NOTICE 2024 IL App (4th) 230528-U FILED This Order was filed under October 10, 2024 Supreme Court Rule 23 and is Carla Bender not precedent except in the NOS. 4-23-0528, 4-24-0059 cons. 4th District Appellate limited circumstances allowed under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County SHANE ROBERT EDWARD LONG, ) No. 20CF922 Defendant-Appellant. ) ) Honorable ) William A. Yoder, ) Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court Justices Zenoff and Knecht concurred in the judgment.
ORDER
¶1 Held: (1) The trial court properly dismissed defendant’s petition for postconviction relief at the first stage because he failed to state the gist of a constitutional claim of ineffective assistance of appellate counsel and (2) the trial court properly dismissed his petition for relief from judgment sua sponte because the petition failed to raise any matters relating to evidence that was discovered after his trial.
¶2 Defendant Shane Robert Edward Long appeals from orders of the trial court
(1) summarily dismissing his petition for postconviction relief and (2) dismissing his petition for
relief from judgment. We find no error and affirm.
¶3 I. BACKGROUND
¶4 A. Trial Proceedings ¶5 We recounted the trial proceedings at greater length in our decision on defendant’s
direct appeal, so we will only briefly summarize the relevant facts here. See People v. Long, 2022
IL App (4th) 220230-U, ¶¶ 5-17.
¶6 Defendant was charged with one count of escape (failure to comply with a condition
of the electronic monitoring or home detention program) (730 ILCS 5/5-8A-4.1(a) (West 2020))
and one count of violating of an order of protection (720 ILCS 5/12-3.4(a)(1) (West 2020)). Both
charges alleged that defendant had entered an exclusion zone of 500 feet of a particular residence
in Bloomington, Illinois. The indictment for escape specifically alleged that “defendant, a person
charged with a felony in McLean County Case 2020-CF-836 and conditionally r[e]leased from the
supervising authority through an electronic monitoring program, knowingly violated a condition
of the electronic monitoring program by entering and remaining within the exclusion zone.”
¶7 Before trial, defendant validly waived counsel pursuant to Illinois Supreme Court
Rule 401 (eff. July 1, 1984). During the Rule 401 colloquy, the trial court confirmed that defendant
understood the specific allegations in the indictment; the court emphasized that defendant would
be held to the same standards as an attorney and would not be able to complain on appeal that he
received the ineffective assistance of trial counsel. See Faretta v. California, 422 U.S. 806, 834
n.46 (1975) (“[W]hatever else may or may not be open to him on appeal, a defendant who elects
to represent himself cannot thereafter complain that the quality of his own defense amounted to a
denial of ‘effective assistance of counsel.’ ”).
¶8 Defendant proceeded to represent himself at trial and sentencing. At no point before
or during trial did defendant address the provisions of the Unified Code of Corrections (Unified
Code) defining “supervising authority” and “electronic monitoring” or the provisions governing
-2- notice and written consent to electronic monitoring (730 ILCS 5/5-8A-2, 5-8A-4, 5-8A-5 (West
2020)).
¶9 At trial, the State introduced an “Order for Electronic Monitoring” entered by the
trial court. The order provided that defendant was “to be placed on the appropriate monitoring
program hooked up by CAM Systems and supervised by McLean County Court Services” and that
“[d]efendant [was] to comply with and complete the following conditions,” including “GPS
monitoring with Exclusion Zones of 500 feet from the protected address(es) as a condition of
Pretrial Supervision.” Defendant objected to the introduction of the order because it had not been
produced in discovery; the court admitted the order over this objection.
¶ 10 Over the same objection, the trial court took judicial notice of facts from the court
files, including that
“the following special conditions of bond were ordered: *** 2. That [defendant]
not go within [the exclusion zone.] 3. That the court also entered an Order for
Electronic Monitoring order that the defendant comply with GPS monitoring via a
GPS monitoring ankle bracelet provided by a private company called CAM
Systems that would monitor whether he came within [the exclusion zone].”
Pursuant to Illinois Rule of Evidence 201(g) (eff. Jan. 1, 2011), the court informed the jury that it
could, but was not required to, accept the judicially noticed facts as conclusive.
