Appeal from the Circuit Court of Cook County, Illinois, County Department, Criminal Division. No. 96 CR 3560 (03) Honorable Brian Flaherty, Judge Presiding.
The opinion of the court was delivered by: Justice Fitzgerald Smith
JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion Presiding Justice Lavin and Justice Sterba concurred in the judgment and opinion.
¶ 1 This is an appeal from the circuit court's denial of the State's motion to dismiss defendant Daniel Moran's pro se petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401(f) (West 2008)). The State contends that the circuit court erred in denying its motion to dismiss the petition because the petition was untimely filed and because the judgment challenged thereunder was not void, so as to permit an untimely collateral attack. For the reasons that follow, we agree with the State and reverse the judgment of the circuit court.
¶ 3 The record reveals the following pertinent and undisputed facts. The defendant was arrested on January 23, 1996, and together with two co-defendants charged with three counts of murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2008)) and one count of armed robbery (720 ILCS 5/18-2 (West 2008)) for his involvement in the shooting of a gas station clerk, Abdallah Al-Muhaisen. On October 17, 1997, the defendant entered into a negotiated plea agreement with the State.*fn1 The defendant pleaded guilty to one count of felony murder predicated on armed robbery (720 ILCS 5/9-1(a)(3) (West 2008)) and one count of armed robbery (720 ILCS 5/18-2 (West 2008)) in exchange for a 45-year sentence (a 39-year sentence for felony murder and a consecutive 6-year sentence for armed robbery). In addition, the remaining two murder charges were nol-prossed by the State.
¶ 4 Before the defendant accepted the plea, the circuit court admonished him in accordance with Illinois Supreme Court Rule 402 (Ill. S. Ct. R. 402 (eff. July 1, 1997)). The court advised the defendant that by pleading guilty to first degree murder, he faced a sentence between 20 and 60 years in prison, followed by 3 years of mandatory supervised release (hereinafter MSR). The court further advised the defendant that by pleading guilty to armed robbery, a Class X offense, he faced a sentence between 3 and 30 years' imprisonment, again followed by 3 years of MSR. The defendant indicated that he understood the charges, the terms of the plea agreement and the potential penalties.
¶ 5 The circuit court further advised the defendant that by pleading
guilty, he was giving up his rights to a bench or jury trial. The
court informed the defendant that if he chose to proceed
with a trial, he would have the right to be present at
trial, to call witnesses in his own defense and to confront the
witnesses against him. The court also informed the defendant that if
he proceeded to trial he had the right to testify on his own behalf if
he chose to do so. The defendant stated that he understood all these
rights and that he was freely and voluntarily relinquishing them. The
circuit court also asked the defendant if anybody had threatened or
promised him anything (aside from the negotiated plea agreement) in
return for his plea of guilty. The defendant responded in the
negative. The parties then stipulated to the factual basis for the
defendant's guilty plea.
¶ 6 On December 4, 1997, the defendant filed a pro se motion to modify or reconsider the sentence. That motion was continued to April 30, 1998, when it was recharacterized as a petition to withdraw the defendant's plea and vacate his sentence. In that petition, the defendant alleged that: (1) his plea was involuntary because counsel pressured him into pleading guilty and (2) his sentence should be reduced to better reflect certain mitigating factors which the defendant was not permitted to present before the circuit court. On April 23, 1999, the defendant filed a motion to withdraw the petition vacating his plea but nevertheless asked the circuit court to reconsider his sentence for a possible reduction. The circuit court granted the defendant's motion to withdraw his petition but denied his motion to reconsider the sentence. The defendant filed a notice of appeal on May 3, 1999, but then moved to withdraw his direct appeal on November 4, 1999. The appellate court consequently issued a special order dismissing the defendant's appeal.
¶ 7 More than eight years later, on May 17, 2007, the defendant filed a pro se petition for relief from judgment pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401(f) (West 2008)), alleging that the circuit court did not have the authority to convict and sentence him on both the armed robbery and felony murder charges since the felony murder charge was predicated on the armed robbery charge. The defendant argued that armed robbery was a lesser included offense of felony murder and thus could not sustain a separate conviction. The defendant also argued that a conviction and sentence as to both offenses violated his constitutional right against double jeopardy. The defendant therefore asserted that his conviction and sentence for armed robbery were void and should be vacated.
¶ 8 After the petition was docketed and the defendant was appointed a public defender, on July 18, 2010, the State filed a motion to dismiss the petition, arguing: (1) that the petition was untimely; (2) that the underlying judgment (i.e., the defendant's conviction and sentence) should not be vacated because it was only voidable and not void, and (3) that the defendant had forfeited his right to raise the issue where he could have, but failed to make, the same argument in his petition to withdraw his plea. In response, during the hearing on the State's motion to dismiss, defense counsel conceded that the defendant's section 2-1401 petition was filed beyond the two-year statutory requirement for such petitions (see 735 ILCS 5/2-1401(c) (West 2008)), but nevertheless argued that it should not be dismissed since it alleged a void judgment, so as to permit attack outside of the statutory time period. In support of this contention, defense counsel cited to People v. Wade, 116 Ill. 2d 1 (1987).
¶ 9 After hearing arguments, the circuit court granted the defendant's requested relief and vacated his conviction and six-year sentence for armed robbery. In doing so, the court explained:
"Both sides have presented, I think, some pretty valid arguments[;] however[,] my research of the case[s,] including the case that counsel recently cited a couple months ago[,] which is Wade, I believe that this is a void sentence."
¶ 10 The State filed a motion to reconsider the court's judgment reiterating the arguments it had already raised in its motion to dismiss the defendant's section 2-1401 petition (735 ILCS 5/2-1401(f) (West 2008)). In addition, the State contended that even if the defendant's conviction was void, the proper remedy was to allow the defendant to vacate his plea, and not for the circuit court to vacate his armed robbery conviction. On April 15, 2011, the circuit court denied the State's motion to reconsider. The State now appeals contending that the ...