People v. Wisniewski , 2021 IL App (4th) 200069-U ( 2021 )

NOTICE
2021 IL App (4th) 200069-UB
FILED
This Order was filed under December 29, 2021
Supreme Court Rule 23 and Carla Bender
is not precedent except in the NO. 4-20-0069
4th District Appellate
limited circumstances Court, IL
allowed under Rule 23(e)(1). IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Morgan County
JOSEPH T. WISNIEWSKI, ) No. 18CF226
Defendant-Appellant. )
) Honorable
) Christopher E. Reif,
) Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court.
Justices Turner and Holder White concurred in the judgment.
ORDER
¶1 Held: To recharacterize a pro se letter as a petition for postconviction relief, a circuit court
must follow the procedure in People v. Shellstrom, 216 Ill. 2d 45, 57 (2005).
¶2 Defendant, Joseph T. Wisniewski, who is serving a prison term of 10 years for
criminal sexual assault (720 ILCS 5/11-1.20(a)(3) (West 2018)), appeals from an order in which
the Morgan County circuit court ruled, hypothetically, “[T]his matter is summarily dismissed if
[defendant’s pro se letter to the court is] a post-conviction petition.” (Emphasis added.) To validly
recharacterize his letter as a postconviction petition, defendant argues, the court had to give him
the warnings required by People v. Shellstrom, 216 Ill. 2d 45, 57 (2005), and the court did not do
so. Noncompliance with Shellstrom is his primary ground of appeal. Alternatively, he argues that
if the letter in question was, by its own self-characterization, a pro se petition for postconviction
relief, that letter and the letters that followed it stated the gist of a constitutional claim and therefore
the summary dismissal was unjustified.
¶3 Originally, we did not reach the merits of those arguments, but, instead, we
dismissed defendant’s appeal for lack of jurisdiction. See People v. Wisniewski, 2021 IL App (4th)
200069-U. On September 30, 2021, however, in the exercise of its supervisory authority, the
supreme court directed us to vacate our judgment and to consider the appeal on its merits.
Accordingly, on November 29, 2021, we vacated our judgment in Wisniewski, 2021 IL App (4th)
200069-U, and we reinstated the appeal for consideration on its merits.
¶4 Now that the supervisory order has cleared away any jurisdictional obstacle to
reaching the merits of this appeal, we conclude as follows. Without following the procedures in
Shellstrom, 216 Ill. 2d at 57, the circuit court recharacterized defendant’s letter of October 24,
2019, as a postconviction petition. Therefore, we vacate the judgment, and we remand the case
with directions to follow Shellstrom.
¶5 I. BACKGROUND
¶6 In a hearing on March 5, 2019, defendant proposed entering a negotiated guilty plea
to count I of the information, a count that charged him with criminal sexual assault (720 ILCS
5/11-1.20(a)(3) (West 2018)). By the terms of his agreement with the State, he would receive a
prison sentence of 10 years, and the State would nolle pros count II, which charged him with
unlawfully possessing child pornography (id. § 11-20.1(a)(6)).
¶7 The circuit court asked the prosecutor for a factual basis for the proposed guilty
plea. The prosecutor described the factual basis as follows:
“If necessary to prove the charge, Your Honor, the People would call as a witness
A.W. A.W. would testify that the Defendant is her father and that she is under the
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age of 18 years old, and that at some time between June and October 2018, the
Defendant placed his penis in the vagina of A.W. She would further testify that
these events occurred in Morgan County, and she would identify the, in open court
the Defendant as the perpetrator of this crime.”
The court asked defense counsel if he would stipulate that the factual basis was the evidence the
State would present in a trial. Defense counsel answered, “I believe that’s what the State could
prove, yes, Your Honor.” The court then asked the defendant if he agreed that the factual basis
would be the State’s evidence. He answered yes.
¶8 After further admonitions and questions to defendant, the circuit court accepted his
guilty plea to count I and sentenced him to the agreed-upon prison term of 10 years. The court told
him he would have to serve at least 85% of the prison term and that after he was released from
prison, he would have to serve a term of mandatory supervised release ranging from three years to
life.
¶9 On June 24, 2019, the circuit court received the first of seven pro se letters from
defendant. In his first letter, defendant claimed that after coercing him into surrendering his phone,
the police illegally searched his phone. The police seized three phones in all. He claimed that the
third phone, the one containing nude photos of A.W., was actually her phone, not his. He claimed
that he had pleaded guilty only because defense counsel, who never reviewed the evidence, had
“falsely represented” him. He claimed that defense counsel had lied to him about mandatory
supervised release by telling him it was the period of time during which he, defendant, would be
required to register as a sex offender. He claimed that, contrary to his guilty plea, he never had any
sexual contact with A.W. In fact, according to defendant, A.W. attempted several times to make
an official recantation of her allegations against him, but, each time, the police and the prosecutor
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used intimidation tactics to dissuade her from recanting. The court never responded to this first
letter from defendant.
