People v. Miles, 1-13-2719

• Court: United States Appellate Court of Illinois
• Writing for the Court: JUSTICE GORDON delivered the judgment of the court, with opinion.
• Citation: 86 N.E.3d 1210,2017 IL App (1st) 132719
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jacob MILES, Defendant-Appellant.
• Docket Number: No. 1-13-2719,1-13-2719
• Decision Date: 21 September 2017

2017 IL App (1st) 132719
86 N.E.3d 1210

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Jacob MILES, Defendant-Appellant.

No. 1-13-2719

Appellate Court of Illinois, First District, FOURTH DIVISION.

Opinion filed September 21, 2017

Michael J. Pelletier, Patricia Mysza, and Yasaman H. Navai, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Assistant State's Attorney, of counsel), for the People.

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

¶ 1 Defendant Jacob Miles was convicted after a jury trial of armed robbery and sentenced as a habitual criminal to natural life with the Illinois Department of Corrections (IDOC). This court affirmed his conviction and sentence on direct appeal. People v. Miles, No. 1-02-2880, 343 Ill.App.3d 1291, 305 Ill.Dec. 886, 856 N.E.2d 691 (2003) (unpublished order under Supreme Court Rule 23 ).

¶ 2 Defendant now appeals from the trial court's dismissal of his pro se petition filed pursuant to section 2-1401 of the Code of Civil Procedure ( 735 ILCS 5/2-1401 (West 2012) ). Defendant claims that his armed robbery conviction is void because he was charged with armed robbery with a firearm but convicted of armed robbery with a dangerous weapon. Defendant argues that he was not charged with armed robbery with a dangerous weapon and that these two types of armed robbery are mutually exclusive. For the following reasons, we affirm the trial court's dismissal of his section 2-1401 petition.

¶ 3 BACKGROUND

¶ 4 Since defendant raises a purely legal question on this appeal, we do not repeat here the underlying facts of his conviction and instead incorporate by reference our prior order where we already described the facts and the evidence at trial. See People v. Miles, No. 1-02-2880, 343 Ill.App.3d 1291, 305 Ill.Dec. 886, 856 N.E.2d 691 (2003) (unpublished order under Supreme Court Rule 23 ) (finding unpersuasive defendant's claim that the State failed to prove him guilty beyond a reasonable doubt). We describe below the procedural history and the facts needed to decide the issues presented on this appeal.

¶ 5 Defendant was indicted for armed robbery. The charges stemmed from the armed robbery of a pizza delivery man on the night of August 16, 2000. Specifically, the indictment charged defendant with "knowingly [taking] United States currency from the person or presence of James Gilbert by the use of force *** [while] he carried on or about his person or was otherwise armed with a firearm, in violation of Chapter 720, Act 5, Section 18-2 of the Illinois Complied Statutes 1992, as amended."

¶ 6 Effective January 1, 2000, which was before both the offense and indictment at issue, the armed robbery statute was amended (1) to create separate subsections for armed robbery "with a dangerous

86 N.E.3d 1213

weapon other than a firearm" and armed robbery "with a firearm" and (2) to add a 15-year sentencing enhancement for being "armed with a firearm." Pub. Act 91-404 (eff. Jan. 1, 2000) (amending 720 ILCS 5/18-2 ); People v. Walden, 199 Ill. 2d 392, 396 n.1, 264 Ill.Dec. 91, 769 N.E.2d 928 (2002) (noting the effective date of the amendment). The amended statute provided, in relevant part, that:

"(a) A person commits armed robbery when he or she [commits robbery]; and

(1) he or she carries on or about his or her person or is otherwise armed with a dangerous weapon other than a firearm; or

(2) he or she carries on or about his or her person or is otherwise armed with a firearm[.]" 720 ILCS 5/18-2(a) (West 2002).

The amended statute also provided for the following sentencing enhancement:

"Armed robbery in violation of subsection (a)(1) is a Class X felony. A violation of subsection (a)(2) is a Class X felony for which 15 years shall be added to the term of imprisonment imposed by the court." 720 ILCS 5/18-2(b) (West 2002).

¶ 7 Before trial, defendant's counsel moved to dismiss the indictment pursuant to the Illinois Supreme Court case of People v. Walden, 199 Ill. 2d 392, 264 Ill.Dec. 91, 769 N.E.2d 928 (2002),¹ which was decided after defendant was indicted. In Walden, the supreme court held: "The 15-year enhancement for armed robbery while in possession of a firearm *** violates the proportionate penalties clause of the Illinois Constitution and is unenforceable." Walden, 199 Ill. 2d at 397, 264 Ill.Dec. 91, 769 N.E.2d 928.

