit Clerk[’]s Ruling,” in which defendant argued the circuit clerk had erroneously denied
his motion to reconsider sentence. In his filing, defendant additionally raised new claims of error.
A few weeks later, the trial court made the following docket entry:
“Clerk presents file with defendant[’]s ‘Appeal of Circuit Clerk’s Ruling[.’]
The pleading is unclear, contains no prayer for relief and is not signed as required.
Therefore, the filing is stricken. Docket to stand as notice. Clerk is directed to send
a copy of this docket entry to defendant.”
¶ 11 On November 7, 2019, defendant pro se filed a petition for postconviction relief
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pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). In his
petition, defendant broadly claimed: (1) his right to appeal was “willfully denied” with “no cause,”
(2) his sentence was excessive, (3) the court failed to provide him transcripts of the underlying
proceedings in accordance with Illinois Supreme Court Rule 471 (eff. Jan. 1, 1967), (4) he felt
pressured to reject the State’s plea offer due to personal circumstances, (5) the concept of “innocent
until proven guilty [was] not totally clear at court,” and (6) the court improperly imposed a public
defender assessment and withheld certain monetary credits.
¶ 12 On February 4, 2020, the trial court dismissed defendant’s postconviction petition.
In a written order, the court found that defendant’s petition did not “set[ ] forth even the gist of a
constitutional claim” and determined that defendant’s allegations were “frivolous and patently
without merit.”
¶ 13 On March 3, 2020, defendant pro se filed a document he titled “Appeal.” In his
filing, defendant repeated most of the allegations raised in his motion to reconsider sentence and
in his postconviction petition and raised two new claims he had not previously asserted. The next
day, in a docket entry, the trial court ordered the clerk to “file defendant’s notice of appeal.”
¶ 14 This appeal followed.
¶ 15 As stated, OSAD was appointed to represent defendant on appeal. In March 2021,
OSAD filed a motion to withdraw as appellate counsel and filed a memorandum of law in support
of its motion, explaining that “the appeal presents no potentially meritorious issues for review.”
Defendant was provided notice of OSAD’s motion but did not provide a response thereto.
¶ 16 Following our review of the record, we grant OSAD’s motion and affirm the trial
court’s judgment.
¶ 17 II. ANALYSIS
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¶ 18 On appeal, OSAD filed a motion to withdraw as appellate counsel and a
memorandum of law in support of the motion. In its filings, OSAD identifies two potentially
meritorious issues for our consideration and explains why those issues are ultimately without
merit. The potentially meritorious issues identified by OSAD are: (1) whether the trial court erred
in treating defendant’s “Appeal” as a notice of appeal instead of as a motion to reconsider and
(2) whether the trial court erred in summarily dismissing defendant’ postconviction petition. After
reviewing the claims identified by OSAD and reviewing the record in its entirety, we agree with
OSAD’s conclusion that “the appeal presents no potentially meritorious issues for review.”
¶ 19 In its motion, OSAD first argues the trial court did not err in treating defendant’s
“Appeal” as a notice of appeal for purposes of Illinois Supreme Court Rule 606(a) (eff. July 1,
2017) instead of as a motion to reconsider its dismissal of his postconviction petition. Illinois
Supreme Court Rule 606(a) (eff. July 1, 2017) provides that “[a]ppeals shall be perfected by filing
a notice of appeal with the clerk of the trial court.” The filing of a notice of appeal divests the trial
court of jurisdiction to enter additional substantive orders in a case and vests jurisdiction in the
appellate court. People v. Kolzow, 332 Ill. App. 3d 457, 459, 772 N.E.2d 903, 904 (2002).
¶ 20 In characterizing a filing, we consider its content and not only the title or label
asserted by its proponent. See People v. Smith, 371 Ill. App. 3d 817, 821, 867 N.E.2d 1150, 1154
(2007). Therefore, the fact that defendant titled his filing as “Appeal” is not dispositive. However,
after reviewing the document as a whole, we agree with that characterization. In his filing,
defendant indicated he was “appeal[ing] to [sic] the many court rulings and procedures.”
