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                                  Supreme Court                                Date: 2016.01.08
                                                                               09:45:54 -06'00'




                         People v. Thompson, 2015 IL 118151




Caption in Supreme   THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DENNIS
Court:               THOMPSON, Appellant.


Docket No.           118151


Filed                December 3, 2015


Decision Under       Appeal from the Appellate Court for the First District, heard in that
Review               court on appeal from the Circuit Court of Cook County, the Hon.
                     James L. Rhodes, Judge, presiding.


Judgment             Appellate court judgment affirmed.
                     Circuit court judgment affirmed.


Counsel on           Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg and
Appeal               Patricia Mysza, Deputy Defenders, and Tomas G. Gonzalez, Assistant
                     Appellate Defender, of the Office of the State Appellate Defender, of
                     Chicago, for appellant.

                     Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
                     State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, and
                     Annette N. Collins, Assistant State’s Attorneys, of counsel), for the
                     People.



Justices             JUSTICE KILBRIDE delivered the judgment of the court, with
                     opinion.
                     Chief Justice Garman and Justices Freeman, Thomas, Karmeier,
                     Burke, and Theis concurred in the judgment and opinion.
                                            OPINION

¶1       The issue in this appeal is whether a criminal defendant may raise an as-applied
     constitutional challenge to his mandatory natural life sentence for the first time on appeal
     from the circuit court of Cook County’s dismissal of a petition seeking relief from a final
     judgment under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401
     (West 2010)). Answering that question in the negative, the appellate court affirmed the
     circuit court’s dismissal of defendant’s section 2-1401 petition. 2014 IL App (1st) 121729-U,
     ¶ 23. For the reasons that follow, we affirm the appellate court’s judgment.

¶2                                        BACKGROUND
¶3        The underlying details of defendant’s convictions and sentences have been previously
     recited by the appellate court. See People v. Thompson, No. 1-95-2040 (1997) (unpublished
     order under Illinois Supreme Court Rule 23). Thus, we do not repeat those details and
     summarize only the facts relevant to our disposition here.
¶4        On March 26, 1994, defendant Dennis Thompson fatally shot his father, Dennis
     Thompson, Sr., and a woman who was inside his father’s house, Don Renee Rouse.
     Defendant, who was 19 years old at the time, was arrested and charged with two counts of
     first-degree murder. Defendant confessed to the shootings and directed the police to the
     murder weapon.
¶5        At defendant’s bench trial, the evidence revealed that defendant, armed with a loaded
     firearm, drove to his father’s house on the day of the shootings to discuss an earlier
     “domestic disturbance” between defendant’s father and stepmother. After arriving at his
     father’s house, defendant discovered his father drinking alcohol with Rouse, a woman
     defendant did not know. Defendant followed his father into the kitchen and an argument
     ensued. Ultimately, defendant shot his father when his father looked inside the refrigerator.
     Defendant next encountered Rouse, and shot her repeatedly. Defendant then left his father’s
     house. Rouse, fatally wounded but still conscious, called police and identified defendant as
     the shooter. Defendant was apprehended and confessed to the shootings.
¶6        Defendant maintained that his actions were the result of a long history of physical and
     mental abuse committed by his father and, thus, constituted only second-degree murder.
     Defendant presented the testimony of several family members who uniformly described
     defendant’s father as a violent and abusive person, especially when his father consumed
     alcohol. Following closing arguments, defendant was convicted of two counts of first-degree
     murder.
¶7        After the circuit court found defendant guilty, defendant waived a jury for the capital
     sentencing phase. The parties stipulated that defendant’s birthday was April 1, 1974, and he
     was therefore 19 years old when he committed the murders. The court found defendant
     eligible for the death penalty but, after hearing evidence in aggravation and mitigation,
     declined to impose death and sentenced defendant to a term of natural life imprisonment
     under section 5-8-1(a)(1)(c)(ii) of the Unified Code of Corrections (730 ILCS