¶ 11 At the jury instruction conference, the State tendered two instructions from the
Illinois Pattern Jury Instructions, Criminal (hereinafter IPI Criminal), both drawn from the
language of the escape statute (730 ILCS 5/5-8A-4.1(a) (West 2020)).
¶ 12 The first instruction, based on IPI Criminal No. 22.76 (eff. Feb. 8, 2019), provided:
-3- “To sustain the charge of escape, the State must prove the following
propositions:
First Proposition: That the defendant was charged with a felony; and
Second Proposition: That the defendant was conditionally released from a
supervising authority through an electronic monitoring program; and
Third Proposition: That the defendant knowingly violated a condition of
the electronic monitoring program by entering the exclusion zone ***.
If you find from your consideration of all the evidence that each one of these
propositions has been proved beyond a reasonable doubt, you should find the
defendant guilty.
If you find from your consideration of all the evidence that any one of these
propositions has not been proved beyond a reasonable doubt, you should find the
defendant not guilty.”
Defendant “object[ed] on prejudicial knowingly violates.” The trial court gave the instruction over
defendant’s objection.
¶ 13 The second instruction provided that “[a] person charged with a felony commits the
offense of escape when he is conditionally released from a supervising authority through an
electronic monitoring program and he knowingly violates a condition of the electronic monitoring
program by entering the exclusion zone.” See IPI Criminal No. 22.75 (eff. Feb. 8, 2019).
Defendant “object[ed] to prejudicial evidence.” The trial court gave the instruction over
¶ 14 In its closing argument, the State addressed the second proposition as follows:
-4- “The second proposition is that the defendant was conditionally released
from a supervising authority through an electronic monitoring program, which is a
long way of saying that he had been released from jail on his ankle monitor.
You will see when you get the documents back and are going through them
that we have proven that not only by the judicial notice that was taken and read to
you in court, but through the documents themselves that you will look at. You will
see the order for electronic monitoring that was entered ordering the defendant to
comply with the GPS program. You will see the bond form that shows that he had
been released on this program with the date of release. You will see his signature,
or what purports to be his signature, on that bond form along with the conditions
that, again, reiterates what you’ve heard me and others say over and over
throughout this trial, 500 feet of that protected residence. That’s what this was all
about. And the defendant was told this and knew this over and over as demonstrated
by the orders that you will have a chance to review.
We also know that he was on that electronic monitoring program because
he did, in fact, have an ankle monitor at the time of his arrest. You heard testimony
about that from Sergeant Thornton, and you saw a couple of photographs of the
monitor after it had been removed from his person.”
Defendant did not object to the prosecutor’s characterization of the escape statute and did not
address the second proposition in his own closing argument.
¶ 15 The jury convicted defendant on both counts against him. Defendant moved for a
judgment of acquittal and for a new trial. For the first time, defendant challenged the validity of
the order for electronic monitoring based on other sections of the Unified Code, arguing that the
-5- State had failed to produce evidence that he had been notified that “violation of the order for home
detention m[ight] subject [him] to prosecution for the crime of escape” (730 ILCS 5/5-8A-4(H)
(West 2020)) or that he had consented to the electronic monitoring program in writing (see id. § 5-
8A-5(A)). The trial court denied defendant’s motions. Defendant was ultimately sentenced to
concurrent sentences of nine years’ imprisonment for escape and three years’ imprisonment for
violating the order of protection.
¶ 16 Defendant appealed.
¶ 17 B. Direct Appeal
¶ 18 Defendant’s appointed counsel raised two issues on direct appeal.
¶ 19 First, counsel argued that defendant’s convictions for escape and for violating an
order of protection violated the one-act, one-crime rule because they were based on the same
physical act, i.e., defendant’s entry into the exclusion zone. The State conceded this issue, so we
accepted the concession and vacated defendant’s conviction and three-year sentence for violating
an order of protection, the less serious offense. Long, 2022 IL App (4th) 220230-U, ¶¶ 20-23.
¶ 20 Second, counsel argued that defendant’s nine-year sentence for escape was
excessive because the trial court failed to give adequate weight to the mitigating factors. Because
the court adequately considered and weighed all relevant factors, we found no abuse of discretion
and affirmed. Id. ¶¶ 25-31.
¶ 21 We issued our mandate on January 18, 2023.
