People v. Jernigan

• Decision Date: 22 December 2014
• Docket Number: No. 4–13–0524.,4–13–0524.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Derrick JERNIGAN, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

23 N.E.3d 650

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Derrick JERNIGAN, Defendant–Appellant.

No. 4–13–0524.

Appellate Court of Illinois, Fourth District.

Dec. 22, 2014.

Michael J. Pelletier, State Appellate Defender's Office, Springfield, Thomas A. Lilien, Kim M. DeWitt, State Appellate Defender's Office, Elgin, for Appellant.

Jay Scott, State's Attorney, Decatur (Patrick Delfino, David J. Robinson, Linda Susan McClain, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice APPLETON delivered the judgment of the court, with opinion.

¶ 1 Defendant, Derrick Jernigan, appeals from the dismissal of his petition for relief from judgment (735 ILCS 5/2–1401 (West 2012) ). The office of the State Appellate Defender (OSAD) moves for permission to withdraw from representing him, because OSAD does not think any reasonable argument could be made in support of this appeal. See Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) ; People v. Lee, 251 Ill.App.3d 63, 190 Ill.Dec. 418, 621 N.E.2d 287 (1993). Defendant has filed additional points and authorities.

¶ 2 In our de novo review (Deutsche Bank National Trust Co. v. Hall–Pilate, 2011 IL App (1st) 102632, ¶ 12, 354 Ill.Dec. 330, 957 N.E.2d 924), we grant OSAD's motion to withdraw, and we uphold the dismissal of the petition, because, contrary to the claim in the petition, the trial court had statutory authority to sentence defendant to concurrent terms of 25 years' imprisonment for 5 counts of burglary. The statutory authority was section 5–5–3(c)(8) of the Unified Code of Corrections (Code) (730 ILCS 5/5–5–3(c)(8) (West 2008)), which required the court to “sentence[ ] [defendant] as a Class X offender,” even though his burglaries remained classified as Class 2 felonies.

¶ 3 The State, however, directs our attention to some void fines imposed by the circuit clerk. We vacate these void fines, and while affirming the trial court's judgment, we remand this case with directions that the trial court, as distinct from the circuit clerk, impose the statutorily mandated fines, specifying them in an amended sentencing order.

¶ 4 I. BACKGROUND

¶ 5 In November 2008, a jury found defendant guilty of five counts of burglary (720 ILCS 5/19–1(a) (West 2008)).

¶ 6 In January 2009, the trial court sentenced defendant to 5 terms of 25 years' imprisonment, ordering that the terms run concurrently.

¶ 7 Burglary was a Class 2 felony. 720 ILCS 5/19–1(b) (West 2008). Normally, the maximum prison sentence for a Class 2 felony was 7 years (730 ILCS 5/5–8–1(a)(5) (West 2008)) or, if there were aggravating factors, the trial court could impose an extended-term sentence of up to 14 years (730 ILCS 5/5–8–2(a)(4) (West 2008)). Because of defendant's prior criminal record, however, the court “sentenced [him] as a Class X offender.” 730 ILCS 5/5–5–3(c)(8) (West 2008). For a Class X felony, the nonextended range was not less than 6 years and not more than 30 years. 730 ILCS 5/5–8–1(a)(3) (West 2008). The court imposed a sentence of 25 years' imprisonment for each of the 5 counts of burglary and ordered that the 5 prison terms run concurrently.

¶ 8 In December 2012, defendant filed his first petition for relief from judgment (735 ILCS 5/2–1401 (West 2012) ). In this first petition, he alleged a violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ; misconduct by the prosecutor during voir dire; trial errors; and a violation of the one-act, one-crime rule (see People v. Artis, 232 Ill.2d 156, 170, 327 Ill.Dec. 556, 902 N.E.2d 677 (2009) ).

¶ 9 The State moved to dismiss the first petition for essentially three reasons: (1) the two-year period of limitation in section 2–1401(c) (735 ILCS 5/2–1401(c) (West 2012)) had expired; (2) instead of presenting newly discovered facts, the petition made legal arguments that defendant already had made in previous proceedings before the trial court and the appellate court; and (3) the petition raised no claim of actual innocence.

¶ 10 In February 2013, the trial court dismissed the first petition as untimely, and defendant appealed. That appeal already has been addressed. People v. Jernigan, No. 4–13–0144 (Oct. 8, 2014) (unpublished summary order under Supreme Court Rule 23(c)(2) ).

¶ 11 In April 2013, defendant filed his second petition for relief from judgment—the petition before us in this appeal. The second petition claimed that, under the supreme court's decision in People v. Pullen, 192 Ill.2d 36, 248 Ill.Dec. 237, 733 N.E.2d 1235 (2000), his concurrent 25–year prison sentences were void because they “exceeded the maximum aggregate sentence for a Class 2 felony.”

