Court of Appeals of Illinois, First District, Fourth Division
Appeal from the Circuit Court of Cook County, Illinois, County Department, Criminal Division. No. 01 CR 02556. Honorable Carol A. Kipperman, Judge Presiding.
Judgment vacated; reversed and remanded with instructions.
Defendant's guilty plea to one count of possession of child pornography and sentence to 18 months' probation were vacated and the cause was remanded for further proceedings based on the ineffective assistance of his counsel, who incorrectly advised defendant that he would only have to register as a sex offender for 10 years, since defendant established that he would have gone to trial if he had been properly advised and he alleged in his petition under section 2-1401 of the Code of Civil Procedure that he would have raised the affirmative defense that he did not know the victim was under the age of 18; therefore, his plea was involuntary.
For Appellant: Damon M. Cheronis, Ian M. Barney, Law Office of Damon M. Cheronis, Chicago, IL.
For Appellee: Anita Alvarez, State's Attorney, Alan J. Spellberg, Matthew Connors, Anthony M. O'Brien, Assistant State's Attorneys, Office of the Illinois State's Attorney, Chicago, IL.
JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Lavin and Epstein concurred in the judgment and opinion.
[¶1] This is an appeal from the circuit court's order dismissing a petition to vacate judgment filed by the defendant, Paul Dodds, pursuant to section 2-1401 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2000)). The defendant, who was charged with four counts of possession of child pornography (720 ILCS 5/11-20.1(a)(1) (West 2000)), pleaded guilty to one count in exchange for a sentence of 18 months' probation and the requirement that he register as a sex offender for a period of 10 years. Apparently, at the time of sentencing, defense counsel, the State and the trial judge all mistakenly believed that the defendant was required to register only for 10 years, rather than natural life, as required by the Illinois Sex Offender Registration Act
(SORA) (730 ILCS 150/7 (West 2000)). After the 10 years expired, the defendant was informed that he would have to register as a sex offender for natural life. The defendant then filed a section 2-1401 petition (735 ILCS 5/2-1401 (West 2000)) seeking to vacate his conviction and sentence. The defendant argued that: (1) his sentence was void because the trial court lacked the authority to impose a sentence not permitted by law; and (2) his guilty plea was involuntary because: (a) his counsel was ineffective and (b) the State breached its promise that the defendant be required to register only for 10 years, rather than natural life, thereby depriving the defendant of due process of law. The State filed and the circuit court granted a motion to dismiss the defendant's petition pursuant to sections 2-615 and 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 2000)). The defendant now appeals that dismissal and asks this court to vacate his conviction and sentence. For the reasons that follow, we agree with the defendant, vacate his conviction and sentence and remand to the trial court with instructions.
[¶2] I. BACKGROUND
[¶3] The record before us is sparse and incomplete, revealing only the following facts and procedural history. In January 2001, the defendant was arrested and charged with four counts of possession of child pornography under section 11-20.1(a)(1) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/11-20.1(a)(1) (West 2000)).
[¶4] On June 19, 2001, the defendant filed a motion to suppress evidence, arguing that the seizure of his business and residence computers was illegal because it was made under duress. The defendant alleged that on January 2, 2001, at approximately 4 p.m., he received a telephone call from the Westchester police department, informing him that there had been a break-in at his business--Vector Marketing, in Westmont. When the defendant arrived at the scene, he was met with five or six police officers who told him that there had been no break-in and that instead they were there to speak to him about an Internet AOL account registered
to his business and allegations made that he was involved in child pornography. According to the defendant's motion to suppress, the officers had no search warrant and no exigent circumstances existed that would have justified their search of the premises without one. Instead, according to the motion to suppress, the officers coerced the defendant into signing a consent form to search. The defendant alleged that the officers threatened to tell his fiancee and his employees on the premises about the child pornography accusations if he did not sign the consent form. They told the defendant that if he wanted to " keep this private" he would sign the consent form. They also refused to permit the defendant to telephone his fiancee unless he signed the form. According to the motion to suppress, the defendant signed the form under duress. The motion, therefore, sought the suppression of all evidence obtained as a result of that consent form, namely, the defendant's business and residence computers, as well as any other information obtained as a result of that evidence.
