Opinion filed: September 15, 2022

FIRST DISTRICT FOURTH DIVISION

No. 1-20-0886

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) Nos. 01 CR 11037 ) 06 CR 15198 RAUL CALVILLO, ) ) Honorable Defendant-Appellant. ) Alfredo Maldonado, ) Judge, presiding.

JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Presiding Justice Lampkin and Justice Reyes concurred in the judgment.

OPINION

¶1 The circuit court found petitioner, Raul Calvillo, guilty in 2002 of two counts of aggravated

unlawful use of a weapon (AUUW) (counts I and III), merged count III into count I, and sentenced

him to probation on count I. No sentence was imposed on count III. The court subsequently

revoked petitioner’s probation and sentenced him to one year imprisonment on count I. In 2006,

the court used the conviction of AUUW in count I as the predicate offense to convict petitioner for

unlawful use of a weapon by a felon (UUWF). In 2019, the petitioner filed two petitions pursuant

to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2018)), asking

the court to vacate his 2002 conviction for AUUW and his 2006 conviction for UUWF pursuant

to People v. Aguilar,

. The court vacated petitioner’s 2002 conviction for AUUW

in count I and “transferred” the sentence from count I to the previously unsentenced count III,

nunc pro tunc to the date of the original sentencing hearing. The court denied the petition to vacate

the 2006 conviction for UUWF, finding that it was properly predicated on the newly sentenced

2002 conviction on count III for AUUW. The primary question on appeal is whether the circuit No. 1-20-0886

court exceeded the scope of a nunc pro tunc order when, in 2019, it transferred the sentence

petitioner received in 2002 for AUUW from count I to count III and then used the newly sentenced

count III as the predicate offense to sustain the 2006 UUWF conviction. We answer that question

in the affirmative.

¶2 In 2001, the State charged petitioner with six counts of AUUW in case number 01-CR-

11037. The case proceeded to a bench trial, after which the circuit court found petitioner guilty of

two counts of AUUW: count I was for possessing an uncased firearm in public (720 ILCS 5/24-

1.6(a)(1), (a)(3)(A) (West 2000)) and count III was for possession of a firearm before reaching the

age of 21 (720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2000)). On October 9, 2002, the circuit court

merged count III into count I under the one-act, one-crime doctrine because it found that count III

was the lesser offense and sentenced petitioner to 1½ years of probation on count I. As count III

merged into count I, the circuit court imposed no sentence on count III. On September 19, 2003,

the circuit court revoked petitioner’s probation and sentenced him to one year in prison on count

I.

¶3 In 2006, in case number 06-CR-15198, petitioner pleaded guilty to UUWF (720 ILCS 5/24-

1.1(a) (West 2006)) and was sentenced to three years’ imprisonment. Petitioner’s 2002 conviction

for AUUW in count I was the predicate felony for the 2006 UUWF conviction. The sentences for

the 2002 and 2006 convictions have been completed.

¶4 In 2013, our supreme court issued its opinion in Aguilar,

. In Aguilar, the

defendant was convicted of the “Class 4 form” of section 24-1.6(a)(1), (a)(3)(A), (d), of the

AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)) and unlawful possession of

a firearm (UPF) (720 ILCS 5/24-3.1(a)(1) (West 2008)). Aguilar,

. The trial

court sentenced the defendant to 24 months’ probation for the AUUW conviction and did not

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impose sentence on the UPF conviction.

On appeal, the supreme court concluded that the Class

4 form of section 24-1.6(a)(1), (a)(3)(A), (d) of the AUUW statute, which prohibited carrying on

one’s person or in any vehicle, outside the home, a firearm that was uncased, loaded, and

immediately accessible, was facially unconstitutional under the second amendment. After

reversing the defendant’s AUUW conviction, the supreme court “remand[ed] to the trial court for

imposition of sentence on the UPF conviction” and instructed that “[t]he sentence imposed on the

UPF conviction shall not exceed the sentence imposed on the AUUW conviction.” Aguilar,

.

¶5 In 2015, the supreme court issued its opinion in People v. Burns,

,

acknowledging that Aguilar’s reference to a “Class 4” form of AUUW was inappropriate, as no

such offense exists. Burns clarified that section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute is

facially unconstitutional, without limitation. Id. ¶ 25.