                                               -2-
       5/5-8-1(a)(1)(c)(ii) (West 1994) (natural life sentence for a defendant “found guilty of
       murdering more than one victim”)).
¶8          On direct appeal, the appellate court affirmed defendant’s convictions and sentences.
       People v. Thompson, No. 1-95-2040 (1997) (unpublished order under Illinois Supreme Court
       Rule 23). This court denied defendant’s petition for leave to appeal. People v. Thompson, 175
       Ill. 2d 551 (1997) (table).
¶9          In 1998, defendant filed his first petition under the Post-Conviction Hearing Act (725
       ILCS 5/122-1 et seq. (West 1998)), alleging multiple claims of ineffective assistance of trial
       counsel. The petition advanced to second-stage review but the trial court ultimately granted
       the State’s motion to dismiss. The appellate court affirmed its dismissal. People v. Thompson,
       No. 1-99-2686 (2001) (unpublished order under Illinois Supreme Court Rule 23).
¶ 10        In 2002, defendant filed a pro se petition for a writ of habeas corpus in the United States
       District Court for the Northern District of Illinois, asserting a number of ineffective trial
       assistance claims. The district court denied defendant’s petition. Thompson v. Briley, No.
       04-3110 (N.D. Ill. Feb. 10, 2005). The Seventh Circuit Court of Appeals affirmed. Thompson
       v. Battaglia, 458 F.3d 614 (7th Cir. 2006).
¶ 11        In 2007, defendant sought leave to file a successive postconviction petition, challenging
       various aspects of his counsel’s performance during his previous state court proceedings. The
       circuit court denied him leave to file his successive petition, and the appellate court affirmed.
       People v. Thompson, No. 1-07-0763 (2008) (unpublished order under Illinois Supreme Court
       Rule 23).
¶ 12        In 2009, defendant filed a pleading titled “Article I Free Standing Motion to Vacate,”
       alleging that he was denied his right to capital-qualified counsel. The trial court construed
       defendant’s pleading as a successive postconviction petition and denied the petition because
       it was filed without leave of court. Defendant did not appeal that denial, but he sought leave
       to file a successive postconviction petition. The trial court denied defendant’s request.
       Although defendant filed an appeal, he subsequently withdrew that appeal.
¶ 13        On December 28, 2011, defendant filed a petition seeking relief from a final judgment
       under section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2010)). That petition is the
       subject of the instant appeal.
¶ 14        In the section 2-1401 petition, defendant alleged that the circuit court “exceeded its
       jurisdiction” and violated his right to due process by failing to appoint capital-qualified
       attorneys, rendering his convictions void. Defendant also alleged a number of deficiencies on
       the part of his counsel during trial, direct appeal, and postconviction proceedings.
¶ 15        The State filed a motion to dismiss, arguing that defendant’s petition was untimely filed
       17 years after defendant’s conviction, the substantive claims were not suitable for a section
       2-1401 petition, and the claims in defendant’s petition lacked merit. Following arguments,
       the circuit court granted the State’s motion to dismiss.
¶ 16        On appeal, defendant abandoned all of his original claims in the section 2-1401 petition.
       Instead, defendant relied exclusively on Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455
       (2012), a decision issued by the United States Supreme Court after the circuit court’s
       dismissal of defendant’s petition. In Miller, the Court held “mandatory life without parole for
       those under the age of 18 at the time of their crimes violates the Eighth Amendment’s
       prohibition on ‘cruel and unusual punishments.’ ” Miller, 567 U.S. at ___, 132 S. Ct. at 2460.

