                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Vasquez, 2013 IL App (2d) 120344




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    ALEXANDER VASQUEZ, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-12-0344


Filed                      July 15, 2013
Rehearing denied           August 22, 2013


Held                       Although defendant’s pro se postconviction petition filed after he served
(Note: This syllabus       his sentence and completed his mandatory supervised release term was
constitutes no part of     properly dismissed summarily for lack of standing in view of the fact that
the opinion of the court   he was no longer in custody, the request he made for the first time on
but has been prepared      appeal from the dismissal of his postconviction petition to apply the
by the Reporter of         credit he was entitled to for the time he spent in custody prior to
Decisions for the          sentencing against his drug assessment was granted, since the credit is
convenience of the         mandatory, it cannot be waived, it can be raised for the first time on
reader.)
                           appeal, even in a postconviction proceeding, and his lack of standing
                           under the postconviction statute did not bar the trial court from granting
                           his request.


Decision Under             Appeal from the Circuit Court of Du Page County, No. 02-CF-1177; the
Review                     Hon. George J. Bakalis, Judge, presiding.



Judgment                   Affirmed as modified.
Counsel on                 Thomas A. Lilien and Kim M. DeWitt, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.

                           Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman and
                           Kristin M. Schwind, Assistant State’s Attorneys, of counsel), for the
                           People.


Panel                      JUSTICE SPENCE delivered the judgment of the court, with opinion.
                           Presiding Justice Burke and Justice Jorgensen concurred in the judgment
                           and opinion.




                                             OPINION

¶1          Defendant, Alexander Vasquez, appeals from the summary dismissal of his pro se
        petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.
        (West 2010)). On appeal, defendant does not seek postconviction relief but instead seeks a
        $1,595 credit against a $3,000 drug assessment, for time spent in custody before he was
        sentenced, under section 110-14 of the Code of Criminal Procedure of 1963 (725 ILCS
        5/110-14 (West 2002)). We modify the sentencing order.

¶2                                        I. BACKGROUND
¶3           On May 14, 2002, defendant was charged by indictment with unlawful delivery of a
        controlled substance (720 ILCS 570/401(a)(2)(B) (West 2002)) and unlawful possession of
        a controlled substance with the intent to deliver (720 ILCS 570/401(a)(2)(B) (West 2002)).
        Both charges were Class X felonies and involved 100 grams or more but less than 400 grams
        of cocaine. On May 19, 2004, pursuant to a verbal plea agreement, defendant pled guilty to
        both counts and was sentenced to two concurrent terms of 10½ years’ imprisonment.
        Additionally, the plea negotiation established payment of a $3,000 controlled substance
        assessment, a $12,377 street value fine, a $200 DNA fee, a $100 lab fee, and a $100 “EMS”
        fee.
¶4           The trial court imposed a sentence in accordance with the agreement and credited
        defendant 319 days for time spent in presentencing custody. Defendant’s prison term ended
        on May 2, 2008, and his term of mandatory supervised release (MSR) ended on May 2, 2011.
¶5           On September 4, 2008, defendant was indicted in a federal suit for conspiracy to
        distribute cocaine. As a result of the federal case, he was convicted and sentenced to 20 years
        in a federal penitentiary.
¶6           Several months after defendant completed his MSR term, on February 7, 2012, defendant

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       filed a pro se petition for postconviction relief alleging that his convictions here should be
       vacated because his attorney was ineffective. Defendant alleged that his attorney failed to
       advise him that his plea could be used to enhance subsequent convictions. Defendant’s
       postconviction petition did not include a claim for monetary credit under the section 110-14.
¶7         On February 22, 2012, the trial court summarily dismissed defendant’s postconviction
       petition. The trial court reasoned that defendant had no standing to file the petition given that
       he was no longer in custody on the Du Page County case. The court went on to find that,
       even if defendant had standing, the petition would fail because there was no legal
       requirement for a defendant to be advised that a guilty plea could be used against him at
       some future time.
¶8         Defendant timely appealed.