¶6 In 2018, the supreme court issued its opinion in In re N.G.,

, which

considered whether a parent’s conviction under the portion of the AUUW statute found

unconstitutional in Aguilar could be used as a predicate for terminating parental rights. Id. ¶ 23.

The supreme court stated that “[w]hen a statute is found to be facially unconstitutional in Illinois,

it is said to be void ab initio; that is, it is as if the law had never been passed.” Id. ¶ 50. Therefore,

“the conviction must be treated by the courts as if it did not exist, and it cannot be used for any

purpose under any circumstances.” Id. ¶ 36.

¶7 Based on N.G., we subsequently held that a conviction under the portion of the AUUW

statute found unconstitutional in Aguilar cannot be used as a predicate offense for UUWF. See

People v. Alexander,

.

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¶8 In 2019, petitioner here filed two petitions pursuant to section 2-1401 of the Code (735

ILCS 5/2-1401 (West 2018)) seeking to vacate his 2002 AUUW conviction and his 2006 UUWF

conviction based on Aguilar, N.G., and their progeny. In his first petition, petitioner argued that

his conviction for AUUW on count I was void ab initio under Aguilar and should be vacated.

¶9 In his second section 2-1401 petition, petitioner argued that his 2006 conviction for UUWF

was predicated on the unconstitutional 2002 AUUW conviction in count I. As the 2002 AUUW

conviction in count I is void ab initio, it cannot serve as the predicate offense for the UUWF

conviction. Therefore, petitioner requested that the UUWF conviction be vacated.

¶ 10 The State filed a “motion to dismiss” petitioner’s section 2-1401 petitions, but actually it

agreed with petitioner that his 2002 conviction for AUUW in count I for possessing an uncased

firearm in public should be vacated pursuant to Aguilar. The State argued, though, that after

vacating count I, the circuit court should “transfer” the sentence from count I to the constitutionally

valid, unsentenced finding of guilt for AUUW in count III for possession of a firearm before

reaching the age of 21. By imposing a sentence on count III, the circuit court would transform its

finding of guilt on that count to a conviction (see People v. Cruz,

(1990) (holding that it is the trial court’s entry of judgment and imposition of a sentence that

constitutes a conviction)). The newly sentenced conviction on count III for AUUW then would be

the predicate felony conviction for the 2006 UUWF conviction.

¶ 11 On August 6, 2019, the circuit court denied the State’s motion to dismiss and granted

petitioner’s section 2-1401 petitions. However, on September 4, 2019, the court announced that it

was sua sponte revisiting its ruling, vacating the August 6 order, and granting the State’s motion

to dismiss the section 2-1401 petitions. Petitioner’s counsel was present when the circuit court

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announced its decision; however, petitioner was not personally present. The court issued a written

order discussing Aguilar and N.G., and explained:

“Before sentencing in 01 CR 11037, the petitioner stood convicted beyond a reasonable

doubt in counts 1 and 3. Clearly, this Court must vacate the conviction in count 1 since it

is void [under Aguilar and N.G.]. Because petitioner’s unsentenced conviction in count 3

resulted from a fair and full exercise of due process, a transfer of judgment is proper in this

matter ***. Transferring judgment will not run afoul of the one act, one crime doctrine

because the original conviction in count 1 was void ab initio, in other words, it is like the

conviction never happened. Therefore, nothing existed to be merged into; thus, no vacatur

[of count 3] occurred.”

¶ 12 The circuit court ordered:

“1. The August 6, 2019, order which denied the State’s motion to dismiss

[petitioner’s] section 2-1401 petitions and granted the relief requested in [petitioner’s]

petitions is VACATED;

2. The State’s joint motion to dismiss [petitioner’s] section 2-1401 petitions is

GRANTED;

3. Petitioner’s conviction and sentence in count 1 of 01 CR 11037 is VACATED;

4. Nunc pro tunc to October 9, 2002, as to count 3 of 01 CR 11037, the previously

entered judgment and sentence of probation is TRANSFERRED; and

5. Nunc pro tunc to September 19, 2003, the sentence of probation is

TERMINATED unsatisfactorily, and the one year sentence of incarceration is ENTERED

and considered SATISFIED.”

