No. 1-13-2719

Opinion filed September 21, 2017

FOURTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) ) v. ) No. 00 CR 22579 ) JACOB MILES, ) ) The Honorable Defendant-Appellant. ) Colleen Ann Hayland, ) Judge, presiding.

JUSTICE GORDON delivered the judgment of the court, with opinion.

Presiding Justice Reyes concurred in the judgment and opinion.

Justice Hall specially concurred, with opinion.

OPINION

¶1 Defendant Jacob Miles was convicted after a jury trial of armed robbery and sentenced as

a habitual criminal to natural life with the Illinois Department of Corrections (IDOC). This

court affirmed his conviction and sentence on direct appeal. People v. Miles, No. 1-02-2880

(2003) (unpublished order under Supreme Court Rule 23).

¶2 Defendant now appeals from the trial court’s dismissal of his pro se petition filed

pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)). No. 1-13-2719

Defendant claims that his armed robbery conviction is void because he was charged with

armed robbery with a firearm but convicted of armed robbery with a dangerous weapon.

Defendant argues that he was not charged with armed robbery with a dangerous weapon and

that these two types of armed robbery are mutually exclusive. For the following reasons, we

affirm the trial court’s dismissal of his section 2-1401 petition.

¶3 BACKGROUND

¶4 Since defendant raises a purely legal question on this appeal, we do not repeat here the

underlying facts of his conviction and instead incorporate by reference our prior order where

we already described the facts and the evidence at trial. See People v. Miles, No. 1-02-2880

(2003) (unpublished order under Supreme Court Rule 23) (finding unpersuasive defendant’s

claim that the State failed to prove him guilty beyond a reasonable doubt). We describe

below the procedural history and the facts needed to decide the issues presented on this

appeal.

¶5 Defendant was indicted for armed robbery. The charges stemmed from the armed robbery

of a pizza delivery man on the night of August 16, 2000. Specifically, the indictment charged

defendant with “knowingly [taking] United States currency from the person or presence of

James Gilbert by the use of force *** [while] he carried on or about his person or was

otherwise armed with a firearm, in violation of Chapter 720, Act 5, Section 18-2 of the

Illinois Complied Statutes 1992, as amended.”

¶6 Effective January 1, 2000, which was before both the offense and indictment at issue, the

armed robbery statute was amended (1) to create separate subsections for armed robbery

“with a dangerous weapon other than a firearm” and armed robbery “with a firearm” and (2)

to add a 15-year sentencing enhancement for being “armed with a firearm.” Pub. Act 91-404

2

No. 1-13-2719

(eff. Jan. 1, 2000) (amending 720 ILCS 5/18-2); People v. Walden,

, 396 n.1

(2002) (noting the effective date of the amendment). The amended statute provided, in

relevant part, that:

“(a) A person commits armed robbery when he or she [commits robbery]; and

(1) he or she carries on or about his or her person or is otherwise armed with a

dangerous weapon other than a firearm; or

(2) he or she carries on or about his or her person or is otherwise armed with a

firearm[.]” 720 ILCS 5/18-2(a) (West 2002).

The amended statute also provided for the following sentencing enhancement:

“Armed robbery in violation of subsection (a)(1) is a Class X felony. A violation

of subsection (a)(2) is a Class X felony for which 15 years shall be added to the term

of imprisonment imposed by the court.” 720 ILCS 5/18-2(b) (West 2002).

¶7 Before trial, defendant’s counsel moved to dismiss the indictment pursuant to the Illinois

Supreme Court case of People v. Walden,

(2002), 1 which was decided after

defendant was indicted. In Walden, the supreme court held: “The 15-year enhancement for

armed robbery while in possession of a firearm *** violates the proportionate penalties

clause of the Illinois Constitution and is unenforceable.” Walden,

.

¶ 8 Defense counsel argued that the indictment charged defendant under the armed robbery

statute “as amended” and therefore defendant had been charged under an unconstitutional

subsection. While the indictment did not cite a specific subsection, it did charge defendant

1 Walden was later expressly overruled by our supreme court in People v. Sharpe,

(2005) (the court stated that it expressly “overruled” Walden and cases like it that had used a cross-comparison analysis to find that certain statutes violated the proportionate penalties clause). 3

No. 1-13-2719

with committing the offense while “armed with a firearm.” Defense counsel argued that

Walden rendered the armed-robbery-while-armed-with-a-firearm provision unenforceable.

¶9 The trial court held that, since the Walden court had declared the amendment

unconstitutional, the preexisting statute now applied and the earlier statute did not

differentiate between dangerous weapons and firearms. The earlier statute provided in full:

“(a) A person commits armed robbery when he or she [commits robbery] while he or

she carries on or about his or her person, or is otherwise armed with a dangerous

weapon.

