                                                       FIRST DIVISION
                                                       March 31, 2011




                           No. 1-08-3192


                IN THE APPELLATE COURT OF ILLINOIS
                      FIRST JUDICIAL DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,       )      Appeal from the
                                           )      Circuit Court
          Plaintiff-Appellee,              )      of Cook County.
                                           )
v.                                         )      No. 88 CR 18480
                                           )
ARTHUR DENT,                               )      Honorable
                                           )      James B. Linn,
          Defendant-Appellant.             )      Judge Presiding.


     JUSTICE LAMPKIN delivered the judgment of the court, with
opinion.
     Presiding Justice Hall and Justice Hoffman concurred in the
judgment and opinion.

                           O P I N I O N

     Defendant, Arthur Dent, was convicted of first degree murder

and sentenced to 30 years’ imprisonment.       His conviction and

sentence were upheld on direct appeal.     People v. Dent, 230 Ill.

App. 3d 238, 595 N.E.2d 18 (1992).   While his direct appeal was

pending, defendant filed a postconviction petition pursuant to

the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.

(West 1992)).   That petition was dismissed.      Defendant served his

prison sentence.   After his release and completion of parole,

defendant filed a successive postconviction petition alleging
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newly discovered evidence demonstrated his actual innocence.     The

successive petition was dismissed on its merits following second-

stage review.

     On appeal, defendant contends he has standing to bring the

successive postconviction petition.     Defendant additionally

contends the trial court erred in dismissing his petition without

the benefit of a third-stage evidentiary hearing where he made a

substantial showing of his actual innocence with an affidavit of

the shooter.    Based on the following, we affirm.

FACTS

     The facts were provided in detail in this court’s opinion on

direct appeal (Dent, 230 Ill. App. 3d at 240-41); therefore, we

briefly summarize only the salient facts taken from that opinion.

     Witnesses testified that defendant and Ralph James

approached a group of rival gang members on a porch at 820 East

Bowen, Chicago, Illinois, and fired shots from a distance of

three or four feet in the direction of Andre Porter.     Porter died

as a result of the shooting.    Defendant testified that he saw the

victim on the balcony at 820 East Bowen, that he spoke to the

victim and left, and that as he left he heard shots, but denied

any involvement in the offense.    Defendant said he was no longer

a gang member at the time of the shooting.




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     On December 5, 1989, defendant was convicted and sentenced

to a 30-year prison term.    According to defendant, he was paroled

on December 2, 2003.

     After completing his sentence for the Porter murder,

defendant filed a successive postconviction petition on February

28, 2008.    Defendant alleged newly discovered evidence

demonstrated his actual innocence.      In particular, defendant

alleged James, who had entered a blind guilty plea for the murder

of Porter and had served his sentence and completed parole,

provided an affidavit in which he averred that defendant “did not

participate in the planning and execution of [Porter’s]

shooting.”    The State filed a motion to dismiss the petition.

     The trial court dismissed the successive petition on its

merits based upon James’s affidavit and the trial record.      In so

doing, the trial court noted that James’s affidavit recognized

defendant was aware James intended to commit the shooting prior

to the offense taking place.    The court further provided that the

trial evidence demonstrated defendant told the investigating

detective that he was a high ranking member of the King Cobras

and he would order “hits,” not carry them out.      The court relied

on the fact that defendant admitted he was on the balcony at 820

East Bowen to purchase marijuana from the victim.      The court

found that James’s affidavit was inconsistent with defendant’s

version of the events at trial.    In light of the trial testimony

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of the witnesses and the contradictory stories raised in the

postconviction petition, the trial court concluded “there is

nothing presented here to cause this to go to a further

evidentiary hearing.”

DECISION

     Although not addressed by the trial court in dismissing

defendant’s successive postconviction petition on the merits, we

first address whether defendant has standing to pursue

postconviction relief where he served his sentence on the

challenged conviction prior to filing the successive

postconviction petition.

     We review the second-stage dismissal of a postconviction

petition de novo.    See People v. Pack, 224 Ill. 2d 144, 147, 862

N.E.2d 938 (2007).

