                        Nos. 2-08-0683 & 2-08-0684 cons. Filed: 4-5-10
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Du Page County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 05--CF--509
                                       )
JUAN CORREDOR,                         ) Honorable
                                       ) John J. Kinsella,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Du Page County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 06--CF--1456
                                       )
JUAN CORREDOR,                         ) Honorable
                                       ) John J. Kinsella,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE HUDSON delivered the opinion of the court:

       Defendant, Juan Corredor, appeals from an order recharacterizing his motion for an order

nunc pro tunc as a petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq.

(West 2008)) and dismissing it. He contends that the court erred in recharacterizing the motion

without first giving him the admonitions required under People v. Shellstrom, 216 Ill. 2d 45 (2005).

We agree; accordingly, we vacate the dismissal and remand the matter for Shellstrom admonitions.
Nos. 2--08--0683 & 2--08--0684 cons.


                                        I. BACKGROUND

       In case No. 05--CF--509, on March 24, 2005, a grand jury indicted defendant on three counts

of aggravated criminal sexual abuse (720 ILCS 5/12--16(c)(1)(i) (West 1998)). On May 18, 2006,

a grand jury indicted him on three counts of predatory criminal sexual assault of a child (720 ILCS

5/12--14.1(a)(1) (West 1998)). On August 30, 2007, defendant pleaded guilty to the three

aggravated-criminal-sexual-abuse counts. On September 27, 2007, the court sentenced him to five

years' imprisonment, consecutive to his sentence in case No. 06--CF--1456.

       In case No. 06--CF--1456, on June 8, 2006, a grand jury indicted defendant on three counts

of harassment of a witness (720 ILCS 5/32--4a(a)(2) (West 2006)). The charges stemmed from

defendant's contacts with witnesses in case No. 05--CF--509. On August 30, 2007, the same day that

defendant entered his plea in the other case, he entered a guilty plea to one count here. The court

sentenced him to three years' imprisonment on September 27, 2007, the same day that the court

sentenced him in the other case. Defendant filed a late pro se motion for reconsideration of his

sentence. The court ruled that it lacked jurisdiction and denied it.

       On May 28, 2008, defendant filed a "Motion for Order Nunc pro Tunc" using a preprinted

form and referencing both cases. He asserted that he was entitled to 501 days' credit for time served

in each case. A handwritten portion of the motion alleged that the court had told him that he would

receive credit against each sentence and that the Department of Corrections was not calculating his

sentences accordingly. On June 17, 2008, the court entered an order stating that defendant's motion

was "treated as a postconviction motion [sic]" and dismissed. On July 22, 2008, defendant filed a

notice of appeal.




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       Defendant later moved in this court for leave to file a late notice of appeal, a motion that this

court granted. He now argues that the rule in Shellstrom required the trial court to notify him that

it intended to recharacterize the pleading, warn him that the recharacterization would mean that any

subsequent postconviction petition would be subject to the restrictions on successive postconviction

petitions, and allow him to either withdraw the pleading or amend it. The State argues that

Shellstrom applies only to actions cognizable under Illinois law and that defendant's motion was not

such an action. Defendant has not argued here that the court's recharacterization of his motion was

an abuse of discretion.

                                           II. ANALYSIS

       We hold that the rule in Shellstrom mandated the admonitions under these circumstances.

We review de novo the question of whether the trial court has used the proper procedure. See

Woods v. Cole, 181 Ill. 2d 512, 516 (1998).

       We start by examining the supreme court's reasoning in Shellstrom. The relevant part of that

decision opens with a discussion of a decision, Castro v. United States, 540 U.S. 375, 157 L. Ed. 2d

778, 124 S. Ct. 786 (2003), that dealt with restrictions on prisoners' rights to file multiple federal

habeas corpus motions. In Castro, the defendant filed something that he labeled a Rule 33 (Fed. R.

Crim. P. 33) motion for a new trial. Castro, 540 U.S. at 378, 157 L. Ed. 2d at 784, 124 S. Ct. at 789.

The district court treated it in part as a motion for habeas corpus relief under section 2255 of Title

28 of the United States Code (28 U.S.C. §2255 (2000)). Castro, 540 U.S. at 378, 157 L. Ed. 2d at

784, 124 S. Ct. at 789. When the defendant later filed something that he labeled as a motion for

habeas corpus relief, the district court dismissed it for failure to meet the requirements for a

successive habeas corpus motion. Castro, 540 U.S. at 378-79, 157 L. Ed. 2d at 785, 124 S. Ct. at



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790. The Supreme Court, recognizing the unfairness of the result, created a rule that became the

model for the Shellstrom rule:

                "[A restriction must apply] when a court recharacterizes a pro se litigant's motion as

        a first § 2255 motion. *** [T]he district court must notify the pro se litigant that it intends

        to recharacterize the pleading, warn the litigant that this recharacterization means that any

        subsequent § 2255 motion will be subject to the restrictions on 'second or successive'

        motions, and provide the litigant an opportunity to withdraw the motion or to amend it so

        that it contains all the § 2255 claims he believes he has." Castro, 540 U.S. at 383, 157 L. Ed.

        2d at 787, 124 S. Ct. at 792.