                                                   -3-
¶ 17       Citing Miller, defendant argued for the first time on appeal that his mandatory life
       sentence was void and could be challenged at any time because it violated the eighth
       amendment of the United States Constitution (U.S. Const., amend. VIII) and the
       proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11).
       Defendant raised both a facial constitutional challenge and an as-applied constitutional
       challenge to the applicable sentencing statute. In relevant part, defendant asserted that the
       sentencing statute was unconstitutional as applied to him because he was 19 years old at the
       time of the shooting, had no criminal history, and impulsively committed the offense after
       years of abuse by his father.
¶ 18       The appellate court rejected defendant’s contentions, concluding that defendant’s
       as-applied constitutional challenge was not properly before the court when it was raised for
       the first time on appeal. The court determined that defendant’s as-applied challenge did not
       constitute a challenge to a void judgment. The court explained that because “a Miller claim
       only challenges a sentence as voidable, the challenge may not be raised at any time
       irrespective of waiver.” 2014 IL App (1st) 121729-U, ¶ 18. Accordingly, the court found that
       defendant’s as-applied challenge was procedurally barred, and it affirmed the circuit court’s
       dismissal of defendant’s petition. 2014 IL App (1st) 121729-U, ¶ 23.
¶ 19       We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2013).

¶ 20                                           ANALYSIS
¶ 21       On appeal, defendant contends that the appellate court erroneously concluded that “it
       lacked jurisdiction to consider the merits of [defendant’s] argument that his mandatory life
       sentence is unconstitutional and void.” Citing Miller, defendant argues that the sentencing
       statute that mandated a natural life sentence for his murder convictions is unconstitutional as
       applied to him under the eighth amendment because the sentencing statute did not allow the
       sentencing judge to consider his youth.1 Defendant acknowledges that Miller’s holding is
       directly applicable only to minors under 18 years of age, but he contends that the logical
       underpinning of Miller, focused on the unique characteristics of youthful offenders and the
       recognized distinction between juvenile and adult brains, applies with “equal force” to
       individuals between the ages of 18 and 21.
¶ 22       Defendant does not ask, however, this court to determine whether his as-applied
       constitutional challenge to his sentence is meritorious under Miller. Instead, he argues that
       “the ultimate substantive merits of [defendant’s] claim has no bearing on whether it may be
       brought and considered by the appellate court.” (Emphasis in original.) Consequently,
       defendant asks this court to remand the matter to the appellate court for its substantive review
       of his as-applied challenge to his mandatory natural life sentence under Miller.
¶ 23       The State responds that the appellate court correctly concluded that defendant’s
       as-applied constitutional challenge to his sentence could not be raised for the first time on
       appeal from dismissal of his section 2-1401 petition. The State notes that defendant’s section


           1
            Although defendant raised a facial constitutional challenge to his sentence in the appellate court,
       he does not reassert that challenge here. Indeed, in his reply brief defendant emphasizes that he “is not
       arguing that the statute under which he was sentenced is facially unconstitutional.”

