The appellant in People v. Dunn, 2019 IL App (1^st) 150198 appealed the trial court’s decision denying him leave to file a successive petition for relief under the Post-Conviction Hearing Act, arguing on appeal that he had standing under the Act to pursue his claim of actual innocence because of his ongoing requirement that he register as a sex offender. The Appellate Court affirmed.

Maurice Dunn was originally charged with, and convicted of, rape and aggravated battery for an incident in July of 1979. Following a first trial which ended in a mistrial, Dunn was retried in September of 1980 and found guilty of rape, aggravated battery causing great bodily harm, and aggravated battery on a public way and was sentenced to 40 years imprisonment. Id. at ¶ 5.

On direct appeal, Dunn argued that his second trial violated double jeopardy, he was denied the effective assistance of counsel because defense counsel was unprepared, the trial court erred in denying a motion to suppress the victim’s in-court identification, he was not proven guilty beyond a reasonable doubt, he was not indicted with aggravated battery on a public way, and the trial court abused its discretion in sentencing him to an extended term. Id. at ¶ 6. The conviction for aggravated battery on a public way was vacated while everything else was affirmed by the court.

Dunn then filed a pro se post-conviction petition restating many of the claims raised on direct appeal. Id. at ¶ 7. The petition was dismissed following a motion to dismiss filed by the State. While the petition was pending, Dunn sent letters to the State and the trial court requesting genetic testing or “chemical castration.” On appeal, Dunn argued that the circuit court erred in dismissing his post-conviction petition, which contained a viable claim of actual innocence based on the assertion that genetic testing would exonerate him. Id. at ¶ 9. In the alternative, Dunn requested that the case be remanded for further proceedings because he was denied the reasonable assistance of post-conviction counsel when she did not amend his pro se petition to include a claim of actual innocence.

The court reversed the dismissal of the petition and remanded the cause for consideration of Dunn’s motion for genetic testing. Id. at ¶ 9. The motion was ultimately dismissed by the circuit court. Dunn was released from prison in June of 2001, completed parole, and registered as a sex offender. Id. at ¶ 10. In July of 2014, Dunn sought leave, through counsel, to file a successive petition for postconviction relief alleging actual innocence. The petition acknowledged that appellant was no longer serving a “custodial sentence” but asserted that section 122-1(c) of the Act eliminated the statute of limitations for claims of actual innocence, regardless of such status. Id. at ¶ 11.

The petition alleged actual innocence based upon new evidence that the victim misidentified Dunn in a police lineup. Dunned argued that based on analysis of the lineup using recently enacted Illinois standards, the State willfully or inadvertently concealed the victim’s rape kit before the first trial, and Vemon Watson, who was convicted for a series of nearly identical sexual assaults in the same area where the victim in this instance was assaulted, made a “tacit” confession. Id. at ¶ 11. The circuit court entered a written order denying Dunn leave to file the petition because he lacked standing under the Act when he was neither in prison nor on parole. This appeal followed.

On appeal, Dunn argued that the fact that he has completed his sentence does not prevent him from advancing a claim of actual innocence under the Act. Dunn cited his ongoing requirement to register as a sex offender as justification for his appeal. Id. at ¶ 13. In response, the State argued that the denial of leave to file a successive post-conviction petition, based upon a lack of standing, was proper because Dunn had already completed his sentence and parole nearly a decade before.

The Appellate Court noted that “generally, to initiate an action under the Act, a person must be imprisoned in the penitentiary.” Id. at ¶ 15. The Illinois Supreme Court has determined that a defendant is “imprisoned” when his liberty is curtailed in some way by the State because of the criminal conviction that he is attempting to challenge. Specifically, the court has established that liberty is curtailed when a defendant is “always on a string, and the State may pull the string whenever it pleases.” Id. at ¶ 15.

Further, the court established that a defendant retains standing under the Act so long as “he is challenging a conviction from which he continues to serve some form of sentence, such that his liberty would be directly affected by invalidating his conviction.” Id. at ¶ 16. However, the court determined that “the Act and its remedies are not available to defendants who have completed their sentences and merely seek to purge their criminal records.” Id. at ¶ 17.

