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                               Appellate Court                         Date: 2016.10.06
                                                                       10:48:22 -05'00'




                  Johnson v. Williams, 2016 IL App (3d) 150824



Appellate Court   PATRICK LYNN JOHNSON, Plaintiff-Appellant, v. TARRY
Caption           WILLIAMS, Warden, Defendant-Appellee.



District & No.    Third District
                  Docket No. 3-15-0824



Filed             August 1, 2016



Decision Under    Appeal from the Circuit Court of Will County, No. 15-MR-986; the
Review            Hon. Corey D. Lund, Judge, presiding.



Judgment          Affirmed; rule to show cause issued.



Counsel on        Patrick Lynn Johnson, of Joliet, appellant pro se.
Appeal
                  Lisa Madigan, Attorney General, of Chicago (Michael M. Glick and
                  Russell K. Benton, Assistant Attorneys General, of counsel), for
                  appellee.



Panel             JUSTICE SCHMIDT delivered the judgment of the court, with
                  opinion.
                  Presiding Justice O’Brien and Justice Carter concurred in the
                  judgment and opinion.
                                              OPINION

¶1       In December 1997, plaintiff, Patrick Johnson, pled guilty to first degree murder. A Kane
     County circuit court sentenced him to 78 years’ imprisonment. See People v. Johnson, 2015 IL
     App (2d) 140388, ¶ 2. Plaintiff challenged his conviction on appeal and in multiple
     postconviction petitions. The Second District denied all of his claims. Plaintiff ultimately filed
     this habeas corpus action in the circuit court of Will County, alleging the Kane County circuit
     court lacked jurisdiction over him due to a defective indictment—an issue he already argued
     before the Second District three times. The trial court dismissed plaintiff’s complaint. Plaintiff
     appeals. We affirm the trial court’s ruling and sanction the plaintiff.

¶2                                         BACKGROUND
¶3       The plaintiff in this case was convicted of first degree murder; the Second District affirmed
     his sentence on appeal. People v. Johnson, 303 Ill. App. 3d 1109 (1999) (table) (unpublished
     order under Supreme Court Rule 23). On three occasions, plaintiff alleged the indictment that
     brought him before the trial court was issued by an unsworn grand jury and, therefore, the trial
     court did not have personal jurisdiction over him. People v. Johnson, 399 Ill. App. 3d 1234
     (2010) (table) (unpublished order under Supreme Court Rule 23); People v. Johnson, 2015 IL
     App (2d) 140388, ¶¶ 5-7; People v. Johnson, 2016 IL App (2d) 150586-U, ¶¶ 13-14. The
     Second District affirmed plaintiff’s conviction each time, presuming the grand jury was not
     sworn when it returned his indictment. Johnson, 399 Ill. App. 3d 1234; Johnson, 2015 IL App
     (2d) 140388, ¶¶ 1, 7; Johnson, 2016 IL App (2d) 150586-U, ¶¶ 2, 14. Specifically, it ruled that
     “[t]he failure to swear the grand jury does not divest the trial court of subject-matter
     jurisdiction to enter a criminal conviction.” Johnson, 2015 IL App (2d) 140388, ¶ 6; Johnson,
     2016 IL App (2d) 150586-U, ¶ 14. The Second District further stated in the latter appeals that
     plaintiff’s claims had already been brought before the court and were therefore barred by
     res judicata. Johnson, 2015 IL App (2d) 140388, ¶ 6; Johnson, 2016 IL App (2d) 150586-U,
     ¶ 14.
¶4       In April 2015, plaintiff filed this habeas corpus action pro se in the circuit court of Will
     County. Plaintiff alleged, yet again, that the Kane County circuit court lacked jurisdiction over
     him because the grand jury that issued the indictment against him was not sworn. The State
     filed a motion to dismiss pursuant to the Code of Civil Procedure (735 ILCS 5/2-615 (West
     2014)), arguing that plaintiff’s complaint did not state a cause of action. In November 2015,
     the circuit court of Will County granted the State’s motion to dismiss, finding that “[p]laintiff’s
     argument for lack of personal jurisdiction does not make sense, is waived, and untimely.”
¶5       Plaintiff appeals.

