Appeal from the Circuit Court of Du Page County. No. 93-CF-795 Honorable George J. Bakalis, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
Defendant, Sean R. Helgesen, appeals the summary dismissal under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2002)) of his "Motion to Vacate Void Judgment." Defendant contends that the trial court should have treated the motion as a petition under section 2--1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2--1401 (West 2002)), which contains no provisions for summary dismissal.
In the alternative, he contends that we must reverse the dismissal because the court failed to adhere to the procedural requirements of the Act. Because we hold that the court had the discretion to treat the motion as a post-conviction petition and that the procedural irregularities in the proceedings under the Act were not reversible error, we affirm the judgment of the trial court.
A grand jury indicted defendant on 10 counts of first-degree murder (720 ILCS 5/9--1(a)(1), (a)(2) (West 1992)). The charges arose out of the April 17, 1993, stabbing deaths of Peter Robles and Diana Robles. Five counts of the indictment alleged that defendant slashed and stabbed Peter Robles with a knife, causing his death, and the other five counts alleged that defendant slashed and stabbed Diana Robles with a knife, causing her death, with the counts otherwise varying only as to defendant's alleged mental state. The State's Attorney and the foreperson of the grand jury signed the indictment after the tenth count. A jury found defendant guilty on all counts, rejecting his insanity defense. The court found that the counts merged to one for each victim (720 ILCS 5/9--1(a)(1) (West 1992)), and on June 14, 1995, the court sentenced defendant to natural life in prison because he had been found guilty of murdering more than one victim. On direct appeal, defendant contended that the court had erred in making certain comments during voir dire, in denying his motion for a mistrial after the State asked an objectionable question of one of defendant's expert witnesses, and in admitting into evidence the statement he made to police. He also argued that the court abused its discretion in admitting certain gruesome exhibits. We affirmed the convictions. People v. Helgesen, No. 2--95--0735 (1997) (unpublished order under Supreme Court Rule 23).
Defendant filed a pro se petition for relief under the Act, contending that his sentence violated the principles of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). He stated that he had received an "extended term" because the crimes were accompanied by brutal and heinous behavior indicative of wanton cruelty, and that the State did not prove this beyond a reasonable doubt. The trial court dismissed his petition as frivolous and patently without merit. It noted that the basis for the life sentence was that defendant had been found guilty of murdering more than one person, and that a jury had found this fact beyond a reasonable doubt. Defendant did not appeal this decision.
On May 9, 2002, defendant filed a document entitled "Motion to Vacate Void Judgment" along with a collection of supporting documents, including a motion for appointment of counsel. He contended that his "sentencing judgment" was void because (1) the indictment was faulty in that it failed to set forth the offenses with which defendant was charged; (2) if the indictment was valid, it charged defendant with only one count of murder; and (3) it failed to allege the facts allowing an enhanced penalty.
At a hearing on this filing, the court stated that it had received a motion to vacate a void judgment and asked the State if it wished to file a response. The State did not do so. The court appointed the public defender to represent defendant. At a later court date, a discussion took place among the court, the public defender, and the State's Attorney as to how the court should characterize the filing. The public defender also raised a concern that she might have a conflict of interest in her representation of defendant. The State's Attorney told the court that "with regard to the failure to allege [a basis for] the extended-term extraordinary penalty, *** the Defendant was charged with and convicted of the murder of two people. So *** that's the only available sentence ***. And I believe it falls within the realm of Apprendi." The court responded that it agreed. The court then announced that, because the motion raised a constitutional issue, the court would treat it as a post-conviction petition. The court set a date for an initial ruling.
On the date for the ruling, the court stated that, because defendant filed the motion seven years after it sentenced him, it "ha[d] to" consider the motion as a post-conviction petition. It then found that defendant had not alleged any fundamental unfairness in the first post-conviction proceedings such that defendant would be entitled to file a second petition. It also found that the indictment was proper in form. Further, there was no difficulty regarding the life sentence because defendant had been charged with and found guilty of the murder of two persons, and thus the sentence met the requirements of Apprendi. The court dismissed the motion pursuant to section 122--2.1 of the Act (725 ILCS 5/122--2.1 (West 2002)), which directs trial courts to summarily dismiss post-conviction petitions that they have found on independent review to be frivolous and patently without merit. Its written order stated only that the basis for dismissal was that the filing was a second post-conviction petition.
Defendant then filed a pro se motion to reconsider, arguing, inter alia, that the court had erred in recharacterizing the motion as a post-conviction petition and in giving him inadequate time to prepare his motion to reconsider by failing to serve the dismissal order by certified mail. The court denied the motion.
Defendant now appeals, contending that it was error for the court to recharacterize the motion as a post-conviction petition, when it should have considered it as a petition pursuant to section 2--1401 of the Code. Alternatively, defendant contends that the procedural irregularities in effecting the first-stage dismissal require us to remand for the second-stage review under the Act. Defendant does not challenge the court's substantive findings, so we consider only the procedural issues. Whether the trial court complied with the applicable procedure is a question of law and our review is de novo. See Woods v. Cole, 181 Ill. 2d 512, 516 (1998).
We conclude that the trial court was entitled to construe the motion to vacate a void judgment as a post-conviction petition and that the court's application of the Act, although imperfect, did not constitute reversible error.
As defendant seems to acknowledge, to obtain jurisdiction to address the motion, the trial court had to recharacterize it. In People v. Flowers, 208 Ill. 2d 291, 308 (2004), our supreme court held that a litigant's raising of a voidness claim does not serve to revest a court with jurisdiction that it has otherwise lost. The litigant may therefore raise such a claim only when a proceeding is properly pending before the court. Flowers, 208 Ill. 2d at 308. Because section 2--1401 abolished all common-law methods of attacking void judgments (735 ILCS 5/2-1401(a) (West 2002); Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104 (2002)), defendant's freestanding motion did not invoke the trial court's jurisdiction. Thus, to consider it at all, the court had to construe defendant's motion as a pleading initiating some type of statutory collateral proceeding.
Defendant contends that the only possible recharacterization of his motion was as a section 2--1401 petition. At first glance, this contention appears to have considerable merit. In Sarkissian, our supreme court determined that an order vacating a default judgment as void for improper service is final and appealable. In doing so, the court stated that a motion to vacate a void judgment is properly recognized as a section 2--1401 petition. The court reasoned that, beyond section 2--1401, nothing in the Code "make[s] provision for the filing of a motion to challenge a judgment on voidness grounds." Sarkissian, 201 Ill. 2d at 105. That ...