Opinion
No. 1-16-1828
12-16-2020
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHALAWN WRIGHT, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 00 CR 27440
Honorable Evelyn B. Clay, Judge, presiding.
JUSTICE ELLIS delivered the judgment of the court.
Justices McBride and Burke concurred in the judgment.
ORDER
¶ 1 Held: Reversed and remanded. Defendant stated arguable claim of actual innocence based on claim that he was convicted for attempted escape from IDOC facility, when in fact he attempted escape from county jail.
¶ 2 In November 2000, having been convicted of murder a month earlier, defendant Shalawn Wright attempted to escape from Cook County Jail. In 2002, he was convicted of attempted escape and was given a five-year sentence to run consecutively to his 35-year sentence for his murder conviction.
¶ 3 Fourteen years later, defendant filed a postconviction petition, alleging that the State failed to prove him guilty beyond a reasonable doubt because it charged him under the wrong statute. That is, he was charged under the Unified Code of Corrections with escape from an institution run by the Illinois Department of Corrections, when in fact he escaped from Cook County Jail, an attempted escape from which was not prohibited by the statute under which he was convicted.
¶ 4 The circuit court dismissed defendant's petition at the first stage. We reverse. We read this petition as a claim for actual innocence, and quite likely a meritorious one—certainly an "arguable" claim sufficient to survive first-stage dismissal. We remand for second-stage proceedings.
¶ 5 BACKGROUND
¶ 6 In 2002, Defendant was charged by indictment with attempted escape. The indictment alleged that defendant was "committed to an institution or facility, to wit: Cook County Jail Division Eleven, Adult Division, and [he] attempted to escape from that institution or facility, in violation of chapter 730 Act 5 section 3-6-4(a)." At the time, defendant was serving a 35-year sentence for first-degree murder.
¶ 7 The facts of the underlying offense and trial testimony are not particularly important. Suffice it to say that Cook County Corrections officers, assigned to Division 11 of the Cook County Jail, discovered an attempted escape by two inmates, defendant and his cell mate, Kendall Merriweather, who were housed in Cell 411. In their cell, officers discovered a broken window, over a dozen bed sheets tied together, as well as money, a map, and a list of addresses
and phone numbers. Defendant admitted to officers that he was attempting to escape, though he denied as much at trial.
¶ 8 Defendant was convicted and sentenced to five years' imprisonment, to run concurrently with his 35-year murder sentence. Defendant did not file a direct appeal.
¶ 9 But fourteen years later, defendant filed a pro se postconviction petition, alleging "that his conviction for attempted escape was based on an invalid charging instrument that failed to state a chargeable offense." In the affidavit attached to his petition, defendant alleged, among other things, that "the Criminal Code of 1961 is the only statute that designates a criminal act or a criminal offense that [defendant] can reasonably and legally be charged and convicted of" and it was "a fundamental miscarriage of justice to allow [him] to stand convicted pursuant to 730 ILCS 5/3-6-4(a)."
¶ 10 Defendant also filed a pro se motion to correct the mittimus nunc pro tunc. In that motion, defendant argued that his mittimus mistakenly reflected that he attempted to escape while he was on furlough, when his conviction was predicated on an attempted escape from Division 11 of the Cook County Jail. Accordingly, defendant requested that a new mittimus be issued "to reflect the proper place of attempted escape according to the facts of the case[.]"
¶ 11 On May 27, 2016, the circuit court ruled on both the postconviction petition and the motion to correct the mittimus. The court granted defendant's motion to correct the mittimus. In an oral pronouncement, the court explained that defendant's mittimus incorrectly stated that defendant was convicted of failure to return from furlough, a Class 3 offense, rather than attempted escape, a Class 2 offense. In a written order granting the motion, the court stated that defendant was subject to Class 2 sentencing. Nonetheless, the court ruled that resentencing was
unnecessary because defendant "was sentenced to five years, well within the sentencing range of a Class 2 felony." As corrected, defendant's mittimus described his offense as "Att Escape of DOC" and changed the class of his offense from Class 3 to Class 2. As with the mittimus that initially issued, the corrected mittimus stated that defendant had been sentenced to five years' imprisonment.
