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People v. Blancas

Court of Appeals of Illinois, First District, Second Division

July 16, 2019

REFUGIO BLANCAS, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 05 CR 17564 Honorable Marc W. Martin, Judge, presiding.

          James E. Chadd, Patricia Mysza, and Christopher G. Evers, of State Appellate Defender's Office, of Chicago, for appellant.

          Kimberly M. Foxx, State's Attorney, for the People.

          JUSTICE HYMAN delivered the judgment of the court, with opinion. Justice Pucinski concurred in the judgment and opinion. Justice Mason specially concurred, with opinion.


          HYMAN, JUSTICE

         ¶ 1 The only question formally presented by Refugio Blancas's appeal is whether his appointed appellate counsel should be permitted to withdraw under Pennsylvania v. Finley, 481 U.S. 551 (1987). We take the unusual step of disposing of counsel's motion in a published opinion. See, e.g., In re Brazelton, 237 Ill.App.3d 269 (1992) (denying motion to withdraw). The procedural history of Blancas's case raises an additional question about our jurisdiction that had been resolved in this district but was recently reopened by our supreme court. See People v. Griffin, 2017 IL App (1st) 143800, ¶ 26, leave to appeal allowed, No. 122549 (Ill. Nov. 22, 2017), appeal dismissed and judgment vacated in light of Illinois Supreme Court Rule 472, No. 122549 (Ill. Apr. 18, 2019) (supervisory order), Announce/2019/122549.pdf []. Dissenting from the issuance of the supervisory order in Griffin, Justice Burke (along with Justices Kilbride and Neville) would have affirmed our judgment in Griffin on alternate grounds. We agree with Justice Burke's reasoning and take this opportunity to revive the core holding of Griffin.

         ¶ 2 We find that, strictly construing Blancas's filing as a motion to correct the mittimus, we lack jurisdiction to consider his appeal as the trial court lacked jurisdiction over his motion in the first instance. Alternatively, we find that Blancas's motion raises no issues of arguable merit, even if we were to liberally recharacterize it as a postconviction petition over which we had jurisdiction. Either way, we agree with appointed counsel, grant counsel's motion to withdraw, and affirm the trial court's judgment.

         ¶ 3 Background

         ¶ 4 In 2006, Blancas entered a "blind plea" of guilty to two counts of aggravated driving under the influence (DUI) and two counts of reckless homicide. The court sentenced Blancas to two concurrent terms of 18 years' imprisonment for one aggravated DUI count and one reckless homicide count, respectively. Blancas did not move to withdraw his plea or file a direct appeal.

         ¶ 5 In 2008, with the assistance of counsel, Blancas filed an initial petition for postconviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)). In the petition, Blancas alleged his plea was involuntary and plea counsel was ineffective because counsel incorrectly advised him that he would serve less than half of his sentence because he would get "day per day" sentencing credit. He attached letters from plea counsel to the petition, advising Blancas not to challenge his sentence and admitting to incorrectly advising him about the time he would spend in prison. The court docketed the petition for second-stage proceedings and later dismissed it on July 23, 2010. Postconviction counsel did not file an appeal from the dismissal.

         ¶ 6 In July 2012, Blancas filed a pro se motion for leave to file late notice of appeal from his guilty plea and sentence in this court. We denied leave to file late notice of appeal because Blancas was appealing from an order entered on April 12, 2006, and the appropriate filing would have been a petition for postconviction relief. People v. Blancas, No. 1-12-2061 (2012) (unpublished dispositional order).

         ¶ 7 In October 2012, Blancas filed a pro se successive postconviction petition alleging his sentence was excessive and again contending plea counsel was ineffective for incorrectly advising him about the time he would serve. The trial court dismissed the petition, finding he did not request leave to file a successive postconviction petition and, in any event, his claims could not satisfy the cause and prejudice test.

         ¶ 8 In April 2017, Blancas filed a pro se "motion to correct mittimus," arguing he was "led to believe" that if he pled guilty he would receive a sentence of" 18 years at 50 Percent (DAY FOR DAY)" and that he had served 50% of his sentence. The trial court denied Blancas's motion, finding "to the extent [the motion] could even be construed as *** something other than a motion to correct mittimus, it's seeking to undo a judgment" and was filed "well after a two-year period." The court also found Blancas's sentence was "governed by the credit law," which required him to serve 85% of his sentence. Blancas timely appealed.

         ¶ 9 Appointed counsel from the Office of the State Appellate Defender (OSAD) has filed a motion for leave to withdraw as appellate counsel, citing Finley,481 U.S. 551 (1987), and submitted a memorandum in support of his motion. Counsel has reviewed the record and concluded that an appeal would be without arguable merit. Counsel also sent copies of the motion and memorandum ...

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