People v. Munz ( 2021 )

Digitally signed
by Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2022.08.01
13:41:45 -05'00'
People v. Munz, 2021 IL App (2d) 180873Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DONALD M. MUNZ, Defendant-Appellant.
District & No. Second District
No. 2-18-0873
Filed October 14, 2021
Decision Under Appeal from the Circuit Court of Winnebago County, No. 13-CF-
Review 1365; the Hon. Randy Wilt, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Thomas A. Lilien, and Erin S. Johnson, of State
Appeal Appellate Defender’s Office, of Elgin, for appellant.
Marilyn Hite Ross, State’s Attorney, of Rockford (Patrick Delfino,
Edward R. Psenicka, and Stephanie Hoit Lee, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE BIRKETT delivered the judgment of the court, with
opinion.
Justices McLaren and Zenoff concurred in the judgment and opinion.
OPINION
¶1 Defendant, Donald M. Munz, appeals the summary dismissal of his petition for
postconviction relief filed pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-
1 et seq. (West 2018)). On appeal, defendant argues that the circuit court erred in concluding
that, because he filed his postconviction petition one day before he completed his term of
mandatory supervised release (MSR), he lost standing to seek relief under the Act. Although
we determine that the circuit court erred in concluding that defendant lacked standing under
the Act, we affirm the summary dismissal of defendant’s postconviction petition, because the
claims advanced therein were frivolous and patently without merit.
¶2 I. BACKGROUND
¶3 We recount only the facts that are necessary to resolve this appeal. Defendant was
convicted of stalking in violation of section 12-7.3(a)(2) of the Criminal Code of 2012 (720
ILCS 5/12-7.3(a)(2) (West 2012)) and sentenced to 2½ years’ imprisonment, to be followed
by 4 years of MSR. We affirmed his conviction on direct appeal, having determined that (1) his
conviction did not need to be vacated in light of People v. Relerford, 2017 IL 121094,
(2) defendant’s prior bad acts toward another woman were properly admitted because they
showed how he acted after he was angered, and (3) evidence of a civil no-contact order
obtained by the victim was properly admitted because it was relevant to show defendant’s
continuing and escalating conduct, even after he was served with a no-contact order. People v.
Munz, 2018 IL App (2d) 160159-U.
¶4 On September 11, 2018, while his direct appeal was pending, defendant filed a pro se
petition for postconviction relief. A certificate of service included with the postconviction
petition averred that, on August 9, 2018, defendant placed his petition into the prison mail
system at the Dixon Correctional Center. Defendant alleged in his petition that his term of
MSR stemming from his conviction would end on September 12, 2018, and, after that date, he
would “no longer [be] able to file a postconviction [petition].” Thus, defendant’s petition was
filed one day before his MSR term ended. 1
¶5 Defendant raised five claims in his postconviction petition. He argued that (1) the stalking
statute under which he was convicted was overly broad, in violation of the first amendment;
(2) his due process rights were violated when the trial judge, rather than the jury, decided if his
behavior was constitutionally protected under the first amendment; (3) the phrase
“communicates to or about,” which our supreme court ruled was unconstitutionally overbroad
in Illinois’s stalking statute (Relerford, 2017 IL 121094, ¶ 65), was improperly included in the
jury instructions; (4) the standard for finding emotional distress in the stalking statute is lower
than in civil cases and therefore violates the constitution; and (5) the assistant state’s attorney
1
Other than the postconviction petition, we were unable to locate any document in the record
specifying the date that defendant’s MSR term ended. In its October 5, 2018, order, the circuit court
accepted defendant’s assertion that his MSR term was completed on September 12, 2018. Both parties
assume on appeal that defendant’s MSR term ended on that date. We also note that, as reflected in the
report of proceedings, defendant informed the circuit court that he “was released on the 12th” of
September 2018. Although we are unconvinced that defendant’s MSR term ended on that date, we
presume for purposes of this appeal that the date is correct.
-2-
who tried the case should have been disqualified because she was reprimanded by the Attorney
Registration and Disciplinary Commission (ARDC) for failing to disclose exculpatory
information in an unrelated case.
