                                  Illinois Official Reports

                                          Appellate Court



                             People v. Cowart, 2015 IL App (1st) 131073



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



District & No.               First District, First Division
                             Docket No. 1-13-1073



Filed                        February 17, 2015



Held                         The dismissal of defendant’s pro se motion for relief under the
(Note: This syllabus         Post-Conviction Hearing Act was affirmed, regardless of his
constitutes no part of the   contention that Padilla v. Kentucky, a decision of the United States
opinion of the court but     Supreme Court, required a plea court to admonish defendant of the
has been prepared by the     requirement of registering as a sex offender upon a mandatory
Reporter of Decisions        supervised release term, since defendant, on appeal, failed to make a
for the convenience of       substantial showing of a constitutional violation.
the reader.)




Decision Under               Appeal from the Circuit Court of Cook County, Nos. 94-CR-25257
Review                       through 94-CR-25261, 94-CR-28843, 94-CR-28844, 94-CR-29080;
                             the Hon. Thomas V. Gainer, Jr., Judge, presiding.




Judgment                     Affirmed.
     Counsel on               Michael J. Pelletier, of State Appellate Defender’s Office, of Chicago
     Appeal                   (Alan D. Goldberg and Robert Hirschhorn, of counsel), for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Tasha-Marie Kelly, and Gina DiVito, Assistant State’s Attorneys, of
                              counsel), for the People.



     Panel                    JUSTICE HARRIS delivered the judgment of the court, with opinion.
                              Presiding Justice Delort and Justice Cunningham concurred in the
                              judgment and opinion.


                                               OPINION

¶1         Defendant Robert Cowart appeals from an order of the circuit court of Cook County
       granting the State’s motion to dismiss his pro se petition for relief under the Post-Conviction
       Hearing Act (the Act) (725 ILCS 5/122-1 (West 2010)). On appeal, defendant contends that
       the reasoning used by the United States Supreme Court in Padilla v. Kentucky, 559 U.S. 356
       (2010), and by the Illinois Supreme Court in People v. Hughes, 2012 IL 112817, required the
       plea court to admonish him of the requirement that he register as a sex offender. He asks this
       court to remand his case for an evidentiary hearing under the Act. We affirm.
¶2         In late 1994, defendant was indicted with multiple crimes stemming from separate
       residential break-ins. Defendant was charged with sexually assaulting or attempting to
       sexually assault at least one woman at each of the break-ins. His indictments also included
       multiple charges of home invasion, armed robbery, aggravated battery, and residential
       burglary. Defendant initially pleaded not guilty to all charges. In January 1996, both the State
       and defendant answered ready for trial on charges relating to one of the residential break-ins.
       Before a jury was selected, defense counsel indicated that defendant wished to change his
       plea. After brief negotiations between the State and defense counsel, the parties reached an
       agreement. Defendant pleaded guilty on each of the eight cases and received concurrent
       sentences as follows:
            No. 94 CR 25257–two counts of home invasion and two counts of aggravated
               criminal sexual assault with a 65-year sentence;
            No. 94 CR 25258–one count of home invasion and one count of aggravated criminal
               sexual assault with a 60-year sentence;
            No. 94 CR 25259–one count of home invasion and one count of aggravated criminal
               sexual assault with a 60-year sentence;
            No. 94 CR 25260–one count of home invasion with a 60-year sentence;
            No. 94 CR 25261–one count of armed robbery, one count of home invasion, and one
               count of attempted aggravated criminal sexual assault with a 65-year sentence;



