                                  Illinois Official Reports

                                          Appellate Court



                             People v. Austin, 2014 IL App (4th) 140408



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      ALLAN P. AUSTIN, Defendant-Appellant.


District & No.               Fourth District
                             Docket No. 4-14-0408


Filed                        December 17, 2014


Held                         In the case of a vexatious litigant who had been convicted and
(Note: This syllabus         sentenced to 80 years for felonies against three women and then
constitutes no part of the   embarked on filing various frivolous pleadings, finally causing the
opinion of the court but     trial court to issue an order directing the circuit clerk not to accept any
has been prepared by the     further pleadings from defendant unless he obtained leave of the trial
Reporter of Decisions        court and paid all fees, defendant’s appeal following the circuit clerk’s
for the convenience of       sealing of defendant’s latest petition pursuant to the trial court’s
the reader.)                 earlier order was properly dismissed for lack of jurisdiction, since the
                             sealing of the petition was not a final trial court judgment for purposes
                             of an appeal, and based on the conclusion that the petition was
                             frivolous, the trial court was reminded of its statutory authority to
                             collect funds from defendant’s Department of Corrections trust fund
                             account to pay for the costs of the litigation; furthermore, defendant
                             was ordered to show cause within 30 days why sanctions should not be
                             imposed against him under Supreme Court Rule 375(b) for filing the
                             frivolous appeal, and pending defendant’s response and the appellate
                             court’s decision as to what action to take, the clerk of the appellate
                             court is directed not to file any new appeals submitted by defendant to
                             this appellate court.


Decision Under               Appeal from the Circuit Court of McLean County, No. 98-CF-482; the
Review                       Hon. Scott Drazewski, Judge, presiding.
     Judgment                   Appeal dismissed.


     Counsel on                 Allan P. Austin, appellant pro se.
     Appeal
                                Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino,
                                David J. Robinson, and Luke McNeill, all of State’s Attorneys
                                Appellate Prosecutor’s Office, of counsel), for the People.


     Panel                      JUSTICE STEIGMANN delivered the judgment of the court, with
                                opinion.
                                Presiding Justice Pope and Justice Appleton concurred in the
                                judgment and opinion.

                                                  OPINION

¶1         Defendant, Allan P. Austin, is currently serving an 80-year aggregate prison sentence for a
       litany of felonies that he perpetrated against three women in March 1998. Since entering prison
       15 years ago, defendant has filed a seemingly endless series of pleadings in the trial court,
       followed by appeals to this court. Defendant has yet to raise a meritorious issue.
¶2         In April 2007, the trial court, noting that defendant was a vexatious litigant “of Dickensian
       proportions,” ordered the circuit clerk “not to accept any further pleadings from the defendant
       for filing unless the defendant first obtains leave of the court and pays all appropriate fees.”
       Undeterred, defendant continued to mail petitions to the trial court, all of which the circuit
       clerk sealed pursuant to the court’s April 2007 order. Defendant filed his latest petition in April
       2014, which the circuit clerk sealed. In May 2014, defendant pro se filed a notice of appeal.
¶3         In his pro se brief, defendant raises nine challenges to his convictions and sentences, but he
       does not address (1) his failure to obtain leave of the court to file his petition or (2) the fact that
       his petition was never filed in the trial court. The State notes in its brief that because
       defendant’s April 2014 petition was never filed, this court lacks jurisdiction over defendant’s
       appeal because it did not result from a final judgment. See Ill. S. Ct. R. 606(b) (eff. Feb. 6,
       2013). We agree with the State and dismiss the appeal for lack of jurisdiction.

¶4                                       I. BACKGROUND
¶5          In December 1998, a jury convicted defendant of three counts of aggravated criminal
       sexual assault (720 ILCS 5/12-14(a)(2) (West Supp. 1997)), two counts of home invasion (720
       ILCS 5/12-11(a)(2) (West 1996)), two counts of residential burglary (720 ILCS 5/19-3 (West
       1996)), one count of vehicular invasion (720 ILCS 5/12-11.1 (West 1996)), one count of
       unlawful restraint (720 ILCS 5/10-3 (West 1996)), and two counts of criminal sexual abuse
       (720 ILCS 5/12-15(a)(1) (West 1996)).
¶6          Defendant’s convictions stemmed from his separate attacks on three women near the
       Illinois Wesleyan University campus in March 1998. In the first attack, defendant entered a
       woman’s car, punched her in the face, and sexually abused her by rubbing her chest and the