     Pursuant to the Act, “[a]ny person imprisoned in the

penitentiary may institute proceedings under this Article.”    725

ILCS 5/122-1(a) (West 2008).   The supreme court, in upholding the

constitutionality of the Act, ruled that the Act makes the remedy

available “only to persons actually being deprived of their

liberty and not to persons who had served their sentences and who

might wish to purge their records of past convictions.”     People

v. Dale, 406 Ill. 238, 246, 92 N.E.2d 761 (1950), overruled in

part on other grounds, People v. Warr, 54 Ill. 2d 487, 298 N.E.2d


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164 (1973).

     Distinguishing Dale, our supreme court has since held that,

where a defendant was on mandatory supervised release at the time

his postconviction petition was filed and therefore the

Department of Corrections still retained “custody” of the

defendant, he had standing to file a postconviction petition.

People v. Correa, 108 Ill. 2d 541, 546-47, 485 N.E.2d 307 (1985).

Other cases have also interpreted the phrase “imprisoned in the

penitentiary” to allow standing for postconviction review where a

defendant was on probation when his petition was filed (People v.

Montes, 90 Ill. App. 3d 356, 412 N.E.2d 1363 (1980)); where a

defendant was released on an appeal bond when his petition was

filed (People v. Martin-Trigona, 111 Ill. 2d 295, 489 N.E.2d 1356

(1986)); and where a defendant was serving consecutive sentences

while his petition was pending (Pack).   Cf. People v. Davis, 39

Ill. 2d 325, 235 N.E.2d 634 (1968) (where a prisoner was released

from prison after timely filing his petition, which demonstrated

that he was convicted in a jury trial without ever being present

or represented by counsel).   The common thread in these examples

is that the defendants were pursuing a liberty interest, which is

the deciding factor in determining who is “imprisoned” for

purposes of the Act, and that invalidating the challenged

convictions would advance the defendants’ release dates from the


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constraints affecting their liberty.

     Defendant contends he has standing to challenge his

conviction under the Act because he is imprisoned for natural

life as a result of the Porter murder conviction where it was

used as an element in sentencing him in a subsequent murder

conviction.

     The supreme court has spoken on a defendant’s ability to

challenge a conviction under the Act when his sentence has been

successfully discharged.   In People v. West, 145 Ill. 2d 517, 584

N.E.2d 124 (1991), the supreme court held that the defendant was

not eligible for postconviction relief for a sentence that had

been fully served even though that sentence was used as an

aggravating factor in an out-of-state death sentence.   West, 145

Ill. 2d at 518.   Reasoning that “[t]he person must be in prison

for the offense he is purporting to challenge,” the supreme court

concluded the defendant’s out-of-state incarceration was not

imprisonment within the meaning of the Act because his Illinois

sentence and mandatory supervised release period had been

completed before he filed his petition for postconviction relief.

Id. at 519; see also People v. Thurman, 334 Ill. App. 3d 286, 777

N.E.2d 971 (2002) (the defendant did not have standing under the

Act to challenge a conviction for which he completed the

probation sentence where that conviction was later used as a


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sentencing enhancement in an unrelated federal case); People v.

Collins, 161 Ill. App. 3d 285, 514 N.E.2d 499 (1987) (the

defendant did not have standing under the Act to challenge a

conviction for which he completed his probationary period where

that conviction was later used as a basis for an extended-term

sentence in an unrelated case).

     In contrast, in Pack, the supreme court, partially relying

on Garlotte v. Fordice, 515 U.S. 39, 46 (1995) (consecutive

sentences are to be viewed in the aggregate in construing the

statutory term “in custody”), held that the defendant serving

consecutive sentences of 7 and 60 years could challenge the

conviction on which he was sentenced to 7 years after already

having served nearly 13 years’ imprisonment.   Pack, 224 Ill. 2d

at 148.   The supreme court reasoned that, where the Department of

Corrections treated consecutive sentences in the aggregate, the

defendant was pursuing a liberty interest because an invalidation

of his first conviction would advance his release date.     Id. at

152-53.   Accordingly, the supreme court held that “a prisoner

serving consecutive sentences is ‘imprisoned’ under any one of

them for purposes of section 122-1(a).”   Id. at 152.   The supreme

court distinguished West based on the fact that the defendant in

West was seeking to challenge his conviction for purposes of

purging his record, which is not a remedy available under the


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Act.    Id. at 153 (citing Dale, 406 Ill. at 246).