¶9                                          II. ANALYSIS
¶ 10        On appeal, defendant does not reassert his ineffective-assistance-of-counsel claim but
       instead argues, for the first time, that he is entitled to $1,595 in credit against his drug
       assessment, for the time he spent in presentencing custody. Defendant contends that,
       although the instant issue involves a statutory right and not a constitutional violation, he may
       still apply for credit under section 110-14 (725 ILCS 5/110-14 (West 2002)) on appeal from
       the dismissal of his postconviction petition. Defendant argues that under People v.
       Caballero, 228 Ill. 2d 79, 83 (2008), applications for credit may be made for the first time
       on appeal from the denial of postconviction relief. The State responds that the Act does not
       allow defendant relief, because he lacked standing; at the time defendant filed his
       postconviction petition, he was not imprisoned on this case and his MSR term had ended.
¶ 11        Under the Act, individuals convicted of criminal offenses may challenge their convictions
       based on constitutional violations. People v. Domagala, 2013 IL 113688, ¶ 32. The Act
       provides a three-stage process for adjudication of postconviction petitions. People v. English,
       2013 IL 112890, ¶ 23. At the first stage, the trial court is to review the petition and, if it is
       frivolous or patently without merit, the court is authorized to dismiss the petition. 725 ILCS
       5/122-2.1(a)(2) (West 2010). In the event the trial court dismisses the petition at the first
       stage, as it did here, our review of that decision is de novo. People v. Gulley, 383 Ill. App.
       3d 727, 731 (2008).
¶ 12        We begin by discussing Caballero, the case defendant relies on for his claim for
       monetary credit. In Caballero, the defendant was convicted of unlawful possession with
       intent to deliver a substance containing cocaine. Caballero, 228 Ill. 2d at 81. The defendant
       spent 116 days in jail before he was sentenced to 14 years’ imprisonment and a fine. Id. at
       82. While he was imprisoned, the defendant filed a petition for postconviction relief alleging
       ineffective assistance of counsel, which was dismissed by the trial court at the first stage for
       being frivolous and patently without merit. Id. On appeal, the defendant argued that the trial
       court erred in dismissing his petition, because it sufficiently alleged a constitutional claim.
       Id. Additionally, the defendant claimed for the first time on appeal that he was entitled to a
       credit of $5 for each of the days he spent in custody before sentencing. Id. The appellate
       court affirmed the trial court’s dismissal of the defendant’s petition but nevertheless held that

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       the defendant was entitled to the monetary credit. Id.
¶ 13       The supreme court affirmed the appellate court’s decision and held that the defendant
       was entitled to the credit. Id. at 91. The court began by noting that the per diem monetary
       credit allowed “upon application by the defendant” under section 110-14 is mandatory,
       cannot be waived, and can be raised for the first time on appeal. Id. at 83. Though the State
       argued that the monetary credit is a statutory right, and not a constitutional right as required
       under the Act, the supreme court held that the statutory claim may be considered as an
       “application of the defendant” made under section 110-14 and may be raised at any stage,
       even on appeal in a postconviction proceeding. Id. at 83, 88. The court reasoned that section
       110-14 is silent concerning any time frame or procedural stage during which such application
       either must or can be made, and allowing the defendant to receive the credit was justified as
       a ministerial act to end further proceedings and promote an orderly administration of justice.
       Id. at 87-88.
¶ 14       The State argues that Caballero is distinguishable from the instant case because the
       defendant in Caballero was imprisoned at the time he filed the postconviction petition and
       thus did not lack standing. Here, in contrast, the defendant had successfully completed his
       MSR term by the time he filed the postconviction petition. Although the court in Caballero
       held that a claim for monetary credit may be raised at any stage of the proceedings, the court
       was not presented with the issue of standing.
¶ 15       The State points out that, in order to have standing under the Act, a defendant must be
       imprisoned at the time the postconviction petition is filed. See 725 ILCS 5/122-1(a) (West
       2010) (providing that “[a]ny person imprisoned in the penitentiary may institute a proceeding
       under this Article”). The issue of standing was addressed by our supreme court in People v.
       Carrera, 239 Ill. 2d 241 (2010), in which the supreme court held that because the defendant
       was not imprisoned in the penitentiary at the time he filed his postconviction petition, as
       required by section 122-1(a) of the Act, he could not invoke postconviction relief. Id. at 259.
       The supreme court determined that the trial court could not consider the defendant’s claim
       of ineffective assistance of counsel and that the appellate court properly affirmed the
       dismissal of the postconviction petition on the basis that the defendant lacked standing to
       bring his claim. Id.
¶ 16       In order to overcome the standing hurdle, defendant argues that his lack of standing under
       the Act did not deprive the trial court of subject matter jurisdiction. We agree. Subject matter
       jurisdiction is defined as a court’s power to hear and determine cases of the general class to
       which the proceeding in question belongs. In re Luis R., 239 Ill. 2d 295, 300 (2010). Even
       a defectively stated claim is sufficient to invoke the court’s subject matter jurisdiction,
       because subject matter jurisdiction does not depend upon the legal sufficiency of the
       pleadings. Id. at 301. In discussing subject matter jurisdiction, the supreme court explained
       that “the only consideration is whether the alleged claim falls within the general class of
       cases that the court has the inherent power to hear and determine. If it does, then subject
       matter jurisdiction is present.” (Emphasis in original.) Id.
¶ 17       In this case, the trial court had subject matter jurisdiction over defendant’s pro se
       postconviction petition, notwithstanding his lack of standing to raise a constitutional claim