¶6 On October 5, 2018, the circuit court summarily dismissed the petition based on a lack of
standing. It reasoned that, because defendant filed the petition at the “last minute,” he had
served his entire sentence, including his term of MSR, and “his liberty interests are no longer
at risk and would not be affected by any invalidation of his conviction.” It added that
defendant’s true aim was to purge the conviction from his record, which was an improper use
of the Act.
¶7 Defendant filed a timely notice of appeal.
¶8 II. ANALYSIS
¶9 A. Standing
¶ 10 On appeal, defendant argues that the circuit court erred in concluding that, because he filed
his postconviction petition one day before he completed his term of MSR, he lost standing to
seek relief under the Act. Defendant offers no argument on appeal that his postconviction
claims are not frivolous or patently without merit, and he does not argue that his postconviction
petition presented the gist of a constitutional claim. Rather, he asserts that, because the circuit
court erroneously dismissed his petition “at the first stage based only on a lack of standing,”
remand for automatic second-stage proceedings is required because the court failed to evaluate
whether the petition was frivolous or patently without merit within the statutory 90-day
window for reviewing first-stage postconviction petitions.
¶ 11 The Act provides a three-stage process for a defendant to challenge his or her conviction
as being the result of a substantial denial of his or her rights under the United States
Constitution, the Constitution of the State of Illinois, or both. People v. Mendez, 402 Ill. App.
3d 95, 98 (2010). The Act is not intended to be a substitute for a direct appeal, but rather, it is
a collateral proceeding, which attacks a final judgment. People v. Johnson, 2019 IL App (1st)
162999, ¶ 44. The purpose of a postconviction proceeding is to allow inquiry into
constitutional issues relating to the conviction or sentence that were not, and could not have
been, determined on direct appeal. People v. Wilborn, 2011 IL App (1st) 092802, ¶ 52.
¶ 12 Under the Act, the defendant files a postconviction petition in the court where his or her
original proceeding was held. Mendez, 402 Ill. App. 3d at 98. At the first stage of
postconviction proceedings, the circuit court must determine whether the petition is frivolous
or patently without merit. The defendant need present only a limited amount of detail, and the
allegations are to be liberally construed and taken as true (People v. Edwards, 197 Ill. 2d 239,
244 (2001)), so long as they are not affirmatively rebutted by the record (People v. Gerow, 388
Ill. App. 3d 524, 526 (2009)). At this stage, the petition need not set forth the claim in its
entirety or include legal arguments or citations to legal authority. People v. Edwards, 197 Ill.
2d 239, 244 (2001). The threshold that a postconviction petition must meet to survive the first
stage of review is low because most postconviction petitions are drafted by pro se petitioners.
People v. Knapp, 2020 IL 124992, ¶ 44. At the first stage, the circuit court reviews the
defendant’s petition independently, without input from the parties. People v. Luciano, 2013 IL
App (2d) 110792, ¶ 83.
-3-
¶ 13 If the court determines that the petition is frivolous or patently without merit, it must
dismiss it. 725 ILCS 5/122-2.1(a)(2) (West 2018); Knapp, 2020 IL 124992, ¶ 43. A
postconviction petition is “frivolous or patently without merit only if it has no ‘arguable basis
either in law or in fact.’ ” People v. Petrenko, 237 Ill. 2d 490, 496 (2010) (quoting People v.
Hodges, 234 Ill. 2d 1, 16 (2009)). A petition lacks an arguable basis in either law or fact if it
is based on an indisputably meritless legal theory or fanciful factual allegations. Luciano, 2013
IL App (2d) 110792, ¶ 83. “[A] meritless legal theory is one completely contradicted by the
record, while fanciful factual allegations may be fantastic or delusional.” (Internal quotation
marks omitted.) Knapp, 2020 IL 124992, ¶ 45. If the circuit court does not dismiss the petition
as either frivolous or patently without merit, it advances to the second stage, where counsel
may be appointed for an indigent defendant and where the State may file a motion to dismiss
the petition or file an answer. Hodges, 234 Ill. 2d at 10-11; 725 ILCS 5/122-4, 122-5 (West
2018).
¶ 14 A circuit court’s compliance with statutory procedures is a question of law, which we
review de novo. People v. Barber, 381 Ill. App. 3d 558, 559 (2008). Likewise, any dismissal
of a postconviction petition prior to an evidentiary hearing is reviewed de novo. People v.
