Appeal from the Circuit Court of Lake County. No. 01-CF-2819 Honorable Fred L. Foreman, Judge, Presiding.
The opinion of the court was delivered by: Justice Birkett
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Hutchinson and Hudson concurred in the judgment and opinion.
¶ 1 Defendant, Daniel L. Schlabach, appeals from the dismissal of his petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008)) in which he sought to vacate his 2002 conviction of aggravated driving under the influence of alcohol (aggravated DUI) (625 ILCS 5/11-501(d)(2) (West 2000)). That conviction was entered under a plea agreement in which he also pleaded guilty to-and received a nine-year sentence for-intimidation (720 ILCS 5/12-6(a)(1) (West 2000)). For the aggravated DUI, he received a sentence of court costs only. On appeal, defendant asserts that the sentence he received for aggravated DUI was void and cannot stand. He further asserts that, because of the years that have passed since his sentencing, the only remedy that does not violate his due-process rights is to vacate the aggravated DUI conviction. We agree that the sentence was void. However, we disagree that due process requires vacatur of the conviction. Moreover, we conclude that the void aggravated DUI sentence resulted in the plea agreement being defective and unenforceable as the court set it out. Because any remedy for the void sentence must also be a remedy for the failed plea agreement, something that might be accomplished by a new agreement between the parties, we vacate the dismissal of defendant's section 2-1401 petition and remand the matter for corrections of the errors we have described.
¶ 3 A Lake County grand jury indicted defendant on two counts (two theories of intoxication) of DUI (enhanced) (625 ILCS 5/11-501(c-1)(1) (West 2000)), with the enhancement based on his license having been revoked for an earlier DUI conviction; two counts (two theories of intoxication) of aggravated DUI (625 ILCS 5/11-501(d)(1) (West 2000)), with the aggravation based on two prior DUI convictions; a count of driving with a revoked license (enhanced) (625 ILCS 5/6-303(d) (West 2000)), with the enhancement based on the DUI-based revocation; and one count of unlawful possession of more than 2.5, but less than 10, grams of cannabis (720 ILCS 550/4(b) (West 2000)). His arrest occurred on August 24, 2001; he was released on bond on August 28, 2001.
¶ 4 While those charges were pending, defendant was arrested on the basis of an accusation of sexual assault. A grand jury indicted him on two counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(1) (West 2000)) and two counts of criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2000)). The indictment, which was filed under a new case number, alleged that the acts constituting the offense took place on September 30, 2001.*fn1
¶ 5 A guilty plea hearing for both cases took place on May 8, 2002. The State told the court that, in the sexual assault case, the State would ask leave to add a count of intimidation, a Class 3 felony with a special sentencing range of 2 to 10 years (720 ILCS 5/12-6(b) (West 2000)). The agreement called for defendant to plead guilty to that count and to receive a nine-year sentence. He would also plead guilty to aggravated DUI. Concerning that count, the State told the court that "there would be a conviction of record on that."
¶ 6 The court admonished defendant of the sentencing range for intimidation. It noted that he had been facing Class X felony charges in that case. It further told him that the form of aggravated DUI to which he had agreed to plead guilty was a Class 4 felony with a sentencing range of one to three or three to six years' imprisonment depending on his extended-term eligibility.
¶ 7 After the court and the State clarified that the count to which he would plead guilty in this case was count III of the indictment, defendant personally asked the court, "Does that run concurrent?" The court responded, "That's just a conviction. You are not catching any time on the agg[ravated] DUI. Is that okay?" Defendant replied, "Sure."
¶ 8 The court asked defendant if he admitted the facts on which the aggravated DUI charge was based, and defendant said that he did. The court next asked for the factual basis for the intimidation charge. After the State presented it, the court accepted defendant's plea of guilty to intimidation and sentenced him to nine years' imprisonment. Finally, the court said, "On the DUI[,] conviction is entered. Court costs are assessed. Judgment for the court costs."
¶ 9 The record contains a form entitled "Report of Felony Conviction." It states that defendant's aggravated DUI conviction was one under section 11-501(d)(1)(A) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(d)(1)(A) (West 2000)). No sentence is recorded.
¶ 10 Seven years after defendant pleaded guilty, he filed a pro se section 2-1401 petition in which he sought to vacate his guilty plea to aggravated DUI. He alleged that his plea was involuntary as a result of side effects of his alcoholism and because he had incorrectly believed that the conviction would count as his third DUI. The State filed a "Response" in which it asked the court to dismiss the petition as untimely. The court agreed that the petition was untimely and dismissed it; it also denied defendant's motion to reconsider. Defendant filed a timely notice of appeal, and the court appointed the Office of the State Appellate Defender to represent him. The Office moved to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), and People v. Lee, 251 Ill. App. 3d 63 (1993), asserting that the appeal presented no meritorious issue. We denied the motion without prejudice, noting ...