People v. Abdullah

• Decision Date: 27 February 2018
• Docket Number: No. 2–15–0840,2–15–0840
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Muhammad S. ABDULLAH, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (2d) 150840

99 N.E.3d 202

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Muhammad S. ABDULLAH, Defendant–Appellant.

No. 2–15–0840

Appellate Court of Illinois, Second District.

Opinion filed February 27, 2018

Rehearing denied March 21, 2018

Michael J. Pelletier, Patricia Mysza, and David T. Harris, of State Appellate Defender’s Office, of Chicago, for appellant.

Michael G Nerheim, State’s Attorney, of Waukegan (Patrick Delfino, Lawrence M. Bauer, and Barry W. Jacobs, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

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

¶ 1 Defendant, Muhammad S. Abdullah, appeals from an order of the circuit court of Lake County dismissing his petition under section 2–1401 of the Code of Civil Procedure ( 735 ILCS 5/2–1401 (West 2014) ). The petition sought relief regarding defendant's sentences for first-degree murder ( 720 ILCS 5/9–1(a) (West 2004) ) and attempted first-degree murder (id. §§ 84(a), 9–1(a) ). Defendant argues that orders modifying his original sentences are void because they were entered while an appeal was pending such that the trial court lacked jurisdiction over the case. Defendant alternatively argues that the orders are void, in part, because they were entered pursuant to a sentencing statute that was unconstitutional when the offenses were committed. We affirm.

¶ 2 Defendant's convictions arose from the shooting death of Marco Wilson and the nonfatal shooting of Luis Melendez. Defendant committed both crimes on March 15, 2004, and was found guilty following a jury trial. On August 17, 2005, the trial court sentenced defendant to concurrent prison terms of 40 years for first-degree murder and 20 years for attempted first-degree murder. On September 2, 2005, the State filed a "Motion to Impose Mandatory Minimum and Mandatory Consecutive Sentence." The State argued that consecutive sentences were mandatory under section 5–8–4(a)(i) of the Unified Code of Corrections ( 730 ILCS 5/5–8–4(a)(i) (West 2004) ). During the relevant time frame, section 5–8–4(a)(i) required consecutive sentences if "one of the offenses for which the defendant was convicted was first degree murder or a Class X or Class 1 felony and the defendant inflicted severe bodily injury." Id. Furthermore, for first-degree murder, the State sought to have defendant sentenced to a prison term of at least 45 years, representing the 20–year minimum prison term for that offense plus an additional 25 years because, in committing the offense, defendant personally discharged a firearm, causing Wilson's death (id. § 5–8–1(a)(1)(d)(iii) ). On September 8, 2005, defendant filed a notice of appeal. On September 13, 2005, the State moved to dismiss the notice of appeal as untimely. The State argued that the sentences imposed on August 17, 2005, were invalid. According to the State, defendant could not bring an appeal until valid sentences had been imposed. On October 13, 2005, the trial court struck defendant's notice of appeal.

¶ 3 On November 17, 2005, the trial court resentenced defendant to consecutive prison terms of 50 years for first-degree murder and 31 years for attempted first-degree murder. Defendant moved for reconsideration, arguing, inter alia , that once the notice of appeal was filed the trial court lacked jurisdiction to increase defendant's sentences. The trial court rejected the argument. On January 20, 2006, the trial court reduced the prison term for attempted first-degree murder to 26 years, representing the 6–year minimum prison term for that offense plus an additional 20 years because, in committing the offense, defendant personally discharged a firearm ( 720 ILCS 5/8–4(c)(1)(C) (West 2004) ). Defendant appealed, and we affirmed defendant's convictions and sentences. People v. Muhammad , No. 2–06–0086, 379 Ill.App.3d 1082, 354 Ill.Dec. 275, 957 N.E.2d 591 (2008) (unpublished order under Illinois Supreme Court Rule 23 ) ( Abdullah I ).¹ Defendant subsequently filed a petition under the Post–Conviction Hearing Act ( 725 ILCS 5/122–1 et seq. (West 2008) ), which the trial court summarily dismissed (id. § 122–2.1(a)(2) ).

¶ 4 On January 27, 2014, defendant filed a pro se petition under section 2–1401 in which he claimed that the addition of 25 years to his sentence for first-degree murder and 20 years to his sentence for attempted first-degree murder violated the constitutional prohibition of ex post facto laws. Defendant further argued that those additions to his sentences deprived him of due process because they were based on facts that were not alleged in the charging instrument and were not submitted to the jury and proved beyond a reasonable doubt. Defendant later filed pro se (1) a "Supplemental Argument," contending that the imposition of consecutive sentences likewise deprived him of due process, and (2) a "Motion for ‘Additional § 2–1401 Relief from Void Judgment,’ " contending that a fraudulent instruction had been given to the jury. Through counsel, defendant subsequently filed an "Amended Motion to Vacate a Portion of Defendant's Sentence as Void, Pursuant to 735 ILCS 2–1401; and, for Resentence," arguing again that the facts upon which the modifications to his sentences were based were not submitted to the jury and proved beyond a reasonable doubt. The State moved to dismiss defendant's petition and the trial court granted the motion. Defendant unsuccessfully moved for reconsideration and this appeal followed.

