Grigalanz v. Austin

2021 IL App (5th) 190408-U

• Court: Appellate Court of Illinois
• Decided: October 25, 2021
• Docket: 5-19-0408
• Status: Unpublished

Opinion

NOTICE 2021 IL App (5th) 190408-U NOTICE Decision filed 10/25/21. The This order was filed under text of this decision may be NO. 5-19-0408 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

PHILLIP S. GRIGALANZ, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Montgomery County. ) v. ) No. 19-MR-87 ) GLEN AUSTIN, Acting Warden, Graham ) Correctional Center, ) Honorable ) James L. Roberts, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________

JUSTICE BARBERIS delivered the judgment of the court. Justices Wharton and Vaughan concurred in the judgment.

ORDER

¶1 Held: Because the trial court’s order of dismissal was without prejudice, it was not a final order, and this court does not have jurisdiction.

¶2 The plaintiff, Phillip S. Grigalanz, appeals pro se the sua sponte dismissal without

prejudice of his complaint for habeas corpus relief. We dismiss for lack of jurisdiction.

¶3 BACKGROUND

¶4 The plaintiff is currently incarcerated following his 2017 plea of guilty to one count

of child pornography in violation of section 11-20.1(a)(1)(vii) of the Criminal Code of

1 2012 (720 ILCS 5/11-20.1(a)(1)(vii) (West 2016)). He is serving a 17-year sentence, with

an expected 3-year term of mandatory supervised release.

¶5 In August of 2019, the plaintiff filed a complaint for habeas corpus seeking

immediate release from custody, alleging that his plea was defective because he lacked

informed consent and that the trial court exceeded its authority.

¶6 On August 29, 2019, the circuit court dismissed the complaint sua sponte, as the

complaint stated no claim for habeas relief. The court emphasized that the plaintiff

“acknowledges his present commitment in IDOC [(Illinois Department of Corrections)] is

the result of a negotiated plea and judgment against him [entered] November 13, 2017[,]

in the Circuit Court of Jersey County, Illinois,” which imposed a “sentence of 17 years

IDOC plus 3 years MSR.” The court’s order reads:

“Petitioner does not allege that he is imprisoned without court order or process, or that per 5/10-124 the sentencing court lacked or exceeded jurisdiction of his person or the subject matter, or that the final Jersey County judgment and sentence imposed against him have been served or otherwise expired and are exceeding his time of lawful detention, or that some intervening act, omission or event subsequent to his sentence has entitled him to discharge, or that the process is defective in some substantial form or that the law does not allow his imprisonment or arrest or that IDOC lacks authority to detain him, or the process was obtained by false pretense or bribery.”

¶7 The order further stated that the plaintiff “acknowledges he is serving a sentence of

a legally constituted court with appropriate jurisdiction,” and that the plaintiff asserted that

he had pursued postjudgment motions/petitions regarding the same issues in Jersey County

and that his appeal of the judgment and sentence was still pending.

2 ¶8 Lastly, the court’s order states this “[c]ause is dismissed without prejudice as

petitioner may supplement or amend his pleadings if he believes he can remedy these

pleading deficiencies.” The court went on to state that it was a final and appealable order.

¶9 The plaintiff filed this appeal.

¶ 10 ANALYSIS

¶ 11 On appeal, the plaintiff argues the circuit court erred in dismissing his complaint for

habeas corpus, alleging that his plea was defective for lack of informed consent and that

the trial court exceeded its authority.

¶ 12 “It is well established that an order of habeas corpus is available only to obtain the

release of a prisoner who has been incarcerated under a judgment of a court that lacked

jurisdiction of the subject matter or the person of the petitioner, or where there has been

some occurrence subsequent to the prisoner’s conviction that entitles him to release.”

Beacham v. Walker, 231 Ill. 2d 51, 58 (2008) (citing People v. Gosier, 205 Ill. 2d 198, 205

(2001), and Barney v. Prisoner Review Board, 184 Ill. 2d 428, 430 (1998)). “A petition for

writ of habeas corpus may not be used to review proceedings that do not exhibit one of the

defects set forth in the statute, even though the alleged error involves a denial of

constitutional rights. [Citations.]” Schlemm v. Cowan, 323 Ill. App. 3d 318, 320 (2001).

The circuit court may dismiss a petition for a writ of habeas corpus that is patently

nonmeritorious or insufficient on its face. Beacham, 231 Ill. 2d at 59; Hennings v.

Chandler, 229 Ill. 2d 18, 24 (2008).

¶ 13 We must first consider the State’s argument that we lack jurisdiction because the

order appealed is not final. 3 ¶ 14 In this case, the judge dismissed the plaintiff’s complaint without prejudice,

allowing the plaintiff to amend his pleadings to provide the facts, should there be any,

needed for habeas relief. “An order dismissing an action ‘without prejudice’ is not deemed

final for purposes of appeal ***.” Paul H. Schwendener, Inc. v. Jupiter Electric Co., 358

Ill. App. 3d 65, 73 (2005). While this court did state that its order was a final, appealable

order, “ ‘[a] nonfinal order cannot be made final simply by declaring that there is no just

reason to delay its enforcement or appeal.’ ” Id. (quoting DeLuna v. St. Elizabeth’s

Hospital, 147 Ill. 2d 57, 76 (1992)). “By its very terms, [the appellate court’s] jurisdiction

under Supreme Court Rule 304(a) is limited to the review of final orders.” Id.

¶ 15 Because the trial court’s order of August 29, 2019, expressly stated that the

dismissal of the plaintiff’s habeas corpus complaint was without prejudice and gave him

leave to supplement or amend his complaint, it is not a final order, and we lack jurisdiction

to review it. Consequently, we dismiss the plaintiff’s appeal from that order.

¶ 16 CONCLUSION

¶ 17 For the foregoing reasons, the judgment of the circuit court of Montgomery County

is dismissed.

¶ 18 Appeal dismissed.