People v. Higginbotham

No. 3--04-0827
Filed December 6, 2006.
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2006
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 99--CF--862
)
GLEN R. HIGGINBOTHAM, )
) Honorable Gerald R. Kinney,
Defendant-Appellant. ) Judge, Presiding.
PRESIDING JUSTICE SCHMIDT delivered the opinion of the court:
Defendant, Glen Higginbotham, was convicted of reckless
homicide as a result of a traffic accident which occurred on May
4, 1999. While incarcerated, defendant filed a document entitled
"Petition for Habeas Corpus." The circuit court of Will County
dismissed defendant's petition. Defendant appeals, claiming that
the trial court erred by treating his petition as if it were
filed under the Post-Conviction Hearing Act (725 ILCS 5/122--1 et
seq. (West 2002)) and failing to acknowledge that his petition
for habeas corpus was civil in nature and, therefore, controlled
by the Illinois Code of Civil Procedure (735 ILCS 5/1--101 et
seq. (West 2002)).
BACKGROUND
While on probation following convictions of theft,
possessing a stolen motor vehicle, and aggravated battery,
defendant was involved in a two-car accident. This accident
resulted in the death of 10-year-old Candace Graham. Sometime
after 11 p.m. on May 4, 1999, Constance Graham took her daughter,
Candace, to the local White Hen Pantry in Lockport, Illinois.
While on their way home from the White Hen Pantry, the Graham
vehicle collided with a vehicle driven by defendant.
Evidence was admitted at trial showing that both Constance
Graham and defendant were driving drunk that night. Constance
Graham's blood-alcohol level was .197. She had been drinking
beer and tequila since 4:30 in the afternoon until the time of
the accident. Blood drawn from defendant at 1:32 a.m. on May 5
(approximately 1½ hours after the accident), indicated that his
blood alcohol level was .181. A forensic scientist with the
Illinois State Police who specializes in toxicology further
testified that her analysis of defendant's blood indicated the
presence of cocaine. She could not tell how long the cocaine had
been in his system but testified that, generally, in order for
cocaine to be found in a person's system, it had to have been
ingested within eight hours of the blood draw.
Michael Homberg of the Will County sheriff's police
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testified that on the night of the accident, he was traveling
southbound on State Street in an unincorporated area of Lockport
Township at approximately 11:52 p.m. He witnessed a red vehicle
traveling northbound on State Street at a high rate of speed.
His radar indicated that the red vehicle was traveling at 81
miles per hour in an area where the posted speed limit was 40
miles per hour. Deputy Homberg turned around to pursue the
vehicle but lost sight of it. When he saw the red vehicle next,
it was at the scene of this accident, 1½ miles from where he
first witnessed it speeding. Less than two minutes had elapsed
from when he lost sight of it.
Constance Graham testified that while heading home from the
White Hen Pantry, she was attempting to turn left onto Twelfth
Street from State Street when the accident happened. She noticed
a car approaching on State Street approximately 1½ blocks away
and she assumed she had time to turn because the speed limit was
30 miles per hour. Before she could complete her turn, the
impact occurred. Deputy Charles Albin of the Will County
sheriff's police, traffic division, testified at trial after
being accepted as an expert in the area of accident
reconstruction. He was involved in the investigation of this
crash. When arriving at the crash scene, he first observed that
there was slight rain, followed by periods of heavy rain. Deputy
Albin testified that there were no stop signs or stoplights at
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the intersection where the accident happened and that cars
turning onto Twelfth Street from State Street were to yield to
oncoming State Street traffic.
Deputy Michael Barton of the Will County sheriff's
department, traffic accident investigation division, also
testified. He, too, was admitted as an expert witness in the
area of accident reconstruction. Based on information he
retrieved from the crash site, his opinion was that the impact
speed of Graham's car was 10 miles per hour, plus or minus 3
miles per hour. Furthermore, he testified that the impact speed
of defendant's car was 68 miles per hour, plus or minus 3 miles
per hour. He noted that giving the defendant the benefit of the
doubt when calculating the speed of defendant's car before the
collision, defendant's vehicle was traveling at about 78 miles
per hour before defendant applied his brakes. The calculations
were based upon information given to Barton indicating that the
road was dry at the time of the collision and that it did not
start raining until after the collision.
Over defense objection, the court agreed with a prosecution
request to give the jury a pattern instruction on proximate
cause. During its deliberations, the jury sent two notes to the
trial judge. The first question asked to be allowed to view a
portion of a videotape taken at the scene of the accident. With
agreement of the parties, the trial judge granted this request.
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Two hours later, the jury asked whether the phrase "caused the
death" meant "sole responsibility or partial." Over defense
objection, the trial judge allowed the prosecution's request to
read the jury a modified version of Illinois Pattern Jury
Instructions, Criminal, No. 7.15 (3d ed. 1992), stating that the
prosecution had to prove that the defendant's acts were "a
contributing cause" of the death, but that it was not necessary
to find his acts "were the sole and immediate cause of death."
The jury later found the defendant guilty of reckless homicide.
