THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARCOS GRAY, Defendant-Appellant.
No. 1-11-2572
Appellate Court of Illinois, First District, Fourth Division
April 11, 2013
2013 IL App (1st) 112572
PRESIDING JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Epstein and Pucinski concurred in the judgment and opinion.
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 93-CR-20392-02; the Hon. Colleen Ann Hyland, Judge, presiding. Judgment: Affirmed.
Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
Defendant’s petition under
Michael J. Pelletier, Alan D. Goldberg, and Rachel Moran, all of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Assistant State’s Attorney, of counsel), for the People.
OPINION
¶ 1 Defendant Marcos Gray appeals from the dismissal of his petition filed under
¶ 2 BACKGROUND
¶ 3 Via various procedural peregrinations, defendant’s case has resolutely moved through the interstices of the justice system. Following defendant’s first jury trial, this court reversed and remanded the cause for a new trial after concluding the trial court had erred in denying defendant’s motion to suppress. See People v. Gray, No. 1-96-0278 (1998) (unpublished order under Supreme Court Rule 23). Evidence at retrial showed that defendant and two friends followed the victim, Doyle, in their car until she parked in her garage on the south side of Chicago. Defendant and codefendant Antwon Tyler entered the garage, a gunshot issued, and when they reemerged, Tyler informed the third cohort that he had shot Doyle, whose body was later discovered in the trunk of her car. Fingerprints and palm prints from codefendant and defendant were also found on the trunk lid. As stated, the jury found defendant guilty via accountability of first degree murder and attempted armed robbery. Because defendant already had been convicted of first degree murder, which he committed as a principal mere months before Doyle’s murder, the trial court sentenced defendant in 2000 to a mandatory life term, as well as 15 years for attempted armed robbery to run concurrently. See
¶ 4 In December 2001, defendant filed a pro se petition under the
¶ 5 Meanwhile, in the midst of his postconviction appeal, in December 2010, defendant, acting pro se, filed this section 2-1401 petition in which he asserted his conviction and sentence were void. Defendant argued the trial court lacked subject matter jurisdiction over his case because the indictment cited the Illinois Revised Statutes rather than the Illinois Compiled Statutes in reference to the murder charge. The State filed a motion to dismiss, arguing defendant’s conviction and sentence were not void and the petition was not otherwise filed in a timely manner, thus effecting waiver and barring any relief. The circuit court granted the State’s motion, and this appeal followed.
¶ 6 ANALYSIS
¶ 7
¶ 8 Here, for the purposes of analyzing defendant’s claim under
¶ 9 In Miller v. Alabama, 567 U.S. at ___, 132 S. Ct. at 2460, the United States Supreme Court recently held that mandatory life without parole for those under the age of 18 at the time of their crimes violates the eighth amendment’s prohibition against cruel and unusual punishments. Miller, 567 U.S. at ___, 132 S. Ct. at 2460. In so holding, the court did not foreclose a sentencer’s ability to impose life without parole on juvenile offenders, although it expected “this harshest possible penalty will be uncommon.” Id. at ___, 132 S. Ct. at 2469. Rather, the court stated a sentencing judge must take into account how children are different from adults before imposing a lifetime of incarceration. Id. at ___, 132 S.Ct. at 2469. Consistent with Miller v. Alabama, in People v. Miller, 202 Ill. 2d 328 (2002), our supreme court had already held that imposing a mandatory sentence of life without parole on a juvenile offender convicted of murdering more than one victim under a theory of accountability, and without considering the facts of the crime, including the defendant’s age, offended the Illinois Constitution’s proportionate penalties clause and thus was unconstitutional as applied. As in the federal Miller v. Alabama opinion, our court emphasized the decision “does not imply that a sentence of life imprisonment for a juvenile offender convicted under a theory of accountability is never appropriate.” Miller, 202 Ill. 2d at 341.