Throughout the document, defendant repeated the allegations he raised both in his motion to
reconsider sentence and in his postconviction petition. He also raised new claims of error. At one
point, in a section of his filing he styled “My Argument for Appeal,” defendant wrote he filed the
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document “in a request not upon deaf ears for the continual request of ‘Motion to Reconsider’ to
be heard.” Later, he wrote “I pray that this court sees my constant efforts to a proper ‘Motion of
Reconsideration.’ ” Considering defendant’s filing in its entirety, we find that defendant did not
intend the trial court to reconsider the dismissal of his postconviction petition but instead intended
a different court—a court of “Appeal”—to consider anew all of the claims he had raised both in
his motion to reconsider and in his postconviction petition. Therefore, we find the trial court did
not err in treating defendant’s “Appeal” as a notice of appeal instead of as a motion to reconsider
the summary dismissal of his postconviction petition.
¶ 21 We also agree with OSAD’s conclusion that the trial court did not err in summarily
dismissing defendant’s postconviction petition. “The Act provides a method by which any person
imprisoned in the penitentiary may assert that his or her conviction was the result of a substantial
denial of his or her rights under the United States Constitution or the Illinois Constitution or both.”
(Internal quotation marks omitted.) People v. Johnson, 2021 IL 125738, ¶ 22. “[A] postconviction
proceeding is a collateral attack upon the prior conviction and affords only limited review of
constitutional claims not presented at trial.” (Internal quotation marks omitted.) People v. Lee,
2012 IL App (4th) 110403, ¶ 16, 979 N.E.2d 992. In noncapital cases such as this one, the Act
contemplates a three-stage adjudicatory process. Johnson, 2021 IL 125738, ¶ 24. Here,
defendant’s petition was dismissed at the first stage of proceedings.
¶ 22 A proceeding under the Act is initiated when a person imprisoned in the
penitentiary files a petition with the clerk of the court in which his conviction took place. 725 ILCS
5/122-1(b) (West 2018). “Section 122-2.1(a)(2) of the [Act] provides when a petitioner is
sentenced to imprisonment, the trial court shall review the petition within 90 days of its filing and
docketing and enter an order if it determines it is frivolous and without merit, dismissing the same.”
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Lee, 2012 IL App (4th) 110403, ¶ 16 (citing 725 ILCS 5/122-2.1(a)(2) (West 2010)). “A petition
is frivolous or patently without merit if it has no arguable basis either in law or in fact.” (Internal
quotation marks omitted.) Johnson, 2021 IL 125738, ¶ 26. “A petition which lacks an arguable
basis either in law or in fact is one which is based on an indisputably meritless legal theory or a
fanciful factual allegation.” (Internal quotation marks omitted.) Id. If the court finds that the
petition is frivolous or patently without merit, it “shall dismiss the petition in a written order,
specifying the findings of fact and conclusions of law it made in reaching its decision.” 725 ILCS
5/122-2.1(a)(2) (West 2018). “At this initial stage of the proceeding, there is no involvement by
the State.” People v. Tate, 2012 IL 112214, ¶ 9, 980 N.E.2d 1100. If the petition survives this
initial stage, it is advanced to the second stage for further proceedings.
¶ 23 We review de novo the trial court’s first-stage dismissal of a defendant’s
postconviction petition. People v. Palmer, 2017 IL App (4th) 150020, ¶ 16, 74 N.E.3d 1198.
¶ 24 As OSAD correctly argues, the trial court’s summary dismissal of defendant’s
postconviction petition complied with the Act’s procedural requirements. Defendant’s petition was
filed on November 7, 2019, and the court dismissed the petition on February 4, 2020, within the
90-day time period set forth in the Act. See 725 ILCS 5/122-2.1(a) (West 2018). Moreover, the
court’s order finding defendant’s petition “frivolous and patently without merit” was entered in
writing and set forth the court’s findings of fact and conclusions of law warranting dismissal, as
required under section 122-2.1(a)(2) of the Act. Id. § 122-2.1(a)(2). Finally, the court dismissed
defendant’s petition after reviewing it independently, without any input from the State.
¶ 25 OSAD also correctly argues the trial court did not err in dismissing defendant’s
petition as frivolous and patently without merit. As stated above, in defendant’s postconviction
petition, he claimed: (1) his right to appeal was “willfully denied” with “no cause,” (2) his sentence
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was excessive, (3) the court failed to provide him transcripts of the underlying proceedings in
accordance with Illinois Supreme Court Rule 471 (eff. Jan. 1, 1967), (4) he felt pressured to reject
the State’s plea offer due to personal circumstances, (5) the concept of “innocent until proven
guilty [was] not totally clear at court,” and (6) the court improperly imposed a public defender
assessment and withheld certain monetary credits. We address each of defendant’s claims in turn.
