Heatherly v. Clarke

2020 IL App (5th) 190189-U

• Court: Appellate Court of Illinois
• Decided: May 15, 2020
• Docket: 5-19-0189
• Status: Unpublished

Opinion

NOTICE 2020 IL App (5th) 190189-U NOTICE Decision filed 05/15/20. The This order was filed under text of this decision may be NO. 5-19-0189 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Peti ion for by any party 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 ________________________________________________________________________

RICHARD D. HEATHERLY, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Christian County. ) v. ) No. 19-MR-63 ) DANIEL CLARKE, Taylorville ) * Correctional Center Warden, ) Honorable ) Amanda S. Ade-Harlow, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________

JUSTICE BOIE delivered the judgment of the court. Justices Overstreet and Wharton concurred in the judgment.

ORDER

¶1 Held: Where the complaint was insufficient on its face to warrant habeas corpus relief, the circuit court’s sua sponte dismissal of the plaintiff’s habeas corpus complaint is affirmed.

¶2 The plaintiff, Richard D. Heatherly, appeals pro se the sua sponte dismissal of his

complaint for habeas corpus. On appeal, he argues that the circuit court erred in dismissing

his complaint because the court which rendered his judgment of conviction lost jurisdiction

* Because the proper defendant in a habeas corpus action is the prisoner’s current custodian (see Hennings v. Chandler, 229 Ill. 2d 18, 23 n.2 (2008)), Daniel Clarke, acting warden of Taylorville Correctional Center, where plaintiff is incarcerated, is the sole and proper defendant in this appeal. 1 when it failed to ensure that his waiver of his right to a speedy trial was knowing and

intelligent. He also argues that counsel rendered ineffective assistance by failing to seek a

discharge based on speedy trial grounds and that section 103-5 of the Code of Criminal

Procedure of 1963 (Procedure Code) (725 ILCS 5/103-5 (West 2016)) is unconstitutional.

For the following reasons, we affirm.

¶3 BACKGROUND

¶4 On November 18, 2016, the plaintiff pleaded guilty to one count of predatory

criminal sexual assault of a child in violation of section 11-1.40(a)(1) of the Criminal Code

of 2012 (Criminal Code) (720 ILCS 5/11-1.40(a)(1) (West 2016)) and was sentenced to 11

years in the Illinois Department of Corrections (IDOC) with a minimum of 3 years of

mandatory supervised release. No direct appeal followed. The plaintiff is scheduled for

discharge of his sentence on November 27, 2024. See IDOC website, available at

https://www2.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx (last visited Apr. 20,

2020); People v. Gipson, 2015 IL App (1st) 122451, ¶ 66 (court may take judicial notice

of information on IDOC website).

¶5 On April 19, 2019, the plaintiff filed a pro se complaint for habeas corpus and an

accompanying memorandum of law. He alleged that the circuit court lost jurisdiction when

it failed to ensure that his waiver of his constitutional and statutory rights to a speedy trial

was knowing and intelligent. Specifically, he argued that the circuit court failed to notify

him that the speedy trial term would be tolled if he requested a continuance, acquiesced to

a continuance, or failed to object to a requested continuance. He also argued that plea

counsel was ineffective for failing to seek a discharge based on the alleged speedy trial 2 violation and that section 103-5 of the Procedure Code was unconstitutional because it

permits tolling of the speedy trial term without an explicit warning to the defendant in

person and on the record. The court sua sponte dismissed the plaintiff’s complaint, finding

that it failed to allege any basis for habeas relief. This timely appeal followed.

¶6 ANALYSIS

¶7 On appeal, the plaintiff argues that the circuit court erred in dismissing his complaint

for habeas corpus relief sua sponte. He contends that (1) the circuit court’s failure to

ensure that his waiver of his speedy trial rights was knowing and intelligent deprived him

of due process and divested the court of jurisdiction, (2) his absence from the courtroom

when his speedy trial rights were waived was not cured by the presence of his attorney,

(3) the test set forth in Barker v. Wingo, 407 U.S. 514 (1972), for determining whether a

defendant has been denied his constitutional right to a speedy trial is inappropriate in

determining whether he is entitled to habeas relief, (4) the rule that a guilty plea waives all

nonjurisdictional errors is inapplicable where the circuit court lacked jurisdiction, (5) plea

counsel rendered ineffective assistance by failing to seek a discharge based on speedy trial

grounds, and (6) section 103-5 of the Procedure Code is unconstitutional.

¶8 We begin by noting that the record from the plaintiff’s underlying guilty plea and

conviction has not been included in the record on appeal, and the plaintiff’s complaint for

habeas corpus relief does not set forth any of the facts upon which his speedy trial claim

is based. It is well-settled that the appellant bears the burden of presenting a sufficiently

complete record and that any doubts arising from an incomplete record will be resolved

against the appellant. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). 3 ¶9 “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.

¶ 10 As the plaintiff does not allege the occurrence of any postconviction event that

entitles him to release, we need only consider whether the alleged violation of his right to

speedy trial deprived the circuit court of jurisdiction.

¶ 11 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 the issues with a plea.” People v. Woodall, 333

Ill. App. 3d 1146, 1156 (2002) (citing People v. Speed, 318 Ill. App. 3d 910, 932 (2001)). 4 Once a court has acquired jurisdiction, no subsequent error or irregularity will oust

jurisdiction. Id. at 1157.

¶ 12 In this case, the circuit court acquired subject matter jurisdiction when the plaintiff

was charged with a violation of the Criminal Code, and it acquired personal jurisdiction

when he appeared before the court. No subsequent error involving the plaintiff’s speedy

trial rights would have divested the court of jurisdiction. Because the plaintiff’s habeas

complaint alleged no set of facts that would support a finding that the court which entered

his conviction lacked jurisdiction or the occurrence of a postconviction event entitling him

to release, the circuit court properly dismissed his complaint. Gosier, 205 Ill. 2d at 205.

¶ 13 CONCLUSION

¶ 14 For the foregoing reasons, the judgment of the circuit court of Christian County is

affirmed.

¶ 15 Affirmed.