¶ 10 On October 24, 2019, the circuit court received the second letter from defendant.
The letter read in part as follows:
“My name is Joseph Wisniewski. I am writ[ ]ing you about case #
2018-CF-226. On Oct 10th in case # 2018-JA-18 and case # 2018-JA-19 there was
new evidence given to all part[ies] in a handwrit[t]en letter saying I did not do any
of the things I was said to have done in this case.
The person that gave the letter also talked to my lawyer Robert V. BonJean
III also her lawyer Thomas H. Piper GAL and told them she lied about all she said
at the start.
In her doing this I’m asking for you to please withdraw my plea or Post
Conviction relief based on new evidence being given to the court in case #
2018-JA-18 and 19 prov[ ]ing my innocence in case # 2018-CF-226.
I am also req[u]esting this because not only I did not do any of the things
that was said I did and A.W. recanted in a handwrit[t]en letter that was given by
A.W. in case # 2018-JA-18 and 19 saying I did not do these things. I also want my
case reopened because I had ineffective assistance.”
¶ 11 On October 24, 2019, the circuit court entered an order responding to defendant’s
second letter as follows:
“The Defendant’s Motion to Withdraw the Plea is untimely and therefore,
the Court lacks jurisdiction to hear the Motion. If the motion were to be construed
as a Post Conviction Motion then the Court after review finds it to be frivolous and
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patently without merit. The Court notes that the Motion is not supported by
affidavits or documents. There is also no reason given why these requirements are
not met.
Wherefore, this matter is summarily dismissed if a post-conviction
petition.”
But see People v. Johnson, 2021 IL 125738, ¶ 54 (holding that, in the initial examination of the
postconviction petition, the court may take judicial notice of public documents, such as “a court
record”); People v. Jackson, 182 Ill. 2d 30, 66 (1998) (observing that “a court will take judicial
notice of its own records”).
¶ 12 On November 5, 2019, the circuit court received the third letter from defendant. In
his third letter, he complained that, instead of reviewing the evidence and investigating the case,
defense counsel had advised him that unless he pleaded guilty, he would be sentenced to
imprisonment for 30 years. Defendant enclosed a letter purportedly handwritten and signed by
A.W. At the top of A.W.’s letter, the following is written: “Put in Juv court case # 2018-JA-18-19
Oct 10 2019—9 AM in File Evidence.” Addressing Judge Tobin, A.W. confessed in her letter, “I
lied about everything just to get back at my dad. *** I feel like I was getting pressured into say[ing]
things that the cops wanted me to.” In the light of this new evidence, defendant requested to
withdraw his guilty plea.
¶ 13 On November 15, 2019, the circuit court received the fourth letter from defendant.
This letter reiterated the claims he had made in previous letters, including the claim that defense
counsel had misinformed him about mandatory supervised release. According to defendant,
defense counsel had explained mandatory supervised release as a requirement to register as a sex
offender for three years after defendant was released from prison. Also, defendant complained,
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defense counsel had neglected to inform him that, by pleading guilty, defendant would agree to be
subject to parole and that if he were unable to find living quarters during the period of mandatory
supervised release, he could be confined indefinitely. Finally, according to this fourth letter from
defendant, he made a request to defense counsel, one week after pleading guilty, that defense
counsel file on his behalf a motion to withdraw the guilty plea. Defense counsel refused to do so,
defendant alleged, and the reasons that defense counsel gave for the refusal were that such a motion
would be a waste of time and only would result in a longer prison sentence.
¶ 14 On November 15, 2019, in response to defendant’s fourth letter, the circuit court
entered an order reading as follows: “The Court has already ruled on [defendant’s] Post-Conviction
Petition. [Defendant] did not obtain leave to file a successive petition.”
¶ 15 On December 4, 2019, defendant filed a pro se document titled “Petition for Leave
of Post-Conviction Patition [sic].” The document read as follows:
“I am asking the court to grant me leave from my first try at fil[ ]ing a
Post-conviction Patition [sic] on my own.
I yet again have no help and no idea of how to file these things. (can you
ap[p]oint me a lawyer for help)
If the Court would please grant me this leave I would thank you.
I have more new evidence to prove I did not do this crime or crimes.
I would ask the court to grant me a second chance to file a successive
Post-conviction Patition [sic].