¶ 12 In a separate written order also entered on May 27, 2016, the circuit court dismissed defendant's post-conviction petition as frivolous and patently without merit. The trial court focused on the postconviction petition's claim that the indictment did not state a chargeable offense and reasoned that a challenge to the indictment, at this stage, was untimely. The trial court further found that the indictment did properly state the offense of escape from an IDOC facility under section 3-6-4(a) of the Unified Code of Corrections. This order was signed and dated but was not file-stamped, and the record does not contain a certified report of disposition for this ruling.
¶ 13 Defendant filed a timely notice of appeal. This appeal followed.
¶ 14 ANALYSIS
¶ 15 Defendant raises two challenges to the ruling on his postconviction petition. He first claims that the trial court failed to file a written order within 90 days, and thus the petition should have automatically advanced to the second stage. Second, he claims that the challenge he raises to the proof against him at trial easily exceeds the low threshold for first-stage postconviction petitions and, in fact, mandates reversal as a matter of law.
¶ 16 "The Act provides a method for an individual subject to a criminal sentence to challenge a conviction by alleging it was the result of a substantial denial of federal or state constitutional
rights, or both." People v. Cotto, 2016 IL 119006, ¶ 26. At the first stage of postconviction proceedings, the circuit court may dismiss a petition if it is " 'frivolous or patently without merit.' " Id. (quoting 725 ILCS 5/122-2.1(a)(2) (West 2016)). A petition is frivolous or patently without merit if it " 'has no arguable basis *** in law or in fact.' " People v. Papaleo, 2016 IL App (1st) 150947, ¶19 (quoting People v. Hodges, 234 Ill. 2d 1, 12 (2009)).
¶ 17 A petition has no arguable basis in law or fact if it is based on an indisputably meritless legal theory or a fanciful factual allegation. Hodges, 234 Ill. 2d at 16. "A legal theory is 'indisputably meritless' if it is 'completely contradicted by the record,' and a factual allegation is 'fanciful' if it is 'fantastic or delusional.' " Papaleo, 2016 IL App (1st) 150947, ¶19 (quoting Hodges, 234 Ill. 2d at 16-17). "Because most petitions are drafted at the first stage by defendants with little legal knowledge or training, this court views the threshold for survival as low." People v. Maybrey, 2016 IL App (1st) 141359, ¶ 34. We review the dismissal of a first-stage postconviction petition de novo. People v. Edwards, 197 Ill. 2d 239, 247 (2001); People v. Williams, 2015 IL App (1st) 131359, ¶ 28.
¶ 18 Defendant claims that the evidence against him was "insufficient" in that he was charged under the wrong statute. He says he was charged with escape from what was then termed the "Adult Division" of the Illinois Department of Corrections (IDOC), when in fact he escaped from Cook County Jail, which is run by the Cook County Department of Corrections, not the IDOC. As the proof did not establish that defendant escaped from an IDOC facility, says defendant, his conviction should be reversed.
¶ 19 Defendant was convicted of violating section 3-6-4(a) of the Unified Code of Corrections. See 730 ILCS 5/3-6-4(a) (West 2000). That statute, back in 2000, read as follows:
"A committed person who escapes or attempts to escape from an institution or facility of the Adult Division, or escapes or attempts to escape while in the custody of an employee of the Adult Division, or holds or participates in the holding of any person as a hostage by force, threat or violence, or while participating in any disturbance, demonstration or riot, causes, directs or participates in the destruction of any property is guilty of a Class 2 felony." (Emphasis added.) 730 ILCS 5/3-6-4(a) (West 2000).
¶ 20 The phrase "adult division" is now outdated. Back in 2000, IDOC had a "juvenile division" and an "adult division." See 730 ILCS 5/3-2-5(a), (b) (West 2000). That changed in 2006, when the legislature created the Department of Juvenile Justice and transferred all juvenile inmates of IDOC into that new department. See Ill. Gen. Assembly, Pub. Act 94-696 (eff. June 1, 2006) (creating Department of Juvenile Justice and deleting all references to "Juvenile Division" from Unified Code of Corrections). So the current version of section 3-6-4(a), which is otherwise identical to its 2000 version, no longer uses the now-unnecessary phrase "the Adult Division" and instead just contains the phrase "the Department of Corrections." See Ill. Gen. Assembly, Pub. Act 97-1083, § 15 (eff. Aug. 24, 2012) (amending 730 ILCS 5/3-6-4 to replace all references to "the Adult Division" with "the Department of Corrections"); 735 ILCS 5/3-6-4 (West 2018).