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             No. 94 CR 28843–one count of home invasion and two counts of aggravated criminal
              sexual assault with a 65-year sentence;
           No. 94 CR 28844–one count of residential burglary and one count of attempted
              aggravated criminal sexual assault with a 30-year sentence; and
           No. 94 CR 29080–one count of home invasion and one count of attempted aggravated
              criminal sexual assault with a 65-year sentence.
¶3        The trial court advised defendant of the rights waived by pleading guilty, specified the
     charges, and found that his pleas were knowingly and voluntarily entered. The State then
     gave separate factual bases for each of the eight break-ins to which defendant stipulated.
     Neither the trial court nor the State mentioned or admonished defendant that he would be
     required to register as a sex offender under the Sex Offender Registration Act (730 ILCS
     150/1 (West 1996)). The court accepted defendant’s pleas and sentenced defendant in
     accordance with his agreement with the State.
¶4        Within 28 days of his guilty pleas, defendant filed a pro se motion to withdraw his pleas
     and vacate his sentences, which the trial court denied. Defendant appealed, arguing that the
     trial court had violated Illinois Supreme Court Rule 604(d) (eff. Aug. 1, 1992) by failing to
     appoint counsel to assist him with his motion. This court summarily remanded defendant’s
     case for appointment of counsel. People v. Cowart, No. 1-96-2274 (1997) (dispositional
     order). On remand, the trial court appointed counsel for defendant who filed an amended
     motion to withdraw defendant’s pleas. The court denied the amended motion.
¶5        In October of 2006, defendant filed a pro se petition under the Act. 725 ILCS 5/122-1
     (West 2004). In that petition, he argued, inter alia, that the trial court’s failure “to admonish
     him of the condition of registering as a sex offender upon supervised release term”
     substantially violated his constitutional rights. The trial court dismissed the petition as
     frivolous and patently without merit. Defendant appealed the dismissal to this court. He
     argued, in relevant part, that the lower court erred in dismissing his petition because it stated
     the gist of an argument that his convictions violated his constitutional rights. This court, in a
     published opinion, concluded defendant’s petition “was neither frivolous nor patently
     without merit” and reversed the dismissal, remanding the entire petition for further
     proceedings under the Act. People v. Cowart, 389 Ill. App. 3d 1046, 1052 (2009). This court
     also vacated one of defendant’s home invasion charges and reduced the extended-term
     sentences on several of defendant’s charges. Id. Defendant’s aggregate 65-year term
     remained unchanged.
¶6        Following remand, the trial court appointed counsel for defendant who filed a supplement
     to defendant’s pro se petition. The supplement listed several new sentencing issues and
     reiterated the claims of defendant’s pro se petition. The State moved to dismiss the motion
     arguing, in relevant part, that the petition was untimely and the trial court was not required to
     admonish defendant regarding his mandatory registration as a sex offender because it was
     only a collateral consequence of his plea. The trial court dismissed defendant’s petition,
     concluding that defendant’s untimely filing of his postconviction petition was “a sufficient
     ground for dismissal.” The court then alternatively held, “As the State correctly explains, it is
     well-stated that registration as a sex offender is a collateral consequence of petitioner’s guilty
     plea, of which the court had no duty to admonish him. [Citation.] This claim is without merit
     and must fail.” Defendant appeals.