Johnson, 206 Ill. 2d 348, 357 (2002). “We decide de novo whether defendant’s discharge from
the Department’s custody renders moot a petition for postconviction relief that he filed while
still in custody.” People v. Coe, 2018 IL App (4th) 170359, ¶ 17.
¶ 15 Here, there is no dispute that defendant was, in fact, “imprisoned in the penitentiary” as
contemplated in section 122-1(a) when he filed his postconviction petition. Section 122-1(a)
of the Act (725 ILCS 5/122-1(a) (West 2018)) governs standing to initiate a petition seeking
postconviction relief. This section provides that “[a]ny person imprisoned in the penitentiary
may institute a proceeding under this Article.” Id. Notwithstanding the requirement that the
individual be “imprisoned in the penitentiary,” our supreme court has made clear that “actual
incarceration is not a strict prerequisite” for initiating postconviction proceedings. People v.
West, 145 Ill. 2d 517, 519 (1991). Rather, the requirement has been construed “to include
petitioners whose liberty, in some way or another, [is] curtailed to a degree by the [S]tate.”
People v. Pack, 224 Ill. 2d 144, 152 (2007). The term “imprisoned in the penitentiary” has
been held to include “defendants who have been released from incarceration after the timely
filing of their petition [citation], released on appeal bond following conviction [citation],
released under mandatory supervision [citation], and sentenced to probation [citation].” West,
145 Ill. 2d at 519. However, once a defendant has fully served the underlying sentence and his
liberty interests are no longer curtailed by the State in any way, the defendant is not a person
“imprisoned in the penitentiary,” and the defendant lacks standing to file a petition for
postconviction relief under the Act. People v. Carrera, 239 Ill. 2d 241, 253 (2010). “[A]
petitioner loses standing to seek relief under the Act if he is no longer ‘imprisoned in the
penitentiary’ because he has fully discharged his sentence for the challenged conviction.”
People v. Johnson, 2021 IL 125738, ¶ 37 (citing Carrera, 239 Ill. 2d at 253).
¶ 16 Not only was defendant’s term of MSR in effect when he filed the petition, but he was
actually incarcerated at the Dixon Correctional Center when he placed his postconviction
petition into the prison mail system on August 9, 2018, as well as when the clerk of the circuit
court file-stamped the petition on September 11, 2018. See People v. Correa, 108 Ill. 2d 541,
547 (1985) (holding that a defendant who is serving the MSR portion of his sentence has
standing under the Act to file a petition seeking postconviction relief); see also Coe, 2018 IL
-4-
App (4th) 170359, ¶ 22 (observing that, “according to the supreme court, being imprisoned at
the time one files the petition is enough to satisfy section 122-1(a), and section 122-1(a)
remains satisfied even if, during the pendency of the postconviction proceeding, one is released
from prison”). Indeed, the State concedes on appeal that “[d]efendant did have one day
remaining on his MSR at the time he filed his petition, so it appears that he had standing at the
time that he filed [his postconviction petition].”
¶ 17 Nevertheless, the State argues that “standing was lost, and the case became moot[,] when
[defendant] finished his MSR, one day later.” In support of its mootness argument, the State
relies primarily on People v. Henderson, 2011 IL App (1st) 090923. There, the defendant
completed his term of MSR while his appeal concerning the summary dismissal of his
postconviction petition was pending. Id. ¶¶ 1, 8. The First District noted that the “defendant’s
liberty [was] no longer encumbered by his convictions,” and it proceeded to “consider whether
the parties’ contentions under the Act [had] been rendered moot.” Id. ¶ 8. The Henderson court
stated that, because the defendant completed his MSR term while his postconviction petition
was pending, he “no longer need[ed] the Act’s assistance to secure his liberty.” Id. ¶ 15. The
court concluded that the defendant had “lost standing under the Act, a defect that cannot be
cured,” and “the parties’ arguments under the Act [had] become moot.” Id. In other words,
Henderson stands for the proposition that, even though a defendant on MSR has standing to
file a petition seeking postconviction relief under the Act, he or she loses standing, and the
case becomes moot, if the defendant’s term of MSR is completed before the petition is
adjudicated. In so holding, the Henderson court stated that it found
“no meaningful distinction to be drawn between instances where the defendant’s liberty
is not encumbered when he files the petition and those instances in which a defendant
regains his liberty after the petition is filed. The purpose of the Act would not be
fulfilled by giving either defendant relief. He is no longer on that string and the State
cannot affect his liberty at present.” Id. ¶ 14.