¶ 22 C. Petition for Postconviction Relief
¶ 23 On April 3, 2023, defendant filed a pro se petition for postconviction relief pursuant
to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)).
¶ 24 In his petition, defendant raised the following four issues:
-6- “I Challenge the Face of the Indictment that by Illinois Statue 730 ILCS
5/5-8A-2(E) (2020) a Trial Court is Not considered a ‘Supervising Authority’ to
place [defendant] in the Electronic Monitor Program.
I Challenge the Indictment for the fact there was no Probable Cause
presented to the Grand Jury to Indict [defendant] on Escape—730 ILCS 5/5-8A-
4.1A (2020).
I Challenge the Conviction of ‘Escape’ for Retroactivity to the New
Substantive Rule change of 730 ILCS 5/5-8-4.1(A) (2021), by changing the ‘class
of conduct’ to at least 48 hrs in Violation of Electronic Monitor for a Class 3 Felony
of ‘Escape.’
I Challenge the Conviction on the Sufficiency of the Evidence at Trial to
Sustain a Conviction of Escape—730 ILCS 5/5-8A-4.1(A) (2020).”
Defendant asserted that his appellate counsel was ineffective for not raising these issues on direct
appeal.
¶ 25 The trial court dismissed defendant’s petition on May 10, 2023, concluding that it
was frivolous and patently without merit. The court found that the claims could have been raised
on direct appeal and that appellate counsel was not ineffective for failing to raise them because
none of the claims had merit at the trial court level.
¶ 26 Defendant appealed. The appeal was docketed in this court as case No. 4-23-0528;
at defendant’s request, we appointed a second attorney to represent him. Appellate counsel then
filed a motion to withdraw, stating that defendant had unequivocally communicated that he wished
to represent himself. We granted the motion and allowed defendant to proceed pro se. This appeal
has now been fully briefed.
-7- ¶ 27 D. Petition for Relief From Judgment
¶ 28 On October 2, 2023, while briefing was pending in appellate case No. 4-23-0528,
defendant filed a petition for relief from judgment pursuant to section 2-1401 of the Code of Civil
Procedure (735 ILCS 5/2-1401 (West 2022)), arguing that his conviction was “void” because the
“Trial Court *** &/or Pretrial Division or department did not have the ‘Supervising Authority’ to
enter a[n] order for electronic monitoring as a condition of pre-trial release in Case 20-CF836.”
The State did not file a response.
¶ 29 The trial court dismissed defendant’s petition sua sponte on November 21, 2023,
concluding that the petition raised issues that had been resolved against him on direct appeal and
in the court’s previous order dismissing his petition for postconviction relief; therefore, the petition
for relief from judgment was barred by res judicata.
¶ 30 Defendant appealed. The appeal was docketed in this court as case No. 4-24-0059;
on defendant’s motion, we appointed a third attorney to represent him. Appellate counsel then filed
a motion to withdraw, arguing that the appeal presented no issues of arguable merit. Defendant
failed to respond, so we took the motion with the case. Because the underlying issues in case No.
4-24-0059 were also raised in case No. 4-23-0528, we consolidated the appeals sua sponte.
¶ 31 II. ANALYSIS
¶ 32 A. Petition for Postconviction Relief
¶ 33 On appeal, defendant has distilled the various claims in his petition for
postconviction relief into a single argument that “his conviction of Escape-failure to comply with
a condition of the electronic monitoring program was improper and *** his Appellate Attorney
was Ineffective for failing to raise on Appeal that [defendant] was not proven guilty beyond a
reasonable doubt at Trial.” According to defendant, the trial court’s order for electronic monitoring
-8- did not actually place him as a participant in the electronic monitoring program because (1) the
trial court is not a “supervising authority” that could establish conditions of “electronic
monitoring” as those terms are defined in the Unified Code (see 730 ILCS 5/5-8A-2(A-20), (E)
(West 2020)); (2) he was not given “[n]otice *** that violation of the order for home detention
m[ight] subject [him] to prosecution for the crime of escape as described in Section 5-8A-4.1” (id.
§ 5-8A-4(H)); and (3) he never provided “written consent *** to comply with the rules and
regulations of the program as stipulated in subsections (A) through (I) of Section 5-8A-4” (id.