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       2-1401 petition did not contain an as-applied constitutional challenge to his sentence, was not
       timely filed, and failed to allege a meritorious defense and due diligence.
¶ 24       The State argues that the void judgment rule exception to the procedural bars of section
       2-1401 of the Code should be construed narrowly. More specifically, the State contends that
       a voidness challenge is exempt from the timing, due diligence, and meritorious defense
       requirements of section 2-1401 only when it involves a judgment issued by a court that
       lacked personal or subject matter jurisdiction, or when it involves a facially unconstitutional
       statute that is void ab initio. Because defendant’s as-applied challenge involves neither
       situation, the State argues that the appellate court properly declined to consider his as-applied
       challenge for the first time on appeal.
¶ 25       To resolve the controversy in this appeal, we must decide whether defendant’s as-applied
       constitutional challenge to his sentence is procedurally barred or forfeited because defendant
       failed to include that claim in his section 2-1401 petition. This presents a question of law that
       we review de novo. See People v. Vincent, 226 Ill. 2d 1, 18 (2007) (reviewing de novo a
       section 2-1401 petition dismissed on legal grounds).
¶ 26       As a preliminary matter, however, we must address the appellate court’s perception of its
       “jurisdiction” in this case. See People v. Lewis, 234 Ill. 2d 32, 36-37 (2009) (observing that a
       court of review has an independent duty to consider jurisdiction). Specifically, the appellate
       court’s unpublished order made two separate statements indicating that the court believed it
       lacked “jurisdiction.” As the State correctly concedes, the appellate court’s assessment of its
       jurisdiction was inaccurate. The appellate court obtained jurisdiction in this matter when
       defendant timely filed his notice of appeal from the circuit court’s order dismissing his
       section 2-1401 petition. Lewis, 234 Ill. 2d at 37.
¶ 27       Despite the appellate court’s imprecise description of its jurisdiction, we agree with the
       State that it did not alter the court’s substantive analysis of the forfeiture issue. Indeed, the
       appellate court properly exercised its jurisdiction when it reviewed the procedural posture of
       defendant’s as-applied constitutional challenge and concluded that defendant forfeited that
       claim by raising it for the first time on appeal.
¶ 28       We next address the parties’ respective arguments on forfeiture and defendant’s section
       2-1401 petition, the primary focus of this appeal. Section 2-1401 of the Code constitutes a
       comprehensive statutory procedure authorizing a trial court to vacate or modify a final order
       or judgment in civil and criminal proceedings. Warren County Soil & Water Conservation
       District v. Walters, 2015 IL 117783, ¶ 31. 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. 735 ILCS 5/2-1401(a), (c) (West 2010).
¶ 29       When a petition is filed after the two-year limitations period and there is no basis to
       excuse the delay, the petition cannot be considered unless the limitations period is waived by
       the opposing party. People v. Pinkonsly, 207 Ill. 2d 555, 562 (2003). Relevant to the
       controversy in this appeal, however, this court recognizes an exception to the ordinary
       two-year deadline when the petition challenges a void judgment. Sarkissian v. Chicago Board
       of Education, 201 Ill. 2d 95, 104 (2002).
¶ 30       Here, defendant’s section 2-1401 petition was filed approximately 17 years after his
       conviction and sentence, well outside the 2-year limitations period. Nonetheless, defendant
       argues that his as-applied constitutional challenge constitutes a challenge to a “void”

                                                   -5-
       judgment for purposes of section 2-1401. Thus, defendant contends that he can raise his
       claim for the first time on appeal from dismissal of his petition because a voidness challenge
       can be raised at any time under Sarkissian. For the same reason, defendant further contends
       that his claim was excused from the general rules applicable to section 2-1401 petitions,
       including the two-year limitations period and requisite allegations of due diligence and a
       meritorious defense. We disagree.
¶ 31        As this court’s applicable decisions demonstrate, a voidness challenge to a final judgment
       under section 2-1401 that is exempt from the ordinary procedural bars is available only for
       specific types of claims. Typically, the petitioner will allege that the judgment is void
       because the court that entered the final judgment lacked personal or subject matter
       jurisdiction. See LVNV Funding, LLC v. Trice, 2015 IL 116129, ¶ 38 (reviewing a section
       2-1401 petition and concluding that “only the most fundamental defects, i.e., a lack of
       personal jurisdiction or lack of subject matter jurisdiction as defined in Belleville Toyota[,
       199 Ill. 2d 325, 341 (2002),] warrant declaring a judgment void”); Sarkissian, 201 Ill. 2d at
       105 (reviewing the petitioner’s allegations that a default judgment was void because the trial
       court lacked personal jurisdiction based on defective service of process). A voidness
       challenge based on a lack of personal or subject matter jurisdiction is not subject to forfeiture
       or other procedural restraints because a judgment entered by a court without jurisdiction
       “may be challenged in perpetuity.” LVNV Funding, 2015 IL 116129, ¶ 38.
¶ 32        A second type of voidness challenge that is exempt from forfeiture and may be raised at
       any time involves a challenge to a final judgment based on a facially unconstitutional statute
       that is void ab initio. When a statute is declared facially unconstitutional and void ab initio, it
       means that the statute was constitutionally infirm from the moment of its enactment and,
       therefore, unenforceable. People v. Davis, 2014 IL 115595, ¶ 25 (citing People v. Blair, 2013
       IL 114122, ¶ 28). Particularly relevant to this appeal, though, this court has held that the void
       ab initio doctrine does not apply to an as-applied constitutional challenge. Hill v. Cowan, 202
       Ill. 2d 151, 156 (2002); People v. Jackson, 199 Ill. 2d 286, 300 (2002).
¶ 33        A third type of voidness challenge to a final judgment under section 2-1401 recognized
       by this court is a challenge to a sentence that does not conform to the applicable sentencing
       statute. See People v. Harvey, 196 Ill. 2d 444, 447-48 (2001) (reviewing section 2-1401
       petition that alleged an extended-term sentence was void when it allegedly exceeded the
       permissible sentencing range). This type of challenge is based on the “void sentence rule”
       from People v. Arna, 168 Ill. 2d 107, 113 (1995), holding that a sentence that does not
       conform to a statutory requirement is void. Recently, however, this court abolished the void
       sentence rule. People v. Castleberry, 2015 IL 116916, ¶ 19. Consequently, that type of
       challenge is no longer valid.
¶ 34        Here, defendant does not allege that his mandatory natural life sentence is void based on
       the trial court’s lack of personal jurisdiction or subject matter jurisdiction. Nor does
       defendant allege that his sentence is void based on a facially unconstitutional statute that is
       void ab initio. In other words, defendant’s claim is not a type recognized by any of our
       precedents as exempt from the typical procedural bars of section 2-1401.
¶ 35        Despite the lack of authority for his position, defendant argues that his as-applied
       constitutional challenge to his sentence should be exempt from the ordinary forfeiture rules
       of section 2-1401. Defendant asserts that “it makes no sense to allow a facial constitutional