¶ 18 Admittedly, Henderson supports the State’s position in the instant matter. After defendant
filed his postconviction petition, he completed his MSR term, and he no longer needed the
Act’s assistance to secure his liberty. However, Henderson has been widely criticized, and our
research did not reveal any case that has followed it. Less than six months after Henderson was
decided, in People v. Jones, 2012 IL App (1st) 093180, ¶¶ 4, 10, a different division of the
First District disagreed with Henderson and held that a defendant’s completion of his or her
MSR term while his or her timely filed postconviction petition was pending neither strips the
defendant of standing nor renders his or her postconviction petition moot. The Jones court
relied, in part, on a “foundation of prior Illinois Supreme Court cases where the court has made
clear that all that is required is that a petitioner must still be serving any sentence imposed,
including any period of [MSR], at the time of the initial timely filing of his petition.” Id. ¶ 10
(citing People v. Davis, 39 Ill. 2d 325 (1968), and Carrera, 239 Ill. 2d 241). The Jones court
stated that the Illinois Supreme Court had “directly addressed this issue” in Davis, where the
court stated:
“[T]he State has asserted that the petition should be dismissed because Davis was not
incarcerated at the time the cause was heard. The State relies on the wording of the
Post-Conviction Hearing Act which gives ‘any person imprisoned in the penitentiary’
the right to allege a substantial denial of constitutional rights [citation] and this court’s
comment that the legislative intent behind this provision was ‘to make the remedy
-5-
available only to persons actually being deprived of their liberty and not to persons who
had served their sentences and who might wish to purge their records of past
convictions.’ [Citation.] In some jurisdictions post-conviction remedies may be utilized
to attack unconstitutional convictions regardless of the fact that the petitioner has fully
served his sentence. [Citations.] Others restrict use of this remedy, usually because of
statutory language, to those persons actually imprisoned at the time of hearing.
[Citations.] As there are obvious advantages in purging oneself of the stigma and
disabilities which attend a criminal conviction, we see no reason to so narrowly
construe this remedial statute as to preclude the remedy in every case in which the
petition is not filed and the hearing completed before imprisonment ends.” Davis, 39
Ill. 2d at 328-29.
¶ 19 When faced with this split of authority, the First District has repeatedly declined to follow
Henderson in a series of unpublished cases. In People v. Sanchez, 2015 IL App (1st) 130369-
U, for example, the defendant filed his postconviction petition just three days before he
completed his MSR term (id. ¶ 24), and the State “ ‘maintain[ed] that the Henderson discussion
of standing to seek post-conviction relief is incorrect and [the appellate court] should not
follow it’ ” (id. ¶ 21). The court in Sanchez agreed and stated that it was “persuaded that the
conclusion reached by our colleagues in Jones is correct. That is, a petitioner who timely files
a post-conviction petition does not lose standing under the Act merely because he completes
his MSR term by the time that his petition comes before the court for review.” Id. ¶ 28; see
also People v. Sims, 2019 IL App (1st) 160029-U, ¶ 51 (declining to follow Henderson because
“the weight of authority stands against” it); People v. Lash, 2020 IL App (1st) 170750-U, ¶ 48
(declining to follow Henderson and holding that “defendant still has standing under the Act
even though he completed his term of [MSR] as he filed his postconviction petition while in
custody”). Other appellate districts have likewise declined to follow Henderson. See, e.g.,
People v. Shehadeh, 2016 IL App (5th) 130295-U, ¶ 16 (following “the Jones case in holding
that postconviction petitions that are timely filed but are not heard on appeal until after the
defendant’s release from incarceration are not inherently moot”).