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       area between her legs. Defendant fled when he noticed a car entering the parking lot. In the
       next attack, several weeks later, defendant grabbed a different woman by the arm as she
       walked home from her boyfriend’s dormitory late at night, attempting to drag her to a nearby
       parking lot. That woman was able to escape. The next day, in the third attack, defendant broke
       into a woman’s home during the night, punched her in the face, and then raped her in her bed.
       Defendant threatened to kill the woman as he forced her to perform oral sex on him. Police
       arrested defendant in early May 1998, when his first victim saw defendant in the same parking
       lot in which he entered her car two months earlier. During a police interview, defendant
       admitted his commission of the attacks and revealed knowledge of factual details that
       confirmed his involvement.
¶7         Following defendant’s convictions, the trial court sentenced him to a total of 80 years in
       prison. This court affirmed defendant’s convictions and sentences on direct appeal. People v.
       Austin, No. 4-99-0188 (Nov. 16, 2000) (unpublished order under Supreme Court Rule 23).
¶8         Since 2001, defendant has filed–or attempted to file–many pleadings in the trial court,
       including, but not limited to, (1) a postconviction petition, (2) a successive postconviction
       petition, (3) a motion for reduction of sentence, (4) a “petition to vacate unconstitutional and
       void sentence,” (5) a “petition to vacate void order/judgment,” (6) a “petition pursuant to the
       plain error doctrine,” (7) a motion to “dismiss indictment,” (8) a “common law motion”
       alleging the invalidity of defendant’s convictions, (9) four petitions for relief from judgment
       pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West
       2002)), (10) three motions for substitution of judge, (11) three motions for appointment of
       counsel, and (12) a petition for executive clemency.
¶9         In his numerous pleadings, defendant has challenged his convictions and sentences from
       every conceivable angle. He has alleged, among other things, (1) fourth-amendment
       violations; (2) an involuntary confession; (3) faulty identification by the victim; (4) juror
       misconduct; (5) ineffective assistance of counsel as to dozens of trial decisions; (6) improper
       argument by the prosecutor; (7) fabrication of evidence by the State; (8) insufficient evidence;
       (9) abuse of discretion at sentencing; (10) judicial prejudice; (11) ineffective assistance of
       appellate counsel; (12) actual innocence; (13) void sentences; (14) one-act, one-crime
       violations; and (15) the unconstitutionality of nearly every statute under which he was
       convicted and sentenced.
¶ 10       Prior to April 2007, the trial court denied or dismissed nearly all of defendant’s pleadings,
       finding them frivolous. This resulted in five separate appeals to this court. In each of those
       appeals, the office of the State Appellate Defender (OSAD) filed a motion to withdraw as
       counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), alleging that defendant’s
       appeal presented no meritorious issues. Defendant consistently filed points and authorities in
       opposition to OSAD’s motions to withdraw, which prompted the State to file responsive briefs.
       In all five instances, this court (1) agreed with the State and OSAD that defendant’s appeals
       were meritless and (2) affirmed the court’s judgment. See People v. Austin, No. 4-03-1034
       (May 9, 2005) (unpublished order under Supreme Court Rule 23) (granting OSAD’s motion to
       withdraw and affirming the second-stage dismissal of defendant’s postconviction petition);
       People v. Austin, No. 4-06-0013 (Mar. 7, 2008) (unpublished order under Supreme Court Rule
       23) (granting OSAD’s motion to withdraw and affirming the denial of defendant’s motion for
       leave to file a successive postconviction petition); People v. Austin, Nos. 4-05-0953,
       4-06-0520, 4-06-0725 cons. (May 15, 2008) (unpublished order under Supreme Court Rule 23)

