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People v. Cathey

Court of Appeals of Illinois, First District, Sixth Division

October 11, 2019

ELRON CATHEY, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. Nos. 92 CR 5333 & 02 CR 6011 Honorable Steven J. Goebel, Judge Presiding.

          James E. Chadd, Patricia Mysza, and Bradley Jarka, of State Appellate Defender's Office, of Chicago, for appellant.

          Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Matthew Connors, Assistant State's Attorneys, of counsel), for the People.

          JUSTICE HARRIS delivered the judgment of the court, with opinion. Justice Delort and Justice Connors concurred in the judgment and opinion.



         ¶ 1 Defendant, Elron Cathey, appeals the order of the circuit court dismissing two petitions he filed for relief from his convictions for attempted first degree murder, aggravated battery with a firearm, and possession of a controlled substance. On appeal, defendant contends the court erred by dismissing his petition filed pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2014)), where his convictions for attempted murder and aggravated battery with a firearm violate the one-act, one-crime rule. He also contends that his petition "in nature of writ of error coram nobis" sufficiently stated a claim that his possession conviction was based on planted drug evidence and that his guilty plea was obtained under threat of physical harm to him and his family. For the following reasons, we affirm the dismissal of defendant's coram nobis petition but reverse the dismissal of his section 2-1401 petition and remand for further proceedings.

         ¶ 2 JURISDICTION

         ¶ 3 The trial court dismissed both of defendant's petitions challenging his convictions on July 22, 2015. Defendant filed a motion for leave to file late notices of appeal in both cases, which this court allowed, assigning both petitions to case No. 1-15-3118. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6), and Illinois Supreme Court Rule 651(a) (eff. July 1, 2017), governing appeals in postconviction proceedings.

         ¶ 4 NO. 92-CR-05333

         ¶ 5 I. Background

         ¶ 6 Defendant was charged in the shooting of Orlando Derrick. At trial, Tyrone Thomas testified that on January 30, 1992, at approximately 10:45 p.m., he was in front of Tasha Mead's house talking to Derrick. He saw defendant coming from the gangway next to Mead's house, and he backed away when he noticed an expression on Derrick's face as if there was going to be a confrontation. He walked away and did not see a physical fight between defendant and Derrick. As he walked around a corner, Thomas heard a whistle and then two gunshots. Thomas came back, and defendant was gone. Derrick was lying facedown in the street. Thomas knocked on Mead's door, and when she appeared, he left. Thomas did not see Derrick with a gun that evening.

         ¶ 7 Derrick testified that on January 30, 1992, he went to Mead's house after she called and asked him to come. At approximately 11 p.m., after speaking with Mead for about five minutes, Derrick went outside to move his car. After parking his car, Derrick saw Thomas, and they walked together toward Mead's house. While they talked, Derrick saw defendant come out of the gangway. Defendant asked Derrick what he was doing there, and he responded that he did not want to start any trouble. Derrick backed up, and defendant reached behind his back and pulled out a .22-caliber revolver. Derrick saw an unmarked police car, so he whistled. Defendant fired one shot, turned around, and fired two more shots before running away. Derrick was hit twice in the back as he turned away. When the police arrived, Derrick informed them that defendant shot him. Derrick stated that he was not carrying a gun that evening.

         ¶ 8 Mead testified that at approximately 11 p.m., on January 30, 1992, she called Derrick and asked him to come to her house. He arrived, stayed briefly, then left. Five to ten minutes after he left, Mead heard a whistle and then one gunshot. A couple seconds later, she heard two more gunshots. Thomas knocked on her door and pointed at Derrick, who was lying in the street.

         ¶ 9 The jury found defendant guilty of attempted first degree murder and aggravated battery with a firearm. He was sentenced to 20 years' imprisonment for both charges, to be served concurrently.

         ¶ 10 Defendant appealed his convictions, arguing that his counsel was ineffective and that the State violated his right to remain silent, his right to a fair trial, and his due process rights. Defendant further argued that the prosecutor's closing argument improperly shifted the burden of proof and that the trial court erred in limiting his impeachment of a witness. This court affirmed defendant's convictions in People v. Cathey, No. 1-93-2502 (1996) (unpublished order under Illinois Supreme Court Rule 23).

         ¶ 11 On October 11, 2013, defendant filed a pro se postconviction petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). The record does not contain defendant's petition or the trial court's order dismissing the petition. However, the trial court's order dismissing defendant's subsequent section 2-1401 petition, the dismissal in this appeal, stated that defendant alleged in his postconviction petition that his trial and appellate counsel were ineffective and that his convictions violate the one-act, one-crime rule. The order also stated that the court dismissed defendant's postconviction petition on December 16, 2013, because he was no longer incarcerated on those convictions.

         ¶ 12 On June 12, 2015, defendant filed his pro se section 2-1401 petition alleging a one-act, one-crime violation. The State did not file a response. On July 22, 2015, the trial court sua sponte dismissed defendant's section 2-1401 petition. When the court dismissed the petition, it stated, "Let the record reflect, the State's Attorney is present." The trial court did not state for the record that defendant or a representative was also present. The court also did not orally state its reasons for dismissing the petition. In its written order, however, the trial court found that defendant's petition was untimely since it was filed more than 20 years beyond the limitations period. The court also found that defendant ...

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