Court of Appeals of Illinois, First District, First Division
Appeal from the Circuit Court of Cook County. Nos. 85 C 6031, 85 C 6032, 85 C 6033, 85 C 6034, 85 C 6035, 85 C 6036, 85 C 6037, 85 C 6038, 85 C 6039 . Honorable Mary Margaret Brosnahan, Judge Presiding.
On appeal from defendant's petition for relief from his convictions of armed robbery and sentence as a habitual criminal based on his claim that the Class X offenses of armed robbery for which he was convicted carry more severe penalties than the " identical" Class 2 offenses of armed violence predicated on robbery with a category II weapon, the denial of his petitions was upheld, since the juries in defendant's cases found him guilty after rejecting his claims that he used a toy gun and their conclusions were not inherently unreasonable; therefore, defendant's Class X felony armed robbery convictions could not properly be compared to the Class 2 felony offense of armed violence with a category II weapon, and no proportionate penalty clause violation occurred.
For APPELLANT, Office of the State Appellate Defender, Chicago, IL (Michael J. Pelletier, Alan D. Goldberg, Carolyn R. Klarquist, of counsel).
For APPELLEE, Office of the Cook County State's Attorney, Chicago, IL (Anita Alvarez, Alan J. Spellberg, Joan Frazier, Kathryn A. Schierl, of counsel).
PRESIDING JUSTICE DELORT delivered the judgment of the court, with opinion. Justices Cunningham and Connors concurred in the judgment and opinion.
DELORT, PRESIDING JUSTICE
[¶1] Defendant Willie Davis appeals from an order of the circuit court of Cook County denying his pro se petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (Code). 735 ILCS 5/2-1401 (West 2008). The record shows that in 1985, defendant was separately charged with armed robbery in cases No. 85 C 6031 and No. 85 C 6039, and found guilty after two separate jury trials. Defendant was then adjudicated a habitual criminal, and sentenced to terms of natural life imprisonment pursuant to the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, ¶ 33B-1). This court affirmed those judgments on direct appeal. People v. Davis, 205 Ill.App.3d 865, 563 N.E.2d 869, 150 Ill.Dec. 742 (1990); People v. Davis, 181 Ill.App.3d 1114, 553 N.E.2d 448, 142 Ill.Dec. 934 (1989) (unpublished order under Supreme Court Rule 23). Defendant subsequently filed numerous collateral challenges to those judgments, all of which were unsuccessful. See, e.g., People v. Davis, 286 Ill.App.3d 1116, 709 N.E.2d 1008 (1997) (unpublished order under Supreme Court Rule 23); People v. Davis, 375 Ill.App.3d 1138 (2007) (unpublished order under Supreme Court Rule 23); People v. Davis, No. 1-10-3330 (2012) (summary order).
[¶2] On March 7, 2012, defendant filed a pro se petition for relief from judgment, alleging that he did not receive notice within 10 days of the denial of his 2008 motion for leave to file a successive postconviction petition and that, as a consequence, he was denied his right to appeal. The circuit court denied the petition, finding that the record rebutted defendant's claimed lack of timely notice and that, " [e]ven if [his] claim *** is true, the clerk's tardy notice does not result in a void order." Defendant filed notice of appeal from that ruling and was appointed counsel to assist him.
[¶3] In this appeal, defendant abandons the claims in the underlying petition and instead contends that his convictions and sentences violate the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11), because the Class X offenses of armed robbery for which he was convicted carry more severe penalties than do the " identical" Class 2 offenses of armed violence predicated on robbery with a category II weapon.
[¶4] As an initial matter, the State contends that defendant has forfeited review of this issue by failing to raise it in the underlying petition. Defendant replies that he is not barred from seeking relief because he is attacking a void judgment, which may be challenged at any time.
[¶5] If a sentencing provision violates the proportionate penalties clause, then it is void ab initio. People v. Guevara, 216 Ill.2d 533, 542, 837 N.E.2d 901, 297 Ill.Dec. 450 (2005). A claim that a judgment is void is not subject to waiver and can be raised at any time, either directly or collaterally ( People v. Thompson, 209 Ill.2d 19, 27, 805 N.E.2d 1200, 282 Ill.Dec. 183 (2004)), including for the first time on appeal ( People v. ...