from the Circuit Court of the 12th Judicial Circuit, Will
County, Illinois, Circuit No. 11-CF-2287 Honorable
Sarah-Marie F. Jones, Judge, Presiding.
Attorneys for Appellant: James E. Chadd, Peter A. Carusona,
and Jay Wiegman, of State Appellate Defender's Office, of
Ottawa, for appellant.
Attorneys for Appellee: James W. Glasgow, State's
Attorney, of Joliet (Patrick Delfino, David J. Robinson, and
Jasmine D. Morton, of State's Attorneys Appellate
Prosecutor's Office, of counsel), for the People.
JUSTICE McDADE delivered the judgment of the court, with
opinion. Justice Wright concurred in the judgment and
1 Defendant, Michael C. Barefield, appeals the dismissal of
his petition for relief from judgment filed under section
2-1401 of the Code of Civil Procedure (Code) (735 ILCS
5/2-1401 (West 2016)). Defendant argues that his conviction
for armed habitual criminal should be vacated because his
prior conviction for aggravated unlawful use of a weapon
(AUUW) was void ab initio and could not serve as a
predicate offense. Defendant also argues that his two
convictions for AUUW under different case numbers should be
vacated because they are void ab initio. We reverse
the dismissal of defendant's section 2-1401 petition and
remand the matter with directions.
2 I. BACKGROUND
3 Defendant was charged with the offense of armed habitual
criminal (720 ILCS 5/24- 1.7(a)(1), (a)(2) (West 2010)). The
"[D]efendant possessed a firearm, to wit: a Hi-Point .45
caliber handgun, after having been twice convicted of the
combination of offenses of [AUUW] in Will County under docket
number 2006 CF 661 in violation of Section 21-2 of Act 5 of
Chapter 720 of the Illinois Compiled Statutes,  and Aggravated
Robbery, a forcible felony, in Will County under docket
number 2006 CF 1945 in violation of 18-5 of Act 5 of Chapter
720 of the Illinois Compile[d] Statutes."
was also charged with unlawful use of a weapon by a felon
(id. § 24-1.1(a)) in that he possessed a
handgun having been previously convicted of AUUW in Will
County case No. 06- CF-661.
4 Defendant entered a fully negotiated plea agreement in
which he pled guilty to armed habitual criminal in exchange
for a sentence of eight years and six months'
imprisonment and the dismissal of the charge of unlawful use
of a weapon by a felon.
5 Defendant filed a pro se petition for relief from
judgment under section 2-1401 of the Code. In his petition,
defendant stated that his conviction for armed habitual
criminal was predicated on his convictions in Will County
case Nos. 09-CF-2316, 06-CF-1945, and 06-CF-661. Defendant
stated that two of the predicate offenses were convictions
for AUUW and the AUUW statute had been held to be facially
unconstitutional. Defendant requested that the court vacate
his conviction for armed habitual criminal because it was
predicated on offenses that were void ab initio.
6 The State filed a combined motion to dismiss under sections
2-615 and 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West
2016)). The motion to dismiss argued that defendant's
section 2-1401 petition failed to state a cause of action
because it could be rejected based on the Illinois Supreme
Court's decision in People v. McFadden, 2016 IL
117424. The State also argued that defendant's section
2-1401 petition was untimely.
7 Defendant filed a motion for leave to amend his section
2-1401 petition. In his proposed amended petition, defendant
argued that his convictions for AUUW in Will County case Nos.
09-CF-2316 and 06-CF-661 should be vacated in addition to his
conviction for armed habitual criminal in the instant case.
Defendant argued that his AUUW convictions were void ab
initio and his armed habitual criminal conviction was
8 A hearing was held on the State's motion to dismiss and
defendant's motion to amend his section 2-1401 petition.
The State argued that if defendant sought to vacate his AUUW
convictions, he needed to do so by filing pleadings in those
cases. The State also argued that pursuant to the holding in
McFadden, defendant's armed habitual criminal
conviction was not void even if the predicate offense was