Prior to the reckless homicide trial, the State filed
petitions to revoke defendant's probation for his prior
convictions. The State's petitions to revoke were granted and
defendant was sentenced to concurrent sentences of seven, five,
and seven years, respectively, for convictions from one count of
theft and two counts of possessing a stolen motor vehicle.
Defendant also received a seven-year sentence for his aggravated
battery conviction, which the trial court ordered to be served
consecutively to the three concurrent sentences.
Thereafter, defendant was sentenced for this reckless
homicide conviction. The trial court ordered the defendant to
serve a seven-year term of imprisonment to run consecutively to
the prior sentences due to the "serious nature of the offense"
and because the defendant was on probation at the time of the
offense.
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On direct appeal, this court in People v. Higginbotham, Nos.
3--00--0372, 3--00--0373, 3--00--0374, 3--00--0375, 3--00--0376,
(May 29, 2002), reversed the trial court's imposition of the
consecutive sentence for defendant's aggravated battery
conviction, but upheld the trial court's order imposing a
consecutive seven-year sentence for defendant's reckless homicide
conviction.
While serving the aforementioned sentences, defendant filed
a pro se pleading with the trial court. He titled this pleading
"Petition for Habeas Corpus." The trial court recharacterized
defendant's pleading as a postconviction petition, found it
frivolous and patently without merit, and then dismissed it.
Defendant appeals.
ANALYSIS
Where there is no dispute as to the facts of a case and the
issued raised on appeal is purely one of law, such as the case
before us, our review is de novo. People v. Daniels, 187 Ill. 2d
301, 718 N.E.2d 149 (1999); People v. Coleman, 307 Ill. App. 3d
930, 718 N.E.2d 1074 (1999).
Defendant acknowledges that Illinois law is well established
that a trial court has the authority to reclassify a pleading
titled petition for habeas corpus relief as a petition for relief
under the Post-Conviction Hearing Act (725 ILCS 5/122--1 et seq.
(West 2002)). See People ex rel. Haven v. Macieiski, 38 Ill. 2d
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396, 231 N.E.2d 433 (1967); People ex rel. Lewis v. Frye, 42 Ill.
2d 58, 245 N.E.2d 483 (1969). Defendant argues, however, that
when exercising this authority and recharacterizing such a
document, a trial judge 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 amend it so that it
contains all the claims appropriate to a postconviction petition
that the litigant believes he or she has." People v. Shellstrom,
216 Ill. 2d 45, 57, 833 N.E.2d 863, 870 (2005). Defendant
maintains that the trial court erred in dismissing his petition
for he was never notified of the court's intention to
recharacterize it, warned of the consequences pertaining to
subsequent postconviction petitions, or provided an opportunity
to withdraw or amend the pleading. Defendant claims that such
error mandates reversal pursuant to Shellstrom.
The State argues that the defendant misreads Shellstrom.
The State notes that Shellstrom begins by reaffirming well-
settled law holding that when a pro se pleading alleges a
deprivation of rights cognizable in a postconviction petition,
the trial judge may treat the pleading as a postconviction
petition. Shellstrom, 216 Ill. 2d at 53. The State continues
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that Shellstrom does not hold, as defendant argues, that a trial
court commits reversible error when it recharacterizes a pro se
pleading as a postconviction petition then dismisses it as
patently without merit without first notifying the pro se
litigant of the recharacterization. The State argues that
Shellstrom merely holds that if the trial court fails to give the
Shellstrom notifications to the pro se litigant prior to
recharacterization, then the recharacterized pleading cannot be
considered to have become a postconviction petition for purposes
of applying restrictions on successive postconviction petitions
to later pleadings. We agree with the State.
The Shellstrom court, after announcing that "in the future
trial courts must provide the aforementioned notifications,
stated that "[i]f the [trial] 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." Shellstrom, 216 Ill. 2d at
57. The Shellstrom court did not say that failing to provide a
pro se litigant with notice of the court's intent to
recharacterize a pleading as a postconviction petition mandated
reversal. Again, as both sides acknowledge, the Shellstrom court
"reaffirm[ed] that, where a pro se pleading alleges a deprivation
of rights cognizable in a postconviction proceeding, a trial
court may treat the pleading as a postconviction petition, even
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where the pleading is labeled differently." Shellstrom, 216 Ill.
2d at 52-53.
Defendant makes no argument that his pleading stated the
gist of a constitutional claim, only that it was error to
reclassify it and dismiss it without giving him the Shellstrom
notice and warning. We hold that the trial court did have the
authority to recharacterize defendant's pleading and that it was
not reversible error to dismiss it. We find that since the trial
court did not notify as required by Shellstrom, the pleadings
cannot be considered to have become a postconviction petition for
purposes of applying the restrictions on successive
postconviction petitions contained in the Post-Conviction Hearing
Act to any later pleadings. 725 ILCS 5/122--1 et seq. (West
2002).
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Will County is affirmed.
Affirmed.
CARTER and O'BRIEN, JJ., concur.
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