Appeal from the Circuit Court of Carroll County. No. 97-CF-17 Honorable John F. Joyce, Judge, Presiding.
The opinion of the court was delivered by: Justice Birkett
JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice Burke concurred in the judgment and opinion.
¶ 1 Defendant, Roy E. Hubbard, appeals from the dismissal of his petition under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)). He asserts that his 1998 conviction of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(1)(a) (West 1996)) was void as a violation of his due process rights, the voidness of the conviction exempting his claim from the two-year limitations period of section 2-1401(c) of the Code (735 ILCS 5/2-1401(c) (West 2010)). He further argues that the trial court erred when it failed to recognize that the conviction was void and consequently dismissed his petition. We conclude that, notwithstanding a broader voidness standard in federal law and an obiter dictum in People v. Williams, 188 Ill. 2d 365 (1999), under Illinois law a judgment is void solely when the court entering the judgment lacked jurisdiction. We therefore hold that the conviction was not void, meaning that defendant cannot escape the effect of the two-year limitations period. The court did not err in dismissing the petition; we affirm the dismissal.
¶ 3 Defendant was charged with one count of predatory criminal sexual assault of a child. On September 15, 1997, he entered a blind plea of guilty to that charge. The court advised him that the sentencing range for his offense, a Class X felony, was 6 to 60 years. The State presented the factual basis for the plea. It said that, on April 5, 1997, defendant, who was older than 17, and a 12-year-old girl had twice had vaginal sexual intercourse in the basement of defendant's home. The girl had acted in a way that, but for her age, would have indicated consent. The case was continued for sentencing and defendant remained on bond.
¶ 4 Before the court sentenced him, defendant moved for leave to withdraw the plea. The basis on which he sought this leave is unclear from the record, which is incomplete.
¶ 5 After defendant moved to withdraw his plea, the State charged defendant with the burglary of a vehicle on October 24, 1997. The State and defendant then negotiated an agreement that covered both charges. Defendant agreed to withdraw his motion to withdraw the plea. The State agreed that defendant should receive the minimum sentence of six years' imprisonment for the predatory criminal sexual assault of a child and a consecutive five years' imprisonment for the burglary. At a February 3, 1998, hearing, the court accepted the agreement. It advised defendant of the sentencing range for the burglary charge but not the charge of predatory criminal sexual assault of a child.
¶ 6 On July 1, 2010, defendant filed his section 2-1401 petition; he asserted that his predatory criminal sexual assault of a child conviction was void because the trial court had initially misadvised him of the sentencing range, rendering his guilty plea involuntary.
¶ 7 The State moved to dismiss the petition. It asserted that the petition was untimely and further argued that a judgment is void only if it was entered by a court lacking jurisdiction. It did not challenge defendant's claim that the admonitions were improper.
¶ 8 Defendant responded, conceding that his petition was filed beyond the two years permissible for a standard section 2-1401 petition, but arguing, among other things, that a section 2-1401 petition alleging the voidness of a judgment cannot properly be dismissed for untimeliness.
¶ 9 The court granted the State's motion, ruling that the conviction was not void and that the two-year limitations period therefore barred ...