                                                    -6-
       challenge to a sentence at any time, but not an as-applied constitutional challenge” in a
       section 2-1401 proceeding because the “injustice” in both cases is the same—an allegedly
       unconstitutional sentence.
¶ 36       Defendant is mistaken. Although facial and as-applied constitutional challenges are both
       intended to address constitutional infirmities, they are not interchangeable. See Napleton v.
       Village of Hinsdale, 229 Ill. 2d 296, 318 (2008) (recognizing the “fundamental distinction”
       between facial and as-applied challenges). An as-applied challenge requires a showing that
       the statute violates the constitution as it applies to the facts and circumstances of the
       challenging party. People v. Garvin, 219 Ill. 2d 104, 117 (2006). In contrast, a facial
       challenge requires a showing that the statute is unconstitutional under any set of facts, i.e.,
       the specific facts related to the challenging party are irrelevant. Garvin, 219 Ill. 2d at 117.
¶ 37       Because facial and as-applied constitutional challenges are distinct actions, it is not
       unreasonable to treat the two types of challenges differently for purposes of section 2-1401.
       By definition, an as-applied constitutional challenge is dependent on the particular
       circumstances and facts of the individual defendant or petitioner. Therefore, it is paramount
       that the record be sufficiently developed in terms of those facts and circumstances for
       purposes of appellate review. See Webster v. Hartman, 195 Ill. 2d 426, 432 (2001) (noting
       that “[t]his court has long held that in order to support a claim of error on appeal the
       appellant has the burden to present a sufficiently complete record”).
¶ 38       This point is illustrated by this case. To support his as-applied challenge, defendant relies
       exclusively on the “evolving science” on juvenile maturity and brain development that
       formed the basis of the Miller decision to ban mandatory natural life sentences for minors.
       Defendant maintains that this science applies with “equal force” to a criminal defendant who
       was between the ages of 18 and 21 when the underlying crime was committed. The record
       here, however, contains nothing about how that science applies to the circumstances of
       defendant’s case, the key showing for an as-applied constitutional challenge. Nor does the
       record contain any factual development on the issue of whether the rationale of Miller should
       be extended beyond minors under the age of 18. Undoubtedly, the trial court is the most
       appropriate tribunal for the type of factual development necessary to adequately address
       defendant’s as-applied challenge in this case.
¶ 39       In summary, defendant’s section 2-1401 petition was filed approximately 17 years after
       his conviction and sentence, well outside the 2-year limitations period. Defendant’s section
       2-1401 petition did not contain any eighth amendment challenge to his sentence, let alone an
       as-applied constitutional challenge based on Miller. Instead, defendant raised his as-applied
       challenge under Miller for the first time on appeal. As we have explained, this type of
       challenge is not one of those recognized by this court as being exempt from the typical rules
       of forfeiture and procedural bars in section 2-1401 of the Code. Supra ¶¶ 30-33. Accordingly,
       we agree with the appellate court’s conclusion that defendant forfeited his as-applied
       challenge to his sentence under Miller by raising it for the first time on appeal.
¶ 40       We are not persuaded by the authority cited by defendant in support of his argument that
       he should be permitted to raise his claim for the first time on appeal from dismissal of his
       section 2-1401 petition. Citing this court’s decisions in People v. Brown, 225 Ill. 2d 188
       (2007), People v. McCarty, 223 Ill. 2d 109 (2006), and People v. Bryant, 128 Ill. 2d 448
       (1989), defendant argues that this court has recognized that a sentence that violates the