¶ 8 Defense counsel argued that the indictment charged defendant under the armed robbery statute "as amended" and therefore defendant had been charged under an unconstitutional subsection. While the indictment did not cite a specific subsection, it did charge defendant with committing the offense while "armed with a firearm." Defense counsel argued that Walden rendered the armed-robbery-while-armed-with-a-firearm provision unenforceable.

¶ 9 The trial court held that, since the Walden court had declared the amendment unconstitutional, the preexisting statute now applied and the earlier statute did not differentiate between dangerous weapons and firearms. The earlier statute provided in full:

"(a) A person commits armed robbery when he or she [commits robbery] while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon.

(b) Sentence. Armed robbery is a Class X felony." 720 ILCS 5/18-2 (West 1998).

¶ 10 The trial court found that, since the earlier statute now applied, the indictment did not need to be amended.

¶ 11 Later, the defense objected to the jury being instructed on armed robbery with a dangerous weapon, arguing that, under the amended armed robbery statute, a firearm is not a dangerous weapon. The trial court overruled the objection. Thus, the jury was instructed over the defense's objection that it could find defendant guilty if it found, beyond a reasonable doubt, that defendant was armed with a

86 N.E.3d 1214

dangerous weapon. After the jury returned a verdict finding defendant guilty of armed robbery, defense counsel filed a motion to arrest judgment and a posttrial motion for a new trial arguing that the trial court erred in denying his pretrial motion to dismiss the indictment. The trial court denied both motions.

¶ 12 On July 31, 2002, after considering factors in aggravation and mitigation, the trial court found defendant to be a habitual criminal and sentenced him to life in prison. On direct appeal, defendant argued that the State failed to prove him guilty beyond a reasonable doubt. On October 22, 2003, this court affirmed his conviction and sentence. People v. Miles, No. 102-2880, 343 Ill.App.3d 1291, 305 Ill.Dec. 886, 856 N.E.2d 691 (2003) (unpublished order under Supreme Court Rule 23 ).

¶ 13 On January 30, 2013, defendant filed a pro se section 2-1401 petition in which he claimed, among other things, that the trial court deprived him of his due process right to a fair trial when it denied his pretrial motion to dismiss his indictment. In a supplemental petition, also filed on January 30, 2013, defendant added a claim that, although he was charged with armed robbery with a firearm, he was found guilty of armed robbery with a dangerous weapon. On February 28, 2013, the State moved to dismiss.

¶ 14 On July 26, 2013, the trial court issued a written order dismissing defendant's section 21401 petition. The written order provided in relevant part:

"The Court *** finds, that defendant's argument that his judgment is void is without merit. As set forth in the trial record, count one of the indictment properly charged the offense of armed robbery. Subsequent to a guilty verdict, defendant was properly sentenced as a habitual criminal."

Defendant filed a timely notice of appeal, and this appeal followed.

¶ 15 ANALYSIS

¶ 16 On appeal, defendant raises only one claim, which is that the trial court erred in dismissing his section 2-1401 petition because his conviction was void. Defendant argues that, where he was charged with the offense of armed robbery with a firearm, the jury lacked the inherent authority to find him guilty of the mutually exclusive and uncharged offense of armed robbery with a dangerous weapon, thereby rendering his armed robbery conviction, as well as his natural-life sentence, void.

¶ 17 For the following reasons, we do not find defendant's arguments persuasive and affirm the trial court's dismissal of his section 2-1401 petition.

¶ 18 I. Standard of Review

¶ 19 We review the dismissal of a section 2-1401 petition de novo. People v. Carter, 2015 IL 117709, ¶ 13, 398 Ill.Dec. 62, 43 N.E.3d 972 ; People v. Laugharn, 233 Ill. 2d 318, 322, 330 Ill.Dec. 780, 909 N.E.2d 802 (2009) (citing People v. Vincent, 226 Ill. 2d 1, 18, 312 Ill.Dec. 617, 871 N.E.2d 17 (2007) ). De novo consideration means that we perform the same analysis that a trial judge would perform. Arient v. Shaik, 2015 IL App (1st) 133969, ¶ 18, 393 Ill.Dec. 725, 35 N.E.3d 117.

¶ 20 Section 2-1401 authorizes "a trial court to vacate or modify a final order or judgment in civil and criminal proceedings." People v. Thompson, 2015 IL 118151, ¶ 28, 398 Ill.Dec. 74, 43 N.E.3d 984. "Ordinarily, a petition seeking relief under section 2-1401 must be filed more than 30 days from entry of the final order but not more than...