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¶7          Defendant contends that his postconviction petition made a substantial showing that his
       constitutional rights were violated and thus the trial court erred when it dismissed his petition
       without holding an evidentiary hearing. He notes that it is clear from the record that the lower
       court never admonished him that his guilty pleas would require him to register as a sex
       offender. He argues that rulings by the United States Supreme Court, in Padilla v. Kentucky,
       559 U.S. 356 (2010), and by the Illinois Supreme Court, in People v. Hughes, 2012 IL
       112817, supersede Illinois Appellate Court cases holding that registration as a sex offender is
       a collateral consequence of conviction and that admonishment is required for only direct, not
       collateral consequences. See, e.g., People v. Fredericks, 2014 IL App (1st) 122122, ¶ 41.
¶8          The State first responds that defendant forfeited this issue by failing to include it in his
       original appeal and that defendant’s petition fails to meet the affidavit requirements of
       section 122-2 of the Act. 725 ILCS 5/122-2 (West 2010). Alternatively, the State argues that
       defendant failed to make a substantial showing of a constitutional violation, because the
       lower court was not required to admonish him of the collateral consequences of his plea. We
       first address the State’s two procedural arguments in turn before analyzing defendant’s claim
       on its merits.
¶9          The State first argues that defendant forfeited the issue of admonishment by failing to
       include it in his original appeal to this court. It notes that in his direct appeal, defendant only
       argued that his motion to withdraw his guilty plea had not been reviewed in accordance with
       Supreme Court Rule 604(d). In defendant’s second appeal, the State raised a similar
       forfeiture argument in regard to a different issue raised in defendant’s postconviction
       petition. Cowart, 389 Ill. App. 3d at 1051. We find our reasoning in the prior appeal equally
       applicable here. Any claims made in a postconviction petition that could have been raised on
       direct appeal are procedurally defaulted. People v. Williams, 209 Ill. 2d 227, 232-33 (2004).
       However, a defendant’s failure to appeal does not forfeit such issues. People v. Flores, 153
       Ill. 2d 264, 274 (1992). In postconviction forfeiture analysis, a summary remand for
       noncompliance with Rule 604(d) is treated as if the defendant filed no appeal at all. Cowart,
       389 Ill. App. 3d at 1051-52 (citing People v. Teague, 83 Ill. App. 3d 990, 994 (1980)). Since
       defendant’s original appeal is the equivalent of filing no appeal, he has not forfeited his claim
       regarding failure to admonish.
¶ 10        Next, the State argues that defendant’s petition fails to meet the requirements of section
       122-2 of the Act. 725 ILCS 5/122-2 (West 2010). The State asserts that defendant has
       provided no affidavit or other support to show that he would not have pleaded guilty if he
       had been admonished of his duty to register. It notes that his claim is predicated only on an
       affidavit by the defendant stating that he told his trial counsel that he was “dissatisfied” with
       the plea offer. Defendant responds that the State has waived this argument by failing to
       include it in its motion to dismiss. We agree.
¶ 11        The State forfeits a nonjurisdictional procedural challenge to a postconviction petition
       when it fails to raise that challenge in a motion to dismiss. People v. Turner, 2012 IL App
       (2d) 100819, ¶ 42. In Turner, the defendant failed to include a verification affidavit with his
       postconviction petition. Id. ¶ 35. While the State argued on appeal that the Turner
       defendant’s petition should be dismissed because of that failure, it had not included that
       argument in its motion to dismiss. Id. ¶ 42. The reviewing court reasoned that had the State
       included the argument in its motion, the defendant could have sought leave to rectify the
       deficiency. Id. ¶ 43. The Turner court held the State had forfeited the issue. Id. ¶ 44. We find

