FIRST DIVISION
March 31, 2011
No. 1-08-3192
IN THE APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court
Plaintiff-Appellee, ) of Cook County.
)
v. ) No. 88 CR 18480
)
ARTHUR DENT, ) Honorable
) James B. Linn,
Defendant-Appellant. ) Judge Presiding.
JUSTICE LAMPKIN delivered the judgment of the court, with
opinion.
Presiding Justice Hall and Justice Hoffman concurred in the
judgment and opinion.
O P I N I O N
Defendant, Arthur Dent, was convicted of first degree murder
and sentenced to 30 years’ imprisonment. His conviction and
sentence were upheld on direct appeal. People v. Dent, 230 Ill.
App. 3d 238, 595 N.E.2d 18 (1992). While his direct appeal was
pending, defendant filed a postconviction petition pursuant to
the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.
(West 1992)). That petition was dismissed. Defendant served his
prison sentence. After his release and completion of parole,
defendant filed a successive postconviction petition alleging
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newly discovered evidence demonstrated his actual innocence. The
successive petition was dismissed on its merits following second-
stage review.
On appeal, defendant contends he has standing to bring the
successive postconviction petition. Defendant additionally
contends the trial court erred in dismissing his petition without
the benefit of a third-stage evidentiary hearing where he made a
substantial showing of his actual innocence with an affidavit of
the shooter. Based on the following, we affirm.
FACTS
The facts were provided in detail in this court’s opinion on
direct appeal (Dent, 230 Ill. App. 3d at 240-41); therefore, we
briefly summarize only the salient facts taken from that opinion.
Witnesses testified that defendant and Ralph James
approached a group of rival gang members on a porch at 820 East
Bowen, Chicago, Illinois, and fired shots from a distance of
three or four feet in the direction of Andre Porter. Porter died
as a result of the shooting. Defendant testified that he saw the
victim on the balcony at 820 East Bowen, that he spoke to the
victim and left, and that as he left he heard shots, but denied
any involvement in the offense. Defendant said he was no longer
a gang member at the time of the shooting.
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On December 5, 1989, defendant was convicted and sentenced
to a 30-year prison term. According to defendant, he was paroled
on December 2, 2003.
After completing his sentence for the Porter murder,
defendant filed a successive postconviction petition on February
28, 2008. Defendant alleged newly discovered evidence
demonstrated his actual innocence. In particular, defendant
alleged James, who had entered a blind guilty plea for the murder
of Porter and had served his sentence and completed parole,
provided an affidavit in which he averred that defendant “did not
participate in the planning and execution of [Porter’s]
shooting.” The State filed a motion to dismiss the petition.
The trial court dismissed the successive petition on its
merits based upon James’s affidavit and the trial record. In so
doing, the trial court noted that James’s affidavit recognized
defendant was aware James intended to commit the shooting prior
to the offense taking place. The court further provided that the
trial evidence demonstrated defendant told the investigating
detective that he was a high ranking member of the King Cobras
and he would order “hits,” not carry them out. The court relied
on the fact that defendant admitted he was on the balcony at 820
East Bowen to purchase marijuana from the victim. The court
found that James’s affidavit was inconsistent with defendant’s
version of the events at trial. In light of the trial testimony
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of the witnesses and the contradictory stories raised in the
postconviction petition, the trial court concluded “there is
nothing presented here to cause this to go to a further
evidentiary hearing.”
DECISION
Although not addressed by the trial court in dismissing
defendant’s successive postconviction petition on the merits, we
first address whether defendant has standing to pursue
postconviction relief where he served his sentence on the
challenged conviction prior to filing the successive
postconviction petition.
We review the second-stage dismissal of a postconviction
petition de novo. See People v. Pack, 224 Ill. 2d 144, 147, 862
N.E.2d 938 (2007).
Pursuant to the Act, “[a]ny person imprisoned in the
penitentiary may institute proceedings under this Article.” 725
ILCS 5/122-1(a) (West 2008). The supreme court, in upholding the
constitutionality of the Act, ruled that the Act makes the remedy
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.” People
v. Dale, 406 Ill. 238, 246, 92 N.E.2d 761 (1950), overruled in
part on other grounds, People v. Warr, 54 Ill. 2d 487, 298 N.E.2d
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164 (1973).
Distinguishing Dale, our supreme court has since held that,
where a defendant was on mandatory supervised release at the time
his postconviction petition was filed and therefore the
Department of Corrections still retained “custody” of the
defendant, he had standing to file a postconviction petition.
People v. Correa, 108 Ill. 2d 541, 546-47, 485 N.E.2d 307 (1985).
Other cases have also interpreted the phrase “imprisoned in the
penitentiary” to allow standing for postconviction review where a
defendant was on probation when his petition was filed (People v.
Montes, 90 Ill. App. 3d 356, 412 N.E.2d 1363 (1980)); where a
defendant was released on an appeal bond when his petition was
filed (People v. Martin-Trigona, 111 Ill. 2d 295, 489 N.E.2d 1356
(1986)); and where a defendant was serving consecutive sentences
while his petition was pending (Pack). Cf. People v. Davis, 39
Ill. 2d 325, 235 N.E.2d 634 (1968) (where a prisoner was released
from prison after timely filing his petition, which demonstrated
that he was convicted in a jury trial without ever being present
or represented by counsel). The common thread in these examples
is that the defendants were pursuing a liberty interest, which is
the deciding factor in determining who is “imprisoned” for
purposes of the Act, and that invalidating the challenged
convictions would advance the defendants’ release dates from the
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constraints affecting their liberty.
Defendant contends he has standing to challenge his
conviction under the Act because he is imprisoned for natural
life as a result of the Porter murder conviction where it was
used as an element in sentencing him in a subsequent murder
conviction.