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¶ 13 The circuit court also determined that its nunc pro tunc order was sufficient to allow the

newly sentenced conviction on count III to serve as the predicate felony for the 2006 conviction

for UUWF.

¶ 14 On April 12, 2021, we granted petitioner leave to file a late notice of appeal from the

September 4, 2019, order dismissing his section 2-1401 petitions.

¶ 15 Section 2-1401 of the Code establishes a statutory procedure for a party seeking to vacate

a final judgment, including a criminal conviction, that was entered more than 30 days prior. 735

ILCS 5/2-1401(a) (West 2020); People v. Haynes,

(2000). Proceedings

under this section are viewed as a collateral attack on the judgment and not as a continuation of

the underlying litigation. People v. Ellis,

. Generally, a petition for

relief from judgment under section 2-1401 must be filed within two years after entry of judgment.

735 ILCS 5/2-1401(c) (West 2020). However, an exception exists when, as here, the petitions

allege that the underlying judgments are void. Sarkissian v. Chicago Board of Education,

(2002). We review the dismissal of a section 2-1401 petition de novo. PNC Bank,

National Ass’n v. Kusmierz,

.

¶ 16 The parties agree that the circuit court’s dismissal order correctly vacated petitioner’s 2002

conviction for AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2000)) on count I as

unconstitutional under Aguilar. The parties are correct, and accordingly, we affirm the order

vacating petitioner’s conviction on count I.

¶ 17 Petitioner argues, though, that the circuit court erred when it “transferred” the sentence of

probation that had been imposed on count I to count III nunc pro tunc to the date of the original

sentencing decision. Petitioner further argues that the court erred by transferring the revocation of

probation and the one-year prison sentence subsequently imposed on count I to count III

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nunc pro tunc to the date when that order originally was entered. Finally, petitioner argues that the

circuit court erred by finding that the nunc pro tunc order transferring the sentence on count I to

count III was sufficient to allow the newly sentenced conviction on count III to serve as the

predicate offense for the 2006 conviction for UUWF.

¶ 18 The State responds that the circuit court’s order was a “pragmatic and equitable solution to

the problem posed by the application of Aguilar to these specific facts.”

¶ 19 We agree with petitioner. The use of nunc pro tunc orders is “limited to incorporating into

the record something which was actually previously done by the court but inadvertently omitted

by clerical error.” (Emphasis added.) People v. Melchor,

(2007). In other words,

a nunc pro tunc order reflects the reality of what occurred (Jayko v. Fraczek,

) so that the record “reflects the actual order or judgment rendered by the court.”

Johnson v. First National Bank of Park Ridge U/T No. 205,

(1984). The

correction must be based on “a note, memorandum, or paper remaining in the file or records of the

court, rather than a personal recollection of the trial judge or some other person.” Jayko,

. A nunc pro tunc order should not be entered if the omitted judicial action

“ ‘is the result of either a deliberate decision by the judge or relates to an issue that was not

presented to the judge.’ ” Deutsche Bank National Trust Co. v. Ivicic,

(quoting Z.R.L. Corp. v. Great Central Insurance Co.,

(1990)).

Thus, a nunc pro tunc order may not be used to rule on a matter of substance or to retroactively

correct an alleged error involving the merits of the case. Jayko,

.

Whether an order satisfies the legal criteria for a nunc pro tunc order is reviewed de novo. People

v. Jones,

.

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¶ 20 In the present case, the circuit court’s October 9, 2002, judgment and sentencing orders in

case number 01-CR-11037 accurately reflected its decision finding petitioner guilty of count I of

AUUW for possessing an uncased firearm in public (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West

2000)) and of count III of AUUW for possessing a firearm before the age of 21 (720 ILCS 5/24-

1.6(a)(1), (a)(3)(I) (West 2000)); merging count III into count I based on the one-act, one-crime

doctrine; and sentencing defendant to 1½ years of probation on count I. The court’s September 19,

2003, order accurately reflected its decision to revoke petitioner’s probation and sentence him to

one year’s imprisonment on count I. The Aguilar decision was not issued by the supreme court

until about 10 years later in 2013, and thus it obviously never was presented or argued to the circuit

court prior to the entering of its judgment and sentencing orders. As the October 9, 2002, and