¶ 10 While the State acknowledges the holding in Miller v. Alabama, the State contends that case does not render defendant’s sentence void. Indeed, a judgment is void, as opposed to voidable, only if the court that entered it lacked jurisdiction. People v. Mescall, 379 Ill. App. 3d 670, 673 (2008). Jurisdictional failure can result from a court’s lack of personal or subject matter jurisdiction or, relevant to this case, the court’s lack of power to render the particular judgment. Id. Jurisdiction or the power to render a particular judgment does not necessarily mean that the judgment rendered must be one that should have been rendered; indeed, the power to decide carries with it the power to decide wrong, as well as right, and a court will not lose jurisdiction merely because it makes a mistake in the law, the facts, or both. Moran, 2012 IL App (1st) 111165, ¶ 17. The principle follows: that which is unconstitutional is not necessarily void. People v. Morfin, 2012 IL App (1st) 103568, ¶ 31. A statute that is unconstitutional on its face–that is, where no set of circumstances exists under which it would be valid–is void ab initio, while a statute that is merely unconstitutional as applied is not. Id.
¶ 11 As this court noted of late, Miller v. Alabama does not affect the validity of the natural life imprisonment statute as to nonminor defendants, so that the statute is not unconstitutional on its face. See Morfin, 2012 IL App (1st) 103568, ¶ 40; see also People v. Williams, 2012 IL App (1st) 111145, ¶ 47 (holding same). Moreover, Miller does not deprive or divest any state or court of the authority to sentence a defendant who was a minor at the time of his offense, like defendant, to a natural life of imprisonment for committing homicide after already having obtained a murder
¶ 12 Therein lies the procedural rub. Defendant did not challenge his conviction under section 2-1401 in a timely manner. The State argued this below and, in his petition, defendant essentially conceded this point, instead contending the viability of his petition rested on defendant’s assertion of voidness. Because we have concluded that defendant’s sentence is not void and because defendant did not file his section 2-1401 petition within the two-year statutory limitation, we cannot grant defendant the relief he seeks. See People v. Caballero, 179 Ill. 2d 205, 210-11 (1997) (where a section 2-1401 petition is filed beyond two years after the judgment, it cannot be considered absent a clear showing that the exceptions apply). We would add that the original claim set forth in defendant’s section 2-1401 petition is different from the claim before us on appeal and, had the State argued this issue now, it would be another basis for affirming the dismissal of defendant’s section 2-1401 petition. See People v. Bramlett, 347 Ill. App. 3d 468, 475 (2004) (finding that the defendant failed to raise the issue in his petition, thus forfeiting it for consideration on appeal). In that sense, we disagree with the just-issued People v. Luciano, 2013 IL App (2d) 110792, ¶ 48, which determined that the defendant relying on Miller v. Alabama had raised “a proper voidness challenge to his sentence,” because “a sentence that contravenes the Constitution may be challenged at any time.” The court reached this conclusion even though the defendant had not raised that argument below or in his postconviction petition. While it might be true that generally a constitutional challenge to a criminal statute can be raised for the first time on appeal (see In re J.W., 204 Ill. 2d 50, 61 (2003)), our research has not disclosed the application of that principle to the situation before us, where the defendant filed an untimely section 2-1401 petition, failed to establish an exception to the untimeliness, and also failed to establish a claim of voidness. But see People v. Wagener, 196 Ill. 2d 269, 279-80 (2001) (as-applied challenge involving Apprendi sentencing statute was not waived on direct review because a party may challenge the constitutionality of a statute at any time); cf. In re Parentage of John M., 212 Ill. 2d 253, 268 (2004) (concluding a court of review is not capable of making an “as applied” determination of unconstitutionality when there has been no evidentiary hearing and no findings of fact below, making such a constitutional challenge
¶ 13 We emphasize that our disposition does not mean defendant is without recourse, to the extent any error might have occurred in this case. Defendant may raise the present sentencing issue before the circuit court through the
¶ 14 CONCLUSION
¶ 15 For the reasons stated, we affirm the dismissal of defendant’s section 2-1401 petition.
¶ 16 Affirmed.