People v. AbdullahPeople v. Abdullah
¶ 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 (
¶ 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 (
¶ 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 (
¶ 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.
¶ 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 arguments.
¶ 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
¶ 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
“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 applies whether the timely post-judgment motion was filed before or after the date on which the notice of appeal was filed.”Ill. S. Ct. R. 606(b) (eff. Dec. 1, 1999).
¶ 11 Defendant filed his notice of appeal after the State filed its motion to modify his sentences but before the trial court ruled on that motion. Whether the trial court retained jurisdiction depends on whether the State‘s motion rendered defendant‘s notice of appeal ineffective. Defendant contends that it did not. He argues that, under
¶ 12 Defendant‘s argument initially requires us to interpret
¶ 13 The first sentence of
¶ 14 Defendant‘s argument is founded on the second sentence of
¶ 15 In light of the foregoing, we conclude that
¶ 16 Consideration of the consequences of the two alternative constructions favors reading “counsel” to include counsel for the State. If the trial court loses jurisdiction when a defendant files a notice of appeal while a motion by the State is pending, the appellate court would be unable to decide all of the issues before the trial court. Unless the defendant‘s conviction is reversed, a remand would be necessary to resolve the State‘s motion. If the State‘s motion were granted, the defendant might very well bring a second appeal. Considerations of judicial economy militate against that outcome. In contrast, if “counsel” includes counsel for the State, these problems are avoided. No appeal will take place until the State‘s motion has been resolved, and the appellate court will therefore have the opportunity to consider all issues in a single appeal.
¶ 17 The foregoing assumes that the State is entitled to file a motion to correct sentences that do not conform to the law. Defendant argues that the State may not file such a motion. Defendant contends that there is no statute or court rule that authorizes the State to do so. We are aware of no authority stating that all motions in criminal cases must be authorized by statute or rule. The cases cited by defendant—People v. Miraglia, 323 Ill. App. 3d 199 (2001), and People v. Neal, 286 Ill. App. 3d 353 (1996)—are inapposite. In Miraglia, this court held that the defendant‘s second motion directed against the judgment did not extend the time for filing his notice of appeal. In Neal, it was held that a defendant who was represented by counsel had no authority to file a pro se motion directed against the judgment. The court further held that the unauthorized motion did not extend the time for filing a notice of appeal and did not nullify a notice of appeal filed within 30 days after the entry of the judgment. Accordingly, we reject defendant‘s argument.
¶ 19 In support of the proposition that Morgan controls here, defendant cites a California decision, People v. Visciotti, 825 P.2d 388 (Cal. 1992). As pertinent here, Visciotti relied, in part, on In re Baert, 252 Cal. Rptr. 418 (Ct. App. 1988). In Baert, the court was called upon to decide which of two decisions interpreting a death penalty aggravating factor was applicable to a crime committed in the interval between the decisions. The earlier decision added an element to the State‘s burden of proof. The later decision eliminated that element. The Baert court held that the later decision, if applied to crimes committed during the interval between the two decisions, would function as an ex post facto law.
¶ 20 Defendant‘s reliance on Visciotti (and, by implication, Baert) is misplaced. Visciotti and Baert do not support the proposition that the constitutionality of a statute varies over time. Here, the firearm enhancement factor for attempted murder was not unconstitutional prior to Sharpe; it was erroneously held to be unconstitutional. Sharpe might have functioned as an ex post facto law in this case, but it is too late to correct that error. Given that defendant did not file his petition within the ordinary two-year limitations period for section 2-1401 proceedings, he must show that the judgment he challenges is void. Defendant‘s only theory of voidness is that the applicable statute is void on its face. “A statute is facially invalid only if there is no set of circumstances under which the statute would be valid.” People v. Gray, 2017 IL 120958, ¶ 58. An ex post facto challenge to a criminal law does not apply to crimes committed after the law takes effect, so the law is not unconstitutional on its face.
¶ 21 For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed. As part of our judgment, we grant the State‘s request that defendant be assessed $50 as costs for this appeal.
¶ 22 Affirmed.