¶ 20 In People v. McDonald, 2018 IL App (3d) 150507, ¶ 14, the Third District considered
whether the defendant had standing to maintain his postconviction petition after he was fully
released from the penitentiary and his MSR term was discharged while his direct appeal was
pending. The court evaluated “whether the ‘imprisoned in the penitentiary’ requirement of the
Act is a limitation only upon the filing of a postconviction petition or a limitation upon the
receipt of relief under the Act.” (Emphases in original.) Id. ¶ 18. The McDonald court stated
that the requirement in section 122-1(a) that one be “imprisoned in the penitentiary” in order
to institute a proceeding under the Act plainly referred to the commencement of proceedings,
but it noted that this section was “silent as to any requirements for the receipt of relief.” Id.
¶ 19. In analyzing this issue, McDonald acknowledged that our supreme court “has repeatedly
referenced the legislature’s intent with regard to the [A]ct, consistently and assuredly casting
the custody requirement in terms of relief” (emphasis added) (id. ¶ 20), noting further that the
supreme court has “consistently pointed to liberty interests as the defining aspect of the Act
(id. ¶ 21). Nevertheless, the court relied on the court’s actions in Davis—indeed, quoting the
same language from Davis as did the Jones court—and it held that “a defendant who timely
files his postconviction petition while in custody is eligible for relief under the Act, regardless
of whether he is released from custody in the intervening time.” Id. ¶ 23.
-6-
¶ 21 The McDonald court noted that Davis represented the “single occasion” where our supreme
court directly addressed the issue and that Davis “held that a defendant who filed his
postconviction petition while in custody, but who was released from custody prior to
disposition of the petition, was entitled to relief.” Id. ¶ 22. McDonald stressed that Davis
remained good law, even though the result seemingly conflicted with language used by the
court on other occasions that focused on the defendant’s liberty and possible receipt of relief
under the Act. Id. ¶¶ 22-23; see Coe, 2018 IL App (4th) 170359, ¶ 35 (discussing McDonald
and observing that “the cases in which the supreme court had used such language were not
factually on point: that is, they were not cases like Davis, in which the defendant filed a
postconviction petition while in custody and was released from custody while the petition still
was pending”). McDonald also was persuaded by the rule of lenity, which “dictates that
criminal statutes generally be construed in favor of a defendant.” McDonald, 2018 IL App (3d)
150507, ¶ 23.
¶ 22 In Coe, 2018 IL App (4th) 170359, ¶ 17, which neither party cites, the Fourth District
evaluated whether the defendant’s completion of his sentence rendered moot his petition for
postconviction relief that he filed while in custody. Coe discussed in detail many of the same
cases we have outlined above, and it agreed with Jones and McDonald, rather than Henderson.
Id. ¶ 50. It commented that Henderson overlooked the fact that “imprisoned in the
penitentiary” was held in Davis, as interpreted in Carrera, to include “defendants who have
been released from incarceration after timely filing their petition” and that defendants may
satisfy the “imprisoned in the penitentiary” requirement of section 122-1(a) even though they
were no longer actually being deprived of their liberty. (Internal quotation marks omitted.) Id.
¶ 26. Moreover, Coe noted that Henderson erroneously blurred the distinction between
statutory standing and the common-law prohibition against deciding moot issues. Id. ¶¶ 28,
39-49. It explained that “[s]ection 122-1(a) addresses the petitioner’s standing at the time the
petitioner institutes the postconviction proceeding; it has nothing to say about events occurring
after the institution of the proceeding.” Id. ¶ 48.
¶ 23 We agree with Jones, McDonald, and Coe, and we decline to follow Henderson. As Coe
aptly stated, a “[d]efendant’s interest in purging [himself] of the stigma and disabilities which
attend a criminal conviction would not have given him standing under section [122-1(a) of the
Act], but after his release from custody, that interest prevents his case from being moot.”
(Emphasis in original and internal quotation marks omitted.) Id. ¶ 50. The procedural posture
of the instant matter presents a like scenario. Defendant was unquestionably “imprisoned in
the penitentiary” when he filed his petition, such that he had standing under the Act to initiate
postconviction proceedings, and his subsequent completion of his MSR term did not render his
petition moot. See id. Although defendant’s postconviction petition was filed at the “last
minute,” the circuit court was without authority to craft a “last minute” exception, and the
summary dismissal of defendant’s petition on that basis was error. Rather, “all that is required
is that a petitioner must still be serving any sentence imposed, including any period of [MSR],
at the time of the initial timely filing of his petition.” Jones, 2012 IL App (1st) 093180, ¶ 10.