§ 5-8A-5). Because the State failed to produce sufficient evidence on these matters, defendant
argues, his conviction must be reversed outright and his appellate counsel was ineffective for
failing to argue as much on direct appeal.
¶ 34 We note that defendant raised unrelated claims in his petition for postconviction
relief; however, he addresses only this claim in his opening brief, so we limit our consideration to
this claim. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“Points not argued are forfeited and shall
not be raised in the reply brief, in oral argument, or on petition for rehearing.”).
¶ 35 1. Legal Standard
¶ 36 The Act states:
“Any person imprisoned in the penitentiary may institute a proceeding under this
Article if the person asserts that:
(1) in the proceedings which resulted in his or her conviction there was a
substantial denial of his or her rights under the Constitution of the United States or
of the State of Illinois or both.” 725 ILCS 5/122-1(a) (West 2022).
¶ 37 As this court has explained:
-9- “The [Act] provides defendants with a vehicle to allege violations of their
constitutional rights that were not, and could not have been, raised on direct review.
People v. Allen, 2015 IL 113135, ¶ 20. Proceedings under the Act occur in three
stages. Id. ¶ 21. At the first stage, the trial court considers the petition without input
from the parties and may only dismiss where it is ‘frivolous or patently without
merit.’ Id. ¶ 25. A frivolous petition relies on ‘ “an indisputably meritless legal
theory or a fanciful factual allegation.” ’ Id. (quoting People v. Hodges, 234 Ill. 2d
1, 16 (2009)). Our supreme court has defined meritless legal theories as those
‘completely contradicted by the record’ and fanciful factual allegations as based on
‘fantastic or delusional’ scenarios. (Internal quotation marks omitted.) Id.
First-stage pleading standards are ‘forgiving.’ Id. ¶ 43. The Act intends that most
petitions be tested through the later adversarial stages. See id. ¶ 25 (there are
‘limited number of reasons for summary dismissal’); see also Hodges, 234 Ill. 2d
at 9 (at [the] first stage [the] ‘threshold for survival is low’).” People v. Hayes, 2022
IL App (1st) 190881-B, ¶ 23.
“The summary dismissal of a postconviction petition is reviewed de novo.” People v. Tate, 2012
IL 112214, ¶ 10.
¶ 38 It is well established that
“[p]ostconviction proceedings are collateral to proceedings on direct appeal and,
thus, focus on constitutional claims that have not and could not have been
previously adjudicated. [Citation.] For that reason, the doctrine of res judicata bars
issues that were raised and decided on direct appeal, and forfeiture precludes issues
- 10 - that could have been raised but were not.” (Internal quotation marks omitted.)
People v. Moore, 2023 IL App (4th) 210245, ¶ 44.
These procedural barriers apply at the first stage (People v. Blair, 215 Ill. 2d 427, 443 (2005)) and
will only “be relaxed in three circumstances: where fundamental fairness so requires, where the
[procedural barrier] stems from the ineffective assistance of appellate counsel, or where the facts
relating to the claim do not appear on the face of the original appellate record” (People v. Williams,
209 Ill. 2d 227, 233 (2004)).
¶ 39 Here, defendant argues that his forfeiture should be relaxed because his appellate
counsel was ineffective for failing to raise an issue on direct appeal. “A criminal defendant is
guaranteed the effective assistance of appellate counsel as of right [citations], and a claim of
ineffective assistance of counsel on appeal is cognizable under the [Act] [citation].” People v.
Mack, 167 Ill. 2d 525, 531 (1995). This constitutional right is freestanding in that it may provide
a basis for postconviction relief even if the underlying issue does not involve a trial error of
constitutional dimension. See, e.g., People v. English, 2013 IL 112890, ¶¶ 31-35 (addressing
appellate counsel’s failure to argue in favor of a new interpretation of a statute).
¶ 40 At the second stage of postconviction proceedings, the relevant standard for
evaluating defendant’s claim of ineffectiveness would be as follows:
“The two-pronged Strickland v. Washington, 466 U.S. 668 *** (1984), test
applies to claims of ineffective appellate counsel. [Citation.] A defendant who
claims that appellate counsel was ineffective for failing to raise an issue on appeal
must allege facts demonstrating such failure was objectively unreasonable and that
counsel’s decision prejudiced defendant. [Citation.] If the underlying issue is
- 11 - nonmeritorious, the defendant has suffered no prejudice. [Citation.]” People v.