(b) Sentence. Armed robbery is a Class X felony.” 720 ILCS 5/18-2 (West 1998).

¶ 10 The trial court found that, since the earlier statute now applied, the indictment did not

need to be amended.

¶ 11 Later, the defense objected to the jury being instructed on armed robbery with a

dangerous weapon, arguing that, under the amended armed robbery statute, a firearm is not a

dangerous weapon. The trial court overruled the objection. Thus, the jury was instructed over

the defense’s objection that it could find defendant guilty if it found, beyond a reasonable

doubt, that defendant was armed with a dangerous weapon. After the jury returned a verdict

finding defendant guilty of armed robbery, defense counsel filed a motion to arrest judgment

and a posttrial motion for a new trial arguing that the trial court erred in denying his pretrial

motion to dismiss the indictment. The trial court denied both motions.

¶ 12 On July 31, 2002, after considering factors in aggravation and mitigation, the trial court

found defendant to be a habitual criminal and sentenced him to life in prison. On direct

appeal, defendant argued that the State failed to prove him guilty beyond a reasonable doubt.

4

No. 1-13-2719

On October 22, 2003, this court affirmed his conviction and sentence. People v. Miles, No. 1­

02-2880 (2003) (unpublished order under Supreme Court Rule 23).

¶ 13 On January 30, 2013, defendant filed a pro se section 2-1401 petition in which he

claimed, among other things, that the trial court deprived him of his due process right to a

fair trial when it denied his pretrial motion to dismiss his indictment. In a supplemental

petition, also filed on January 30, 2013, defendant added a claim that, although he was

charged with armed robbery with a firearm, he was found guilty of armed robbery with a

dangerous weapon. On February 28, 2013, the State moved to dismiss.

¶ 14 On July 26, 2013, the trial court issued a written order dismissing defendant’s section 2­

1401 petition. The written order provided in relevant part:

“The Court *** finds, that defendant’s argument that his judgment is void is

without merit. As set forth in the trial record, count one of the indictment properly

charged the offense of armed robbery. Subsequent to a guilty verdict, defendant was

properly sentenced as a habitual criminal.”

Defendant filed a timely notice of appeal, and this appeal followed.

¶ 15 ANALYSIS

¶ 16 On appeal, defendant raises only one claim, which is that the trial court erred in

dismissing his section 2-1401 petition because his conviction was void. Defendant argues

that, where he was charged with the offense of armed robbery with a firearm, the jury lacked

the inherent authority to find him guilty of the mutually exclusive and uncharged offense of

armed robbery with a dangerous weapon, thereby rendering his armed robbery conviction, as

well as his natural-life sentence, void.

5

No. 1-13-2719

¶ 17 For the following reasons, we do not find defendant’s arguments persuasive and affirm

the trial court’s dismissal of his section 2-1401 petition.

¶ 18 I. Standard of Review

¶ 19 We review the dismissal of a section 2-1401 petition de novo. People v. Carter,

; People v. Laugharn,

(2009) (citing People v. Vincent,

(2007)). De novo consideration means that we perform the same analysis that a

trial judge would perform. Arient v. Shaik,

.

¶ 20 Section 2-1401 authorizes “a trial court to vacate or modify a final order or judgment in

civil and criminal proceedings.” People v. Thompson,

, ¶ 28. “Ordinarily, a

petition seeking relief under section 2-1401 must be filed more than 30 days from entry of

the final order but not more than 2 years after that entry.” Thompson,

, ¶ 28

(citing 735 ILCS 5/2-1401(a), (c) (West 2010)); Laugharn,

. However, our

supreme court has recognized “an exception to the ordinary two-year deadline when the

petition challenges a void judgment” (Thompson,

), as defendant claims

in the case at bar.

¶ 21 “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,

(2003) (quoting Smith v. Airoom, Inc.,

(1986)). “[A]n action brought under section 2-1401 is a civil

proceeding and, according to this court’s long-standing precedent, is subject to the usual

6

No. 1-13-2719

rules of civil practice, even when it is used to challenge a criminal conviction or sentence.”

Vincent,

.

¶ 22 When reviewing a trial court’s dismissal of a section 2-1401 petition, this court may

affirm “on any basis we find in the record.” People v. Nitz,

.

¶ 23 II. Statutory Interpretation

¶ 24 Defendants claim requires us to interpret the armed robbery statute.

¶ 25 With statutory construction, our primary goal is to ascertain the legislature’s intent, and

the best indication of their intent is the plain and ordinary meaning of the words they chose to

use. People v. Chatman,

(citing MD Electrical Contractors,

Inc. v. Abrams,

(2008)). When interpreting a statute, we do not read a

portion of it in isolation; instead, we read it in its entirety, keeping in mind the subject it

addresses and the drafters’ apparent objective in enacting it. Chatman,

(citing MD Electrical Contractors,

).

