Opinion
5-23-0685
06-03-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRADLEY JAMES CORNILLE SR., Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Perry County. No. 11-CF-144 Honorable James W. Campanella, Judge, presiding.
JUSTICE McHANEY delivered the judgment of the court. Justices Cates and Sholar concurred in the judgment.
ORDER
McHANEY, JUSTICE.
¶ 1 Held: The circuit court did not err in dismissing defendant's postconviction petition where he had completed his sentence for the offense in question long before filing it, the claims lacked merit in any event, and the dismissal was procedurally proper. As any argument to the contrary would lack merit, we grant defendant's appointed counsel on appeal leave to withdraw and affirm the circuit court's judgment.
¶ 2 Defendant, Bradley James Cornille Sr., appeals the circuit court's order dismissing his postconviction petition. His appointed appellate counsel, the Office of the State Appellate Defender (OSAD), has concluded that there is no reasonably meritorious argument that reversible error occurred. Accordingly, it has filed a motion to withdraw as counsel along with a supporting memorandum. See Pennsylvania v. Finley, 481 U.S. 551 (1987). OSAD has notified defendant of its motion. This court has provided him with ample opportunity to respond, but he has not done so. After considering the record on appeal and OSAD's motion and supporting brief, we agree that this appeal presents no reasonably meritorious issues. Thus, we grant OSAD leave to withdraw and affirm the circuit court's judgment.
¶ 3 BACKGROUND
¶ 4 In 2012, defendant pleaded guilty to forgery. The factual basis showed that defendant signed a stolen check, which he tendered to the Pinckneyville True Value hardware store in exchange for merchandise. By agreement, defendant was sentenced to four years' imprisonment. The court told defendant, "You are not going to owe us any money, but you sure are going to owe the victim money and we have to collect it for the victim by law $2,485.13." The court ordered defendant to appear in court within 30 days of his release from Department of Corrections to work out a payment order. Defendant filed neither postplea motions nor a direct appeal.
¶ 5 Following his release from prison, defendant appeared in court as required and, over the next several years, consistently made restitution payments. On October 28, 2018, he filed a "Petition for Revocation of Fines, Etc." He asserted that he was incarcerated on an unrelated case and had 13½ years remaining on his sentence. He still owed $1305 in his "old case" and wanted a credit of $5 per day for time served and to have his fines and costs revoked so that he could have a "fresh start" when he was released from prison. He believed that he was entitled to $2220 for time spent in pretrial custody and that the court should refund him $900 of the amount he had paid to the court earlier.
¶ 6 The court denied the petition, finding that the negotiated plea did not include an agreement for a $5-per-day credit. The court further held that defendant was never held in jail before trial, so the statute authorizing the $5-per-day credit did not apply to him. The court again ordered defendant to contact the court within 30 days of his release to formulate a payment plan.
¶ 7 Defendant appealed. This court allowed OSAD to withdraw pursuant to Finley and affirmed the circuit court's order. We explained that defendant owed restitution, not a fine, and therefore, he was not eligible to have the assessment reduced due to a presentence custody credit. People v. Cornille, No. 5-18-0540 (2021) (unpublished summary order under Illinois Supreme Court Rule 23(c)), slip order at 3.
¶ 8 On June 1, 2023, defendant filed the postconviction petition that is the subject of this appeal. He alleged that, when he entered his plea, the State withheld the "critical evidence" that it was not prosecuting another person who participated in the crime. He alleged that the State selectively prosecuted him in order to make him pay the entire amount of restitution. He further alleged that Pinckneyville True Value had subsequently filed for bankruptcy, making it "illegal" for him to continue to pay them restitution.
¶ 9 On June 28, 2023, the court summarily dismissed the petition, finding that defendant lacked standing to file a postconviction petition because he had completed his prison sentence for this offense. The court further found that defendant had previously challenged the restitution order and thus his claim was barred by res judicata and that his claim was not cognizable in a postconviction petition in any event. Defendant timely appealed.