September 19, 2003, orders accurately reflected the circuit court’s deliberate decisions concerning

petitioner’s conviction and sentence, there was no clerical error to be corrected by a nunc pro tunc

order. Thus, on the facts of this case, the court went beyond the permitted scope of a nunc pro tunc

order when in 2019 it “transferred” the sentence on count I to count III, as the transfer of sentences

did not correct any clerical errors in the transcription of the judgment but instead constituted a

substantive change in that judgment in response to Aguilar. Accordingly, we reverse the circuit

court’s nunc pro tunc order and vacate the sentence on count III.

¶ 21 We recognize that the circuit court sought to comply with Aguilar and its progeny by

vacating the conviction of AUUW in count I, treating count III as if it had never merged into count

I, and transferring the sentence on count I to count III nunc pro tunc to the date of the original

sentencing order. However, Aguilar instructs that when, as here, a conviction under section 24-

1.6(a)(3)(A) of the AUUW statute is vacated, leaving in its stead an unsentenced, constitutionally

valid finding of guilt on a different charge, the proper course is to remand for sentencing on the

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constitutionally valid count. See Aguilar,

. The new sentence may not exceed

the sentence previously imposed on the invalid AUUW conviction.

Accordingly, we remand

for a new sentencing hearing on the constitutionally valid finding of guilt on count III for

possessing a firearm before the age of 21 in violation of section 24-1.6(a)(3)(I) of the AUUW

statute. The circuit court is instructed to impose a sentence on count III no greater than the sentence

imposed on count I, with credit for time served.

¶ 22 In so holding, we also note that the circuit court’s nunc pro tunc order divested petitioner

of his constitutional right under article VI, section 6, of the Illinois Constitution to appeal his newly

sentenced conviction on count III. See Ill. Const. 1970, art. VI, § 6. When in 2002 the court found

petitioner guilty in case number 01-CR-11037 on count III for AUUW for possessing a firearm

before reaching the age of 21, he could not then appeal that finding because no sentence was

imposed and therefore there was no appealable conviction. See People v. Jones,

. The 2019 order now on appeal seeks to transform the finding of guilt on count III

into an appealable conviction by transferring the sentence on count I to count III, nunc pro tunc to

the dates of the original sentencing decisions, that is, October 9, 2002, and September 19, 2003.

However, the effect of the nunc pro tunc order would be to make it as if petitioner was sentenced

on his conviction on count III almost 20 years ago, well outside the window to now file a timely

notice of appeal therefrom. See Illinois Supreme Court Rule 606(b) (eff. Mar. 12, 2021). By

reversing the nunc pro tunc order, vacating petitioner’s sentence on count III, and remanding for

a new sentencing hearing thereon, we preserve petitioner’s constitutional right to appeal once the

sentence is imposed.

¶ 23 In addition, the circuit court’s nunc pro tunc order transferring the sentence from count I

to count III in case number 01-CR-11037 denied petitioner his constitutional right to be present at

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sentencing. The Illinois Constitution (Ill. Const. 1970, art. I, § 8) guarantees petitioner the right to

appear and defend himself at every stage of the proceedings, including during imposition of

sentencing. People v. Fields,

(1993). Although petitioner may voluntarily

waive his right to be present at sentencing (id.), there is no indication in the record that he waived

his right in this case. The State argues that because petitioner was represented by counsel when

the sentence was transferred from count I to count III, his rights were protected and his presence

was waived. However, trial counsel cannot waive petitioner’s constitutional right to be present

during sentencing. People v. Etheridge,

(1976).

¶ 24 The State also argues that the entry of the nunc pro tunc order was merely a ministerial act

ensuring that the record accurately reflected his sentence on count III and, as such, that petitioner

was not required to be present because the court did not in fact impose a new sentence when issuing

its order. The record indicates otherwise. On October 9, 2002, the circuit court merged count III

into count I and sentenced petitioner to 1½ years of probation only on count I. On September 19,

2003, the court revoked petitioner’s probation and sentenced him to one year in prison on count I.