¶ 26 The interpretation of a statute is a question of law that we also review de novo. Maschek

v. City of Chicago,

. We already defined de novo review

above.

¶ 27 III. No Meritorious Claim

¶ 28 As noted above, the first requirement for a section 2-1401 petition is that it must set forth

allegations which support a meritorious claim for relief. Pinkonsly,

. For the

following reasons, we do not find defendant’s claim to be meritorious.

¶ 29 The first problem with defendant’s argument is that the supreme court in Walden did not

find unconstitutional the subsection which makes armed robbery with a firearm an offense;

rather, the court found unconstitutional the 15-year sentencing enhancement for it. In

7

No. 1-13-2719

Walden, the supreme court discussed the proportionate penalties clause and then specifically

held: “The 15-year enhancement for armed robbery while in possession of a firearm therefore

violates the proportionate penalties clause of the Illinois Constitution and is unenforceable.”

Walden,

. Defendant was not sentenced pursuant to the 15-year sentencing

enhancement, and thus has no claim under Walden.

¶ 30 Second, defendant argues that the jury lacked the inherent authority to find him guilty of

armed robbery with a dangerous weapon. However, the trial court applied the preamended

statute, and our supreme court has indicated that this was the proper procedure. People v.

Washington,

, ¶¶ 7, 40-42. In Washington, our supreme court discussed the

problems created by its decision in Walden and then cited People v. Gersch,

(1990), for the proposition that “the effect of enacting an unconstitutional amendment to

a statute is to leave the law in force as it was before the adoption of the amendment.” 2

Washington,

(citing Gersch,

).

¶ 31 Third, defendant cites in support People v. Clark,

, People v.

Spencer,

, and People v. Barnett,

.

However, all those cases are readily distinguishable.

¶ 32 For example, in Clark, the defendant was charged with armed robbery while armed with

a firearm. Clark,

. After a bench trial, the trial court

specifically found that the defendant did not use a firearm and, thus, acquitted him of the

charged offense. Clark,

. The trial court then proceeded to

find the defendant guilty instead of armed robbery with a dangerous weapon other than a

firearm. Clark,

. This court found that the trial court erred

2 This quote is from a parenthetical.

8

No. 1-13-2719

and reduced defendant’s conviction to the lesser included offense of robbery. Clark,

.

¶ 33 However, the Clark opinion bears little relationship to the case at bar. Our case is

completely unlike Clark where the Clark defendant was convicted of armed robbery with a

dangerous weapon other than a firearm. In the case at bar, the indictment stated that

defendant was armed with a firearm, and he was convicted of using a dangerous weapon.

Thus, the question in our case is whether a firearm qualifies as a dangerous weapon.

¶ 34 The Spencer case is distinguishable for the same reason. In Spencer, as in Clark, the

defendant was charged with armed robbery with a firearm (Spencer,

) and was then acquitted during a bench trial of that charge (Spencer,

(the trial court granted the defendant’s motion for a directed finding

“as it relates to the firearm”)). However, in Spencer, as in Clark, the defendant was convicted

of armed robbery with a dangerous weapon other than a firearm. Spencer,

. Again, this is completely unlike the case at bar, where defendant was convicted

of armed robbery with a dangerous weapon—period—with no limiting or qualifying clause.

¶ 35 In all three cases cited by defendant, the defendant was acquitted of armed robbery with a

firearm See, e.g., People v. Barnett,

(the defendant was

charged with armed robbery with a firearm, and the jury found him guilty of armed robbery

but acquitted him of armed robbery with a firearm). By contrast, in the case at bar, defendant

was not acquitted of anything. For all these reasons, we find that Clark, Spencer, and Barnett

have little bearing on the case at hand.

¶ 36 Lastly, defendant argues that the statute, under which he was indicted, defined a

“dangerous weapon” as not including a firearm. That is incorrect. First of all, the argument

9

No. 1-13-2719

that a firearm is not a dangerous weapon defies logic and common sense. Second, the

statutory language does not support this argument. The subsection, which defendant

analyzes, stated that a person can be found guilty of armed robbery if he committed robbery

“armed with a dangerous weapon other than a firearm.” 720 ILCS 5/18-2(a)(1) (West 2002).

The words “other than” indicate that a firearm is considered to be a dangerous weapon, as we

explain below.

¶ 37 “When the statute contains undefined terms, it is entirely appropriate to employ a

dictionary to ascertain the plain and ordinary meaning of those terms.” People v. Davison,

(2009). The dictionary defines the phrase “other than” as “in addition to

someone or something,” and gives the following example in use: “Are you taking any

science courses other than chemistry?” MacMillian Dictionary,

www.macmilliandictionary.com/us /dictionary/american/other-than (last visited June 15,

2017). Obviously, chemistry is a science course, in the same way that a firearm is a

dangerous weapon. The use of the phrase “other than” does not make chemistry any less of a

science course or a firearm any less of a dangerous weapon. Cf. 720 ILCS 5/33A-1 (West

2016) (the armed violence statute defines the phrase “dangerous weapon” to include both

firearms and other weapons).