¶ 10 ANALYSIS
¶ 11 OSAD concludes that the only issues it could raise are whether (1) the circuit court correctly held that defendant lacked standing; (2) defendant's petition arguably alleged a violation of his constitutional rights; and (3) the court erred procedurally in dismissing the petition. Counsel concludes that all of these issues are frivolous, and we agree.
¶ 12 The court correctly held that defendant lacks standing. The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)) provides a mechanism by which a criminal defendant may assert that his conviction resulted from a substantial denial of his constitutional rights. Id. § 122-1(a); People v. Delton, 227 Ill.2d 247, 253 (2008).
¶ 13 The Act provides that "[a]ny person imprisoned in the penitentiary may institute a proceeding under this Article ***." 725 ILCS 5/122-1(a) (West 2022). Courts have not interpreted this provision to require actual imprisonment, but a defendant's liberty must be restrained in some significant way. People v. Carrera, 239 Ill.2d 241, 245-46 (2010). Thus, those on mandatory supervised release (People v. Correa, 108 Ill.2d 541 (1985)), those on probation or parole (People v. Martin-Trigona, 111 Ill.2d 295, 299-300 (1986)), and those who have been released from incarceration after timely filing their petitions (People v. Davis, 39 Ill.2d 325 (1968)) have been permitted to file petitions under the Act. Carrera, 239 Ill.2d at 246. In each case, the petitioner's "liberty, in some way or another, was curtailed to a degree by the state." Id.
¶ 14 Imprisonment on an unrelated charge is not imprisonment in the penitentiary for purposes of the Act. "The person must be in prison for the offense he is purporting to challenge." People v. West, 145 Ill.2d 517, 519 (1991).
¶ 15 Here, the circuit court properly found that defendant lacked standing, as he had completed his prison sentence for this offense. Payment of the remaining restitution was not a significant restriction on his liberty. And the fact that he had been sentenced to prison for an unrelated offense does not give him standing to challenge his sentence in this case.
¶ 16 OSAD further contends that, even if defendant could establish that he has standing, the circuit court correctly concluded that his petition does not sufficiently allege a violation of his constitutional rights. Beyond the lack of standing, we note several fundamental problems with defendant's petition.
¶ 17 Initially, he includes no evidentiary support for the critical factual allegations. No evidence shows that the State failed to prosecute the other offender, that that offender had not in fact paid any restitution-or had paid restitution for which defendant was entitled to reimbursement-or that Pinckneyville Hardware or its owner had filed bankruptcy. The Act provides that a postconviction petition must be supported by "affidavits, records, or other evidence" or the petitioner must explain why that evidence is not attached. 725 ILCS 5/122-2 (West 2022). The only document attached to the petition is a police report of the incident. It establishes nothing more than that a juvenile, D.G., participated with defendant in the offense, a fact of which defendant must have been aware.
¶ 18 The report describes surveillance video showing defendant and D.G. arriving in the same vehicle, entering the store together, and continuing to interact while in the store. It strains credulity to suggest that defendant was unaware that he had an accomplice who conceivably could have been required to pay restitution. Yet, despite this knowledge, defendant agreed to pay the full amount of restitution pursuant to his guilty plea. Generally, a voluntary guilty plea waives all nonjurisdictional defenses and defects. People v. Horton, 143 Ill.2d 11, 22 (1991). If defendant disputed the amount of restitution, he could have raised the issue prior to the guilty plea or in a postplea motion. Having not done so, the issue is forfeited.
¶ 19 Moreover, as defendant acknowledges, the petition is untimely. Where, as here, a defendant does not pursue a direct appeal, a petition must be filed "no later than 3 years from the date of conviction, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence." 725 ILCS 5/122-1(c) (West 2022). Defendant claims that his late filing is excused because of "newly discovered" evidence that the State did not bring charges against his juvenile accomplice. As noted, the report attached to the petition does not support this assertion. Moreover, the offense occurred more than a decade ago and the report was issued shortly after it occurred. Defendant fails to explain why, with reasonable diligence, he could not have discovered in more than 13 years that the State had failed to bring charges against his juvenile accomplice.