¶ 12 For two reasons, the State moved to dismiss the second petition for relief from judgment. First, the State noted that defendant already had appealed the dismissal of his first petition for relief from judgment and the appeal was still pending at that time. Citing People v. Dace, 184 Ill.App.3d 1082, 1085, 133 Ill.Dec. 60, 540 N.E.2d 926 (1989), the State pointed out that a timely notice of appeal divested the trial court of jurisdiction, except for jurisdiction to perform ministerial functions and to adjudicate matters independent of and collateral to the judgment that was appealed—exceptions which, according to the State, were inapplicable. Second, the State argued that if indeed, as the trial court had held, the first petition was untimely, the second petition necessarily was untimely as well.

¶ 13 In an order dated May 22, 2013, the trial court “adopt[ed]” the arguments the State made in its motion for dismissal, and the court dismissed the second petition with prejudice.

¶ 14 Defendant now appeals from the dismissal of his second petition for relief from judgment.

¶ 15 II. ANALYSIS

¶ 16 A. Our Subject–Matter Jurisdiction

¶ 17 The brief and memoranda in this appeal do not address our subject-matter jurisdiction. See Ill. S.Ct. R. 341(h)(4)(i), (ii) (eff. Feb. 6, 2013); In re Rico L., 2012 IL App (1st) 113028, ¶ 109, 365 Ill.Dec. 1, 977 N.E.2d 1100 (“A court has an independent duty to consider subject matter jurisdiction even when, as here, neither party raised it as an issue.”). Passing over that question in silence seems inadvisable, considering that the trial court was convinced of its lack of subject-matter jurisdiction. If indeed the trial court lacked jurisdiction, it is unclear how we would have jurisdiction.

¶ 18 We disagree that the trial court lacked subject-matter jurisdiction to adjudicate the second petition for relief from judgment. The reason for our disagreement is that the filing of a petition under section 2–1401 is “the filing of a new action,” not the continuation of a previous action. Burnicka v. Marquette National Bank, 88 Ill.2d 527, 530, 59 Ill.Dec. 73, 431 N.E.2d 358 (1982) ; see also Sarkissian v. Chicago Board of Education, 201 Ill.2d 95, 102, 267 Ill.Dec. 58, 776 N.E.2d 195 (2002). It follows that a successive petition under section 2–1401 creates a new action, which can go forward despite the appeal of a judgment on an earlier petition. The judgment on the earlier petition is a judgment in a separate action or case. See Burnicka, 88 Ill.2d at 530, 59 Ill.Dec. 73, 431 N.E.2d 358. We conclude, therefore, that the trial court had jurisdiction over the second petition for relief from judgment and that we likewise have jurisdiction over this appeal. See Ill. S.Ct. R. 304(b)(3) (eff. Feb. 26, 2010).

¶ 19 B. Timeliness

¶ 20 The alternative argument the State made in its motion for dismissal was that the second petition for relief from judgment was untimely under section 2–1401(c) (735 ILCS 5/2–1401(c) (West 2012)). That section provides: “[T]he petition must be filed not later than 2 years after the entry of the order or judgment.” Id. The judgment in a criminal case is the sentence. People v. Caballero, 102 Ill.2d 23, 51, 79 Ill.Dec. 625, 464 N.E.2d 223 (1984). The trial court imposed its sentence on January 9, 2009, and defendant—who, as far as we know, was under no legal disability or duress and was not the victim of fraudulent concealment (see 735 ILCS 5/2–1401(c) (West 2012))—filed his second petition for relief from judgment more than two years later, on April 15, 2013.

¶ 21 Even so, section 2–1401(c) would not bar his second petition if what he claimed therein were true: that his sentences were unauthorized by statute and therefore void. See People v. Arna, 168 Ill.2d 107, 113, 212 Ill.Dec. 963, 658 N.E.2d 445 (1995). Section 2–1401(f) provides: “Nothing contained in this Section affects any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief.” 735 ILCS 5/2–1401(f) (West 2012). “[A] void order may be attacked at any time or in any court, either directly or collaterally.” (Emphasis added.) People v. Thompson, 209 Ill.2d 19, 25, 282 Ill.Dec. 183, 805 N.E.2d 1200 (2004).

¶ 22 C. How This Case Is Significantly Different From Pullen

¶ 23 Even though we disagree with the trial court's rationale, we may affirm the trial court's judgment for any reason the record supports. People v. Johnson, 208 Ill.2d 118, 129, 281 Ill.Dec. 38, 803 N.E.2d 442 (2003). The trial court was correct to enter judgment in the State's favor on defendant's second petition for relief from judgment. This is the correct outcome because Pullen is distinguishable, despite some superficial similarities it has with the present case.

¶ 24 Like the defendant in the present case, the defendant in Pullen entered a negotiated plea of guilty to five counts of burglary (720 ILCS 5/19–1(a) (West 1994)). Pullen, 192 Ill.2d at 38, 248 Ill.Dec. 237, 733 N.E.2d 1235. Although burglary was a Class 2 felony (720 ILCS 5/19–1(b) (West 1994)), section 5–5–3(c)(8) of the Code (730 ILCS 5/5–5–3(c)(8) (West 1994)) required the trial court to sentence the defendant in Pullen as a Class X offender because of his previous felony convictions (Pullen, 192 Ill.2d at 38–39, 248...