Rogers, 197 Ill. 2d 216, 223 (2001).
The Seventh Circuit has described the Strickland test as follows:
“[If] appellate counsel failed to raise a significant and obvious issue, the failure
could be viewed as deficient performance. If an issue which was not raised may
have resulted in a reversal of the conviction, or an order for a new trial, the failure
was prejudicial. *** Significant issues which could have been raised should then
be compared to those which were raised. Generally, only when ignored issues are
clearly stronger than those presented, will the presumption of effective assistance
of counsel be overcome.” Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986).
¶ 41 At the first stage, however, the standard is more lenient; the petition needs only to
allege that “ ‘(i) it is arguable that counsel’s performance fell below an objective standard of
reasonableness and (ii) it is arguable that the defendant was prejudiced.’ ” (Emphases in original.)
Tate, 2012 IL 112214, ¶ 19 (quoting Hodges, 234 Ill. 2d at 17). As with any petition under the Act,
dismissal is only appropriate at the first stage “if the petition’s allegations, taken as true, fail to
present the gist of a meritorious constitutional claim.” People v. Collins, 202 Ill. 2d 59, 66 (2002).
¶ 42 Synthesizing these various standards leads to the following: Defendant may present
the gist of a constitutional claim under the Act by (1) identifying the underlying issue that appellate
counsel could have raised on direct appeal but did not, resulting in forfeiture; (2) showing arguable
prejudice, i.e., that the underlying issue was arguably meritorious and could have resulted in a
more favorable outcome than he actually received on direct appeal; and (3) showing arguable
deficiency, i.e., that the underlying issue was arguably stronger than the issues appellate counsel
decided to raise, considering the state of the law at the time of that decision. We conclude that
- 12 - defendant has satisfied the first component of this inquiry, but he failed to satisfy the second
component, so we decline to address the third.
¶ 43 2. Identifying the Underlying Issue
¶ 44 Defendant frames the underlying issue as a challenge to the sufficiency of the
evidence, which is “cognizable for the limited purpose of determining whether appellate counsel’s
failure to raise the sufficiency of the evidence on direct appeal constituted ineffective assistance.”
People v. Franzen, 251 Ill. App. 3d 813, 822 (1993). We find that appellate counsel could have
raised this issue for the first time on appeal because the record shows that defendant did not
procure, invite, or acquiesce in the admission of the evidence that he now claims is insufficient.
See People v. Woods, 214 Ill. 2d 455, 470, 475 (2005).
¶ 45 However, we think defendant’s challenge to the correctness of the jury’s conclusion
goes more to the legal adequacy of the jury’s instructions than the sufficiency of the evidence
supporting the jury’s findings based on those instructions. See People v. Hopp, 209 Ill. 2d 1, 8
(2004) (“The function of jury instructions is to convey to the jurors the law that applies to the facts
so they can reach a correct conclusion.”). Defendant’s framing of his argument is not fatal to his
petition because “a pro se petitioner is not required to use precise legal language” (People v.
Knapp, 2020 IL 124992, ¶ 50), and even parties represented by counsel may improperly use the
phrase “sufficiency of the evidence” to refer to what is really a trial error (People v. Casler, 2020
IL 125117, ¶ 66).
¶ 46 Accordingly, we find that defendant has fairly identified a second underlying issue
that his appellate counsel could have raised on direct appeal: whether the trial court committed
plain error by failing to sua sponte instruct the jury on his current legal theories that the term
- 13 - “supervising authority” does not include the trial court and that the electronic monitoring program
was invalid without his informed written consent.
¶ 47 3. Arguable Prejudice
¶ 48 We next consider whether defendant has showed that these two underlying issues
are arguably meritorious; if not, defendant has not shown arguable prejudice. See Rogers, 197 Ill.
2d at 223.
¶ 49 a. Sufficiency of the Evidence
¶ 50 Defendant argues that appellate counsel should have raised the issue that the
evidence at trial was insufficient to sustain his conviction for escape. “When a defendant
challenges the sufficiency of the evidence, the relevant inquiry is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Woods, 214 Ill. 2d at 470 (citing
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); People v. Cunningham, 212 Ill. 2d 274, 278
(2004)).