¶ 20 Finally, defendant fails to specify which of his constitutional rights have allegedly been violated. He alleges conclusionally that failing to bring charges against D.G., thus requiring defendant to pay the full amount of restitution, violated his right to equal protection. We disagree.
¶ 21 Generally, it does not deny equal protection for the State to prosecute the principal for a crime even though his accomplices are not charged. People v. Ruiz, 78 Ill.App.3d 326, 332 (1979).
" '[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion *** so long as "the selection was (not) deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." '" Id. (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978), quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)).
Where a defendant claims selective prosecution, he must provide evidence of discriminatory effect and discriminatory intent or purpose. People v. Sims, 2022 IL App (2d) 200391, ¶ 101." 'Meeting this standard generally requires evidence that similarly situated individuals of a difference race or classification were not prosecuted, arrested, or otherwise investigated.'" Id. (quoting United States v. Washington, 869 F.3d 193, 214 (3d Cir. 2017)). Defendant here has not alleged that the State failed to prosecute D.G. for impermissible reasons.
¶ 22 Defendant contended that the State violated the restitution statute. See 730 ILCS 5Z5-5-6 (West 2022). However, even if this were true, it is not a constitutional issue appropriate for a postconviction petition.
¶ 23 Moreover, defendant has not shown a violation. The statute provides in relevant part:
"As between the defendants, each defendant shall be entitled to a pro rata reduction in the total restitution required to be paid to the victim for amounts of restitution actually paid by co-defendants, and defendants who shall have paid more than their pro rata share shall be entitled to refunds to be computed by the court as additional amounts are paid by codefendants." Id. § 5-5-6(c)(4).
¶ 24 The statute thus provides an offset for restitution "actually paid" by codefendants. Defendant does not allege that D.G. actually paid any restitution to which he is entitled to an offset; in fact he alleges the opposite. But he cites no case-and we are aware of none-holding that he has a constitutional right to require the State to prosecute a codefendant merely to force the latter to pay his "fair share" of restitution.
¶ 25 The purpose of section 5-5-6 is to make the defendant's victims whole while also making the defendant pay any expenses the victims incurred because of the defendant's criminal actions. People v. D 'Aisse, 2022 IL App (2d) 210541, ¶ 33; People v. Graham, 406 Ill.App.3d 1183, 1194 (2011). Whether or not that amount is to be apportioned between codefendants is purely discretionary. People v. Hayes, 173 Ill.App.3d 1043, 1053 (1988).
¶ 26 In other words, the purpose of the restitution statute is to compensate the victim and to require the defendant, as an element of his rehabilitation, to pay that compensation. The statute's purpose is not to equitably apportion restitution among the various participants in the offense.
¶ 27 Defendant does not explain his contention that he must stop paying restitution because the victim filed for bankruptcy. As noted, he provides no evidence to show that the victim declared bankruptcy or the terms. In any event, defendant cites no case-and we are aware of none-that the victim's filing bankruptcy relieves a defendant of the obligation to pay restitution. See People v. Duckworth, 2021 IL App (4th) 180740-U, ¶ 126 (Bankruptcy Code did not prohibit ordering restitution for debts discharged in bankruptcy).
¶ 28 Finally, OSAD concludes that there is no meritorious contention that the court erred procedurally in dismissing the petition. At the first stage of a postconviction proceedings, the court has 90 days to summarily dismiss a petition if it fails to state a constitutional claim with an arguable factual or legal basis. People v. Hodges, 234 Ill.2d 9, 10 (2009) (citing 725 ILCS 5/122-2.1(a) (West 2006)). At this stage, the State cannot have any input. People v. Gaultney, 174 Ill.2d 410, 418 (1996). Here, the petition was filed on June 1, 2023. The court, without State input, dismissed the petition June 28, 2023, well within the 90-day window.
¶ 29 CONCLUSION
¶ 30 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and affirm the circuit court's judgment.
¶ 31 Motion granted; judgment affirmed.