Please and thank you.”
In a postscript beneath his signature, defendant wrote:
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“If the court would be so kind would the court also ap[p]oint me a lawyer
to help me in fil[ ]ing a Post-conviction Patition [sic] please.
Monroe McWard is no longer my lawyer for this matter. Thank you for your
time.”
¶ 16 In an order entered on December 4, 2019, the circuit court ruled: “[Defendant’s]
motion is denied.”
¶ 17 In his fifth letter, dated December 8, 2019, defendant informed the circuit court that
he had fired McWard for refusing to read his case file and for “never look[ing] into anything,”
including A.W.’s recantation. Insisting that he “did not do this crime,” defendant again requested
the court to “[p]lease ap[p]oint counsel so [defendant could] file a successive”—and then the
bottom of the letter is cut off in the electronic record.
¶ 18 On December 18, 2019, the circuit court entered the following order: “[Defendant]
is not entitled to counsel. This Court has repeatedly denied [defendant’s] motion for a successive
petition.”
¶ 19 On December 27, 2019, the circuit court received a sixth letter from defendant. He
asked why the court “turn[ed] down everything [he] file[d].” He wondered if “it [was] because if
and when [his] case [went] back to court[,] all [his] charges [would] get dropped and [the court]
[did not] want to loose [sic] the conviction.” He wondered, alternatively, if it was because “the
State [did not] like the idea [that his] kid lied and [was] now telling the truth.” Again, defendant
requested the appointment of an attorney.
¶ 20 On January 6, 2020, the circuit court received the seventh letter from defendant. He
repeated the claims he previously made, and he added a history of misconduct by A.W., of which
lying to the police, according to defendant, was only one example. He argued that “[w]ith new
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evidence being given to [the court, his] post-conviction should not have been denied.” He inquired,
“Can I amend the post-conviction to make it good?” He again requested the appointment of defense
counsel to replace McWard, who no longer was his attorney.
¶ 21 On January 6, 2020, the circuit court entered the following order:
“Defendant continues to write weekly letters and requests to the Court
despite the Court already answering the same questions repeatedly.
DEFENDANT IS NOT ENTITLED TO COUNSEL AND NONE WILL
BE APPOINTED.
DEFENDANT IS NOT GRANTED LEAVE TO FILE REPEATED
SUCCESSIVE POST CONVICTION PETITIONS.
REPEATED REQUEST FOR THE SAME ISSUES WILL NOT BE
ANSWERED.”
¶ 22 II. ANALYSIS
¶ 23 Section 122-1(d) of the Post-Conviction Hearing Act (Act) provides as follows:
“A person seeking relief by filing a petition under this Section must specify in the
petition or its heading that it is filed under this Section. A trial court that has
received a petition complaining of a conviction or sentence that fails to specify in
the petition or its heading that it is filed under this Section need not evaluate the
petition to determine whether it could otherwise have stated some grounds for relief
under this Article.” 725 ILCS 5/122-1(d) (West 2018).
¶ 24 An argument could be made that by requesting “Post Conviction relief”—which is
a term of art meaning relief under the Act (see Johnson, 2021 IL 125738, ¶ 32; People v. Jones,
358 Ill. App. 3d 379, 383 (2005))—defendant’s letter of October 24, 2019, adequately specified
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that it was filed under section 122-1. See People v. Partee, 125 Ill. 2d 24, 35 (1988) (referring to
“an action for post-conviction relief under section 122-1”); People v. Collins, 161 Ill. App. 3d 285,
288 (1987) (observing that “[s]ection 122-1 *** specifically provides that post-conviction relief is
available to persons ‘imprisoned in the penitentiary’ ” (citing Ill. Rev. Stat. 1985, ch. 38, ¶ 122-1));
cf. People v. McDonald, 373 Ill. App. 3d 876, 880 (2007) (holding that by referring to itself on
every page as a “ ‘Post-Conviction Petition,’ ” the petition adequately signified that it was filed
pursuant to section 122-1). To be sure, the letter was not in the conventional form of a petition for
postconviction relief. It had no caption. It bore no title. And yet, even though it lacked the usual
trappings of a judicial petition, defendant’s letter of October 24, 2019, was a request, in writing,
that the circuit court grant him postconviction relief. “As applied to legal procedure[,] a petition is
ordinarily defined as a formal request or application in writing made to a court requesting judicial
action of some character and usually signed by a litigant or by his attorneys for him.” Benton Coal
Mining Co. v. Industrial Comm’n, 321 Ill. 208, 214 (1926). That definition aptly describes
defendant’s letter.
