Appeal from the Circuit Court of Lake County. No. 94--CF--1800 Honorable Fred L. Foreman, Judge, Presiding. Appeal from the Circuit Court of Lake County. No. 09--MR--1255 Honorable Fred L. Foreman, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Zenoff
PRESIDING JUSTICE ZENOFF delivered the opinion of the court: Chad Q. Evans (defendant) appeals from the denial of his request to file a successive post-conviction petition and the dismissal of his petition for a writ of mandamus. For the reasons that follow, we affirm.
In May 1995, defendant was found guilty of two counts of first-degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 9--1(a)(2), (a)(3)) and one count of concealment of a homicidal death (Ill. Rev. Stat. 1989, ch. 38, par. 9--3.1(a)). The evidence at trial demonstrated that, although defendant was not the shooter, he was accountable for the shooting death of Kevin Strauther. At the time of his death, Strauther was 17. Defendant was 18, and the shooter, Robert Garite, was 15. The trial court sentenced defendant to 30 years' imprisonment for first-degree murder and 5 years' imprisonment for concealment of a homicidal death, with the sentences to run consecutively.
On November 10, 2008, having already filed several post-conviction petitions, defendant filed a petition for leave to file a successive post-conviction petition. In the attached post-conviction petition, defendant argued that he should not be required to register under the Sex Offender Registration Act (Sex Offender Act) (730 ILCS 150/1 et seq. (West 2008)) or the Child Murderer and Violent Offender Against Youth Registration Act (Violent Offender Act) (730 ILCS 154/1 et seq. (West 2008)), because Garite, having been only 15 at the time of the murder, did not have to register. (Although defendant did not mention these acts by name in his proposed post-conviction petition, the public act to which defendant referred deals only with these two registries.) The trial court denied defendant's petition for leave on January 9, 2009, finding that defendant had failed to establish prejudice. Defendant appealed (No. 2--09--0159).
On May 12, 2009, defendant instituted a new action by filing a petition for a writ of mandamus. In his petition, defendant again argued that the Sex Offender Act and the Violent Offender Act did not apply to him because Garite, for whose acts defendant was held accountable, was only 15 at the time of the murder, thus making him ineligible for registration. The respondents, the Department of State Police and the Lake County State's Attorney (LCSA), filed motions to dismiss. On September 15, 2009, defendant filed a motion, which, although unclear, appeared to request that his petition for writ of mandamus be recharacterized as a petition for declaratory relief. Following a hearing, the trial court found that the matter was not ripe for adjudication and granted the motions to dismiss. Although the trial court did not enter an order specifically granting or denying the request for recharacterization, in its order granting the motions to dismiss, it referred to defendant's petition as a petition for writ of mandamus or declaratory relief. Defendant appealed the trial court's dismissal of his petition (No. 2--10--0153).
A. Post-conviction Petition (No. 2--09--0159)
Defendant first appeals from the trial court's denial of his request to file a successive post-conviction petition. A second or subsequent post-conviction petition may be filed only with leave of the trial court upon a showing of both cause for failure to bring the claim in the initial petition and prejudice resulting from that failure. 725 ILCS 5/122--1(f) (West 2008). A petitioner shows cause "by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings." 725 ILCS 5/122--1(f)(1) (West 2008). A petitioner shows prejudice "by demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process." 725 ILCS 5/122--1(f)(2) (West 2008).
Defendant makes no argument on appeal that he established cause and prejudice. Accordingly, any contention that the trial court erred is forfeited. 210 Ill. 2d R. 341(h)(7) ("Points not argued are waived ***"). The trial court's denial of defendant's request to file a successive post-conviction petition is therefore affirmed.
B. Petition for Writ of Mandamus (No. 2--10--0153)
Defendant also appeals from the dismissal of his petition for writ of mandamus (or declaratory relief), arguing that the trial court erred because (1) the issue is ripe for adjudication, and (2) he is not subject to registration under the Violent Offender Act when Garite, the principal, is not subject to registration under the Violent Offender Act. (Defendant makes no argument regarding the applicability of the Sex Offender Act.)
We need not decide the ripeness issue, however, because, even if the issue is ripe for adjudication, as defendant contends, defendant is subject to registration under the Violent Offender Act and, thus, he is not entitled to the relief he seeks.
Preliminarily, LCSA argues that the question of whether defendant is subject to the Violent Offender Act is not properly before us because the trial court did not enter a final order based on the merits of this issue. While it is true that the trial court did not grant the motions to dismiss based on a determination that defendant is subject to the Violent Offender Act, the trial court did enter a final order dismissing defendant's petition. Because we may affirm on any basis found in the record (Cwik v. Giannoulias, 237 ...