People v. Corredor

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People v. Corredor

State: Illinois

Court: 2nd District Appellate

Docket No: 2-08-0683, 2-08-0684 Co

Case Date: 04/05/2010

Preview:Nos. 2-08-0683 & 2-08-0684 cons. Filed: 4-5-10 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 05--CF--509 ) JUAN CORREDOR, ) Honorable ) John J. Kinsella, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 06--CF--1456 ) JUAN CORREDOR, ) Honorable ) John J. Kinsella, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________ JUSTICE HUDSON delivered the opinion of the court: Defendant, Juan Corredor, appeals from an order recharacterizing his motion for an order nunc pro tunc as a petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2008)) and dismissing it. He contends that the court erred in recharacterizing the motion without first giving him the admonitions required under People v. Shellstrom, 216 Ill. 2d 45 (2005). We agree; accordingly, we vacate the dismissal and remand the matter for Shellstrom admonitions.

Nos. 2--08--0683 & 2--08--0684 cons. I. BACKGROUND In case No. 05--CF--509, on March 24, 2005, a grand jury indicted defendant on three counts of aggravated criminal sexual abuse (720 ILCS 5/12--16(c)(1)(i) (West 1998)). On May 18, 2006, a grand jury indicted him on three counts of predatory criminal sexual assault of a child (720 ILCS 5/12--14.1(a)(1) (West 1998)). On August 30, 2007, defendant pleaded guilty to the three aggravated-criminal-sexual-abuse counts. On September 27, 2007, the court sentenced him to five years' imprisonment, consecutive to his sentence in case No. 06--CF--1456. In case No. 06--CF--1456, on June 8, 2006, a grand jury indicted defendant on three counts of harassment of a witness (720 ILCS 5/32--4a(a)(2) (West 2006)). The charges stemmed from defendant's contacts with witnesses in case No. 05--CF--509. On August 30, 2007, the same day that defendant entered his plea in the other case, he entered a guilty plea to one count here. The court sentenced him to three years' imprisonment on September 27, 2007, the same day that the court sentenced him in the other case. Defendant filed a late pro se motion for reconsideration of his sentence. The court ruled that it lacked jurisdiction and denied it. On May 28, 2008, defendant filed a "Motion for Order Nunc pro Tunc" using a preprinted form and referencing both cases. He asserted that he was entitled to 501 days' credit for time served in each case. A handwritten portion of the motion alleged that the court had told him that he would receive credit against each sentence and that the Department of Corrections was not calculating his sentences accordingly. On June 17, 2008, the court entered an order stating that defendant's motion was "treated as a postconviction motion [sic]" and dismissed. On July 22, 2008, defendant filed a notice of appeal.

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Nos. 2--08--0683 & 2--08--0684 cons. Defendant later moved in this court for leave to file a late notice of appeal, a motion that this court granted. He now argues that the rule in Shellstrom required the trial court to notify him that it intended to recharacterize the pleading, warn him that the recharacterization would mean that any subsequent postconviction petition would be subject to the restrictions on successive postconviction petitions, and allow him to either withdraw the pleading or amend it. The State argues that Shellstrom applies only to actions cognizable under Illinois law and that defendant's motion was not such an action. Defendant has not argued here that the court's recharacterization of his motion was an abuse of discretion. II. ANALYSIS We hold that the rule in Shellstrom mandated the admonitions under these circumstances. We review de novo the question of whether the trial court has used the proper procedure. See Woods v. Cole, 181 Ill. 2d 512, 516 (1998). We start by examining the supreme court's reasoning in Shellstrom. The relevant part of that decision opens with a discussion of a decision, Castro v. United States, 540 U.S. 375, 157 L. Ed. 2d 778, 124 S. Ct. 786 (2003), that dealt with restrictions on prisoners' rights to file multiple federal habeas corpus motions. In Castro, the defendant filed something that he labeled a Rule 33 (Fed. R. Crim. P. 33) motion for a new trial. Castro, 540 U.S. at 378, 157 L. Ed. 2d at 784, 124 S. Ct. at 789. The district court treated it in part as a motion for habeas corpus relief under section 2255 of Title 28 of the United States Code (28 U.S.C.

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