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       under the Act. Likewise, the trial court would have had subject matter jurisdiction over
       defendant’s request for monetary credit for presentencing incarceration. See People v. White,
       357 Ill. App. 3d 1070, 1073 (2005) (a trial court retains jurisdiction to correct nonsubstantial
       matters, such as amendment of the mittimus to reflect additional sentencing credit, after it
       has otherwise relinquished jurisdiction). Although defendant did not make his request for
       credit at the trial court level, his lack of standing under the Act does not bar him from
       seeking credit on appeal. See Caballero, 228 Ill. 2d at 88 (an application under section 110-
       14 may be raised at any time and at any stage of court proceedings, even on appeal in a
       postconviction proceeding). That is, we may review the issue of credit because the appeal of
       the dismissal of defendant’s postconviction petition is properly before this court.
¶ 18        We note that cases are not uniform on the issues of standing and subject matter
       jurisdiction. For example, the State relies on a recent case, People v. Vinokur, 2011 IL App
       (1st) 090798, which did not involve an application for monetary credit under section 110-14
       but did involve a lack of standing under the Act. In Vinokur, the defendant pled guilty to one
       count of possession of cannabis with the intent to deliver and was sentenced to 24 months’
       probation. Id. ¶ 3. After his probation was successfully completed, the defendant filed a
       postconviction petition alleging that his guilty plea was involuntary. Id. ¶ 4. The trial court
       summarily dismissed the defendant’s petition based on a lack of standing. Id. The appellate
       court agreed that for the purposes of the Act the defendant was no longer imprisoned and
       thus had no standing to bring a postconviction petition. Id. ¶ 14.
¶ 19        In addition to arguing that his guilty plea was involuntary, the defendant in Vinokur
       argued that the appellate court could consider whether his sentence was void, because a void
       order can be attacked at any time. Id. ¶ 15. Citing People v. Flowers, 208 Ill. 2d 291, 308
       (2003), the court noted that, although a void order can be attacked at any time, the issue of
       voidness must be raised in the context of a proceeding that is properly before the court.
       Vinokur, 2011 IL App (1st) 090798, ¶ 16. Because the defendant did not have standing to file
       a postconviction petition under the Act, the court concluded that the petition “was not
       properly before the trial court.” Id. ¶ 18. The court stated that, although the appeal before it
       was proper, it could not consider the merits but had the authority to determine only whether
       the trial court was correct in dismissing the defendant’s petition for lack of standing. Id.
       ¶¶ 17-18.
¶ 20        Relying on Vinokur, the State argues that defendant’s postconviction claim was not
       properly before the trial court. The State argues that, because defendant lacked standing to
       file a postconviction petition under the Act, it follows that this court may not consider the
       merits of defendant’s request for credit but must determine only whether the trial court was
       correct in finding that defendant lacked standing.
¶ 21        The problem with the reasoning in Vinokur is that it conflates the legal principles of
       standing and subject matter jurisdiction. In Flowers, which the Vinokur court relied on, the
       supreme court found that the trial court lacked subject matter jurisdiction to hear the
       defendant’s motion to reconsider, meaning that the trial court had no authority to consider
       the merits of the defendant’s motion and that its ruling was void. Flowers, 208 Ill. 2d at 306.
       This was not the situation in Vinokur, where the trial court had subject matter jurisdiction
       over the defendant’s postconviction petition. Though the defendant in Vinokur lacked