¶ 38 Sections (a)(1) and (a)(2), when read together, stated that a person could be found guilty

of armed robbery if he committed robbery while armed either with a firearm or “other”

dangerous weapons. 720 ILCS 5/18-2(a) (West 2002); see also Chatman,

(when interpreting a statute, we do not read a portion of it in isolation; instead,

we read it in its entirety). Thus, we do not find persuasive defendant’s argument that a

firearm is not itself a dangerous weapon. Washington,

(the

10

No. 1-13-2719

government’s evidence was sufficient for the jury to find “that defendant used a gun as a

dangerous weapon during the commission” of an armed robbery), ¶ 37 (thus the jury “could

have found beyond a reasonable doubt that defendant was armed with a dangerous weapon”).

¶ 39 As a result, we find no error where the indictment charged defendant of being armed with

a firearm and he was convicted of being armed with a dangerous weapon. Defendant makes

arguments as though he was convicted of being armed with a dangerous weapon other than a

firearm. However, that is simply not what happened in his case.

¶ 40 CONCLUSION

¶ 41 For all the foregoing reasons, we do not find defendant’s claims persuasive and therefore

affirm the trial court’s dismissal of his section 2-1401 petition.

¶ 42 Affirmed.

¶ 43 JUSTICE HALL specially concurring:

¶ 44 I agree that the dismissal of the defendant’s section 2-1401 petition should be

affirmed. I write separately because the issue on appeal and addressed by the parties is

whether the defendant’s conviction and sentence are void. The majority’s analysis submerges

the voidness issue into whether the defendant set forth a meritorious defense. I offer the

following analysis for clarification purposes only.

¶ 45 Where a section 2-1401 petition is filed outside the two-year limitations period, and

there is no basis to excuse the delay, the petition cannot be considered unless the opposing

party agrees to waive the limitations period. People v. Thompson,

. An

exception exists where, as here, the defendant alleges his conviction and sentence are void.

Thompson,

; 735 ILCS 5/2-1401(f) (West 2012). A section 2-1401

petition seeking to vacate a void judgment, a purely legal issue, does not need to establish a

11

No. 1-13-2719

meritorious defense or satisfy due diligence. Warren County Soil & Water Conservation

District v. Walters,

(alleging that the judgment is void substitutes and

negates the need to allege a meritorious defense and due diligence).

¶ 46 A voidness challenge to a final judgment under section 2-1401 that is exempt from

the procedural bars in the statute is limited to three specific types of claims: (1) lack of

personal or subject matter jurisdiction, (2) the final judgment was based on a facially

unconstitutional statute that is void ab initio, and (3) a challenge to a sentence that does not

conform to the applicable sentencing statute. Thompson,

. Our

supreme court’s decision in People v. Castleberry,

, abolished the void

sentence rule and therefore, this type of challenge is no longer valid. Thompson,

; Castleberry,

.

¶ 47 The defendant makes no claim that the trial court lacked personal jurisdiction or

subject matter jurisdiction. Nor does the defendant allege that the judgment of conviction and

sentence were based on a facially unconstitutional statute that is void ab initio. The defendant

alleges that his conviction and sentence are void because the indictment charged him with

armed robbery with a firearm, but the jury found him guilty of armed robbery with a

dangerous weapon, an offense with which he had not been charged. Under pre-Castleberry

law, the lack of jurisdiction included the court’s lack of power to render a particular

judgment. People v. Davis,

(1993). However, jurisdiction relates to the

power of the court not to the rights, even the fundamental rights, of the parties. Davis,

(citing 21 C.J.S. Courts §9 (1990)). As the court in Davis acknowledged:

“However, jurisdiction or power to render a particular judgment does not mean that

the judgment rendered must be the one that should have been rendered, for the power

12

No. 1-13-2719

to decide carries with it the power to decide wrong as well as to decide right.” Davis,

.

¶ 48 To the extent that the judgment of conviction and sentence in this case was based on a

mistake of law, as the defendant argues, the judgment is not void but merely voidable. “[A]

voidable judgment is one entered erroneously by a court having jurisdiction and is not subject

to collateral attack.” Davis,

. Since the judgment challenged by the

defendant was only voidable, the defendant’s challenge to his conviction and sentence on

voidness grounds fails. As a result, the defendant’s petition was subject to the procedural

requirements set forth in section 2-1401. It is undisputed that the petition was filed beyond

section 2-1401(f)’s 2-year limitations period and was subject to dismissal.

¶ 49 Therefore, I concur with the majority’s affirmance of the dismissal of the defendant’s

section 2-1401 petition.

13