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       Turner persuasive. Had the State raised defendant’s lack of supporting affidavits in its
       motion to dismiss, defendant could have supplied the affidavits. In failing to do so, the State
       has procedurally defaulted the issue and we need not determine whether the dismissal can be
       affirmed on that basis. Id.
¶ 12        We now turn to the substantive merits of defendant’s claim. At the second stage of a
       postconviction proceeding, as in this case, the State may either file an answer to the
       defendant’s petition or a motion to dismiss it. People v. Lofton, 2011 IL App (1st) 100118,
       ¶ 27. Before a postconviction petition moves to the third stage, an evidentiary hearing, the
       trial court must determine if the petition and any attached documents “make a substantial
       showing of a constitutional violation.” People v. Edwards, 197 Ill. 2d 239, 246 (2001). In
       making this determination the court takes all well-pleaded facts in the petition and attached
       documents as true, unless contradicted by the record. People v. Coleman, 183 Ill. 2d 366,
       381-82 (1998). When a petition is dismissed at the second stage, review is de novo. Id. at
       389.
¶ 13        Due process requires that all pleas be knowing and voluntary. People v. Fuller, 205 Ill.
       2d 308, 322 (2002); Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). Therefore, plea courts
       must admonish a defendant of the direct consequences of his or her plea. See People v.
       Hughes, 2012 IL 112817, ¶ 35; People v. Fredericks, 2014 IL App (1st) 122122, ¶ 40. Courts
       need not admonish defendants as to consequences that are merely collateral. Hughes, 2012 IL
       112817, ¶ 36. A direct consequence “has a definite, immediate and largely automatic effect”
       on the defendant’s punishment. Hughes, 2012 IL 112817, ¶ 35 (citing People v. Williams,
       188 Ill. 2d 365, 372 (1999)). Illinois courts have held that mandatory sex offender
       registration is a collateral consequence, rather than a direct one. See Fredericks, 2014 IL App
       (1st) 122122, ¶ 40; People v. Downin, 394 Ill. App. 3d 141, 146 (2009); see also People v.
       Starnes, 273 Ill. App. 3d 911, 914 (1995). Registration is neither a restraint on liberty nor a
       punishment. People v. Malchow, 193 Ill. 2d 413, 424 (2000); Fredericks, 2014 IL App (1st)
       122122, ¶ 40; Downin, 394 Ill. App. 3d at 146.
¶ 14        Defendant argues that the reasoning used by the United States Supreme Court in Padilla
       and adopted by the Illinois Supreme Court in Hughes should be extended to require a trial
       court to admonish a defendant of mandatory lifetime sex offender registration.
¶ 15        In Padilla, the defendant, a resident alien, pleaded guilty to drug distribution charges.
       Padilla, 559 U.S. at 359. The defendant alleged his attorney provided ineffective counsel
       when he did not advise the defendant that the conviction made him eligible for deportation
       and had told him not to worry about deportation. Id. The Kentucky Supreme Court affirmed
       the defendant’s conviction, holding that the sixth amendment did not apply because
       deportation was a civil and, therefore, collateral consequence. Id. at 359-60. The United
       States Supreme Court reasoned that even though deportation is a civil consequence of a
       guilty plea, it could not be “categorically removed” from defense counsel’s duties, given
       deportation’s increased enmeshment with the criminal process. Id. at 366. The Court then
       remanded the defendant’s case for further consideration under sixth amendment doctrine. Id.
       at 369.
¶ 16        The Illinois Supreme Court considered Padilla’s reasoning in Hughes. The Hughes
       defendant pleaded guilty to an aggravated sexual abuse charge in exchange for the State’s
       dropping of other charges, withdrawal of a petition to commit the defendant as a sexually
       dangerous person, and a sentence recommendation. Hughes, 2012 IL 112817, ¶ 7. After the