The circuit court never sentenced petitioner on count III, either on October 9, 2002, or on

September 19, 2003. Thus, the court’s 2019 nunc pro tunc order, transferring the sentence from

count I to count III, constituted the imposition of a new sentence on count III. Petitioner had the

constitutional right to be present.

¶ 25 Next, we address the circuit court’s finding that the nunc pro tunc order transferring the

sentence for AUUW on count I to count III in case number 01-CR-11037 was sufficient to establish

the predicate felony conviction necessary to sustain petitioner’s conviction for UUWF in case

number 06-CR-15198. The elements of UUWF are (1) the knowing use or possession of a firearm

and (2) a prior felony conviction. See 720 ILCS 5/24-1.1(a) (West 2020). When charging petitioner

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with UUWF in 2006, the indictment specified that the predicate felony conviction was “the felony

offense of [AUUW], under case number 01 CR 11037.”

¶ 26 As discussed earlier in this opinion, petitioner’s 2002 AUUW conviction on count I in case

number 01-CR-11037 for possessing an uncased firearm in public is unconstitutional under

Aguilar and, as such, is void ab initio and may not be used as the predicate felony conviction for

the 2006 UUWF conviction. See Aguilar,

; Burns,

;

N.G.,

.

¶ 27 Nor may the circuit court’s 2002 judgment in case number 01-CR-11037 on count III,

which found petitioner guilty of AUUW for possession of a firearm before reaching the age of 21,

be used as the predicate felony conviction for the 2006 UUWF conviction. The circuit court

recognized that in the absence of a sentence, the judgment finding petitioner guilty of AUUW in

count III is not considered a “conviction” that can be used as the predicate offense for the 2006

conviction of UUWF (Cruz,

). Therefore, the circuit court entered the order

(1) transferring count I’s sentence of probation to count III nunc pro tunc to October 9, 2002, and

(2) transferring the revocation of probation and one-year sentence in count I to count III

nunc pro tunc to September 19, 2003. By doing so, the court sought to transform the 2002

judgment finding petitioner guilty of AUUW in count III to a felony conviction that could be used

as the predicate offense for petitioner’s 2006 UUWF conviction.

¶ 28 However, for the reasons discussed earlier in this opinion, the circuit court went beyond

the scope of a nunc pro tunc order in so transferring the sentence in case number 01-CR-11037

from count I to count III and therefore we are reversing the nunc pro tunc order, vacating

petitioner’s sentence on count III, and remanding for a new sentencing hearing on count III. On

remand, the new sentence imposed on count III will transform the finding of guilt into a conviction

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for AUUW, but the conviction will not be retroactive to either October 9, 2002, or September 19,

2003, and thus it cannot serve as the predicate offense for petitioner’s 2006 conviction for UUWF.

¶ 29 As petitioner’s 2006 conviction for UUWF is unsupported by a valid prior predicate felony

conviction, the circuit court should have vacated the UUWF conviction on petitioner’s section

2-1401 petition.

¶ 30 For all the foregoing reasons, we affirm the circuit court’s order vacating petitioner’s

AUUW conviction on count I in case number 01-CR-11037; reverse the order transferring the

sentence of probation in case number 01-CR-11037 from count I to count III, nunc pro tunc to

October 9, 2002; reverse the order transferring the revocation of probation and sentence of one

year’s imprisonment in case number 01-CR-11037 from count I to count III, nunc pro tunc to

September 19, 2003; vacate petitioner’s sentence on count III in case number 01-CR-11037;

remand for sentencing on count III in case number 01-CR-11037, with instructions for the circuit

court to impose a sentence not to exceed the sentence imposed for the AUUW conviction in count

I, with credit for time served; and vacate petitioner’s conviction for UUWF in case number 06-

CR-15198.

¶ 31 Affirmed in part, reversed in part, and vacated in part; cause remanded with directions.

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People v. Calvillo,

Decision Under Review: Appeal from the Circuit Court of Cook County, Nos. 01-CR- 11037, 06-CR-15198; the Hon. Alfredo Maldonado, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and John R. Breffeilh, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Douglas P. Harvath, Matthew Connors, and Zachary M. Appellee: Slavens, Assistant State’s Attorneys, of counsel), for the People.

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