from the Circuit Court of Lake County. No. 04-CF-1069
Honorable George Bridges, Judge, Presiding.
JUSTICE McLAREN delivered the judgment of the court, with
opinion. Justices Burke and Birkett concurred in the judgment
1 Defendant, Muhammad S. Abdullah, appeals from an order of
the circuit court of Lake County dismissing his petition
under section 2-1401 of the Code of Civil Procedure (735 ILCS
5/2-1401 (West 2014)). The petition sought relief regarding
defendant's sentences for first-degree murder (720 ILCS
5/9-1(a) (West 2004)) and attempted first-degree murder
(id. §§ 8-4(a), 9-1(a)). Defendant argues
that orders modifying his original sentences are void because
they were entered while an appeal was pending such that the
trial court lacked jurisdiction over the case. Defendant
alternatively argues that the orders are void, in part,
because they were entered pursuant to a sentencing statute
that was unconstitutional when the offenses were committed.
2 Defendant's convictions arose from the shooting death
of Marco Wilson and the nonfatal shooting of Luis Melendez.
Defendant committed both crimes on March 15, 2004, and was
found guilty following a jury trial. On August 17, 2005, the
trial court sentenced defendant to concurrent prison terms of
40 years for first-degree murder and 20 years for attempted
first-degree murder. On September 2, 2005, the State filed a
"Motion to Impose Mandatory Minimum and Mandatory
Consecutive Sentence." The State argued that consecutive
sentences were mandatory under section 5-8-4(a)(i) of the
Unified Code of Corrections (730 ILCS 5/5-8-4(a)(i) (West
2004)). During the relevant time frame, section 5-8-4(a)(i)
required consecutive sentences if "one of the offenses
for which the defendant was convicted was first degree murder
or a Class X or Class 1 felony and the defendant inflicted
severe bodily injury." Id. Furthermore, for
first-degree murder, the State sought to have defendant
sentenced to a prison term of at least 45 years, representing
the 20-year minimum prison term for that offense plus an
additional 25 years because, in committing the offense,
defendant personally discharged a firearm, causing
Wilson's death (id. § 5-8-1(a)(1)(d)(iii)).
On September 8, 2005, defendant filed a notice of appeal. On
September 13, 2005, the State moved to dismiss the notice of
appeal as untimely. The State argued that the sentences
imposed on August 17, 2005, were invalid. According to the
State, defendant could not bring an appeal until valid
sentences had been imposed. On October 13, 2005, the trial
court struck defendant's notice of appeal.
3 On November 17, 2005, the trial court resentenced defendant
to consecutive prison terms of 50 years for first-degree
murder and 31 years for attempted first-degree murder.
Defendant moved for reconsideration, arguing, inter
alia, that once the notice of appeal was filed the trial
court lacked jurisdiction to increase defendant's
sentences. The trial court rejected the argument. On January
20, 2006, the trial court reduced the prison term for
attempted first-degree murder to 26 years, representing the
6-year minimum prison term for that offense plus an
additional 20 years because, in committing the offense,
defendant personally discharged a firearm (720 ILCS
5/8-4(c)(1)(C) (West 2004)). Defendant appealed, and we
affirmed defendant's convictions and sentences.
People v. Muhammad, No. 2-06-0086 (2008)
(unpublished order under Illinois Supreme Court Rule 23)
(Abdullah I). Defendant subsequently filed a petition
under the Post-Conviction Hearing Act (725 ILCS 5/122-1
et seq. (West 2008)), which the trial court
summarily dismissed (id. § 122-2.1(a)(2)).
4 On January 27, 2014, defendant filed a pro se
petition under section 2-1401 in which he claimed that the
addition of 25 years to his sentence for first-degree murder
and 20 years to his sentence for attempted first-degree
murder violated the constitutional prohibition of ex post
facto laws. Defendant further argued that those
additions to his sentences deprived him of due process
because they were based on facts that were not alleged in the
charging instrument and were not submitted to the jury and
proved beyond a reasonable doubt. Defendant later filed
pro se (1) a "Supplemental Argument, "
contending that the imposition of consecutive sentences
likewise deprived him of due process, and (2) a "Motion
for 'Additional § 2-1401 Relief from Void Judgment,
' " contending that a fraudulent instruction had
been given to the jury. Through counsel, defendant
subsequently filed an "Amended Motion to Vacate a
Portion of Defendant's Sentence as Void, Pursuant to 735
ILCS 2-1401; and, for Resentence, " arguing again that
the facts upon which the modifications to his sentences were
based were not submitted to the jury and proved beyond a
reasonable doubt. The State moved to dismiss defendant's
petition and the trial court granted the motion. Defendant
unsuccessfully moved for reconsideration and this appeal
5 Section 2-1401 allows a litigant "to bring before the
court facts which, had they been known at trial, would have
prevented the entry of the contested judgment."