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       (granting OSAD’s motion to withdraw and affirming the (1) striking of defendant’s motion to
       dismiss his indictment (No. 4-05-0953), (2) dismissal of his section 2-1401 petition (No.
       4-06-0520), and (3) dismissal of his motion to vacate judgment and void sentence (No.
       4-06-0725)).
¶ 11        In April 2007, in response to another barrage of frivolous pleadings from defendant, the
       trial court entered the following order:
                    “The defendant qualifies as a vexatious litigant, of Dickensian proportions, who
                inappropriately burdens the court system with non-meritorious litigation. See People v.
                Ryburn, 362 Ill. App. 3d 870, 841 N.E.2d 1013 [(2005)]. This court finds that the
                defendant’s current set of claims are all vexatious, frivolous[,] and patently without
                merit. Further, the court finds that the defendant has been engaged in filing frivolous
                pleadings without factual or legal merit all with the apparent end of obtaining release
                from his convictions and sentence in [McLean County case No.] 98-CF-482.
                Therefore, in addition to dismissing all pending claims by the defendant in this case as
                frivolous and patently without merit[,] the court further orders the clerk of the court not
                to accept any further pleadings from the defendant for filing unless the defendant first
                obtains leave of the court and pays all appropriate fees. Defendant’s motion for
                appointment of counsel and request for all other relief is denied.”
¶ 12        The trial court’s April 2007 order did not deter defendant from continuing his efforts to
       relitigate his criminal case. Defendant mailed to the circuit clerk dozens of requests for records
       and physical evidence from his trial. He also attempted to file five separate petitions, all of
       which alleged (for one reason or another) that his convictions and sentences were void and he
       should be immediately released from prison. Pursuant to the court’s April 2007 order, the
       circuit clerk declined to file these petitions and, instead, sealed each petition in a separate
       manila envelope to be included as exhibits in the record.
¶ 13        The record before us includes five sealed envelopes containing petitions that defendant has
       attempted to file since the trial court’s April 2007 order. Not surprisingly, defendant has
       already tried to appeal from the clerk’s sealing of one of his earlier petitions. See People v.
       Austin, No. 4-12-0644 (Mar. 26, 2013) (unpublished summary order under Supreme Court
       Rule 23) (dismissing for lack of jurisdiction). We note that defendant has also attempted to
       relitigate the merits of his criminal case through at least one mandamus action. See Austin v.
       Prall, 2012 IL App (4th) 111080-U (affirming the trial court’s (1) denial of defendant’s
       petition for leave to file a petition for mandamus and (2) striking the petition for mandamus
       with prejudice).
¶ 14        Defendant mailed his latest petition (titled “Petition for Relief of Void Sentence”) to the
       circuit clerk in April 2014, which the clerk sealed pursuant to the court’s April 2007 order. In
       his petition, which we have unsealed and reviewed, defendant asserts that the trial court
       unlawfully sentenced him to 60 years in prison for a Class X felony. (We note that defendant
       provides no support for this claim, which the record explicitly rebuts.)
¶ 15        This purported appeal followed.

¶ 16                                          II. ANALYSIS
¶ 17       In this purported appeal, defendant filed a handwritten brief that sets forth nine separate
       claims, eight of which are raised for the first time on appeal. Neither defendant’s petition nor


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       his brief addresses the trial court’s April 2007 order. The State argues that this court lacks
       jurisdiction over defendant’s appeal because it did not result from a final trial court judgment.
       We agree with the State and dismiss the appeal for lack of jurisdiction.

¶ 18                                           A. Jurisdiction
¶ 19       Illinois Supreme Court Rule 606(b) (eff. Feb. 6, 2013) provides, in pertinent part, “the
       notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of
       the final judgment appealed from.” In this case, the circuit clerk’s sealing of defendant’s
       petition did not constitute a final judgment. A final judgment “has been traditionally defined as
       a determination by the court on the issues presented by the pleadings which ascertains and
       fixes absolutely and finally the rights of the parties in the lawsuit.” Towns v. Yellow Cab Co.,
       73 Ill. 2d 113, 119, 382 N.E.2d 1217, 1219 (1978). Accordingly, because defendant in this
       purported appeal is not appealing from a final judgment, this court lacks jurisdiction over his
       appeal.

