Court of Appeals of Illinois, First District, Fifth Division
Appeal from the Circuit Court of Cook County. No. 02 CR 17602. Honorables. Nicholas R. Ford and Michael Toomin,Judges Presiding.
For Plaintiff-Appellee: Anita Alvarez, Cook County State's Attorney, Alan J. Spellberg, Mary P. Needham, and Sheilah O'Grady-Krajniak, Assistant State's Attorney, Chicago, IL.
For Defendant-Appellant: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender of Cook County, Caroline E. Bourland, Assistant Appellate Defender, Chicago, IL.
McBRIDE, JUSTICE delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.
[¶1] Defendant Deandre Banks appeals from the trial court's denial of his motion to vacate the judgment order dismissing his petition for postconviction relief. However, defendant has not challenged that denial in this court, but instead argues for the first time on appeal that automatic application of the mandatory minimum sentence of 45 years for a juvenile defendant and the statute providing for an automatic transfer to adult court for a juvenile defendant charged with first degree murder violate the eighth amendment of the United States Constitution (U.S. Const. amend. VIII) and the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11).
[¶2] Following a bench trial, defendant was found guilty of first degree murder in the March 2002 homicide of Ronnie Washington. He was subsequently sentenced to 45 years in prison, which included 20 years for the first degree murder conviction and 25 years as a mandatory add-on term for the use of a firearm during a homicide.
[¶3] Since defendant has not raised any issues related to the facts of his case, we will only provide a brief summary of the evidence presented at trial. In the afternoon of March 11, 2002, Washington was in the front yard of his family's home helping sort bags for the family's move. Defendant, wearing a black, hooded sweater, walked up next to Washington and fired a gun five or six times at Washington and then fled. Washington's mother, sister, and fiancé e witnessed the shooting from different positions in the house and yard. Later, in June 2002, Washington's fiancé e was at the West Suburban Hospital waiting room when she recognized defendant. When defendant looked at her, he left the hospital. From this encounter, the police obtained a name and conducted a photo array for the eyewitnesses. All three witnesses identified defendant in a photo array and later in a lineup. They also identified him in open court. At the conclusion of the trial, the trial court found defendant guilty of first degree murder. Defendant's conviction and sentence were affirmed on direct appeal. For a more detailed discussion of these facts, see People v. Banks, 375 Ill.App.3d 1137 (2007) (unpublished order under to Supreme Court Rule 23).
[¶4] In August 2008, defendant filed his pro se postconviction petition, asserting various claims of ineffective assistance of trial counsel. The trial court summarily dismissed defendant's petition in October 2008. In January 2013, defendant filed a pro se motion to vacate the judgment order dismissing his petition for postconviction relief. In the motion, defendant contended that he never received notice of the dismissal as required under the Post-Conviction Hearing Act (Post-Conviction Act) (725 ILCS 5/122-1 to 122-8 (West 2008)) and that therefore the judgment was void. The trial court denied defendant's motion in February 2013.
[¶5] This appeal followed.
[¶6] Initially, the State contends that this court lacks jurisdiction over defendant's appeal because defendant's pro se motion was untimely. It is undisputed that defendant did not appeal the dismissal of his pro se postconviction petition within 30 days. See 725 ILCS 5/122-7 (West 2008); Ill. S.Ct. Rs. 606(b), 651(d) (eff. Feb. 6, 2013). Rather, defendant maintains that his motion to vacate the dismissal of his postconviction petition was in substance a petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)) because he argued that the trial court failed to provide him with notice of the dismissal of his petition and, therefore, the dismissal order was void.
[¶7] Section 2-1401 sets forth a comprehensive, statutory procedure that allows for the vacatur of a final judgment older than 30 days. 735 ILCS 5/2-1401 (West 2012). Section 2-1401 requires that the petition be filed in the same proceeding in which the order or judgment was entered, but it is not a continuation of the original action. Id. " To obtain relief under section 2-1401, the defendant 'must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2-1401 petition for relief.'" People v. Pinkonsly, 207 Ill.2d 555, 565, 802 N.E.2d 236, 280 Ill.Dec. 311 (2003) (quoting Smith v. Airoom, Inc., 114 Ill.2d 209, 220-21, 499 N.E.2d 1381, 102 Ill.Dec. 368 (1986)).
[¶8] Further, the statute provides that petitions must be filed not later than two years after the entry of the order or judgment, but offers an exception to the time limitation for legal disability and duress or if the ground for relief is fraudulently concealed. 735 ILCS 5/2-1401(c) (West 2012). " Petitions brought on voidness grounds need not be brought within the two-year time limitation. Further, the allegation that the judgment or order is void substitutes for and negates the need to allege a meritorious defense and due ...