People v. Waldrop

2022 IL App (2d) 220052-U

Opinion

2022 IL App (2d) 220052-U No. 2-22-0052 Order filed October 6, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 96-CC-14 ) ANDREW A. WALDROP, ) Honorable ) Keith A. Johnson, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court. Justices Hutchinson and Schostok concurred in the judgment.

ORDER

¶1 Held: We grant the appellate defender’s motion to withdraw because there is no arguably meritorious basis for an appeal.

¶2 Defendant, Andrew A. Waldrop, appeals from the order of the circuit court of Kane County

dismissing his petition under the Postconviction Hearing Act (Act) (720 ILCS 5/122-1 et seq.

(West 2012)). The appellate defender moves to withdraw as counsel, asserting that the appeal

presents no issue of arguable merit. We agree. Thus, we permit counsel to withdraw and affirm

the dismissal.

¶3 I. BACKGROUND 2022 IL App (2d) 220052-U

¶4 In August 1992, defendant pleaded guilty in case No. 92-CF-871 to aggravated discharge

of a firearm (Ill. Rev. Stat. 1991, ch. 38, ¶ 24-1.2) and received a sentence of probation. On

September 6, 1994, the State indicted defendant in case No. 94-CF-1492 for first-degree murder

(720 ILCS 5/9-1(a)(2) (West 1994)) and filed a petition to revoke defendant’s probation in case

No. 92-CF-871. During an appearance on August 16, 1996, the trial court commented on the

record that defendant had stripped naked in the lockup. When defendant was “sufficiently

covered” and came into court, he spat on defense counsel, threatened to sexually assault the

prosecutor, and used profanity. The trial court stated that, based on defendant’s acts in open court,

it found defendant in criminal contempt and sentenced him to six months’ imprisonment. That

term would “be served above and beyond whatever [he] may or may not get” in the two pending

cases. Defendant then swore at the trial court, and the court sentenced him to another six months

for criminal contempt. A short time later, defendant again swore at the trial court and dared it to

impose a third six-month term. The trial court obliged and imposed a third six-month term. That

day, the trial court entered a written order in this case (No. 96-CC-14), finding that defendant was

in direct criminal contempt of court for “words and acts in open court.” The court sentenced

defendant to three six-month terms, for a combined 18 months’ imprisonment, “to be served in

addition to any sentence he may receive for [case No. 92-CF-871 or case No. 94-CF-1492].”

¶5 In September 1997, case No. 94-CF-1492 proceeded to a jury trial, and defendant was

found guilty of first-degree murder.

¶6 The trial court held a sentencing hearing on November 12, 1997. Based on the jury verdict

in case No. 94-CF-1492, the trial court revoked defendant’s probation in case No. 92-CF-871. The

court sentenced defendant in case No. 94-CF-1492 to 60 years’ imprisonment for first-degree

murder and resentenced defendant in case No. 92-CF-871 to 15 years’ imprisonment for

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aggravated discharge of a firearm. The court noted that the 18-month aggregate sentence for

contempt “would be added on top of everything else.” The court’s comment prompted this

exchange with defense counsel:

“MR. BUSCH [(DEFENSE ATTORNEY)]: Judge, if I may address that. It would

be the Defendant’s position that the contempt cases, the time has to be served promptly

upon sentencing and therefore the six month sentences would begin at the time the Court

imposed them.

THE COURT: If the law applies that way and the Appellate Court says that, then I

don’t have a problem with that. But as far as I’m concerned, they’re consecutive sentences.

And if the Appellate Court views that kind of conduct differently and believes that it should

be a concurrent, then we’ll certainly follow that issue.”

¶7 That day, the trial court entered separate sets of judgment orders and mittimuses in case

Nos. 92-CF-871 and 94-CF-1492. While the court entered no judgment order or mittimus

captioned under case No. 96-CC-14, the mittimuses in the other cases stated that defendant would

serve an 18-month term for criminal contempt consecutively to the sentences in case Nos. 92-CF-

871 and 94-CF-1492.

¶8 On November 13, 1997, defendant filed a motion to reconsider his sentences in case

Nos. 92-CF-871, 94-CF-1492, and 96-CC-14. Defendant argued that (1) the trial court improperly

weighed factors in aggravation and mitigation, (2) the sentences were unduly harsh given the

circumstances, (3) the court failed to properly credit defendant for time served, and (4) the court

erred in making the sentences consecutive to each other. That same day, the court denied the

motion and defendant filed notices of appeal in all three cases. Also, in all three cases, the trial

court ordered the preparation of the record and appointed the Office of the State Appellate

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Defender (OSAD) to represent defendant. The appeal in case No. 96-CC-14 was docketed as

appeal No. 2-97-1120. On August 25, 1998, defendant moved to file a late notice of appeal in case

No. 2-97-1120. On September 22, 1998, we denied the motion for lack of jurisdiction. This

concluded the appeal (defendant’s later motion to dismiss the appeal was denied as moot based on

the September 1998 order).