¶ 51 The key flaw with defendant’s overall challenge to the jury’s finding of guilt is that
it relies on provisions of the Unified Code about which the jury was never instructed: the definition
of “supervising authority,” the definition of “electronic monitoring,” and the provisions governing
notice and written consent to electronic monitoring. 730 ILCS 5/5-8A-2, 5-8A-4, 5-8A-5 (West
2020). However, it was the trial court’s obligation to address any relevant questions of statutory
interpretation and to instruct the jury accordingly. See People v. Hartfield, 2022 IL 126729, ¶ 51.
In the absence of instructions addressing defendant’s current legal theories, the jury was left to
decide his guilt based on its common understanding of the terms used in the jury instructions,
which were drawn solely from section 5-8A-4.1 (730 ILCS 5/5-8A-4.1 (West 2020)). The jury
- 14 - cannot be faulted if its common understanding differed from a specialized meaning ascribed to
those terms in a statute or judicial decision about which it was never instructed. It is essential to
remember here that we are examining the jury’s decision as instructed; the propriety of those
instructions is a separate issue and will be addressed below.
¶ 52 For this reason, “[w]e determine [whether] the evidence was sufficient under the
instruction[s] that w[ere] given,” even if those instructions were based on an erroneous
interpretation of the law. Casler, 2020 IL 125117, ¶ 65. Similarly, we consider all of the evidence
admitted at trial when making a sufficiency determination, even if the trial court erroneously
admitted some of that evidence. People v. McKown, 236 Ill. 2d 278, 311 (2010). Here, we conclude
that defendant has not raised an arguably meritorious claim that under the instructions given, the
jury’s decision to convict him was irrational.
¶ 53 The evidence showed that defendant was in a program that monitored his location
through an electronic ankle monitor and that he was being supervised by at least one of three
authorities (the trial court, McLean County Court Services, and CMS Systems) on a condition that
he stay out of the exclusion zone. Applying its ordinary understanding of the language in the
instructions given, a rational jury could obviously conclude that defendant was “conditionally
released from a supervising authority through an electronic monitoring program” (730 ILCS
5/5-8A-4.1(a) (West 2020)) and that “a condition of the electronic monitoring program” (id.
§ 5-8A-4.15(a)) was that he stay out of the exclusion zone. Because defendant’s claim that no
rational jury could reach this conclusion is completely contradicted by the record, it is meritless;
therefore, we find that he has not shown arguable prejudice from appellate counsel’s failure to
raise this issue.
¶ 54 b. Jury Instructions
- 15 - ¶ 55 We now pivot to the entirely separate question of whether the jury should have been
instructed on defendant’s current legal theories. Cf. People v. Duffie, 2022 IL App (2d) 210281,
¶¶ 9, 21 (finding that trial court properly declined to instruct the jury that notice was an element of
the offense of escape); People v. Rogers, 2012 IL App (1st) 102031, ¶ 62 (finding that the jury
should have been instructed on the contested issue of whether “day reporting” was a condition of
the defendant’s electronic monitoring program). We note that while a conviction based on
insufficient evidence is subject to outright reversal on direct appeal (Casler, 2020 IL 125117, ¶ 60),
the remedy for a conviction based on inadequate jury instructions is a new trial in front of a
properly instructed jury (People v. Hale, 2012 IL App (4th) 100949, ¶ 25).
¶ 56 At trial, defendant could easily have asked the trial court to instruct the jury on the
statutory definitions of the terms “supervising authority” and “electronic monitoring” pursuant to
Illinois Supreme Court Rule 451(c) (eff. Apr. 8, 2013). See People v. Turner, 128 Ill. 2d 540, 562
(1989) (“It is the burden of the party who desires a specific instruction to present it to the court
and request that it be given to the jury.”). Furthermore, defendant could have specifically asked
the trial court to instruct the jury on his theories that the term “supervising authority” does not
include the trial court and that the electronic monitoring program was invalid without his informed
written consent. Cf. IPI Criminal No. 11.87A (approved Dec. 8, 2011) (“The phrase ‘follows
another person’ does not include a following within the residence of the defendant.”); IPI Criminal
No. 18.41[2] (approved Dec. 8, 2011) (requiring the State to prove consent as an element of an
offense). If the trial court determined that any of defendant’s tendered instructions accurately
stated the law and should have been given to the jury, it could have given them. Ill. S. Ct. R. 451(a)
(eff. Apr. 8, 2013). If it decided not to give any of defendant’s tendered instructions, defendant
- 16 - could have challenged that decision on direct appeal. See, e.g., People v. Rutigliano, 2020 IL App
(1st) 171729, ¶ 68.
