People v. Prough

2024 IL App (4th) 240077-U

• Court: Appellate Court of Illinois
• Decided: September 5, 2024
• Docket: 4-24-0077
• Status: Unpublished

Opinion

NOTICE 2024 IL App (4th) 240077-U FILED This Order was filed under September 5, 2024 Supreme Court Rule 23 and is NO. 4-24-0077 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Jersey County MARK L. PROUGH, ) No. 09CF122 Defendant-Appellant. ) ) Honorable ) April Troemper, ) Judge Presiding.

JUSTICE LANNERD delivered the judgment of the court. Presiding Justice Cavanagh and Justice Zenoff concurred in the judgment.

ORDER ¶1 Held: The appellate court affirmed, concluding the trial court properly dismissed defendant’s petition for habeas corpus relief.

¶2 Defendant, Mark L. Prough, appeals from the Jersey County circuit court’s

judgment dismissing his petition for habeas corpus relief. Defendant claims the court erroneously

dismissed his petition because his petition asserted several meritorious claims for relief. The State

responds the court properly dismissed defendant’s petition because all of his claims were barred

by the doctrine of res judicata or forfeited and he failed to state any meritorious claims for

habeas corpus relief. We affirm.

¶3 I. BACKGROUND ¶4 The underlying facts and procedural history of this case were recently discussed at

length in People v. Prough, 2023 IL App (4th) 210438-U, ¶¶ 7-36. Accordingly, this court will

discuss only those facts necessary to resolve the issue presented in this appeal.

¶5 On July 29, 2009, a grand jury charged defendant by indictment with first degree

murder, alleging that defendant, without lawful justification and with the intent to kill his father,

Dennis Prough, caused the death of Dennis Prough by shooting him in the upper chest area with a

shotgun, in violation of section 9-1(a) of the Criminal Code of 1961 (720 ILCS 5/9-1(a) (West

2008)). That same day, the Jersey County public defender was assigned to represent defendant,

and the case was continued to August 10, 2009, for arraignment. On August 7, 2009, defense

attorney Scott W. Schultz filed an entry of appearance in this matter. The entry of appearance

contained a caption indicating it was filed in the matter of “PEOPLE OF THE STATE OF

ILLINOIS vs. MARK PROUGH,” Case No. 09-CF-122. However, the body of the document

states, “Comes now, Defendant, LISA WARD, by and through his attorney, SCOTT W.

SCHULTZ, and he hereby enters his appearance.”

¶6 Later in 2009, the trial court found defendant unfit for trial, and he was committed

to the Illinois Department of Human Services for treatment. Following several years of treatment,

the court found defendant was restored to fitness in August 2013. In February 2014, defendant

pleaded guilty but mentally ill (see 730 ILCS 5/5-2-6 (West 2014)). Pursuant to his agreement

with the State, the court sentenced defendant to 30 years in prison.

¶7 Since his conviction, defendant has pro se filed numerous motions, pleadings,

petitions, and appeals. See Prough, 2023 IL App (4th) 210438-U, ¶¶ 7-36. Primarily, the goal of

these filings has been to secure his immediate release from prison. As relevant to this appeal, in

November 2023, defendant pro se filed a petition for habeas corpus relief based on “newly

-2- discovered evidence.” Among other things, the petition asserted Lisa Ward was permitted to

appear in defendant’s place at the initial appearance, and defendant was not present at such a

hearing. Defendant additionally asserted he was denied access to discovery by his defense attorney

and he is actually innocent of Dennis Prough’s murder. Later in November 2023, defendant pro se

filed a motion to amend his petition. In the motion, defendant asserted the trial court, the State, his

defense attorney, and a psychiatrist committed a crime when they allowed “Lisa Ward” to appear

as the defendant in this case.

¶8 On December 11, 2023, the trial court entered a written order dismissing

defendant’s petition for habeas corpus relief, concluding the petition and addendum “fail[ed] to

state a claim for relief, fail[ed] to plead sufficient facts, and fail[ed] to state claims that would

qualify as newly discovered evidence.” The court further found the petition and addendum were

untimely. Finally, the court found defendant’s filings were frivolous under section 22-105 of the

Code of Civil Procedure (Procedure Code) (735 ILCS 5/22-105 (West 2022)) and warranted

sanctions. Accordingly, the court ordered (1) the circuit court clerk to assess costs against

defendant related to his frivolous filings and (2) a copy of its order to be sent to the Illinois

Department of Corrections to facilitate a hearing on the revocation of any good time credit earned

under section 3-6-3(d) of the Unified Code of Corrections (730 ILCS 5/3-6-3(d) (West 2022)).

¶9 On January 10, 2024, defendant pro se filed a notice of appeal. On June 10, 2024,

while this appeal was pending, defendant filed a motion for a “default judgment,” which was taken

with the case. Initially, the Office of the State Appellate Defender (OSAD) was appointed to

represent defendant on appeal. However, on January 31, 2024, this court allowed OSAD’s motion

to withdraw as counsel on the grounds section 10 of the State Appellate Defender Act (725 ILCS

105/10(a) (West 2022)) limited OSAD’s representation to criminal proceedings and the

-3- proceedings in this case were civil in nature. On July 15, 2024, defendant filed a motion to strike

the State’s brief, which was also taken with the case. Finally, between July 18, 2024, and July 22,

2024, defendant filed correspondence with this court titled “Political Science Thesis” and “Anti

Thesis.” The correspondence primarily concerns the issues of prison overpopulation and

prescription selective serotonin reuptake inhibitors.

