Court of Appeals of Illinois, First District, Sixth Division
from the Circuit Court of Cook County. Nos. 92 CR 5333 &
02 CR 6011 Honorable Steven J. Goebel, Judge Presiding.
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
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
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 ...