¶ 57 However, defendant failed to tender any such instructions, so he forfeited this issue.
People v. Anderson, 325 Ill. App. 3d 624, 636 (2001) (“[N]o party may raise on appeal the failure
to give any instruction unless he tendered it to the court.”). Defendant represented himself at trial,
so he cannot blame this forfeiture on the ineffective assistance of trial counsel. See Faretta, 422
U.S. at 834 n.46. Accordingly, the only way that appellate counsel could have raised this issue on
direct appeal was through the plain-error doctrine, which applies to “unpreserved jury instruction
errors pursuant to Rule 451(c).” Hartfield, 2022 IL 126729, ¶ 49.
¶ 58 As with plain errors under Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967),
the alleged error must truly have been plain, i.e., clear or obvious. Id. ¶ 50. The supreme court has
explained that under this strict test, “the erroneous omission of a jury instruction rises to the level
of plain error only when the omission creates a serious risk that the jurors incorrectly convicted
the defendant because they did not understand the applicable law, so as to severely threaten the
fairness of the trial.” Hopp, 209 Ill. 2d at 8; cf. Henderson v. Kibbe, 431 U.S. 145, 155 (1977)
(finding no constitutional violation resulted from an omitted instruction when the defendant’s
“claim of prejudice [wa]s based on the failure to give any explanation beyond the reading of the
statutory language itself of the [omitted] element”). A trial court’s failure to instruct the jury on an
element of the offense sua sponte warrants reversal when it “ ‘remove[s] from the jury’s
consideration a disputed issue essential to the determination of [the] defendant’s guilt or
innocence.’ ” Hopp, 209 Ill. 2d at 8 (quoting People v. Ogunsola, 87 Ill. 2d 216, 223 (1981)); see
People v. Mohr, 228 Ill. 2d 53, 65 (2008) (“The task of a reviewing court is to determine whether
- 17 - the instructions, considered together, fully and fairly announce the law applicable to the theories
of the State and the defense.”).
¶ 59 In conducting this inquiry, the reviewing court would have had to “consider[ ] the
effect that the omission had on [the] defendant’s trial” (Hopp, 209 Ill. 2d at 10) and would have
had to “answer two preliminary questions. First, what would a correct instruction have told the
jury? Second, what was the essential disputed issue in this case?” Id. at 12. On the first preliminary
question, defendant is essentially arguing that the jury should have been told that the term
“supervising authority” did not include the trial court and that the electronic monitoring program
was invalid without his informed written consent. We need not decide whether these instructions
would have been correct, however, because defendant’s argument fails on the second preliminary
question.
¶ 60 It was clear as soon as defendant was indicted that the State would need to prove
that he was “conditionally released from the supervising authority through an electronic
monitoring program” and “knowingly violated a condition of the electronic monitoring program
by entering and remaining within the exclusion zone.” When defendant waived counsel, he
confirmed that he understood this charge, and he had ample opportunity before and during trial to
address (1) whether the trial court was a supervising authority and (2) whether the electronic
monitoring program was valid without his informed written consent. However, the first time these
issues appear in the record is in defendant’s posttrial motions, too late for the State or the court to
address them at trial. Contra id. at 14 (noting that the alleged instructional error involved “the
essential disputed issue” at trial).
¶ 61 In the absence of any record support to show that this issue was disputed at trial,
defendant can only speculate about the effect the omission may have had on the jury’s decision,
- 18 - and “[s]peculation about what the jury may have thought is insufficient to show that the omission
of the instruction *** severely threatened the fairness of defendant’s trial and that it was plain
error.” See id. at 17; see also People v. Underwood, 72 Ill. 2d 124, 130 (1978) (“Enlightened trial
practice does not permit [a party] under the guise of trial strategy to sit idly by and permit
instructions to be given the jury without specific objection and then be given the advantage of
predicating error thereon by urging the error for the first time in a post trial motion.” (Internal
quotation marks omitted.)). Because any argument that the trial court committed plain error by
failing to sua sponte instruct the jury on defendant’s current legal theories is completely
contradicted by the record, defendant has not shown arguable prejudice from appellate counsel’s
failure to raise this issue.
