Appeal from Circuit Court of McLean County Nos.95CM2161 95CM2279 95CM2280 95CM2281 Honorable Elizabeth A. Robb, Judge Presiding.
The opinion of the court was delivered by: Justice Myerscough
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Defendant, Sheila Shanklin, appeals an order entered June 9, 1998, following a hearing in the circuit court of McLean County, denying her petition for post-conviction relief. She maintains on appeal that she was denied the effective assistance of counsel at trial and on direct appeal. We affirm.
On July 10, 1996, following a bench trial in the circuit court of McLean County, defendant was convicted of the following misdemeanor offenses: nine counts of violation of owner's duties (510 ILCS 70/3 (West 1994)); nine counts of cruel treatment of animals (510 ILCS 70/3.01 (West 1994)); two counts of allowing livestock to run at large (510 ILCS 55/1 (West 1994)); and one count of unlawful disposal of a dead animal (225 ILCS 610/17 (West 1994)). One count of operating a kennel without a license (225 ILCS 605/3 (West 1994)) was dismissed. On August 28, 1996, the trial court sentenced defendant to 12 months' probation and ordered her to make restitution to the McLean County Humane Society. Defendant appealed only the sentence imposed, and this court affirmed. People v. Shanklin, No. 4-96-0755 (April 22, 1997) (unpublished under Supreme Court Rule 23).
On July 29, 1997, the State filed a petition to revoke defendant's probation in the circuit court and notice was issued. Pursuant to section 5-6-4(a) of the Unified Code of Corrections, the filing of the petition and issuance of notice tolled defendant's period of probation, and her term of probation did not expire until the Disposition of the petition to revoke. 730 ILCS 5-6-4(a) (West 1996). An order dismissing the petition was entered on July 15, 1998.
On October 2, 1997, defendant filed a petition for post-conviction relief. She alleged in her petition that her trial counsel was ineffective because he failed to call nine people who had agreed to testify as defense witnesses, including defendant, her husband, and two veterinarians. Attached to her petition were affidavits from the potential witnesses. She also alleged in her petition that (1) she was denied the right to a jury trial; (2) as a result of her convictions, she has been deprived of her membership in various organizations related to her work with horses; and (3) she was denied effective assistance of appellate counsel.
On October 27, 1997, the State filed a motion to dismiss the petition because defendant had not been imprisoned in the penitentiary as a result of her misdemeanor convictions in this case. The record does not indicate the court's ruling on the State's motion to dismiss, but on February 11, 1998, the State apparently abandoned that motion and filed a response to the post-conviction petition indicating only that defendant had not been deprived of her constitutional rights. The trial court denied defendant's petition, and this appeal followed.
Defendant was convicted of misdemeanor offenses and sentenced to probation. In the proceedings below, she sought collateral review of her convictions pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1996)). Availability of relief under the Act is specifically limited to persons "imprisoned in the penitentiary." 725 ILCS 5/122-1 (West 1996). This language was previously interpreted to limit application of the Act to relief from felony convictions. People v. Davis, 54 Ill. 2d 494, 496, 298 N.E.2d 161, 163 (1973). However, in the exercise of its supervisory authority, the Supreme Court of Illinois held in People v. Warr, 54 Ill. 2d 487, 493, 298 N.E.2d 164, 167 (1973), that a defendant convicted of a misdemeanor who asserts that a substantial denial of his constitutional rights occurred in the proceedings that resulted in his conviction may institute a proceeding in the nature of a proceeding under the Act. Moreover, the supreme court has recognized that post-conviction relief is available to defendants sentenced to probation. People v. Martin-Trigona, 111 Ill. 2d 295, 299-300, 489 N.E.2d 1356, 1358 (1986), citing People v. Montes, 90 Ill. App. 3d 355, 412 N.E.2d 1363 (1980).
Although relief in the nature of post-conviction proceedings may be available to defendants convicted of misdemeanors and sentenced to probation, defendant's post-conviction petition was untimely filed. In Warr, the supreme court established specific requirements for post-conviction proceedings initiated by defendants convicted of misdemeanors. One of those requirements was that "the proceeding shall be commenced within *** six months after the rendition of final judgment following a trial upon a plea of not guilty." Warr, 54 Ill. 2d at 493, 298 N.E.2d at 167. In a criminal case, it is the imposition of sentence that causes the judgment to be final. People v. Hanson, 134 Ill. App. 3d 1002, 1005, 481 N.E.2d 733, 734 (1985).
The supreme court went on to state in Warr that the post-conviction remedy it was creating for misdemeanor defendants would apply until otherwise provided by rule of the supreme court or by statute. No rule of the supreme court has been promulgated since that time supplanting the Warr procedures. The legislature has amended the Act on several occasions since the Warr decision, including provisions concerning the time limits for filing post-conviction petitions. For example, Public Act 83-693 reduced the maximum time limit for filing from 20 years to 10 years. Pub. Act 83-693, §1, eff. January 1, 1984 (1983 Ill. Laws 4404, 4405). Public Act 86-1210 reduced the maximum time from 10 years to 3 years. Pub. Act 86-1210, §2, eff. January 1, 1992 (1990 Ill. Laws 1901, 1905-1906). However, the legislature has not addressed the time limits set forth in Warr, nor has it expanded applicability of the Act beyond persons "imprisoned in the penitentiary." 725 ILCS 5/122-1 (West 1996). Therefore, the procedures set forth in Warr continue to apply.
Defendant was sentenced on August 28, 1996. She did not file her post-conviction petition until October 2, 1997. This 13-month delay was more than 7 months beyond the 6-month limit set forth in Warr. See People v. Bruce, 25 Ill. App. 3d 1051, 324 N.E.2d 251 (1975) (finding petition untimely where it was filed one month beyond limit set by Warr); Hanson, 134 Ill. App. 3d 1002, 481 N.E.2d 733 (finding application of Warr would render defendant's post-conviction petition untimely where it was filed more than six months after defendant was sentenced).
We note that some exceptions to the post-conviction time limits have been recognized. For example, in People v. Sak, 186 Ill. App. 3d 816, 542 N.E.2d 1155 (1989), appeal denied, 128 Ill. 2d 670, 548 N.E.2d 1076 (1989), the court held that the defendant could file a post-conviction petition after completing his sentence, despite the limitations contained in the Act. The defendant, an illegal alien, had pleaded guilty to a charge of theft without being advised that the theft conviction could be used against him in deportation proceedings. The State, while urging dismissal of the petition, conceded the defendant was not properly advised of the consequences of his guilty plea. The Sak court found the consequence of deportation was a drastic one, which was more severe than the consequences of the guilty plea imposed by the trial court. Under these ...