¶ 10 II. ANALYSIS

¶ 11 A. Defendant’s Motions

¶ 12 We first address defendant’s motions for a default judgment and to strike the State’s

brief. Defendant contends he is entitled to a default judgment because the State was represented

by counsel and he was not. He further argues the State’s brief should be stricken on the same

grounds.

¶ 13 First, we deny defendant’s motion for a default judgment because it is not a

recognizable form of relief in these proceedings on appeal. Under section 2-1301(d) of the

Procedure Code (735 ILCS 5/2-1301(d) (West 2022)), the trial court may enter judgment by

default “for want of an appearance” or “failure to plead.” This court cannot enter a judgment by

default because the trial court has already entered a judgment in the proceedings below, in which

the court entered its dismissal order sua sponte, and therefore no appearance or pleading from the

State was required. Instead, where an appellee fails to enter an appearance or file a responsive

brief, the appellate court’s options are outlined in First Capitol Mortgage Corp. v. Talandis

Construction Corp., 63 Ill. 2d 128, 133 (1976)—which this court need not discuss, because the

State (i.e., the appellee) in this case has filed a responsive brief here. The fact the State is

represented by counsel and defendant is not has no bearing on this issue. Defendant’s motion for

a default judgment lacks merit and is denied.

-4- ¶ 14 Next, defendant claims the State’s brief should be stricken because the State is

represented by counsel and he is not. First, this court cannot conceive of any way for the State to

appear in court other than through counsel, because the State is a government entity and not a

natural person. Moreover, we reiterate this court allowed OSAD’s motion to withdraw as counsel

after its initial appointment because these proceedings are civil in nature, and OSAD’s

representation is limited by statute to criminal and delinquency proceedings. See 725 ILCS

105/10(a) (West 2022) (“[OSAD] shall represent indigent persons on appeal in criminal and

delinquent minor proceedings, when appointed to do so by a court under a Supreme Court Rule or

law of this State.”). Despite defendant’s assertions, he has no statutory or constitutional right to

appointed counsel in these civil proceedings. His choices are limited to proceeding pro se or

obtaining private counsel. Defendant’s lack of counsel is not grounds to strike the State’s brief,

and his motion is therefore denied.

¶ 15 B. Dismissal of Defendant’s Petition

¶ 16 We next address defendant’s claim the trial court erred when it dismissed his

petition for habeas corpus relief. Specifically, on appeal, defendant argues that criminal activity

occurred within the trial court when “Lisa Ward” was allowed to make an appearance in this case

as the defendant on August 7, 2009. Defendant further argues that his detainment is illegal and

seeks relief under habeas corpus due to this alleged criminal activity and due to unrelated charges

from a Missouri case, which he claims were dismissed, being used in this case erroneously.

Defendant also complains trial counsel was ineffective and his decisions resulted in defendant’s

illegal detention. The State responds all of defendant’s claims were barred by the doctrine of

res judicata or forfeited and he failed to state any meritorious claims for habeas corpus relief. We

agree with the State and affirm.

-5- ¶ 17 In Illinois, to obtain habeas corpus relief, the petitioner must establish the presence

of one of the causes for discharge set forth in section 10-124 of the Procedure Code (735 ILCS

5/10-124 (West 2022)). Here, defendant seems to rely on section 10-124(6), which provides for

the petitioner’s discharge “[w]here the process appears to have been obtained by false pretense or

bribery.” Id. § 10-124(6). Upon the filing of a petition for habeas corpus relief, the trial court

conducts an initial review of the petition to determine whether it sufficiently establishes a question

as to the legality of the petitioner’s imprisonment. Hennings v. Chandler, 229 Ill. 2d 18, 26 (2008).

If the complaint meets this threshold, the court shall grant an order of habeas corpus. Id.

“Conversely, if it is clear from a review of the complaint that the plaintiff is not entitled to the

relief of habeas corpus, the order shall be denied.” Id. Additionally, the court may sua sponte

dismiss the petition when, upon review of the petition and supporting documents, the court

determines the petitioner cannot possibly be entitled to habeas corpus relief. Id. at 32. This court

reviews the dismissal of a petition for habeas corpus de novo. Ragel v. Scott, 2018 IL App (4th)

170322, ¶ 19.

¶ 18 The trial court properly denied defendant’s petition as failing to state a claim for

habeas corpus relief. First, the record does not support defendant’s contention that “Lisa Ward”

improperly appeared in defendant’s place when Schultz entered his appearance. The case caption

and number appearing on the entry of appearance all corresponded to defendant’s case, and the

inclusion of “Lisa Ward” appears to be no more than a scrivener’s error. As to the other claims in

defendant’s petition, our review of the record shows they are either barred by the doctrine of

res judicata or forfeited. Specifically, defendant’s arguments regarding his disapproval of defense

counsel filing a motion for a fitness examination and waiving counsel were previously ruled on

and denied multiple times by the trial court. Furthermore, it is unclear how defendant’s claim that

-6- a Missouri public defender acquired discovery from his Illinois case relates to any grounds for

discharge outlined in section 10-124 of the Procedure Code. We conclude no error occurred and

affirm the court’s judgment.

¶ 19 III. CONCLUSION

¶ 20 For the reasons stated, we affirm the trial court’s judgment.

¶ 21 Affirmed.

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