¶9 Meanwhile, on January 9, 1998, the trial court entered a mittimus in No. 96-CC-14,

specifying that defendant’s sentence of 18 months’ imprisonment would run consecutively to his

sentences in case Nos. 92-CF-871 and 94-CF-1492.

¶ 10 On October 10, 2013, defendant filed a pro se postconviction petition under the Act. On

February 14, 2014, the trial court advanced the petition to the second stage of proceedings under

the Act and appointed counsel for defendant. Counsel filed neither an amended petition nor a

certificate under Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) stating that counsel was

adopting the pro se petition.

¶ 11 On June 5, 2014, the State moved to dismiss the pro se petition as, inter alia, untimely. On

June 29, 2017, the trial court dismissed the petition as untimely. Defendant appealed. The State

confessed error, stating that the dismissal must be vacated and the matter remanded for further

proceedings because the record contained no Rule 651(c) certificate. Accepting the State’s

confession of error, we vacated the dismissal and remanded for further second-stage proceedings,

including the appointment of new counsel and compliance with Rule 651(c).

¶ 12 On remand, new counsel filed on April 8, 2021, an amended petition and a Rule 651(c)

certificate. The amended petition raised four claims.

¶ 13 First, defendant claimed that the trial court erred in entering the January 9, 1998, mittimus

in case No. 96-CC-14. Defendant characterized the mittimus as “ex parte, as no defense counsel

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is listed, nor is the date among those included in the Report of Proceedings.” Defendant claimed

that, because the trial court did not stay the 18-month sentence for criminal contempt when

imposing it on August 16, 1996, defendant began serving that sentence instanter. Thus, as of

January 9, 1998, he had served nearly the entire 18 months. Defendant asked, “in the interest of

justice,” for “an order *** striking the ex parte order of January 9, 1998.” The requested order

“would have the effect of acknowledging that he has already served his sentence in the instant

case, leaving him to serve the time remaining on his sentences in [case Nos. 92 CF 871 and 94 CF

1492].”

¶ 14 Second, defendant argued that he was entitled to a jury trial before being found in criminal

contempt. He noted that, although his acts “all occurred in a short span of time,” he was found

guilty of “three separate and enumerated acts” and given three sentences that in combination

exceeded the maximum that a court can impose for criminal contempt without affording the

defendant a jury trial. He relied on the sixth amendment to the United States Constitution (U.S.

Const., amend. VI) as interpreted in Codispoti v. Pennsylvania, 418 U.S. 506 (1974), and Bloom

v. Illinois, 391 U.S. 194 (1968), and on article I, section 13, of the Illinois Constitution (Ill. Const.

1970, art. I, § 13).

¶ 15 Third, defendant argued that trial counsel denied him the effective assistance of counsel by

failing to include, in the November 1997 motion to reconsider sentence, a specific challenge to the

sentences on the contempt findings. Had counsel done so, (1) “he could have brought *** issues

***, specifically the right to trial by jury and possible abuse of discretion, to the attention of the

trial court”; (2) “[t]he court would then have had the opportunity to reconsider its ruling in light of

the cited constitutional provisions and caselaw”; and (3) “all parties would have understood that

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Defendant/Petitioner began serving his sentence on August 16, 1996, obviating the necessity of

the instant proceeding.”

¶ 16 Fourth, defendant argued that, for the same reasons, appellate counsel was ineffective for

failing to timely appeal the contempt finding. Defendant referenced our September 1998 denial

of his motion to file a late notice of appeal in appeal No. 2-97-1120.

¶ 17 The amended petition contained no allegations explaining why defendant filed his petition

outside the Act’s three-year limitations period. See 725 ILCS 5/122-1(c) (West 2012).

¶ 18 On May 24, 2021, the State moved to dismiss the amended petition. The State argued,

inter alia, that defendant filed the petition beyond the Act’s limitations period and did not attempt

to excuse the untimeliness by alleging a lack of culpable negligence.

¶ 19 On January 11, 2022, the trial court dismissed the petition as time-barred and did not reach

the petition’s merits.

¶ 20 Defendant timely appealed, and the trial court appointed OSAD to represent him.

¶ 21 II. ANALYSIS

¶ 22 Per Pennsylvania v. Finley, 481 U.S. 551 (1987), and People v. Lee, 251 Ill. App. 3d 63

(1993), the appellate defender moves to withdraw as counsel. In his motion, counsel states that he

read the record and found no issue of arguable merit. Counsel further states that he advised

defendant of his opinion. Counsel supports his motion with a memorandum of law providing a

statement of facts, a list of potential issues, and arguments why those issues lack arguable merit.

