Court of Appeals of Illinois, First District, Fourth Division
Defendant’s petition under section 2-1401 of the Code of Civil Procedure alleging that his mandatory life sentence for first degree murder was void on the ground that it violated the prohibition against cruel and unusual punishment pursuant to Miller because defendant was 16 at the time of his offense was properly dismissed, since his sentence was merely voidable, not void, and he did not file his petition within the two-year statutory limitation, but defendant may raise the issue before a postconviction court.
Appeal from the Circuit Court of Cook County, No. 93-CR-20392-02; the Hon. Colleen Ann Hyland, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Rachel Moran, all of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Assistant State's Attorney, of counsel), for the People.
Justices Epstein and Pucinski concurred in the judgment and opinion.
LAVIN, PRESIDING JUSTICE
¶ 1 Defendant Marcos Gray appeals from the dismissal of his petition filed under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)). Following a jury trial, defendant was convicted via accountability theory of the 1993 first degree murder and attempted armed robbery of Sheila Doyle committed when defendant was age 16. Having previously been convicted of first degree murder, defendant was sentenced to a mandatory term of life imprisonment on his murder conviction and 15 years' imprisonment on his attempted armed robbery conviction. Relying on Miller v. Alabama, 567 U.S. __, 132 S.Ct. 2455 (2012), defendant now contends his mandatory life sentence is void because it violates the federal constitution's prohibition against cruel and unusual punishment. The State responds that Miller does not render defendant's sentence void and, regardless, Miller constitutes a new rule of law that cannot be applied retroactively on collateral review. We affirm, while noting that defendant may raise this issue before the postconviction court.
¶ 2 BACKGROUND
¶ 3 Via various procedural peregrinations, defendant's case has resolutely moved through the interstices of the justice system. Following defendant's first jury trial, this court reversed and remanded the cause for a new trial after concluding the trial court had erred in denying defendant's motion to suppress. See People v. Gray, No. 1-96-0278 (1998) (unpublished order under Supreme Court Rule 23). Evidence at retrial showed that defendant and two friends followed the victim, Doyle, in their car until she parked in her garage on the south side of Chicago. Defendant and codefendant Antwon Tyler entered the garage, a gunshot issued, and when they reemerged, Tyler informed the third cohort that he had shot Doyle, whose body was later discovered in the trunk of her car. Fingerprints and palm prints from codefendant and defendant were also found on the trunk lid. As stated, the jury found defendant guilty via accountability of first degree murder and attempted armed robbery. Because defendant already had been convicted of first degree murder, which he committed as a principal mere months before Doyle's murder, the trial court sentenced defendant in 2000 to a mandatory life term, as well as 15 years for attempted armed robbery to run concurrently. See 730 ILCS 5/5-8-1(a)(1)(c)(i) (West 1992); People v. Gray, No. 1-95-2932 (1998) (unpublished order under Supreme Court Rule 23). This court affirmed defendant's convictions on direct appeal. See People v. Gray, No. 1-00-4122 (2002) (unpublished order under Illinois Supreme Court Rule 23).
¶ 4 In December 2001, defendant filed a pro se petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2010)) alleging that his appellate counsel was ineffective for failing to raise certain issues on appeal and trial counsel was ineffective for failing to file pretrial motions. The petition reached second-stage proceedings and lingered in the system for some eight years before the circuit court dismissed the petition in April 2010. Defendant appealed from that dismissal arguing that the circuit court violated his right to represent himself pro se in postconviction proceedings when it denied his requests to proceed pro se and struck his pro se amendments to his petition. This court very recently agreed, concluding the circuit court abused its discretion by failing to properly consider defendant's request to proceed pro se. People v. Gray, 2013 IL App (1st) 101064, ¶ 27. We remanded the case for further consideration consistent with our opinion. Id.
¶ 5 Meanwhile, in the midst of his postconviction appeal, in December 2010, defendant, acting pro se, filed this section 2-1401 petition in which he asserted his conviction and sentence were void. Defendant argued the trial court lacked subject matter jurisdiction over his case because the indictment cited the Illinois Revised Statutes rather than the Illinois Compiled Statutes in reference to the murder charge. The State filed a motion to dismiss, arguing defendant's conviction and sentence were not void and the petition was not otherwise filed in a timely manner, thus effecting waiver and barring any relief. The circuit court granted the State's motion, and this appeal followed.
¶ 6 ANALYSIS
¶ 7 Section 2-1401 establishes a comprehensive statutory procedure allowing for vacatur of a final judgment older than 30 days. 735 ILCS 5/2-1401 (West 2010); People v. Vincent, 226 Ill.2d 1, 7 (2007). To obtain relief, the defendant must show proof of a defense or claim that would have precluded entry of the judgment in the original action and diligence in discovering that defense or claim and presenting the petition. Id. at 7-8. The statute ordinarily is used to correct errors of fact (People v. Lawton, 212 Ill.2d 285, 297 (2004)), and with certain exceptions not applicable here, the statute provides that petitions must be filed not later than two years after entry of the order or judgment. Id. The two-year limitation, however, ...