¶ 26 First, as argued by OSAD, defendant’s claim that his right to appeal was “willfully
denied” with “no cause” is meritless. As stated above, to perfect an appeal, a defendant must file
a notice of appeal with the clerk of the trial court. Ill. S. Ct. R. 606(a) (eff. July 1, 2017). The notice
of appeal must be filed “within 30 days after the entry of the final judgment appealed from or if a
motion directed against the judgment is timely filed, within 30 days after the entry of the order
disposing of the motion.” Ill. S. Ct. R. 606(b) (eff. July 1, 2017). Additionally, if a defendant
wishes to challenge the correctness of his sentence or any other aspect of his sentencing hearing
on appeal, he must first file a motion to reconsider sentence in the trial court within 30 days
following the imposition of his sentence. 730 ILCS 5/5-4.5-50(d) (West 2016). “A motion not filed
within that 30-day period is not timely.” Id.; see also People ex rel. Alvarez v. Skryd, 241 Ill. 2d
34, 40, 944 N.E.2d 337, 389 (2011) (“Generally, a circuit court loses jurisdiction to vacate or
modify its judgment 30 days after entry of judgment.”). Here, defendant failed to file a notice of
appeal within 30 days of the date the court entered his sentence. Although defendant did file a
motion to reconsider sentence, that motion was untimely as it was not filed until December 20,
2018, which was 42 days after the date the court entered defendant’s sentence. We acknowledge
that, in his postconviction petition, defendant claims that he mailed his motion to reconsider
sentence on December 10, 2018, but even if this is true, that date is still beyond the 30-day time
limit. Therefore, the filing of that motion did not serve to toll the 30-day time limit for the filing
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of a notice of appeal. To the extent it could be argued defendant’s “Appeal of Circuit Clerk[’]s
Ruling” qualified as a notice of appeal, it was untimely, being filed almost nine months after the
court dismissed defendant’s motion to reconsider sentence. In summary, defendant’s right to
appeal was not “willfully denied” but was forfeited by his own inaction.
¶ 27 Defendant also argued in his postconviction petition that his sentence was
excessive. As indicated above, postconviction proceedings under the Act are only appropriate to
address violations of a defendant’s constitutional rights. 725 ILCS 5/122-1(a)(1) (West 2018).
“[W]here the sentence imposed is within the statutory limits prescribed for the offense of which
the defendant is convicted, the issue of sentence excessiveness does not involve a constitutional
question.” People v. Rife, 18 Ill. App. 3d 602, 610, 310 N.E.2d 179, 186 (1974). Therefore, “[t]he
alleged excessiveness of a sentence that is within statutory limits does not create a constitutional
issue that may serve as the basis for postconviction relief.” People v. Rademacher, 2016 IL App
(3d) 130881, ¶ 37, 59 N.E.3d 12; see also People v. Ballinger, 53 Ill. 2d 388, 390, 292 N.E.2d 400,
401 (1973). Defendant was convicted of driving on a revoked license (625 ILCS 5/6-303(a) (West
2016)). Because defendant had previously been convicted of this offense at least three times, and
because, at the time of the offense, his license was revoked for a violation of section 11-501 of the
Illinois Vehicle Code (625 ILCS 5/11-501 (West 2016)), the offense qualified as a Class 4 felony.
See id. § 6-303(d-3). A Class 4 felony carries a potential term of imprisonment of between one
and three years. 730 ILCS 5/5-4.5-45(a) (West 2016). Defendant’s sentence to two years and six
months in prison is within the permissible statutory range. Therefore, defendant’s excessive
sentence claim did not raise a constitutional question and could not be raised in a postconviction
petition under the Act.
¶ 28 Defendant next asserted that he rejected the State’s plea offer and decided to
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proceed to trial due to personal circumstances. He states that he elected to “go to trial to Attempt
Probation” due to the “hardship” of “having a newborn child to take care of” and the “urgency to
satisfy DCFS.” But for these conditions, defendant claims he would have “taken the State’s offer
of [one year] at 50%.” As noted by OSAD, defendant does not claim he wanted to plead guilty or
that he was denied the opportunity to do so. For these reasons, we agree with OSAD that
defendant’s allegations do not raise a claim of error but only “explain[ ] why [defendant] made the
decision that he did.”