¶ 25 The supreme court, however, has interpreted section 122-1(d) as meaning that a
pro se pleading must be deemed a postconviction petition only if it references the Act. “In other
words,” the supreme court said, “if a pro se pleading alleges constitutional deprivations that are
cognizable under the Act[ ] but *** the pleading makes no mention of the Act, a trial court is under
no obligation to treat the pleading as a postconviction petition.” Shellstrom, 216 Ill. 2d at 53 n.1.
Defendant’s second letter did not reference the Act. Nor was it even titled as a postconviction
petition. Granted, in the body of the letter, defendant requested “Post Conviction relief.” But it
would be reasonable to question whether defendant, a pro se litigant who obviously was no
scholar, intended “Post Conviction relief” as a term of art. It could be argued that, more likely, he
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intended the term merely in its ordinary linguistic sense as “relief after conviction”—which, after
all, is what allowing the withdrawal of the guilty plea would be. His single use of the term “Post
Conviction relief” seems, under the circumstances, a small pedestal on which to rest much weight
of inference.
¶ 26 Understandably, then, the circuit court was uncertain whether defendant’s second
letter should be regarded as a postconviction petition. In its order, the court found that “[i]f the
motion were to be construed as a Post Conviction [petition],” the petition was frivolous and
patently without merit. (Emphasis added.) The court ruled, “[T]his matter is summarily dismissed
if a postconviction petition.” (Emphasis added.) “If” radiates uncertainty.
¶ 27 In the State’s view, “[t]he language of the [circuit] court’s disposition does not
reflect uncertainty, as defendant suggests [citation]; rather, it was the means for announcing the
alternative disposition.” What the court announced, rather, was a hypothetical fallback position.
The if-were construction in “[i]f the motion were to be construed as a Post Conviction [petition]”
(emphases added) is called the subjunctive mood, which “expresses *** conditions that are
contrary to fact” (Andrea Lunsford & Robert Connors, The St. Martin’s Handbook 208 (1989)).
When someone says, for example, “If I were a rich man, I would buy a yacht,” he signifies that he
is not in fact a rich man and that he therefore will not buy a yacht. Similarly, by using the phrase
“[i]f the motion were to be construed as a Post Conviction petition,” the court made a
counterfactual statement: the court signified that it did not construe defendant’s second letter as a
postconviction petition.
¶ 28 The uncertainty that prompted this hedging is understandable. A pro se filing that
alleges a constitutional deprivation without explicitly labeling itself as a postconviction petition
under the Act does not have the clear character of a postconviction petition. See 725 ILCS
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5/122-1(d); Shellstrom, 216 Ill. 2d at 53 n.1. Under Shellstrom, the circuit court, upon receiving
such an ambiguous document, has a choice: recharacterize the document as a postconviction
petition or do not recharacterize it as such. See Shellstrom, 216 Ill. 2d at 53 n.1. There can be no
middle ground. Recharacterizing the document merely for the sake of argument is not an option.
If the court recharacterizes the document as a postconviction petition, the court must commit to
that choice unequivocally. The three-step procedure in Shellstrom presupposes a recharacterization
that is more than hypothetical. For the court must:
“(1) notify the pro se litigant that the court intends to recharacterize the pleading,
(2) warn the litigant that this recharacterization means that any subsequent
postconviction petition will be subject to the restrictions on successive
postconviction petitions, and (3) provide the litigant an opportunity to withdraw the
pleading or to amend it so that it contains all the claims appropriate to a
postconviction petition that the litigant believes he or she has.” Shellstrom, 216 Ill.
2d at 57.
¶ 29 Ultimately, the circuit court definitively recharacterized defendant’s second letter
as a postconviction petition. On November 15, 2019, the court responded to defendant’s fourth
letter by noting, “The Court has already ruled on [defendant’s] Post-Conviction Petition.” The
trouble is the court did this recharacterization without complying with Shellstrom. A remand for
compliance with Shellstrom is necessary.
¶ 30 Because Judge Reif used all-capitals in responding to defendant’s seventh letter,
defendant requests us to direct that, on remand, the case be assigned to a different judge. This
emphatic use of all-capitals seems to us an insufficient basis to call into question Judge Reif’s
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impartiality or to infer that he has a hostile attitude toward defendant. Therefore, we deny the
request.
¶ 31 III. CONCLUSION
¶ 32 In accordance with Shellstrom, we vacate the judgment of the circuit court, and we
remand the case with directions to give defendant an opportunity to withdraw his pro se pleading
(his second letter) or, in the alternative, to amend it. See id.¶ 33 Vacated and remanded with directions.
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