It was “undisputed” in Dunn’s case that he had completed his sentence and parole prior to his 2014 attempt to seek leave to file a successive post-conviction petition. Therefore, “invalidating his conviction would not have affected his liberty.” Id. at ¶ 18. Accordingly, the court determined that Dunn lacked standing to file a post-conviction petition in 2014 because he was no longer completing any part of his sentence. As to Dunn’s assertion that his on-going requirement to register as a sex offender provided him standing to file, the court held that collateral consequences resulting from a conviction are not actual restraints on liberty sufficient to implicate the Act. Id. at ¶ 18. The court cited People v. Downin, 394 Ill. App 3d 141 (2009) in support of such holding.

Ultimately, because Dunn was no longer serving any portion of his sentence when he filed his motion for leave to file a successive post-conviction petition, he had no standing to seek post-conviction relief and thus, the circuit court properly denied him leave the file the petition. Id. at ¶ 21. The Appellate Court of Illinois First District affirmed the judgement of the Circuit Court of Cook County.

The appellant in People v. White, 2020 IL App (5^th) 170345 appealed the trial court’s order denying his motion for leave to file a successive post-conviction petition, alleging that White made a sufficient showing of cause-and-prejudice in his motion. The Fifth District Appellate Court affirmed.

Douglas White was originally charged and convicted of two counts of first-degree murder and one count of concealment of a homicidal death related the murder of his grandmother and her friend. Id. at ¶ 4. White was sentenced to natural life imprisonment for each of the murder counts and five years’ imprisonment for the concealment of homicidal death. White’s convictions and sentences were affirmed on direct appeal. Id. at ¶ 5.

In his first collateral attack on his conviction, White filed a pro se post-conviction petition, which was summarily dismissed as frivolous and patently without merit. The appellate court affirmed. Id. at ¶ 7. In a second collateral attack, nine months prior to the appellate court affirming the dismissal of his pro se petition, White filed another pro se pleading that combined a successive petition for post-conviction relief with a petition for relief from judgement under section 2-1401 of the Code of Civil Procedure. Id. at ¶ 9.

The matter was continued pending a resolution of the first appeal and finally resulted in the filing of a sixth amended petition (appellant filed numerous pro se amended petitions and a few with counsel during this time period), which raised 13 claims. The amended petition was dismissed for being untimely under section 2-1401. Id. at ¶ 11.

In a third collateral attack, White filed a pro se motion for leave to file a successive post-conviction petition, asserting that his mandatory natural life sentences violated the eighth amendment of the Constitution and the proportionate penalties clause of the Illinois Constitution, as applied to him, because he was a “20 year old minor” at the time of the murders. Id. at ¶ 13. White cited recently discovered scientific evidence of the maturation of individuals’ brains between the ages of 18 and 21, including “evidence” of “nonapplications” of natural life sentences for multiple murder charges. White also presented affidavits from individuals who had allegedly heard his brother brag about receiving a sentence reduction as part of his plea agreement. Id. at ¶ 14. The court denied the motion for leave, finding that White had “failed to make a sufficient showing of either cause or prejudice.” Id. at ¶ 15. This appeal followed.

The Appellate Court noted that leave of court may only be granted if both cause and prejudice are demonstrated by the petitioner. This is the case because White did not raise a claim of actual innocence. The Appellate Court found that White could not establish prejudice “since his claims are not legally cognizable.” Id. at ¶ 18.

First, the court determined that White’s age at the time he murdered his grandmother and her friend was insufficient to consider him “youthful,” such that a mandatory life sentence would be cruel and unusual under the eighth amendment. Id at ¶ 19. The court considered White an adult at the time of offense.

Because Miller protections to do not apply to adult offenders, White was not entitled to benefit from specific considerations that attend youth at sentencing. Id. at ¶ 20. The court held that White’s as-applied challenge failed to demonstrate that White was more like a child than an adult at the time of offense. Further, the court determined that the statute under which White was sentenced is facially valid for adult offenders and cannot amount to a violation of the eighth amendment. Id. at ¶ 21.