¶ 62 Because we have found that defendant failed to show arguable prejudice on either
underlying issue, we need not address arguable deficiency or the State’s argument regarding
judicial estoppel.
¶ 63 We also have no need to address the conclusion from the case relied on by
defendant, People v. Murphy, 2019 IL App (4th) 170543-U, ¶ 37, that a trial court cannot be a
“supervising authority” under the electronic monitoring statute. As an unpublished order from an
unrelated case, Murphy has no precedential value or binding effect, despite defendant’s arguments
to the contrary. See Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1, 2023). That said, we are aware of published
decisions from other districts that draw conclusions similar to that in Murphy. See People v.
Currey, 2024 IL App (2d) 230099, ¶¶ 22-23 (stating that trial courts issuing pretrial release orders
are not “supervising authorities”); People v. Donahue, 2022 IL App (5th) 200274, ¶¶ 23-24
(distinguishing between pretrial “home supervision” and “home detention”). While those cases
dealt with the more anodyne task of calculating presentence custody credit, it is an altogether
- 19 - different and more serious matter to suggest that a defendant released pretrial but confined to his
home via electronic monitoring cannot be subject to criminal liability for violating that
confinement. It is important that trial courts know whether their pretrial orders for electronically
monitored home confinement bring with them the potential for criminal sanction in the event of
noncompliance. The answer to that question must await a case in which the issue is squarely
presented in a timely fashion. Until that point, however, the issue cannot form the basis for a
plain-error argument. See People v. Williams, 2015 IL App (2d) 130585, ¶ 11 (“Plain-error review
is reserved for errors that are clear or obvious based on law that is well settled at the time of trial.”
(Internal quotation marks omitted.)).
¶ 64 B. Petition for Relief From Judgment
¶ 65 After his petition for postconviction relief was dismissed, defendant raised similar
issues in his petition for relief from judgment, which the trial court also dismissed. Appellate
counsel in appellate case No. 4-24-0059 argues that defendant’s appeal from the court’s dismissal
of his petition for relief from judgment fails to present any issues of arguable merit. We agree.
¶ 66 First, we agree with counsel that the trial court’s sua sponte dismissal of the petition
was procedurally proper because the court waited the necessary 30 days before dismissing the
petition. See People v. Matthews, 2016 IL 118114, ¶ 8.
¶ 67 Second, we agree with counsel that a petition for relief from judgment was not an
appropriate vehicle for raising these issues because defendant failed to identify any “matters
relating to evidence that did not appear in the record of the trial court’s original proceedings and
that was discovered after trial was completed.” People v. Burrows, 172 Ill. 2d 169, 187 (1996).
¶ 68 Finally, we agree with counsel that there is no potentially meritorious argument that
defendant’s conviction is “void” for lack of jurisdiction. See People v. Castleberry, 2015 IL
- 20 - 116916, ¶ 15 (“[O]nly the most fundamental defects, i.e., a lack of personal jurisdiction or lack of
subject matter jurisdiction *** warrant declaring a judgment void.” (Internal quotation marks
omitted.)). The State’s filing of an information in the trial court was sufficient to meet the low bar
necessary to “invoke[e] the [trial] court’s subject matter jurisdiction over a justiciable criminal
matter.” People v. Hughes, 2012 IL 112817, ¶ 21. “Furthermore, the trial court acquired personal
jurisdiction over defendant when he personally appeared before the court.” People v. Rios, 2013
IL App (1st) 121072, ¶ 16. As such, defendant’s contention that the judgment was “void” fails on
the merits.
¶ 69 Because defendant’s appeal from the trial court’s order dismissing his petition for
relief from judgment presents no issues of arguable merit, we grant counsel’s motion to withdraw.
¶ 70 III. CONCLUSION
¶ 71 For the reasons stated, we affirm the trial court’s judgments.
¶ 72 No. 4-23-0528, Affirmed.
¶ 73 No. 4-24-0059, Motion granted; judgment affirmed.
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