¶ 20                            B. Defendant’s Abuse of the Court System
¶ 21        The law of this state recognizes the possibility that a criminal defendant’s meritorious
       claims may slip through the cracks. Even after losing on direct appeal and a postconviction
       petition, the law provides safety-net procedures for defendants convicted of criminal offenses
       to obtain meaningful judicial review of flaws in their criminal conviction or sentence that have
       escaped judicial review through no fault of their own. See 725 ILCS 5/122-1(f) (West 2012)
       (“Leave of court [to file a successive postconviction petition] may be granted only if a
       petitioner demonstrates cause for his or her failure to bring the claim in his or her initial
       post-conviction proceedings and prejudice results from that failure.”); People v. Harvey, 196
       Ill. 2d 444, 447, 753 N.E.2d 293, 295 (2001) (“An exception to the [timeliness requirement of
       section 2-1401 of the Code] has been recognized where a clear showing has been made that the
       person seeking relief is under legal disability or duress or the grounds for relief are fraudulently
       concealed. [Citation.] A person may also seek relief beyond section 2-1401’s two-year
       limitations period where the judgment being challenged is void.”); 725 ILCS 5/116-3(a) (West
       2012) (setting forth procedures for a convicted defendant claiming actual innocence to obtain
       “fingerprint, Integrated Ballistic Identification System, or forensic [deoxyribonucleic acid]
       testing *** on evidence that was secured in relation to the trial [or guilty plea] which resulted
       in his or her conviction”).
¶ 22        To ensure that potentially meritorious claims are not overlooked, the courts of this state
       often appoint counsel (at the taxpayers’ expense) to represent convicted criminals on appeal
       after their postconviction pleadings are denied or dismissed in the trial court. In the vast
       majority of these cases, attorneys representing the State also participate in proceedings–at both
       the trial and appellate court level–to contest or concede a defendant’s claims. Postconviction
       litigation (including, but not limited to, proceedings under the Post-Conviction Hearing Act
       (725 ILCS 5/122-1 to 122-7 (West 2012)) and section 2-1401 of the Code (735 ILCS 5/2-1401
       (West 2012))) imposes substantial costs on the courts, the offices of the State’s Attorneys, the
       office of the State’s Attorney Appellate Prosecutor, and OSAD.
¶ 23        Because the right to meaningful postconviction procedures is so important to ensure that
       meritorious claims do not escape review, it is imperative that these procedures be protected


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       from abuse. When a small number of prisoners incessantly bombard the court system with
       frivolous and misleading litigation, their doing so strains the system’s financial and human
       resources and makes it less likely that meritorious claims will be detected and appropriately
       resolved. Frivolous litigation wastes time, money, and resources that could be better spent
       addressing potentially meritorious claims filed by good-faith litigants. For this reason, courts
       need to proactively deprive abusive litigants of their ability to commandeer the court’s docket.
¶ 24        It is well settled that courts of this state may take measures to restrain litigants from
       maintaining vexatious litigation. People v. Ryburn, 378 Ill. App. 3d 972, 977, 884 N.E.2d
       1178, 1182 (2008). We note that defendant has not challenged the trial court’s April 2007
       order, which required him to obtain leave of the court and pay all appropriate fees before filing
       any additional pleadings. Instead, defendant has decided to completely disregard the court’s
       order, essentially carrying on as if the order does not exist. Defendant has elected to file notices
       of appeal in an attempt to present his latest claims directly to this court. We will not allow
       defendant to do so, and we reject defendant’s attempt to waste this court’s time and resources
       with his frivolous claims. Because we deem defendant to be a vexatious litigant of the highest
       order, we take the following measures to prevent his further abuse of the court system.
¶ 25        First, because we conclude that defendant’s April 2014 petition is frivolous, we remind the
       trial court of its statutory authority to collect funds from defendant’s Department of
       Corrections trust fund account to pay for the costs of this litigation. See 735 ILCS 5/22-105(a)
       (West 2012) (“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.”).
¶ 26        Second, we order defendant 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) for his filing
       of this frivolous appeal. Until such time as (1) defendant responds to this order and (2) this
       court determines what action to take, we direct the clerk of this court to disregard–and by that
       we mean to not file–any new appeals submitted to this court by defendant. See Williams v.
       Commissary Department of the Department of Corrections, 407 Ill. App. 3d 1135, 1138, 948
       N.E.2d 1061, 1063 (2011).
¶ 27        Ensuring open and meaningful access to the courts means denying access to those who are
       intent on disrupting the judicial process. Defendant’s stubborn disregard for the procedures
       and prior orders of the court, coupled with his incessant filing of frivolous pleadings, calls for a
       strong response. Although every criminal defendant is entitled to fair and meaningful judicial
       review of his conviction and sentence, defendant seems to feel entitled to litigate the merits of
       his criminal case into perpetuity. We decline to further indulge him in his efforts.

¶ 28                                     III. CONCLUSION
¶ 29      For the reasons stated, we dismiss the appeal for lack of jurisdiction. As part of our
       judgment, we award the State its $50 statutory assessment against defendant as costs of this
       appeal.

¶ 30      Appeal dismissed.



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