¶ 24 B. De Novo Review of the Merits
¶ 25 We next consider whether remand for second-stage proceedings is warranted. Defendant
argues that remand for automatic second-stage proceedings is required because the circuit court
“did not address the merits of the allegations in [his] petition” during the initial 90-day period
-7-
for first-stage postconviction review as required in section 122-2.1 of the Act. He stresses that,
because his petition was filed on September 11, 2018, the circuit court had 90 days from that
point, or until December 10, 2018, to conduct its initial review of the petition. Defendant
acknowledges that the court summarily dismissed his petition on October 5, 2018, which was
within the 90-day review period. Nevertheless, he argues, because the court dismissed his
petition based on a lack of standing, it did not consider “whether the claims set forth in [his]
petition were frivolous or patently without merit.” Defendant relies on People v. Hommerson,
2014 IL 115638, ¶¶ 11, 14, in which our supreme court remanded for second-stage proceedings
after holding that a postconviction petition may not be dismissed at the first stage solely
because it lacked a verification affidavit.
¶ 26 Defendant’s argument fails. After briefing was completed in this case, our supreme court
decided Johnson, 2021 IL 125738, wherein it agreed “that a lack of standing is more like
res judicata and forfeiture, which are appropriate bases for first-stage dismissal” (id. ¶ 48
(citing People v. Blair, 215 Ill. 2d 427, 445 (2005))) and is unlike the affidavit requirement, as
was at issue in Hommerson (id. ¶¶ 43-46). It reasoned that, “[u]nlike timeliness and the
verification affidavit requirement, which involve ‘procedural compliance,’ res judicata and
forfeiture involve conclusions of law. [Citation.] Standing under the Act also involves a
conclusion of law in that the legislature has identified who may institute proceedings and the
conditions under which the proceedings may be brought.” Id. ¶ 49. Ultimately, our supreme
court held that, “where a defendant lacks standing under the Act because he is not ‘imprisoned
in the penitentiary’ [citation], a claim brought under the Act is necessarily ‘frivolous’ or
‘patently without merit.’ ” Id. ¶ 50.
¶ 27 Here, applying the reasoning in Johnson, the circuit court necessarily found the petition to
be frivolous and patently without merit because it summarily dismissed it within the 90-day
timeframe based on its determination that defendant lacked standing. The court thus satisfied
its statutory obligation to independently review the petition within 90 days of its filing and
dismiss it where the court finds the petition to be frivolous or patently without merit, and
defendant cannot benefit from an automatic advancement to the second stage of postconviction
proceedings. It is of no consequence that the precise reason cited by the circuit court was
erroneous, because our review of a first stage dismissal is de novo. “ ‘We review the trial
court’s judgment, not the reasons cited, and we may affirm on any basis supported by the
record if the judgment is correct.’ ” People v. Knapp, 2019 IL App (2d) 160162, ¶ 37 (quoting
People v. Anderson, 401 Ill. App. 3d 134, 138 (2010)).
¶ 28 The State argues, as an alternative basis for affirmance, that the circuit court’s summary
dismissal of defendant’s postconviction petition was proper because the issues defendant raised
therein are barred by res judicata or are otherwise forfeited and thus are frivolous and patently
without merit. We agree that defendant’s postconviction petition is frivolous and patently
without merit. As stated, postconviction proceedings are meant to “permit an inquiry into
constitutional issues involved in the original conviction and sentence that were not, and could
not have been, adjudicated previously on direct appeal.” People v. Newbolds, 364 Ill. App. 3d
672, 675 (2006). Thus, in an initial proceeding under the Act, “res judicata and waiver operate
to bar the raising of claims that were or could have been adjudicated on direct appeal.” Id. It is
well established that “the phrase ‘frivolous or patently without merit’ encompasses the
common-law doctrines of res judicata and forfeiture such that claims that were, or could have
been, raised and adjudicated are barred and are subject to summary dismissal at the first stage.”
-8-
People v. Kane, 2013 IL App (2d) 110594, ¶ 26. Res judicata bars the consideration of issues
that were previously raised and decided on direct appeal, whereas forfeiture bars any claims
that could have been raised on direct appeal but were not. Newbolds, 364 Ill. App. 3d at 675-
76.
