APPEAL from the Circuit Court of Sangamon County; the Hon.
HARVEY BEAM, Judge, presiding.
MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
The defendant was convicted upon a negotiated plea of guilty to the offense of robbery. He was sentenced to 1 1/2 to 4 1/2 years' imprisonment. While incarcerated, he brought, pro se, a petition for a writ of habeas corpus. On motion of the People, the circuit court dismissed the petition without a hearing and without appointing counsel, as prayed by the defendant. This appeal followed.
Two principal questions are raised on the appeal: (1) Whether venue is a jurisdictional matter or only a material part of the proof in criminal cases; and (2) whether a court is required to appoint counsel and hold a hearing on a petition for a writ of habeas corpus by reason of the nature of the petition alone.
A brief factual background is necessary in order to fully deal with the questions. Defendant and a co-defendant (not involved in this appeal) were hitchhiking near St. Louis, Missouri, and were given a ride by the victim. As they drove north, at some point between St. Louis and Breckenridge, Illinois, defendant and his co-defendant took over the car. Near Breckenridge, which is in Sangamon County, the pair beat the victim, left him in a cornfield and took the car. They were later apprehended in Ohio, waived extradition and were returned to Sangamon County. Indictments were returned by the grand jury alleging one count of aggravated battery and two counts of robbery. As a result of plea negotiations, the defendant pleaded guilty to one count of robbery (the car) and the other two counts were dismissed on motion of the People.
Count III, to which defendant pleaded guilty, alleged that the offense occurred "in the County of Sangamon in the aforesaid State of Illinois."
In his petition defendant alleges "* * * said crime that I committed was not committed in the County of Sangamon, in which county that convicted me, said crime of robbery was committed in * * * Christian County * * *." Defendant then claims that the circuit court of Sangamon County was without jurisdiction of the offense by reason of improper venue.
• 1 There is no unanimity of opinion among the courts> which have considered the subject as to whether venue is jurisdictional. Some have answered in the affirmative; others have said that venue is only a material allegation to be proved like all other elements of an offense. Illinois must be classified with the latter, although two older cases have caused considerable confusion on the matter.
These cases are People v. Adams (1921), 300 Ill. 20, 132 N.E. 765, and People v. McIntosh (1909), 242 Ill. 602, 90 N.E. 180. The Adams court said in part, "The venue was a jurisdictional fact but it was not an element of the crime to be proved beyond a reasonable doubt." 300 Ill. 20, 24, 132 N.E. 765.
Over the intervening years, this language has been cited by both the State and defendants, apparently depending on whose ox was being gored. Adams has never been expressly overruled by our supreme court, but neither has it been followed. In fact, in numerous cases the court has held that venue is a fact to be proved beyond a reasonable doubt. See, for example, People v. Strook (1932), 347 Ill. 460, 179 N.E. 821; People v. Gregor (1935), 359 Ill. 402, 194 N.E. 550; People v. Church (1937), 366 Ill. 149, 7 N.E.2d 894; People v. Long (1950), 407 Ill. 210, 95 N.E.2d 461; People v. Pride (1959), 16 Ill.2d 82, 156 N.E.2d 551.
The aberrant rule announced in Adams is best explained in the context of the statutory law existing at the time. The Illinois Constitution of 1870 provided in article II, section 9, "In all criminal prosecutions the accused shall have the right to * * * a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed." The statute implementing the constitutional provision reads: "The local jurisdiction of all offenses, not otherwise provided for by law, shall be in the county where the offense was committed [See Const., art. II, § 9. * * *]" Hurd Rev. Stat. 1917, ch. 38, par. 395.
It is thus apparent that the legislature failed to draw a distinction between jurisdiction and venue and it may be deduced that the court was only reiterating the statute.
The situation today is much different. While the Constitution of 1970 in article I, section 8, retains the language of the 1870 document with only minor changes, the Criminal Code of 1961 creates a sharp distinction between jurisdiction and venue. Section 1-5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 1-5) provides for jurisdiction; section 1-6 makes elaborate provisions for venue (Ill. Rev. Stat. 1975, ch. 38, par. 1-6); and the Committee Comments to section 1-6 (Ill. Ann. Stat., ch. 38, par. 1-6, at 23 (Smith-Hurd 1972)) commence by pointing out that venue should be distinguished from jurisdiction.
We are therefore of the opinion that venue is not jurisdiction and that recent opinions of our supreme court, while not overruling Adams, have discredited it. Defendant's reliance on Adams is misplaced.
• 2 Since venue is not jurisdictional, the defendant waived the point by entering a plea of guilty. In the recent case of People v. Ondrey (1976), 65 Ill.2d 360, 363-64, 357 N.E.2d 1160, 1162, the supreme court said: "The place of trial is not jurisdictional and may be waived by the defendant. [Citation.] All non-jurisdictional questions are waived by a voluntary ...