We advised defendant that he had 30 days to respond to the motion. Defendant did not respond.

¶ 23 Counsel discusses three potential issues: (1) whether the trial court erred in dismissing the

amended petition as untimely, (2) whether the amended petition had substantive merit, and

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(3) whether postconviction counsel provided reasonable assistance in amending defendant’s pro se

petition. We agree with defendant’s counsel that all three issues lack arguable merit.

¶ 24 The Act allows a defendant to challenge his or her conviction or sentence because of

constitutional violations. See 725 ILCS 5/122-1(a)(1) (West 2020). The Act establishes three

stages of review. People v. Domagala, 2013 IL 113688, ¶ 32. Here, the trial court advanced the

pro se petition to the second stage of review, where counsel is appointed, and the defendant bears

the burden of making a substantial showing of a constitutional violation. People v. Edwards, 197

Ill. 2d 239, 245-46 (2001). At the second stage, the State may move to dismiss the petition as

untimely. People v. Perkins, 229 Ill. 2d 34, 48 (2007). We review de novo the second-stage

dismissal of a petition. People v. Johnson, 2017 IL 120310, ¶ 14.

¶ 25 When defendant filed his pro se petition in October 2013, the Act required that he file the

petition “no later than 3 years from the date of conviction, unless the petitioner allege[d] facts

showing that the delay was not due to his or her culpable negligence.” 725 ILCS 5/122-1(c) (West

2012). Defendant filed his petition long past the three-year limitations period. “If a postconviction

petition is not filed within the limitations period, the Act requires the petitioner to allege facts

showing the delay was not due to his or her culpable negligence.” Perkins, 229 Ill. 2d at 43. The

amended petition alleged no reason for being untimely. “Absent allegations of lack of culpable

negligence, the Act directs the trial court to dismiss the petition as untimely at the second stage

upon the State’s motion.” Id. Given our supreme court’s unequivocal direction in Perkins, we

agree with counsel that it would be frivolous to argue that the trial court improperly dismissed the

amended petition as untimely.

¶ 26 We also agree with counsel that the amended petition was substantively devoid of arguable

merit. We begin with defendant’s claim in the amended petition that the trial court’s contempt

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findings and sentences were improper. Defendant seemed to suggest in his petition that, because

the acts “all occurred in a short span of time,” he could not be held in contempt for “three separate

acts” and given a combined sentence that exceeded the maximum for a contempt charge that is not

tried by a jury. Defendant was mistaken. First, while defendant’s contemptuous conduct all

occurred within a relatively short period, three separate findings of contempt were appropriate

because there were three separate physical acts. See People v. Brown, 235 Ill. App. 3d 945, 950

(1992).

¶ 27 Second, defendant was not entitled to a jury trial on contempt. “The right to a trial by jury

is a fundamental right guaranteed by both the United States Constitution (U.S. Const., amends. VI,

XIV) and the Illinois Constitution (Ill. Const. 1970, art. I, § 8).” People v. Foster, 2022 IL App

(2d) 200098, ¶ 28. Defendant relied on the Supreme Court’s holdings in Codispoti and Bloom,

which one Illinois appellate decision encapsulates as follows:

“When the aggregate punishments for a particular course of criminally contemptuous

conduct committed in the presence of a judge exceed the parameters of punishments

normally imposed for misdemeanors and the punishments are not imposed immediately

after occurrence of the contemptuous conduct, the contemnor is entitled to a jury trial as to

the contempt charges.” In re Marriage of Betts, 200 Ill. App. 3d 26, 50 (1990).

“The traditional test for determining whether or not a charged offense is a misdemeanor is whether

the penalties exceed $500 or six months’ imprisonment.” Id. In Illinois, six months is the

maximum term of imprisonment a court may constitutionally impose without first affording the

defendant a jury trial. McLean County v. Kickapoo Creek, Inc., 51 Ill. 2d 353, 356 (1972). Thus,

Betts’ holding, put in other terms, is that if the contemptuous conduct occurs in the trial court’s

presence and the court immediately imposes punishment, the court can impose aggregate penalties

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exceeding six months’ imprisonment even without affording the defendant a jury trial. Here, the

trial court observed the contemptuous conduct and immediately imposed penalties. Therefore,

defendant had no right to a jury trial on contempt.

¶ 28 We turn next to defendant’s claim that the trial court erred in issuing the January 9, 1998,

mittimus concerning his 18-month contempt sentence. Defendant characterized the mittimus as

“ex parte” and thus improper. Counsel interprets defendant as implying that the mittimus was

void and, therefore, could be challenged at any time. Counsel asserts that the mittimus was not

void because, even after the trial court’s jurisdiction lapsed, the court retained authority to perform

such ministerial acts as reducing a judgment to writing. See People v. Flowers, 208 Ill. 2d 291,

306-07 (2003). Counsel is correct. However, defendant also suggested that the January 9, 1998,

mittimus signified the trial court’s misunderstanding that defendant had not begun serving his

sentence for contempt immediately when imposed. Defendant asserted that, because “[t]he court

did not order any stay on the sentence; *** Defendant began serving the sentence instanter.” Thus,

by defendant’s reckoning, he has already completed his sentence for contempt. Defendant is

mistaken.