¶ 29 Of the five arguments defendant raised in his postconviction petition, four were based upon
the trial record as it existed at the time he filed his direct appeal, namely that (1) the stalking
statute is overly broad, (2) his due process rights were violated when the judge evaluated
whether defendant’s behavior was protected under the first amendment, (3) the phrase
“communicates to or about,” which our supreme court ruled was unconstitutionally overbroad
in Illinois’s stalking statute (Relerford, 2017 IL 121094, ¶ 65), was included in the jury
instructions, and (4) the standard for finding emotional distress in the stalking statute violates
the constitution. In defendant’s direct appeal, we rejected his argument that his conviction was
unconstitutional based on Relerford, 2017 IL 121094. Munz, 2018 IL App (2d) 160159-U,
¶¶ 29-50. Indeed, defendant’s third argument, that the jury instructions were improper in light
of Relerford, is a repackaged version of the argument we rejected on direct appeal. See People
v. Simms, 192 Ill. 2d 348, 360 (2000) (noting that a “petitioner may not avoid the bar of
res judicata simply by rephrasing issues previously addressed on direct appeal”). That
argument is therefore res judicata and may not be raised again in a postconviction petition.
See Blair, 215 Ill. 2d at 442-46. Similarly, defendant’s first, second, and fourth arguments in
his postconviction petition are forfeited, because they could have been raised on direct appeal
but were not. See id. at 446-47. “Determinations of the reviewing court on direct appeal are
res judicata as to issues actually decided, and issues that could have been raised on direct
appeal but were not are [forfeited].” People v. Erickson, 183 Ill. 2d 213, 222 (1998). Defendant
makes no argument, in either his opening brief or his reply brief, that these arguments arise
from matters outside the record and thus could not have been brought in his direct appeal, nor
does he argue that fundamental fairness requires that the doctrines of res judicata and forfeiture
be relaxed. See People v. Coleman, 267 Ill. App. 3d 895, 898 (1994) (noting that res judicata
and waiver do not apply to issues raised in a postconviction petition that stem from matters
outside the record or where fundamental fairness requires those doctrines to be relaxed). He
also makes no argument that the claims were not raised in his direct appeal because his
appellate counsel was incompetent. See Newbolds, 364 Ill. App. 3d at 675-76. Because these
arguments were based on the record and were not raised on direct appeal, and because
defendant does not allege that his appellate counsel was ineffective for failing to raise them,
they are forfeited and thus frivolous and patently without merit as a matter of law. Therefore,
the circuit court properly dismissed them.
¶ 30 The State concedes that defendant’s fifth claim, that the assistant state’s attorney who tried
the case should have been disqualified because she was reprimanded by the ARDC for failing
to disclose exculpatory information in an unrelated case, is the only matter that lies outside of
the original record. The State argues, and we agree, that defendant’s claim is meritless. The
online records of the ARDC, of which we may take judicial notice (BAC Home Loans
Servicing, LP v. Popa, 2015 IL App (1st) 142053, ¶ 21 n.1), reflect that, on July 13, 2014, the
ARDC administrator filed a complaint against the assistant state’s attorney who prosecuted
defendant. The allegations were unrelated to defendant’s case.
¶ 31 Notably, defendant’s trial had concluded before the ARDC complaint was filed. More
importantly, however, at the conclusion of the ARDC proceedings, no action was taken that
-9-
would limit the assistant state’s attorney’s ability to practice law or otherwise prosecute
defendant’s case. As such, defendant’s assertion that she should have been disqualified due to
the ARDC proceedings lacks an arguable basis in law, and we therefore deem it frivolous and
patently without merit. See Luciano, 2013 IL App (2d) 110792, ¶ 83 (noting that “a petition
that lacks an arguable basis in either law or fact is one that is based on an indisputably meritless
legal theory or fanciful factual allegations”). Because all five of defendant’s arguments
included in his postconviction petition are frivolous and patently without merit, the circuit
court did not err in summarily dismissing it.
¶ 32 III. CONCLUSION
¶ 33 For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.
¶ 34 Affirmed.
- 10 -