        In Shellstrom, the defendant filed a " 'Motion to Reduce Sentence, Alternatively, Petition for

Writ of Mandamus to Order Strict Compliance with Terms of Guilty Plea,' " which the trial court

recharacterized as a petition under the Act. Shellstrom, 216 Ill. 2d at 47. The issue on appeal was

whether the defendant was entitled to admonitions similar to those in Castro. The State suggested

that Castro was inapposite, arguing that Illinois's restrictions on successive postconviction petitions

are less onerous than the federal restrictions on successive section 2255 motions. Shellstrom, 216

Ill. 2d at 55. The court rejected that argument, holding that the cause-and-prejudice test for the filing

of a successive postconviction petition is similarly onerous. Shellstrom, 216 Ill. 2d at 55-56.

Further, it expressed its concern that the loss of the opportunity to knowingly file an initial petition

was unfair:

                "Under the summary procedure urged by the State, a circuit court in Illinois could

        summarily recharacterize as a first postconviction petition a pro se litigant's pleading that was

        labeled differently. The litigant would not be given notice or an opportunity to respond. As



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Nos. 2--08--0683 & 2--08--0684 cons.


       a result, the pleading that was transformed into the litigant's first postconviction petition

       would present only those arguments that the litigant had chosen to include before realizing

       that he was, in effect, filing a postconviction petition. Any additional arguments that the

       litigant might have included in a first postconviction petition would be barred from

       successive petitions unless the litigant could demonstrate cause for failing to bring them and

       prejudice resulting from that failure.

               We find this prospect as troubling as did the Supreme Court in Castro when faced

       with a similar circumstance regarding § 2255 motions." (Emphasis in original.) Shellstrom,

       216 Ill. 2d at 56-57.

       The court therefore created a requirement similar to that created in Castro:

               "Pursuant to our supervisory authority, we hold that, in the future, when a circuit

       court is recharacterizing as a first postconviction petition a pleading that a pro se litigant has

       labeled as a different action cognizable under Illinois law, the circuit 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. If the court

       fails to do so, the pleading cannot be considered to have become a postconviction petition

       for purposes of applying to later pleadings the Act's restrictions on successive postconviction

       petitions." (Emphases added.) Shellstrom, 216 Ill. 2d at 57.




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        The State argues that, because defendant's motion was not a cognizable action, this rule is

inapplicable. The State asserts that, if the trial court lacks jurisdiction over a filing as the filer

characterized it, that filing is not cognizable, and the trial court can recharacterize it to create

jurisdiction without needing to give the Shellstrom admonitions. It argues that the trial court lacked

jurisdiction to consider defendant's motion as he characterized it here.

        The obvious problem with the State's argument is that the trial court did have jurisdiction to

consider defendant's motion as he characterized it. The court retains jurisdiction to conform the

record to the judgment actually entered. See People v. Flowers, 208 Ill. 2d 291, 306-07 (2003) ("The

only continuing power the circuit court possessed over the case [after the passage of 30 days from

the final judgment] was limited to enforcement of the judgment or correction of clerical errors or

matters of form so that the record conformed to the judgment actually rendered"). One method by

which such correction is sought is a motion for an order nunc pro tunc. E.g., Phillips v. Gannotti,

327 Ill. App. 3d 512, 517-18 (2002). Another is a motion to correct the mittimus. People v. O'Neill,

367 Ill. App. 3d 439, 440 (2006). By entitling his filing a "Motion for Order Nunc pro Tunc" and

by referring to an alleged discrepancy between the court's expressed intentions and the result,

defendant plainly invoked this limited continuing jurisdiction.

        Beyond that problem with the State's argument, we are not persuaded that the supreme court

intended the rule in Shellstrom to be limited to filings over which the trial court has jurisdiction or,

for that matter, ones that are pleadings initiating actions. We doubt that the supreme court intended

a glaring mismatch between the problem it recognized--accidental loss of the right to file an initial

petition--and a remedy that would protect only those who happened to file initial pleadings. The risk

of accidental loss of claims is likely at its highest when a defendant has filed something that he or



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she thinks of as a mere motion, for instance, a motion for reduction of sentence that slightly misses

the filing deadline.

        We note that, in People v. Swamynathan, 236 Ill. 2d 103 (2010), the supreme court addressed

the issue of when a recharacterized filing becomes a petition under the Act as that question relates

to the trial court's deadline for dismissing a petition under the Act. The recharacterized filing was

a pro se motion to withdraw a guilty plea and vacate the sentence; the defendant filed the motion

almost two years after his sentencing. Swamynathan, 236 Ill. 2d at 106. Although the trial court

would have lacked jurisdiction over this filing as a motion and although the defendant did not label

the filing as a pleading initiating an action, the supreme court nevertheless cited Shellstrom for the

proposition that "[i]f a trial court determines that recharacterization is appropriate, the court must

take certain steps [(the Shellstrom admonitions)] to insure that the defendant is admonished of the

consequences of recharacterization." Swamynathan, 236 Ill. 2d at 112. The supreme court did not

suggest that the admonitions were unneeded given the nature of the defendant's filing. Admittedly,

the State did not raise the applicability of Shellstrom. Nevertheless, for the supreme court to say in

that context that recharacterization requires Shellstrom admonitions does suggest that the court did

not intend to limit the rule to recharacterization of filings that, as initial pleadings, vest the trial court

with jurisdiction.

                                           III. CONCLUSION

        Defendant was entitled to the admonitions specified in Shellstrom before recharacterization

of his motion as a postconviction petition. We therefore vacate the dismissal and remand the matter

for such admonitions.

        Vacated and remanded with instructions.



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       ZENOFF, P.J., and HUTCHINSON, J., concur.




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