[¶5] The record before us further reveals that on July 20, 2001, the defendant appeared in court with his counsel, withdrew his motion to suppress and instead entered a negotiated guilty plea. The transcript of the plea hearing, which is before this court as an exhibit to another pleading reveals that the State and the defendant agreed that the defendant would plead guilty to one count of child pornography in violation of section 11-20.1(a)(1)(i) of the Criminal Code (720 ILCS 5/11-20.1(a)(1)(i) (West 2000)) in exchange for a sentence of 18 months' probation. The transcript of the plea hearing, however, does not disclose the specifics of the factual basis for the defendant's guilty plea. Rather, in that regard, the transcript reveals only the following colloquy between the assistant State's Attorney (ASA) and defense counsel:
" MR. KRUEGER [ASA]: Judge, I spoke to counsel, and he agreed that if the State were to produce evidence, that being witnesses, police officers, state's attorneys, and physical evidence in the case, the State would prove this case beyond a reasonable doubt; and it's in the court's jurisdiction to sentence the defendant.
MR. PIES [Defense counsel]: And I have so stipulated to that, Judge."
[¶6] The transcript further establishes that after the plea was entered, the court asked the prosecutor whether as a result of the crime he was pleading guilty to the defendant would be required to register as a sex offender. In response, the ASA stated that the defendant was obligated to register as a sex offender, and that he had to sign the Illinois Sex Offender Registration
Act Notification Form (hereinafter, the SORA notification form), in order to acknowledge his duty to register. In response, defense counsel indicated that he had already " gone through this with his client" and that he had explained the SORA notification form to him. According to defense counsel, the defendant had " fully read and understood it." The SORA notification form is part of the record before us and contains the signatures of both the defendant and the ASA. That form explicitly states that the defendant must register as a sex offender only for " 10 years from conviction or release date." The form nowhere speaks about mandatory registration for life.
[¶7] The record further reveals that shortly after the plea hearing, the defendant was informed by his probation officer that he would have to register as a sex offender for life, instead of for 10 years. As a result, on August 20, 2001, the defendant, through his plea counsel, filed a motion for clarification of his sentence. In that motion, the defendant asserted that both pursuant to the SORA (730 ILCS 150/7 (West 2000)) and the SORA notification form, which he and the ASA had signed, the defendant was required to register as a sex offender only for a period of 10 years. In support of the motion, the defendant attached a copy of the statute and the notification form. The State did not oppose this motion, and on August 31, 2001, the parties appeared before the same trial judge that had presided over the defendant's plea. The following relevant colloquy then occurred:
" MR. PIES [Defense counsel]: Here's a copy for you, your Honor, of the Illinois Sex Offender Registration Act, which, in the middle 'duties to register,' [states] you are subject to register for 10 years from the date. And that is the agreement between the State and my client.
THE COURT: Well, that's what he's required to do. Not for life. You're saying that probation is saying he has to register for life? He doesn't. It's 10 years.
MR. PIES: Right.
THE COURT: That's fine. So, that takes care of that.
MR. PIES: Your Honor, I do not know that she's going to put in her reports, or this or that. So, if the Court is definitively stating yes, he reports for 10 years as opposed [to] for life, I don't want her marking down in her reports that he has to report for life and have it transferred to DuPage, or have them say he has to report for life and then years down the road we come back and God knows this case is so old we can't find it.
THE COURT: He has to report as filed by law. The law is a 10 year period. That's it.
MR. PIES: There's no dispute on that, your Honor. The only reason for this is to clarify the contradictory information given by the probation officer.
THE COURT: What does probation have to say? Do you know why they told him he has to report for life?
MR. CATALANO [probation officer]: No, your Honor. Did you report here?
MR. KRUEGER [ASA]: His probation is going to be transferred in ...