Hardy v. Fatheree

2021 IL App (5th) 190445-U

• Court: Appellate Court of Illinois
• Decided: November 12, 2021
• Docket: 5-19-0445
• Status: Unpublished

Opinion

NOTICE 2021 IL App (5th) 190445-U NOTICE Decision filed 11/12/21. The This order was filed under text of this decision may be NO. 5-19-0445 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Peti ion for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

CHAD HARDY, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Clinton County. ) v. ) No. 19-MR-88 ) JONATHAN FATHEREE, Acting Warden, ) Honorable ) Stanley M. Brandmeyer, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________

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

ORDER

¶1 Held: Plaintiff, Chad Hardy, appeals pro se the sua sponte dismissal of his complaint for habeas corpus. For the following reasons, we affirm.

¶2 Plaintiff pled guilty to three counts of predatory criminal sexual assault and was

sentenced to three 10-year consecutive sentences. Plaintiff’s counsel moved to reconsider

the sentence and plaintiff moved pro se to withdraw his guilty plea. Both motions were

denied, and plaintiff appealed. While that appeal was pending, plaintiff appealed the

dismissal of his petition for relief from a void judgment. The denial of his posttrial motions

was reversed and the cause remanded for failure to file a certificate of compliance with

Illinois Supreme Court Rule 604(d) (eff. July 1, 2006), and the dismissal of his petition for 1 relief from a void judgment was affirmed. People v. Hardy, 2016 IL App (1st) 133153-U,

¶ 2 (citing People v. Hardy, 2012 IL App (1st) 100549-U, and People v. Hardy, No. 1-12-

1372 (2013) (unpublished summary order under Illinois Supreme Court Rule 23(c))).

¶3 On remand, plaintiff filed another motion to withdraw his plea, asserting ineffective

assistance of plea counsel and failure of the court to properly admonish him regarding his

potential mandatory supervised release period. His motion was denied, and the circuit

court’s judgment was affirmed. Id. ¶ 28.

¶4 In September 2019, plaintiff filed a habeas corpus complaint alleging numerous

violations of his statutory and constitutional rights. The trial court denied the complaint

sua sponte and denied plaintiff’s motion for reconsideration. This appeal followed.

¶5 ANALYSIS

¶6 On appeal from the denial of his habeas corpus complaint, plaintiff argues (1) that

the trial court lacked jurisdiction where the charging instrument was fraudulently obtained

and cited an erroneous statutory provision, (2) that the State and the court violated

numerous statutes with respect to the probable cause determination and preliminary

hearing, (3) that he was denied his speedy trial rights, (4) that the State breached the plea

agreement, (5) that the court failed to consider certain factors in mitigation and imposed a

disproportionate sentence, (6) that his three-year-to-life mandatory supervised release term

was unconstitutional, (7) that the circuit court committed numerous errors regarding his

petition for postjudgment relief, and (8) that the appellate court erred in denying his request

to take judicial notice of certain controlling law during his first appeal.

2 ¶7 “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 sua sponte 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). We apply a de novo standard of review to the dismissal

of an application for habeas corpus. Hennings, 229 Ill. 2d at 24.

¶8 It has long been held that subject matter jurisdiction is granted to the circuit courts

by the Illinois Constitution, and that they “have jurisdiction in all cases involving offenses

which fall within the ambit of section 1-5 of the Criminal Code [citation].” People v.

Gilmore, 63 Ill. 2d 23, 26 (1976). “A criminal defendant confers personal jurisdiction upon

the trial court when he appears and joins” in the proceedings. People v. Woodall, 333 Ill.

App. 3d 1146, 1156 (2002) (citing People v. Speed, 318 Ill. App. 3d 910, 932 (2001)).

Once a court has acquired jurisdiction, no subsequent error or irregularity will oust

jurisdiction. Id. at 1157.

3 ¶9 In this case, the circuit court acquired subject matter jurisdiction when plaintiff was

charged with violations of the criminal code and it acquired personal jurisdiction when he

appeared before the court. Although plaintiff contends that the court failed to acquire

subject matter jurisdiction because the charging instrument was fraudulently obtained and

cited an erroneous statutory provision, it is well settled that defects in a charging instrument

do not deprive the court of subject matter jurisdiction. See People v. Hughes, 2012 IL

112817, ¶¶ 27-28. None of plaintiff’s other claims implicates the court’s jurisdiction.

¶ 10 Plaintiff’s complaint for habeas relief did not allege an occurrence subsequent to

his conviction that entitles him to release. A plaintiff cannot be discharged via

habeas corpus until a judgment by the court or he is held beyond the time he can legally

be detained. 735 ILCS 5/10-102 (West 2018); see also Barney, 184 Ill. 2d at 431. The

Illinois Department of Corrections website, of which we may take judicial notice (People

v. Gipson, 2015 IL App (1st) 122451, ¶ 66), reveals that plaintiff’s projected parole date is

June 9, 2033, and his projected discharge date is yet to be determined. Thus, plaintiff

remains in lawful custody and is not entitled to immediate release.

¶ 11 Because plaintiff’s habeas complaint alleged no set of facts that would support a

finding that the court which entered his conviction lacked jurisdiction, nor did he argue the

occurrence of a postconviction event which entitles him to release, the circuit court

properly denied his complaint. Gosier, 205 Ill. 2d at 205.

¶ 12 CONCLUSION

¶ 13 For the foregoing reasons, the judgment of the circuit court of Clinton County is

affirmed. 4 ¶ 14 Affirmed.