Appeal from the Circuit Court of Du Page County No. 02-CF-1177 Honorable George J. Bakalis, Judge, Presiding.
JUSTICE SPENCE delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Jorgensen concurred in the judgment and opinion.
¶ 1 Defendant, Alexander Vasquez, appeals from the summary dismissal of his pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). On appeal, defendant does not seek postconviction relief but instead seeks a $1, 595 credit against a $3, 000 drug assessment, for time spent in custody before he was sentenced, under section 110-14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14 (West 2002)). We modify the sentencing order.
¶ 2 I. BACKGROUND
¶ 3 On May 14, 2002, defendant was charged by indictment with unlawful delivery of a controlled substance (720 ILCS 570/401(a)(2)(B) (West 2002)) and unlawful possession of a controlled substance with the intent to deliver (720 ILCS 570/401(a)(2)(B) (West 2002)). Both charges were Class X felonies and involved 100 grams or more but less than 400 grams of cocaine. On May 19, 2004, pursuant to a verbal plea agreement, defendant pled guilty to both counts and was sentenced to two concurrent terms of 10½ years' imprisonment. Additionally, the plea negotiation established payment of a $3, 000 controlled substance assessment, a $12, 377 street value fine, a $200 DNA fee, a $100 lab fee, and a $100 "EMS" fee.
¶ 4 The trial court imposed a sentence in accordance with the agreement and credited defendant 319 days for time spent in presentencing custody. Defendant's prison term ended on May 2, 2008, and his term of mandatory supervised release (MSR) ended on May 2, 2011.
¶ 5 On September 4, 2008, defendant was indicted in a federal suit for conspiracy to distribute cocaine. As a result of the federal case, he was convicted and sentenced to 20 years in a federal penitentiary.
¶ 6 Several months after defendant completed his MSR term, on February 7, 2012, defendant filed a pro se petition for postconviction relief alleging that his convictions here should be vacated because his attorney was ineffective. Defendant alleged that his attorney failed to advise him that his plea could be used to enhance subsequent convictions. Defendant's postconviction petition did not include a claim for monetary credit under the section 110-14.
¶ 7 On February 22, 2012, the trial court summarily dismissed defendant's postconviction petition. The trial court reasoned that defendant had no standing to file the petition given that he was no longer in custody on the Du Page County case. The court went on to find that, even if defendant had standing, the petition would fail because there was no legal requirement for a defendant to be advised that a guilty plea could be used against him at some future time.
¶ 8 Defendant timely appealed.
¶ 9 II. ANALYSIS
¶ 10 On appeal, defendant does not reassert his ineffective-assistance-of-counsel claim but instead argues, for the first time, that he is entitled to $1, 595 in credit against his drug assessment, for the time he spent in presentencing custody. Defendant contends that, although the instant issue involves a statutory right and not a constitutional violation, he may still apply for credit under section 110-14 (725 ILCS 5/110-14 (West 2002)) on appeal from the dismissal of his postconviction petition. Defendant argues that under People v. Caballero, 228 Ill.2d 79, 83 (2008), applications for credit may be made for the first time on appeal from the denial of postconviction relief. The State responds that the Act does not allow defendant relief, because he lacked standing; at the time defendant filed his postconviction petition, he was not imprisoned on this case and his MSR term had ended.
¶ 11 Under the Act, individuals convicted of criminal offenses may challenge their convictions based on constitutional violations. People v. Domagala, 2013 IL 113688, ¶ 32. The Act provides a three-stage process for adjudication of postconviction petitions. People v. English, 2013 IL 112890, ¶ 23. At the first stage, the trial court is to review the petition and, if it is frivolous or patently without merit, the court is authorized to dismiss the petition. 725 ILCS 5/122-2.1(a)(2) (West 2010). In the event the trial court ...