Appeal from the Circuit Court OF ILLINOIS, of Winnebago County. No. 95-CF-817 Honorable Steven G. Vecchio,Judge, Presiding.
The opinion of the court was delivered by: Justice Birkett
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Bowman and Zenoff concurred in the judgment and opinion.
¶ 1 Defendant, Ralphfield Hudson, appeals from the dismissal of a document that the court characterized as a petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)). He asserts that, under the rule in People v. Gregory, 379 Ill. App. 3d 414 (2008), his 1996 conviction of aggravated driving under the influence of cocaine (625 ILCS 5/11-501(a)(5), (d)(1)(C) (West 1994)) was void. He argues that, per Gregory, the conviction was void because it was the result of a plea agreement that required a void sentence, one longer than the law allowed. We do not accept the rule in Gregory, which is inconsistent with People v. Brown, 225 Ill. 2d 188 (2007), and which, as applied here, would give defendant an unbargained-for benefit. The proper remedy for an illegally long sentence is to correct the sentence. In this case, we make the correction of reducing the sentence from five years' imprisonment to three. That the correction comes too late to aid defendant (who has served out his five-year sentence) does not make any other remedy necessary.
¶ 3 A grand jury indicted defendant on one count of possession of less than 15 grams of cocaine (720 ILCS 570/401(c)(2) (West 1994)), one count of possession of less than 15 grams of heroin (720 ILCS 570/401(c)(1) (West 1994)), aggravated driving under the influence of cocaine (aggravated DUI) (625 ILCS 5/11-501(a)(5), (d)(1)(C) (West 1994)), and failure to obey a traffic control device (625 ILCS 5/11-305(a) (West 1994)). The charges stemmed from a March 7, 1995, incident in which defendant's vehicle hit a bus, and the bus crashed into a restaurant, killing one person inside. In the plea agreement, the State agreed to dismiss all the charges but the aggravated DUI. The court told defendant that the sentencing range for that specific offense was 1 to 12 years' imprisonment (see 625 ILCS 5/11-501(d)(2) (West 1994)). Per the agreement, the court imposed a five-year sentence for that offense "concurrent with any federal time that he still may owe on a parole violation."*fn1
¶ 4 Twelve years later, defendant filed a document that was not specifically labeled a petition under the Act. It identified defendant as a prisoner in federal custody. The court treated the petition as one under the Act and summarily dismissed it, ruling that defendant, because he was not in State custody, lacked standing to file it.
¶ 5 Defendant appealed. He argued that the court should have given him the admonishments described in People v. Shellstrom, 216 Ill. 2d 45, 57 (2005), and that, had he received such admonishments, he could have amended his petition to state a voidness claim under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008)).
¶ 6 The State confessed error on three points. First, it agreed that defendant was entitled to the Shellstrom admonishments. Second, it agreed that, under People v. Cervantes, 189 Ill. 2d 80 (1999), Public Act 88-680 (eff. Jan. 1, 1995) violated the single subject rule of the Illinois Constitution of 1970 (Ill. Const. 1970, art. IV, § 8(d)). Public Act 88-680 created the special 1-to-12-year sentencing range in section 11-501(d)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501(d)(2) (West 1994)). The prior version of the aggravated DUI provision simply made aggravated DUI a Class 4 felony (625 ILCS 5/11-501(d) (West 1992)), such that the standard Class 4 sentencing range of one to three years' imprisonment was applicable (730 ILCS 5/5-8-1(a)(7) (West 1992)). Third, it agreed that a collateral attack on a void judgment is not subject to section 2-1401's diligence requirements or two-year limitations period. This court vacated the dismissal and remanded the matter for the Shellstrom admonishments. People v. Hudson, No. 2-08-0478 (2009) (unpublished order under Supreme Court Rule 23).
¶ 7 Defendant filed amendments to his petition. The court then sent him Shellstrom admonishments. In response, defendant filed what he titled an "Amended Petition." He asserted that trial counsel had been ineffective. In a separate section, he invoked section 2-1401 and asserted that his conviction was void based on the holding in Cervantes.
¶ 8 At a hearing, the court expressed uncertainty as to what claims of defendant's were before it. The State noted the existence of the "Amended Petition" but suggested that the section 2-1401 claim did not comport with what defendant had been told in the Shellstrom admonishments. The court continued the matter. However, three days later, it entered a written dismissal order. It said that defendant's claims concerned an involuntary guilty plea and ineffective assistance of counsel-in other words, it did not mention the voidness claim. It said that it was dismissing the "Amended Petition" for lack of standing.
¶ 10 Initially, we note that, although the court never addressed defendant's voidness claim, its dismissal was of the entire amended petition without qualification. Therefore, we take it that the dismissal applied to the portion of the petition that defendant designated as being under section 2-1401; the dismissal was thus final as to all of defendant's claims.
¶ 11 Defendant's argument on appeal has two parts: first, that the court should have addressed his voidness claim, and second, that his conviction was void. We need address only the second part of his argument. Under People v. Thompson, 209 Ill. 2d 19, 27 (2004), a voidness claim can be raised for the first time on appeal, including a collateral appeal. ...