¶ 21 The salient point, in any event, is that "the Adult Division" unquestionably referred to an IDOC facility. See 730 ILCS 5/3-2-5(a) (West 2000). Likewise, a "committed person" was "a person committed to the Department" of Corrections. 730 ILCS 5/3-1-2(c) (West 2000). A "commitment" to the IDOC meant "a judicially determined placement in the custody of the Department of Corrections on the basis of *** conviction." Id. § (b). An "escape," for that
matter, was defined as "the intentional and unauthorized absence of a committed person from the custody of the Department." Id., § (i). (Note that we use the past tense only because we are referencing the 2000 version of the statute; most of the provisions remain unchanged today.)
¶ 22 To put that all together under section 3-6-4(a), the provision under which defendant was convicted: In 2000, it was a Class 2 felony for "[a] committed person" to "escape[] or attempt[] to escape from an institution or facility of the Adult Division" of the IDOC. 735 ILCS 5/3-6-4(a) (West 2000). The statute clearly applied to attempted escapes by individuals committed to an IDOC facility.
¶ 23 But of course, defendant attempted an escape from Cook County Jail, which is not an IDOC facility but rather a facility run by Cook County. See 730 ILCS 125/1 (West 2000) (County Jail Act, requiring "one or more jail facilities for the use of each county within this State."); id. § 2 ("The Sheriff of each county in this State shall be the warden of the jail of the county, and have the custody of all prisoners in the jail."). Defendant thus claims that he was convicted under a statute that, as a matter of law, does not apply to him. Instead, he says, he should have been charged under section 31-6 of the Criminal Code of 1961, which provided in relevant part in 2000 that "[a] person convicted of a felony or charged with the commission of a felony who intentionally escapes from any penal institution or from the custody of an employee of that institution commits a Class 2 felony ***." 720 ILCS 5/31-6 (West 2000).
¶ 24 At first blush, at least, it appears that defendant's argument is legally correct. Section 3-6-4(a) of the Unified Code of Corrections applies only to prisoners who escape from IDOC facilities, not to prisoners committed to a local jail who escape from that jail. See People v. Marble, 91 Ill. 2d 242, 247-48 (1982) (defendant who escaped from Cook County Jail could not
be convicted under section 3-6-4(a), as defendant was not a "committed person"—a prisoner committed to IDOC—at time of escape); People v. Simmons, 88 Ill. 2d 270, 275 (1981) (noting that section 3-6-4(a) covers the specific offense of escape "from a facility of the Adult Division of the State corrections department, as opposed to a local or juvenile facility."). As defendant notes on appeal (and as he referenced vaguely in his petition), the Criminal Code of 1961 provided a broader escape statute that clearly covered escapes from a county jail. See Simmons, 88 Ill. 2d at 275; Marble, 91 Ill. 2d at 247; 720 ILCS 5/31-6 (West 2000).
¶ 25 The bottom line: defendant has a compelling argument that he was convicted under a statute that he could not legally have violated, because he was not committed to the IDOC at the time of his escape, nor was the facility from which he attempted to escape an IDOC facility.
¶ 26 The State has no comment on the merits of this claim, raising procedural and technical objections but never stating whether it believes defendant was properly convicted of a violation of section 3-6-4(a). So before we go any further on the merits, we consider those objections.
¶ 27 First, says the State, a challenge to the sufficiency of the evidence is not permitted under the Act. The State relies for that proposition on People v. Frank, 48 Ill. 2d 500, 504 (1971), which indeed held that sufficiency-of-the-evidence challenges are not cognizable under the Act.