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       defendant’s plea was accepted, the State filed a petition to commit him as a sexually violent
       person under a separate statute and the defendant filed a motion to withdraw his guilty plea.
       Id. ¶ 10. He alleged that his plea was involuntary because the trial court failed to admonish
       that he could be committed under the other statute, and alternatively, because his trial
       counsel’s failure to advise of the same possibility constituted ineffective assistance of
       counsel. Id. The Illinois Supreme Court first addressed the trial court’s failure to admonish,
       holding that an admonishment from the trial court was not required, as commitment was a
       collateral consequence of the conviction. Id. ¶ 40. The court reasoned that collateral
       consequences “lack [a] definite, immediate or automatic effect on the sentence imposed.” Id.
       ¶ 36. It focused on the fact that involuntary civil commitment was not automatic and imposed
       by an outside agency, not the court. Id. ¶¶ 37-39. The Illinois Supreme Court did not discuss
       Padilla anywhere in its discussion of admonishments. The Hughes court discussed Padilla
       only when addressing the defendant’s ineffective assistance of counsel claim. See id. ¶ 43.
¶ 17       In Fredericks, decided after the decisions in Padilla and Hughes, this court considered
       whether a trial court was required to admonish a defendant of the requirement to register as a
       sex offender following a guilty plea. Fredericks, 2014 IL App (1st) 122122. In Fredericks,
       the defendant pleaded guilty to methamphetamine possession and, as a result of an earlier
       aggravated criminal sexual abuse conviction, was required to register as a sex offender. Id.
       ¶ 1. The defendant filed a motion to withdraw his plea, arguing, inter alia, upon the trial
       court’s failure to admonish him of the mandatory registration. Id. ¶ 2. The trial court denied
       the motion and the defendant appealed. Id. On appeal, the defendant argued that Padilla
       required a trial court to admonish a pleading defendant of the requirement to register as a sex
       offender. Id. ¶ 41. This court declined to extend Padilla, explaining that the Illinois Supreme
       Court had continued to use the collateral/direct consequence distinction following Padilla.
       Id. ¶ 42 (citing Hughes, 2012 IL 112817, ¶¶ 35-41, and People v. Delvillar, 235 Ill. 2d 507,
       521-22 (2009)).1 Our opinion also distinguished Padilla because it dealt with a claim of
       ineffective assistance of counsel, rather than one of a trial court’s failure to admonish.
¶ 18       We find Fredericks to be persuasive. In Hughes, the Illinois Supreme Court reaffirmed
       the distinction between direct and collateral consequences, noting that direct consequences
       have definite and automatic effects on a defendant’s punishment. Hughes, 2012 IL 112817,
       ¶ 35 (citing People v. Williams, 188 Ill. 2d 365, 372 (1999)). The requirement to register as a
       sex offender is definite and automatic. However, it does not affect the defendant’s
       punishment. Unlike deportation or involuntary civil commitment, the registration of sex
       offenders is not a punishment or a restraint of a liberty interest. See Malchow, 193 Ill. 2d at
       424. Therefore, the registration requirement remains a collateral consequence under
       Hughes’s definition, and the lower court was not required to admonish defendant on it.
¶ 19       As in Fredericks, we decline to extend the reasoning of Padilla to the issue of trial court
       admonishments. Padilla concerns an ineffective representation of counsel under the sixth
       amendment. Defendant does not argue that his attorney failed to advise; he argues that the
       plea court failed to admonish him. The Illinois Supreme Court had the opportunity to apply
       Padilla’s reasoning to admonishment cases in Hughes but did not. In Hughes, the court first

          1
            Defendant correctly notes that Delvillar, contrary to this court’s assertion in Fredericks, was
       published before Padilla. However, Fredericks’ reliance on Hughes is accurate, despite the error in
       regard to Delvillar.

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       addressed whether the trial court should have admonished the defendant using the direct or
       collateral consequence distinction. Hughes, 2012 IL 112817, ¶¶ 35-41. The court did not
       mention Padilla until it had finished discussing admonishment and turned to the defendant’s
       claim of ineffective assistance of counsel. Id. ¶ 43. Thus, we are bound by Hughes’s
       admonishment analysis and its continued distinction between collateral and direct
       consequences.
¶ 20       As we find the plea court was not required to admonish defendant in regard to
       registration as a sex offender, the absence of such admonishment does not render his plea
       unknowing or involuntary. Fredericks, 2014 IL App (1st) 122122, ¶ 40. As such, even when
       all of the factual allegations in defendant’s petition are taken as true, he has failed to “make a
       substantial showing of a constitutional violation.” People v. Edwards, 197 Ill. 2d 239, 246
       (2001).
¶ 21       We note briefly that the court below also found that defendant’s petition was untimely as
       an alternative ground for dismissal. Neither defendant nor the State addressed this alternative
       finding in their briefs. As we affirm the dismissal of defendant’s petition on its merits, we
       need not address the question of its timeliness.
¶ 22       For the foregoing reasons, we find that defendant has failed to make a substantial
       showing of a constitutional violation. Accordingly, the judgment of the circuit court of Cook
       County is affirmed.

¶ 23      Affirmed.




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