Defendant who had completed his sentence but was still required to register as sex offender lacked standing to file post-conviction petition

The appellant in People v. Dunn, 2019 IL App (1st) 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.

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