¶ 29 A sentence commences when the trial court issues the mittimus. People v. Williams, 239

Ill. 2d 503, 509 (2011). When, in August 1996, the trial court imposed the 18-month sentence for

criminal contempt, the court did not contemporaneously issue a mittimus for that sentence.

Therefore, defendant did not begin to serve the contempt sentence then. The November 1997

mittimuses in case Nos. 92-CF-871 and 94-CF-1492 specified that defendant would serve his 18-

month term for contempt consecutively to the sentences in case Nos. 92-CF-871 and 94-CF-1492.

Not until January 1998 did the trial court issue a mittimus in case No. 96-CC-14. That mittimus,

too, specified that defendant would serve his 18-month contempt sentence consecutively to his

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sentences in the other cases. Contrary to defendant’s position, he has not begun to serve his

contempt sentence in case No. 96-CC-14 and will not do so until he completes his sentences in

case Nos. 92-CF-871 and 94-CF-1492.

¶ 30 The final two claims in the amended petition were that trial and appellate counsel alike

were ineffective for failing to challenge the contempt findings and sentences on the grounds set

forth in the prior two claims. To prevail on an ineffectiveness claim, a defendant must establish

both that (1) his counsel’s conduct fell below an objective standard of reasonableness under

prevailing professional norms and (2) he was prejudiced by counsel’s deficient conduct, i.e., a

reasonable probability exists that the result of the proceeding would have been different absent

counsel’s errors. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Since, as we have

shown, defendant’s challenges to the contempt findings and sentences had no arguable merit,

neither counsel was ineffective for failing to pursue them.

¶ 31 The final potential issue is whether postconviction counsel provided reasonable assistance

in preparing the amended petition. The right to counsel in postconviction proceedings is not

constitutional, but wholly statutory. People v. Suarez, 224 Ill. 2d 37, 42 (2007). The Act requires

postconviction counsel to provide a reasonable level of assistance. Id. To ensure that

postconviction counsel provides such assistance (id.), Rule 651(c) requires that the record

“contain a showing, which may be made by the certificate of petitioner’s attorney, that the

attorney has consulted with petitioner by phone, mail, electronic means or in person to

ascertain his or her contentions of deprivation of constitutional rights, has examined the

record of the proceedings at the trial, and has made any amendments to the petitions filed

pro se that are necessary for an adequate presentation of petitioner’s contentions.” Ill. S.

Ct. R. 651(c) (eff. July 1, 2017).

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The filing of a facially valid Rule 651(c) certificate raises a rebuttable presumption that

postconviction counsel provided reasonable assistance. People v. Wallace, 2016 IL App (1st)

142758, ¶ 25.

¶ 32 Postconviction counsel here filed a facially valid Rule 651(c) certificate with the amended

petition. Thus, a presumption of reasonable assistance arose, and we agree with counsel that the

record does not rebut that presumption. Notably, counsel does not discuss whether the amended

petition’s failure to allege a lack of culpable negligence—an omission compelling dismissal under

Perkins, 229 Ill. 2d at 43—suggests that postconviction counsel was deficient. Nevertheless, the

presumption of reasonable assistance leads us to conclude that counsel was not arguably deficient

in that respect. Perkins holds that Rule 651(c) requires postconviction counsel “to allege any

available facts necessary to establish that the delay [in filing the petition] was not due to the

petitioner’s culpable negligence.” (Emphasis added.) Id. at 49. “In discharging this duty, counsel

must inquire of the petitioner whether there is any excuse for the delay in filing.” Id. “As a

practical matter, any potential excuse for the late filing will often be discovered by speaking with

the petitioner.” Id. We presume that postconviction counsel conferred with defendant about the

untimeliness of the pro se petition and learned nothing to support an allegation that defendant was

not culpably negligent in the late filing. However, we stress that it would have been preferable for

postconviction counsel to address the issue of timeliness rather than leave courts to presume that

counsel considered the issue. Regardless, what matters for our purposes is that the record does not

rebut the presumption of reasonable assistance.

¶ 33 III. CONCLUSION

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¶ 34 After examining the record, the motion to withdraw, and the memorandum of law, we agree

with counsel that this appeal presents no issue of arguable merit. Thus, we grant the motion to

withdraw, and we affirm the judgment of the circuit court of Kane County.

¶ 35 Affirmed.

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