Appeal from the Circuit Court of Kane County. No. 95-CF-1385. Honorable Susan Clancy Boles, Judge, Presiding.
Patrick Lynn Johnson, of Menard, appellant pro se.
Joseph H. McMahon, State's Attorney, of St. Charles (Lawrence M. Bauer and Scott Jacobson, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Presiding Justice Schostok and Justice Burke concurred in the judgment and opinion.
[¶1] Defendant, Patrick Lynn Johnson, appeals from an order of the circuit court of Kane County denying his motion for leave to file a successive petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq (West 2012)) from his conviction of first-degree murder (720 ILCS 5/9-1(a)(1) (West 1994)). Defendant argues on appeal that he established cause and prejudice, entitling him to file a successive petition challenging his sentence pursuant to the due-process principles set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Alleyne v. United States, 570 U.S., 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Defendant further contends that his conviction is void because: (1) he was charged by an indictment that was returned by an unsworn grand jury; (2) the indictment did not sufficiently allege the means by which the victim was killed; (3) he was initially charged by complaint, but was not afforded a prompt preliminary hearing to establish probable cause; and (4) the trial court never acquired personal jurisdiction. He also argues that he was not admonished of his right to elect whether to be sentenced under either the law in effect at the time of the offense or the law in effect at the time of sentencing. We affirm.
[¶2] Defendant was charged with first-degree murder in connection with the 1995 shooting death of Sheldon Raider. Defendant pleaded guilty in 1997, and the trial court imposed an extended-term sentence of 78 years' imprisonment. The trial court concluded that defendant was eligible for an extended-term sentence because the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. See 730 ILCS 5/5-5-3.2(b) (West 1994). We affirmed defendant's sentence on direct appeal. People v. Johnson, No. 2-98-0325, [published in table format at 303 Ill.App.3d 1109, 747 N.E.2d 1110, 254 Ill.Dec. 698] (1999) (unpublished order under Supreme Court Rule 23). Defendant subsequently initiated a number of collateral proceedings under the Act and other statutes. [¶3] The Act " provides a means for a criminal defendant to challenge his conviction or sentence based on a substantial violation of constitutional rights." People v. Beaman, 229 Ill.2d 56, 71, 890 N.E.2d 500, 321 Ill.Dec. 778 (2008). A petition under the Act initiates a collateral proceeding at which the inquiry is limited to constitutional issues that were not, and could not have been, adjudicated on direct
appeal. People v. Williams, 209 Ill.2d 227, 232-33, 807 N.E.2d 448, 282 Ill.Dec. 824 (2004). Section 122-1(f) of the Act provides:
" Only one petition may be filed by a petitioner under this Article without leave of the court. Leave of court may be granted only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice results from that failure. For purposes of this subsection (f): (1) a prisoner shows cause by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice by demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process." 725 ILCS 5/122-1(f) (West 2012).
[¶4] We first consider defendant's arguments that his conviction is void because: (1) the indictment was returned by an unsworn grand jury, (2) defendant was initially charged by complaint, but was not afforded a prompt preliminary hearing to establish probable cause, and (3) the indictment did not sufficiently allege the means by which the victim was killed. These issues were not raised in defendant's proposed successive postconviction petition. Nonetheless, if defendant's conviction is indeed void, he is entitled to seek relief for the first time in this appeal. People v. Spears, 371 Ill.App.3d 1000, 1006-07, 864 N.E.2d 758, 309 Ill.Dec. 517 (2007). We note that a judgment is void only if the court that entered it lacked subject-matter ...