Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County. No. 05 CR 17564
Honorable Marc W. Martin, Judge, presiding.
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.
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),
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
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
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
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 ...