¶ 29 Additionally, defendant claimed the trial court failed to provide him transcripts of
the underlying proceeding in this case as required under Illinois Supreme Court Rule 471 (eff. Jan.
1, 1967). Rule 471 provides:
“If a petition filed under the [Act] *** alleges that the petitioner is unable
to pay the costs of the proceeding, the trial court may order that the petitioner be
permitted to proceed as a poor person and order a transcript of the proceedings
resulting in the conviction delivered to petitioner ***.” Ill. S. Ct. R. 471 (eff. Jan.
1, 1967).
Rule 471 clearly only applies after defendant has filed his petition for postconviction relief.
Therefore, the trial court could not have failed to comply with Rule 471 by failing to provide
defendant a transcript before he filed his petition. We note that, like Rule 471, section 122-4 of the
Act (725 ILCS 5/122-4 (West 2018)) contains a provision permitting the trial court to order a
transcript of proceedings for an indigent defendant and that, again like Rule 471, this provision
only applies after a defendant has filed his postconviction petition. See People v. Salgado, 353 Ill.
App. 3d 101, 105, 817 N.E.2d 1079, 1083 (2004) (“[T]ranscripts must be provided to an indigent
defendant on direct appeal [citations], but it is within the circuit court’s discretion whether to
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provide a petitioner transcripts during the initial stage of postconviction proceedings.”).
¶ 30 Defendant next claims that the concept of “innocent until proven guilty [was] not
totally clear at court.” This claim is refuted by the record. At the conclusion of defendant’s
preliminary hearing, the trial court informed him that, during the upcoming proceedings, he was
“presumed innocent” and “ha[d] the right to make the State prove the charges against [him] beyond
a reasonable doubt.” In response to the court’s questioning, defendant stated that he did not have
any questions about this right.
¶ 31 The last claims raised by defendant in his postconviction petition concern the
imposition of a public defender assessment and certain monetary credits. First, defendant claims
the court improperly imposed a public defender reimbursement assessment. Defendant also seems
to claim the court erred by failing to credit him $5 per day towards the fines imposed by the court.
Neither of these claims raises a violation of defendant’s constitutional rights, and so neither is
cognizable under the Act. See People v. Little, 335 Ill. App. 3d 1046, 1055, 782 N.E.2d 957, 965-
66 (2003) (“The issue raised by defendant involves a matter created by statute involving the
payment of costs and fees. This court has held that such statutorily created matters do not constitute
a deprivation of federal or state constitutional rights and, thus, are not cognizable under the Act.”
(Internal quotation marks omitted.)). Even if defendant’s claims were cognizable, they are rebutted
by the record. Defendant’s claim that the court improperly imposed a public defender
reimbursement assessment is refuted by the court’s financial sentencing order which shows the
court did not impose such an assessment. Additionally, while defendant is correct that at the time
of his sentencing hearing, a person incarcerated on a bailable offense who did not supply bail and
against whom a fine was levied on conviction of the offense was eligible for a credit of $5 per day
for each day he was so incarcerated (725 ILCS 5/110-14(a) (West 2016)), the record shows
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defendant was not in custody for this offense until the date of his sentencing hearing and so was
not entitled to any credit.
¶ 32 Finally, we acknowledge that defendant raised two new claims of error in the
“Appeal.” However, as noted by OSAD, under the Act “[a]ny claim of substantial denial of
constitutional rights not raised in the original or an amended petition is [forfeited].” Id. § 122-3.
Because defendant did not advance these claims in his initial postconviction petition or in an
amended petition, the claims have been forfeited for review. See, e.g., People v. Vilces, 321 Ill.
App. 3d 937, 939-40, 748 N.E.2d 1219, 1222 (2001) (finding that claims of a constitutional
violation raised for the first time in a motion to reconsider the dismissal of a postconviction petition
had been forfeited).
¶ 33 In conclusion, we agree with OSAD’s determination that no meritorious argument
can be raised on defendant’s behalf on appeal, and we grant OSAD leave to withdraw as
defendant’s appellate counsel.
¶ 34 III. CONCLUSION
¶ 35 For the reasons stated, we grant OSAD’s motion to withdraw and affirm the trial
court’s judgment.
¶ 36 Affirmed.
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