¶ 5 Section 2–1401 allows a litigant "to bring before the court facts which, had they been known at trial, would have prevented the entry of the contested judgment." People v. Gray , 247 Ill. App. 3d 133, 142, 187 Ill.Dec. 9, 617 N.E.2d 217 (1993). Normally, a petition under section 2–1401 must be filed more than 30 days, but not later than 2 years, after the entry of the judgment. 735 ILCS 5/2–1401(a), (c) (West 2016). The two-year limitations period does not apply where the petitioner alleges that the judgment is void. Urban Partnership Bank v. Ragsdale , 2017 IL App (1st) 160773, ¶ 16, 411 Ill.Dec. 685, 73 N.E.3d 1284.

¶ 6 Defendant argues that the trial court's orders modifying his sentences were void for lack of jurisdiction. The State argues that the issues defendant raises are barred under the doctrines of res judicata and forfeiture. The State alternatively argues that the trial court had jurisdiction to modify defendant's sentences. We first consider the State's res judicata and forfeiture arguments.

¶ 7 In support of its res judicata argument, the State cites People v. Johnson , 2015 IL App (2d) 140388, 390 Ill.Dec. 911, 29 N.E.3d 1181, which observed that " ‘[t]he doctrine of res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction bars any subsequent actions between the parties or their privies on the same cause of action.’ " Id. ¶ 6 (quoting People v. Carroccia , 352 Ill. App. 3d 1114, 1123, 288 Ill.Dec. 214, 817 N.E.2d 572 (2004) ). Collateral estoppel, which is a branch of res judicata , "provides a similar conclusive effect when the same parties or their privies attempt to relitigate the identical issues actually or necessarily decided by a court of competent jurisdiction in an earlier, but different, cause of action." In re Marriage of Donnellan , 90 Ill. App. 3d 1032, 1036, 46 Ill.Dec. 445, 414 N.E.2d 167 (1980).

¶ 8 The State observes that the effect of the notice of appeal was litigated in the trial court. However, in People v. Harper , 345 Ill. App. 3d 276, 285, 280 Ill.Dec. 437, 802 N.E.2d 362 (2003), cited by defendant in his reply brief, the court stated that, "[b]ecause a party may attack a void sentence literally ‘at any time, either directly or collaterally’ [citation], res judicata or the doctrine of waiver would not prevent a party from doing so [citation]." For the same reason, defendant did not forfeit his argument. People v. Price , 2016 IL 118613, ¶ 30, 412 Ill.Dec. 782, 76 N.E.3d 1240 ("When we say that a judgment is void, that judgment may be challenged at any time, either directly or collaterally, and the challenge is not subject to forfeiture or other procedural restraints." (Internal quotation marks omitted.) ). We therefore reject the State's arguments² and turn our attention to defendant's contention that his sentences are void.

¶ 9 It is well established that "the jurisdiction of the appellate court attaches upon the proper filing of a notice of appeal." (Emphasis added.) Daley v. Laurie , 106 Ill. 2d 33, 37, 86 Ill.Dec. 918, 476 N.E.2d 419 (1985). At that point, "the cause is beyond the jurisdiction of the trial court." Id. However, a premature notice of appeal is ineffective ( Penn v. Gerig , 334 Ill. App. 3d 345, 353, 268 Ill.Dec. 339, 778 N.E.2d 325 (2002) ) and does not divest the trial court of jurisdiction ( McGary v. Illinois Farmers Insurance , 2016 IL App (1st) 143190, ¶ 49, 405 Ill.Dec. 543, 58 N.E.3d 804 ).

¶ 10 The time for filing a notice of appeal in a criminal case is governed by Illinois Supreme Court Rule 606(b) (eff. Dec. 1, 1999). When defendant filed his notice of appeal, Rule 606(b) provided, in pertinent part:

"Except as provided in Rule 604(d), 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 or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion. When a timely post-trial or post-sentencing motion directed against the judgment has been filed by counsel or by defendant, if not represented by counsel, any notice of appeal filed before the entry of the order disposing of all pending post-judgment motions shall have no effect and shall be stricken by the trial court. *** This rule applies whether the timely post-judgment motion was filed before or after the date on which the notice of appeal was filed." Ill. S. Ct. R. 606(b) (eff. Dec. 1,

...