People v. Gray, 247 Ill.App.3d 133, 142 (1993).
Normally, a petition under section 2-1401 must be filed more
than 30 days, but not later than 2 years, after the entry of
the judgment. 735 ILCS 5/2-1401(a), (c) (West 2016). The
two-year limitations period does not apply where the
petitioner alleges that the judgment is void. Urban
Partnership Bank v. Ragsdale, 2017 IL App (1st) 160773,
6 Defendant argues that the trial court's orders
modifying his sentences were void for lack of jurisdiction.
The State argues that the issues defendant raises are barred
under the doctrines of res judicata and forfeiture.
The State alternatively argues that the trial court had
jurisdiction to modify defendant's sentences. We first
consider the State's res judicata and forfeiture
7 In support of its res judicata argument, the State
cites People v. Johnson, 2015 IL App (2d) 140388,
which observed that " '[t]he doctrine of res
judicata provides that a final judgment on the merits
rendered by a court of competent jurisdiction bars any
subsequent actions between the parties or their privies on
the same cause of action.' " Id. ¶ 6
(quoting People v. Carroccia, 352 Ill.App.3d 1114,
1123 (2004)). Collateral estoppel, which is a branch of
res judicata, "provides a similar conclusive
effect when the same parties or their privies attempt to
relitigate the identical issues actually or necessarily
decided by a court of competent jurisdiction in an earlier,
but different, cause of action." In re Marriage of
Donnellan, 90 Ill.App.3d 1032, 1036 (1980).
8 The State observes that the effect of the notice of appeal
was litigated in the trial court. However, in People v.
Harper, 345 Ill.App.3d 276, 285 (2003), cited by
defendant in his reply brief, the court stated that,
"[b]ecause a party may attack a void sentence literally
'at any time, either directly or collaterally'
[citation], res judicata or the doctrine of waiver
would not prevent a party from doing so [citation]." For
the same reason, defendant did not forfeit his argument.
People v. Price, 2016 IL 118613, ¶ 30
("When we say that a judgment is void, that judgment may
be challenged at any time, either directly or collaterally,
and the challenge is not subject to forfeiture or other
procedural restraints." (Internal quotation marks
omitted.)). We therefore reject the State's
arguments and turn our attention to defendant's
contention that his sentences are void.
9 It is well established that "the jurisdiction of the
appellate court attaches upon the proper filing of a
notice of appeal." (Emphasis added.) Daley v.
Laurie, 106 Ill.2d 33, 37 (1985). At that point,
"the cause is beyond the jurisdiction of the trial
court." Id. However, a premature notice of
appeal is ineffective (Penn v. Gerig, 334 Ill.App.3d
345, 353 (2002)) and does not divest the trial court of
jurisdiction (McGary v. Illinois Farmers Insurance,
2016 IL App (1st) 143190, ¶ 49).
10 The time for filing a notice of appeal in a criminal case
is governed by Illinois Supreme Court Rule 606(b) (eff. Dec.
1, 1999). When defendant filed his notice of appeal, Rule
606(b) provided, in pertinent part:
"Except as provided in Rule 604(d), the notice of appeal
must be filed with the clerk of the circuit court within 30
days after the entry of the final judgment appealed from or
if a motion directed against the judgment is timely filed,
within 30 days after the entry of the order disposing of the
motion. When a timely post-trial or post-sentencing motion
directed against the judgment has been filed by counsel or by
defendant, if not represented by counsel, any notice of
appeal filed before the entry of the order disposing of all
pending post-judgment motions shall have no effect and shall
be stricken by the trial court. *** This rule