¶ 28 But we must liberally construe this petition, drafted as it was by a pro se prisoner. Maybrey, 2016 IL App (1st) 141359, ¶ 34. It is abundantly clear that defendant is not challenging the sufficiency of the proof—he is alleging he is actually innocent of the crime, because he did not commit, and could not legally have committed, this offense. And a claim of actual innocence, of course, is cognizable under the Act. See People v. Robinson, 2020 IL 123849, ¶ 42.
¶ 29 Again, defendant's postconviction petition alleged (1) that his conviction was based on an "invalid charging instrument that failed to state a chargeable offense;" (2) "the Criminal Code of 1961 is the only statute that designates a criminal act or a criminal offense that [defendant] can reasonably and legally be charged and convicted of;" and (3) it was "a fundamental miscarriage of justice to allow [him] to stand convicted pursuant to 730 ILCS 5/3-6-4(a)."
¶ 30 However inartfully he did so, it is clear that defendant is claiming that he was convicted under the wrong statute—that he should have been charged under the Criminal Code of 1961 and not the Unified Code of Corrections, the latter of which does not apply to his conduct. That is, he alleges that he did not attempt an escape from an IDOC facility, the crime with which he was charged. That is a claim of actual innocence if ever there was one. Indeed, the petition's claim of a "fundamental miscarriage of justice" is all but synonymous with an "actual innocence" claim. See Robinson, 2020 IL 123849, ¶ 42 (referring to petitioner's assertion of "a fundamental miscarriage of justice based on actual innocence"); People v. Edwards, 2012 IL 111711, ¶ 23 ("fundamental miscarriage of justice" exception to bar on successive postconviction petitions applies to actual-innocence claims); People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002) (same).
¶ 31 So we reject the notion that defendant's claims—or at least some of them—were not cognizable under the Act. We have no hesitation in reading his petition as asserting an actual-innocence claim.
¶ 32 Next, the State relies on section 122-1(c) of the Act in claiming that the postconviction petition should have been filed within three years of his conviction, unless defendant "alleges facts showing that the delay was not due to his or her culpable negligence." See 725 ILCS 5/122-1(c) (West 2016). Because the postconviction petition was filed fourteen years after defendant's
conviction, and the postconviction petition did not allege facts showing that the delay was not due to defendant's culpable negligence, the petition is untimely.
¶ 33 Several problems there. First, a court "reviewing a postconviction petition at the first stage may not dismiss a petition because it is untimely." People v. Shief, 2016 IL App (1st) 141022, ¶ 39; see People v. Perkins, 229 Ill. 2d 34, 48 (2007) (allegations about timeliness or excusable neglect "are irrelevant at the first stage of the proceedings"). Second, in fairness to the State, the State raised that timeliness challenge after defendant's appellate counsel characterized the petition as one raising a sufficiency-of-the-evidence challenge. Now that we have properly characterized it as an "actual innocence" claim, presumably all parties would agree that no time deadline is applicable. See 725 ILCS 5/122-1(c) (West 2016) ("This [time] limitation does not apply to a petition advancing a claim of actual innocence."); see People v. Harper, 2013 IL App (1st) 102181, ¶ 34.
¶ 34 And for that matter, even if the concept of culpable negligence were in play, we would be hard-pressed to find defendant "negligent" in failing to "discover" the legal inapplicability of this statute to his conduct sooner than he did. After all, none of the lawyers intimately involved in the trial of this case—the judge, prosecutor, and defense counsel—noted this potentially dispositive legal question. We are impressed, in fact, that defendant somehow managed to discover this legal issue when he did, while incarcerated. By no means could we deem his failure to discover it sooner "negligent."
¶ 35 The State's final procedural objection is forfeiture. Again, in fairness to the State, the State saw a disconnect between what the postconviction petition alleged—challenging the legal applicability of the charged statute to defendant's conduct—and what defendant's appellate
counsel argued—sufficiency of the evidence—which led the State to argue that appellate counsel was raising claims not raised below, resulting in forfeiture. But as we liberally and logically view the petition as claiming actual innocence, we obviously find no forfeiture. The petition more than sufficiently alleged that defendant could not legally have been convicted under this statute.