       The facts of the instant case are more similar to those in

West than those in Pack.    The Pack defendant had not completed

his sentence for the challenged conviction because the two

consecutive sentences were considered as one.    Consequently, the

invalidation of the challenged conviction would reduce the

sentence for that offense such that the restraints on his liberty

could be reduced by seven years.    In contrast, because defendant

successfully completed his sentence for the challenged

conviction, his liberty interest for the Porter murder cannot be

affected.    Rather, defendant effectively requests the ability to

purge his record.    The supreme court has been clear that a

defendant may not use the Act to purge his record of a conviction

for which the sentence has been completed.    Dale, 406 Ill. at

246.

       Defendant attempts to distinguish West, Thurman, and Collins

by contending those challenged convictions were used only as

aggravating factors in the subsequent unrelated sentences whereas

his challenged conviction was used as an element in his

subsequent natural life imprisonment.    According to defendant,

the invalidation of the challenged convictions in West, Thurman,

and Collins would purge the defendants’ records but still require

them to raise another claim of error in relation to the


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subsequent sentences, whereas, in contrast, his natural life

sentence would become void if the Porter conviction were

invalidated.   We disagree.   Defendant’s conviction, similar to

the prior convictions of the defendants in West, Thurman, and

Collins, was a sentencing enhancement.    The underlying

convictions in all of the cases had to be proven in order for the

enhancement to be applied to the sentences.

     “[S]tanding does not exist under the Post-Conviction Act

following the completion of a sentence.”    Thurman, 334 Ill. App.

3d at 290.   We recognize the Act is to be “liberally construed to

afford a convicted person an opportunity to present questions of

deprivation of constitutional rights” (Correa, 108 Ill. 2d at

545); however, the Act and its remedies are not available to

defendants whose sentences have been completed and whose liberty

interests are no longer restrained.    People v. Rajagopal, 381

Ill. App. 3d 326, 330, 885 N.E.2d 1152 (2008).    Moreover, case

law demonstrates that a defendant retains standing so long as he

is challenging the conviction upon which he continues to serve

some form of sentence and therefore his liberty interests would

be directly affected with an invalidation of that conviction.

Defendant was no longer serving any form of sentence for the

Porter conviction when he filed his postconviction petition.      We,

therefore, find defendant did not have standing under the Act to


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challenge the Porter conviction.

     Because we may affirm on any basis provided by the record

(People v. Anderson, 401 Ill. App. 3d 134, 138, 929 N.E.2d 1206

(2010)) and we have determined defendant does not have standing

to challenge the Porter conviction, we need not address the

merits of his postconviction claim.

CONCLUSION

     We affirm the judgment of the trial court dismissing

defendant’s postconviction petition.

     Affirmed.




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1-08-3192



        REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT



                THE PEOPLE OF THE STATE OF ILLINOIS,

                         Plaintiff-Appellee,

                                 v.

                            ARTHUR DENT,

                        Defendant-Appellant.



                         No. 1-08-3192

                     Appellate Court of Illinois
                   First District, FIRST DIVISION

                           March 31, 2011


    JUSTICE LAMPKIN delivered the judgment of the court, with
opinion.

  Presiding Justice Hall and Justice Hoffman concurred in the
                     judgment and opinion.


            Appeal from the Circuit Court of Cook County.
               The Hon. James B. Linn, Judge Presiding.


                     COUNSEL FOR APPELLANT
Michael J. Pelletier, State Appellate Defender, Chicago, IL 60601
                 Patricia Unsinn, Deputy Defender
                 OF COUNSEL: Caroline E. Bourland

                      COUNSEL FOR APPELLEE
 Anita Alvarez, Cook County State’s Attorney, Chicago, IL 60602
         OF COUNSEL: Alan J. Spellberg, Mary P. Needham
                      and Peter Maltese

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1-08-3192




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