¶6                                            ANALYSIS
¶7        On appeal, plaintiff reasserts his claim that the Kane County circuit court did not have
     personal jurisdiction over him. In response, the State argues (1) this court should affirm the
     trial court’s ruling since plaintiff’s complaint failed to state a cause of action, (2) plaintiff’s
     claim is barred by res judicata, and (3) this court should consider applying sanctions against
     plaintiff for filing a frivolous appeal.



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¶8          We review de novo the trial court’s grant of a section 2-615 motion to dismiss. Board of
       Directors of Bloomfield Club Recreation Ass’n v. Hoffman Group, Inc., 186 Ill. 2d 419, 424
       (1999). An appellate court may affirm the circuit court’s judgment on any basis contained in
       the record. Beacham v. Walker, 231 Ill. 2d 51, 60-61 (2008). The doctrine of res judicata bars
       criminal defendants from reasserting issues already raised on direct appeal. People v. Walker,
       2016 IL App (3d) 140723, ¶ 13. This prevents defendants from “ ‘taking two bites out of the
       same appellate apple.’ ” People v. Tenner, 206 Ill. 2d 381, 395 (2002) (quoting People v.
       Partee, 125 Ill. 2d 24, 37 (1988)).
¶9          For the fourth time, the defendant is before an appellate court asserting that the Kane
       County circuit court did not have jurisdiction over him because of an allegedly defective
       indictment. He makes several subarguments on appeal. Each argument culminates with the
       same conclusion: the trial court did not have jurisdiction over him because of the defective
       indictment. A defendant cannot circumvent res judicata merely by rephrasing issues
       previously addressed. People v. Simpson, 204 Ill. 2d 536, 559 (2001). As such, we need not
       address the merits of defendant’s claim further. We affirm the trial court’s dismissal of
       plaintiff’s complaint.
¶ 10        The State further urges this court to apply sanctions against the plaintiff. Under Rule
       375(b), this court can impose sanctions on a party or a party’s attorney when the party’s appeal
       is frivolous or not taken in good faith. Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994). Frivolous appeals
       are those brought “without merit and [with] no chance of success.” Ill. S. Ct. R. 375(b),
       Committee Comments (adopted Aug. 1, 1989). “Frivolous litigation wastes time, money, and
       resources that could be better spent addressing potentially meritorious claims filed by
       good-faith litigants.” People v. Austin, 2014 IL App (4th) 140408, ¶ 23.
¶ 11        Plaintiff’s pro se appeal is frivolous. We find it “not reasonably well grounded in fact and
       not warranted by existing law.” Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994). He has been told in no
       uncertain terms that his jurisdictional argument is meritless. Plaintiff has further been informed
       that this precise argument is barred by res judicata. Johnson, 2015 IL App (2d) 140388, ¶ 6;
       Johnson, 2016 IL App (2d) 150586-U, ¶ 14. In spite of this, he persists. Plaintiff’s abuse of the
       system must be thwarted.
¶ 12        Accordingly, we order the plaintiff to show cause within 30 days why sanctions should not
       be entered against him under Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994).
¶ 13        We further remind the trial court of its statutory authority to collect funds from his
       Department of Corrections trust fund account in order to pay for the costs of this litigation. See
       Austin, 2014 IL App (4th) 140408, ¶ 25 (“ ‘If a prisoner confined in an Illinois Department of
       Corrections facility files a pleading *** and the Court makes a specific finding that the
       pleading *** filed by the prisoner is frivolous, the prisoner is responsible for the full payment
       of filing fees and actual court costs.’ ” (quoting 735 ILCS 5/22-105(a) (West 2012))).

¶ 14                                         CONCLUSION
¶ 15       For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

¶ 16       Affirmed; rule to show cause issued.




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