¶ 36 On the merits, this petition more than satisfies the " 'low threshold' " for survival for a first-stage petition, "requiring only that the defendant plead sufficient facts to assert an arguably constitutional claim." People v. White, 2014 IL App (1st) 130007, ¶ 26 (quoting People v. Brown, 236 Ill.2d 175, 184 (2010)). This petition does more than arguably raise a claim that defendant was convicted under an inapplicable statute—it seems quite likely to succeed. As we noted above, construing the plain language of section 3-6-4(a) of the Unified Code of Corrections and the supreme court's decision in Marble, 91 Ill. 2d at 247-48, defendant has an exceptionally strong argument that section 3-6-4(a) does not apply to his attempted escape from a local jail—and thus that he is actually innocent.
¶ 37 Were we certain of that fact, we would reverse with instructions to grant the postconviction petition and reverse defendant's conviction outright. But there may be a twist; there are certain things we do not and cannot know from this record.
¶ 38 We know from the record these two pieces of information: (1) defendant was convicted of murder on October 5, 2000, and (2) defendant attempted to escape from Cook County Jail on November 5, 2000. The question we have is, had defendant been sentenced at the time of the escape? Sentencing him within a month of his conviction would be fairly fast, but by no means would it be impossible.
¶ 39 That is a critical fact, as our supreme court's holding in Marble was premised on the fact that section 3-6-4(a) governs prisoners "committed persons"—that is, prisoners committed to the IDOC, and Marble was not committed to the IDOC—he was committed to the Cook County Department of Corrections, in Cook County Jail, at the time of his escape. See id. at 248 ("Since Marble was not committed to the Illinois Department of Corrections, he is not a member of the class to which section 3-6-4 was to apply.").
¶ 40 Here, defendant could not have been committed to the IDOC until he was sentenced—that's what a sentencing order is, an order of commitment to the IDOC. If defendant had not yet been sentenced, the IDOC would have had no claim on him, and the holding in Marble would clearly apply here—defendant could not have been legally convicted of violating section 3-6-4(a) of the Unified Code of Corrections.
¶ 41 If defendant had been sentenced by the time of his attempted escape, on the other hand, things are murkier. If that were true, then it would be fair to say that defendant had been "committed to" the IDOC—he was a "committed person" under section 3-6-4—even though he had not yet been transported to an IDOC facility. At least superficially, that would make Marble distinguishable. Would defendant still have an argument that he could not have violated section 3-6-4(a), because the facility from which he escaped was not an IDOC facility? Certainly, he could argue that, and he might be right. But the State could argue that, post-sentencing, defendant was only at Cook County Jail at the direction of IDOC, which has the authority to temporarily house a prisoner with the county. See 730 ILCS 5/3-2-2(b) (West 2004). The State, in other words, might have an argument that Cook County Jail should be considered an IDOC
facility, as has been true in other contexts not involving the escape statute. See People v. King, 366 Ill. App. 3d 552, 556-57 (2006); People v. Davis, 92 Ill. App. 3d 869, 873 (1981).
¶ 42 But since the record before us does not reveal this fact—whether defendant had been sentenced and committed to the IDOC at the time of his attempted escape—it would be premature for us to wade into those waters and issue an advisory opinion. If any of this had been fleshed out below, we might have more to work with. But the postconviction court focused only on the petition's reference to an invalid indictment, while we read the petition as going far beyond that to a claim of actual innocence.
¶ 43 So we reverse the dismissal of the postconviction petition and remand with instructions to advance this cause to second-stage proceedings. Counsel may or may not wish to amend this petition, but in any event, the parties should endeavor to answer the questions we have posed, namely whether the circumstances were such that defendant was technically committed to the IDOC at the time of his attempted escape and, if so, whether that would allow the State to prosecute him under section 3-6-4(a), as it existed in 2000.
¶ 44 If, on the other hand, defendant was not yet committed to the IDOC at the time of his escape, then Marble controls, and defendant could not stand convicted of a violation of section 3-6-4(a) as a matter of law. In that event, obviously, it would be a simple matter of granting defendant's petition and reversing his conviction outright.
¶ 45 The judgment of the circuit court is reversed. The cause is remanded for second-stage proceedings consistent with this order.
¶ 46 Reversed and remanded with instructions.