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       standing to file a postconviction petition to address his constitutional claim, the defendant’s
       lack of standing did not divest the trial court of subject matter jurisdiction, and thus the
       reviewing court could consider the defendant’s voidness challenge. Cf. id. at 307 (“Because
       the circuit court had no jurisdiction ***, the appellate court, in turn, had not authority to
       consider the merits of her appeal from the circuit court’s judgment ***.”).
¶ 22        We believe that this issue was correctly analyzed in People v. Henderson, 2011 IL App
       (1st) 090923, wherein the court disagreed with the Vinokur court’s determination that a lack
       of standing has the same effect as the jurisdictional defect addressed in Flowers. Henderson,
       2011 IL App (1st) 090923, ¶ 40. The Henderson court correctly noted that “[s]tanding has
       no effect on subject matter jurisdiction” in Illinois. Id.; see also Lebron v. Gottlieb Memorial
       Hospital, 237 Ill. 2d 217, 254 n.4 (2010) (though under federal law standing is a threshold
       question under the case-or-controversy requirement of article III of the United States
       Constitution (U.S. Const., art. III, § 2), the Illinois Supreme Court is not required to follow
       federal law on issues of standing and has expressly rejected federal principles of standing).
       Even though the Henderson court determined that the defendant had lost standing under the
       Act because his MSR term ended while the appeal of the dismissal of his postconviction
       petition was pending,1 the court reasoned that the issue of whether the defendant’s conviction
       was void was properly before it. Henderson, 2011 IL App (1st) 090923, ¶¶ 40-41. The court
       noted that the parties had not challenged its or the trial court’s jurisdiction (id. ¶ 40), an issue
       distinct from standing.
¶ 23        While defendant does not make a voidness challenge here, but rather makes a request for
       monetary credit under section 110-14, our analysis of standing and subject matter jurisdiction
       is the same. As stated, under Caballero, 228 Ill. 2d at 88, an application for monetary credit
       under section 110-14 may be raised at any time and at any stage of court proceedings, even
       on appeal in a postconviction proceeding. Because defendant’s lack of standing under the Act
       did not equate to a lack of subject matter jurisdiction, the trial court had subject matter
       jurisdiction to consider defendant’s postconviction petition, and this court may consider
       defendant’s request for monetary credit.
¶ 24        Regarding the merits of defendant’s claim that he is entitled to a monetary credit of
       $1,595 (319 days’ credit for time served multiplied by $5), the State makes no argument,
       aside from standing, that defendant should not receive this sum. Credit under section 110-14
       operates to offset fines, and the $3,000 drug assessment that defendant was ordered to pay
       is a fine. See People v. Jones, 223 Ill. 2d 569, 580, 588 (2006). Therefore, under Illinois
       Supreme Court Rule 615(b)(1) (eff. Jan. 1, 1967), we modify the trial court’s sentencing
       order to reflect that defendant is entitled to a $1,595 credit to offset his $3,000 drug
       assessment.

¶ 25                                   III. CONCLUSION
¶ 26       Because defendant was not imprisoned on this case or serving his MSR term at the time
       he filed his pro se postconviction petition, he had no standing to seek any relief under the

               1
                   We do not necessarily agree with this determination.

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       Act. However, defendant’s lack of standing to seek relief under the Act does not preclude
       this court from granting his request for monetary credit under section 110-14. Therefore, we
       affirm the Du Page County circuit court’s judgment summarily dismissing defendant’s
       petition for lack of standing, and we modify the sentencing order to reflect a credit of $1,595
       against his drug assessment.

¶ 27      Affirmed as modified.




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