The court applied similar reasoning to the proportionate penalties clause challenge and ultimately determined that “his degree of culpability and adult age do not justify advancing his petition, as his case was distinguishable from those cited in his petition, as he was in fact, an adult.” Id. at ¶ 22-26. Ultimately, the court held that White’s sentence of natural life imprisonment did not shock the moral sense of the community and did not violate the proportionate penalties clause of the Illinois Constitution. Id. at ¶ 29.

The Appellate Court of Illinois Fifth District affirmed the judgment of the Circuit Court of Madison County.

The appellant in People v. Abtahi, 2020 IL App (1^st) 181631, appealed the trial court’s order dismissing his section 2-1401 petition, arguing on appeal that the circuit court erred by dismissing the petition without considering his argument on the merits. The First District Appellate Court affirmed.

Farzad Abtahi was originally charged with manufacture or delivery of a substance containing heroin. Prior to trial, Abtahi and the State agreed that he would plead guilty to Class 1 possession with intent to deliver a controlled substance in exchange for a recommendation of probation. Id. at ¶ 5. The trial court accepted the plea and sentenced Abtahi to two years’ probation. Id. at ¶ 7. Abtahi did not appeal or file a motion to withdraw his guilty plea after being admonished of his right to do so.

In 2017, Abtahi, represented by the same attorney from the original plea hearing, filed a section 2-1401 petition alleging that the trial court knew Abtahi was not a US citizen but had failed to admonish him that he was pleading guilty to a “deportable offense.” Id. at ¶ 8. The petition argued that “the lack of proper admonishment regarding the effect of his plea on his immigration status was clearly a prime factor in [his] decision to plead guilty,” that Abtahi had a meritorious defense, that Abtahi would likely not have been found guilty at trial,  and that the factual basis for the plea failed to establish unlawful possession of a controlled substance. Id. at ¶ 8.

The 2-1401 petition, which filed after the two-year statute of limitations expired, effectively alleged that the conviction was “void” and should be vacated. In response, the State filed a motion to dismiss the petition, arguing that Abtahi failed to demonstrate that his petition was exempt from the limitations period because the trial court had personal and subject-matter jurisdiction, the statute Abtahi was charged and convicted under was constitutional; and Abtahi had not alleged disability, duress or fraud. Id. at ¶ 9. The circuit court dismissed the petition, finding that it was untimely and that Abtahi had failed to demonstrate the trial court’s lack of personal or subject matter jurisdiction and did not allege that his conviction rested on a facially unconstitutional statute. Id. at ¶ 12. This appeal followed.

On appeal, Abtahi argued that the trial court abused its discretion by dismissing his section 2-1401 petition without addressing the merits because Abtahi “never pled guilty on the record and, therefore, the trial court did not have jurisdiction to enter his guilty plea or sentence him.” Id. at ¶ 14. In its review, the appellate court noted that in order to prevail on a section 2-1401 petition, a movant must prove, by a preponderance of the evidence: 1) the existence of a meritorious claim or defense, 2) due diligence in presenting the claim or defense, and 3) due diligence in filing the petition. Id. at ¶ 15. Further, the appellate court noted that the exception to the two-year statute of limitations on such petitions is valid only if the petition attacks a final judgment on voidness grounds–meaning that the judgment was entered by a court lacking jurisdiction or that the conviction stemmed from a facially unconstitutional statute.

Here, because Abtahi argued that the trial court lacked jurisdiction to enter judgment on the guilty plea, and not that he was convicted under a facially unconstitutional statute, the court only evaluated that potential exception to the two-year limitation on section 2-1401 petitions. The court ruled that the record clearly demonstrated the trial court’s personal and subject-matter jurisdiction when it entered judgment on Abtahi’s guilty plea. Further, the court held that by being present at the plea hearing, Abtahi had conferred personal jurisdiction on the trial court. As such, the court held that Abtahi failed to demonstrate the judgment was void and thus was not excused from the limitations period. Id. at ¶ 19.

The First District affirmed the judgment of the Circuit Court of Cook County.