The supreme court has spoken on a defendant’s ability to
challenge a conviction under the Act when his sentence has been
successfully discharged. In People v. West, 145 Ill. 2d 517, 584
N.E.2d 124 (1991), the supreme court held that the defendant was
not eligible for postconviction relief for a sentence that had
been fully served even though that sentence was used as an
aggravating factor in an out-of-state death sentence. West, 145
Ill. 2d at 518. Reasoning that “[t]he person must be in prison
for the offense he is purporting to challenge,” the supreme court
concluded the defendant’s out-of-state incarceration was not
imprisonment within the meaning of the Act because his Illinois
sentence and mandatory supervised release period had been
completed before he filed his petition for postconviction relief.
Id. at 519; see also People v. Thurman, 334 Ill. App. 3d 286, 777
N.E.2d 971 (2002) (the defendant did not have standing under the
Act to challenge a conviction for which he completed the
probation sentence where that conviction was later used as a
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sentencing enhancement in an unrelated federal case); People v.
Collins, 161 Ill. App. 3d 285, 514 N.E.2d 499 (1987) (the
defendant did not have standing under the Act to challenge a
conviction for which he completed his probationary period where
that conviction was later used as a basis for an extended-term
sentence in an unrelated case).
In contrast, in Pack, the supreme court, partially relying
on Garlotte v. Fordice, 515 U.S. 39, 46 (1995) (consecutive
sentences are to be viewed in the aggregate in construing the
statutory term “in custody”), held that the defendant serving
consecutive sentences of 7 and 60 years could challenge the
conviction on which he was sentenced to 7 years after already
having served nearly 13 years’ imprisonment. Pack, 224 Ill. 2d
at 148. The supreme court reasoned that, where the Department of
Corrections treated consecutive sentences in the aggregate, the
defendant was pursuing a liberty interest because an invalidation
of his first conviction would advance his release date. Id. at
152-53. Accordingly, the supreme court held that “a prisoner
serving consecutive sentences is ‘imprisoned’ under any one of
them for purposes of section 122-1(a).” Id. at 152. The supreme
court distinguished West based on the fact that the defendant in
West was seeking to challenge his conviction for purposes of
purging his record, which is not a remedy available under the
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Act. Id. at 153 (citing Dale, 406 Ill. at 246).
The facts of the instant case are more similar to those in
West than those in Pack. The Pack defendant had not completed
his sentence for the challenged conviction because the two
consecutive sentences were considered as one. Consequently, the
invalidation of the challenged conviction would reduce the
sentence for that offense such that the restraints on his liberty
could be reduced by seven years. In contrast, because defendant
successfully completed his sentence for the challenged
conviction, his liberty interest for the Porter murder cannot be
affected. Rather, defendant effectively requests the ability to
purge his record. The supreme court has been clear that a
defendant may not use the Act to purge his record of a conviction
for which the sentence has been completed. Dale, 406 Ill. at
246.
Defendant attempts to distinguish West, Thurman, and Collins
by contending those challenged convictions were used only as
aggravating factors in the subsequent unrelated sentences whereas
his challenged conviction was used as an element in his
subsequent natural life imprisonment. According to defendant,
the invalidation of the challenged convictions in West, Thurman,
and Collins would purge the defendants’ records but still require
them to raise another claim of error in relation to the
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subsequent sentences, whereas, in contrast, his natural life
sentence would become void if the Porter conviction were
invalidated. We disagree. Defendant’s conviction, similar to
the prior convictions of the defendants in West, Thurman, and
Collins, was a sentencing enhancement. The underlying
convictions in all of the cases had to be proven in order for the
enhancement to be applied to the sentences.
“[S]tanding does not exist under the Post-Conviction Act
following the completion of a sentence.” Thurman, 334 Ill. App.
3d at 290. We recognize the Act is to be “liberally construed to
afford a convicted person an opportunity to present questions of
deprivation of constitutional rights” (Correa, 108 Ill. 2d at
545); however, the Act and its remedies are not available to
defendants whose sentences have been completed and whose liberty
interests are no longer restrained. People v. Rajagopal, 381
Ill. App. 3d 326, 330, 885 N.E.2d 1152 (2008). Moreover, case
law demonstrates that a defendant retains standing so long as he
is challenging the conviction upon which he continues to serve
some form of sentence and therefore his liberty interests would
be directly affected with an invalidation of that conviction.
Defendant was no longer serving any form of sentence for the
Porter conviction when he filed his postconviction petition. We,
therefore, find defendant did not have standing under the Act to
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challenge the Porter conviction.
Because we may affirm on any basis provided by the record
(People v. Anderson, 401 Ill. App. 3d 134, 138, 929 N.E.2d 1206
(2010)) and we have determined defendant does not have standing
to challenge the Porter conviction, we need not address the
merits of his postconviction claim.
CONCLUSION
We affirm the judgment of the trial court dismissing
defendant’s postconviction petition.
Affirmed.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
ARTHUR DENT,
Defendant-Appellant.
No. 1-08-3192
Appellate Court of Illinois
First District, FIRST DIVISION
March 31, 2011
JUSTICE LAMPKIN delivered the judgment of the court, with
opinion.
Presiding Justice Hall and Justice Hoffman concurred in the
judgment and opinion.
Appeal from the Circuit Court of Cook County.
The Hon. James B. Linn, Judge Presiding.
COUNSEL FOR APPELLANT
Michael J. Pelletier, State Appellate Defender, Chicago, IL 60601
Patricia Unsinn, Deputy Defender
OF COUNSEL: Caroline E. Bourland
COUNSEL FOR APPELLEE
Anita Alvarez, Cook County State’s Attorney, Chicago, IL 60602
OF COUNSEL: Alan J. Spellberg, Mary P. Needham
and Peter Maltese
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