                                                   -7-
       constitution is void and subject to challenge at any time. Notably, though, none of those
       decisions addressed whether an as-applied constitutional challenge may be raised for the first
       time on appeal from dismissal of a section 2-1401 petition. In fact, none of those decisions
       even involved an as-applied constitutional challenge. Consequently, we do not find our
       general statements on voidness in those decisions to be controlling on the narrow issue
       presented in this appeal.
¶ 41       Defendant’s reliance on the appellate court’s decisions in People v. Luciano, 2013 IL App
       (2d) 110792, and People v. Morfin, 2012 IL App (1st) 103568, is also misplaced. In contrast
       to this case, both of those decisions involved defendants who were sentenced to mandatory
       natural life based on the commission of murders when they were minors under the age of 18.
       See Luciano, 2013 IL App (2d) 110792, ¶ 7 (defendant convicted of two counts of murder
       committed when he was 17 years old); Morfin, 2012 IL App (1st) 103568, ¶ 11 (defendant
       convicted under accountability theory of two counts of murder committed when he was 17
       years old). Because those defendants were sentenced to mandatory natural life imprisonment
       based on crimes committed when they were minors, the appellate court in both decisions
       concluded that Miller should be applied retroactively and remanded for a new sentencing
       hearing. Luciano, 2013 IL App (2d) 110792, ¶¶ 62-63; Morfin, 2012 IL App (1st) 103568,
       ¶ 56.
¶ 42       The holdings of Luciano and Morfin are consistent with our recent decision in People v.
       Davis, 2014 IL 115595. In Davis, this court held that Miller announced a new substantive
       rule that applies retroactively to minors sentenced to a mandatory imposition of natural life
       imprisonment. Davis, 2014 IL 115595, ¶¶ 39-43. Notably, however, we also determined in
       Davis that the applicable sentencing statute imposing mandatory natural life was not facially
       unconstitutional because it could be validly applied to adults, and that “[a] minor may still be
       sentenced to natural life imprisonment without parole so long as the sentence is at the trial
       court’s discretion rather than mandatory.” Davis, 2014 IL 115595, ¶¶ 30, 43.
¶ 43       In this case, defendant was 19 years old when he committed the murders. Indisputably, he
       was not a minor for purposes of sentencing. Therefore, defendant cannot obtain the same
       collateral relief afforded the defendants in Luciano, Morfin, and Davis, who all received
       mandatory natural life sentences for crimes committed when they were under the age of 18 in
       violation of Miller.
¶ 44       Nor are we persuaded by defendant’s suggestion that it would be unfair to preclude him
       from raising his as-applied challenge under Miller in the procedural posture of his case.
       Although we have determined that defendant cannot raise his as-applied constitutional
       challenge to his sentence under Miller for the first time on appeal from dismissal of his
       section 2-1401 petition, defendant is not necessarily foreclosed from renewing his as-applied
       challenge in the circuit court. To the contrary, the Post-Conviction Hearing Act (725 ILCS
       5/122-1 et seq. (West 2012)) is expressly designed to resolve constitutional issues, including
       those raised in a successive petition. See Davis, 2014 IL 115595, ¶¶ 13-14 (detailing the
       procedural framework of the Act). Similarly, section 2-1401 of the Code permits either a
       legal or factual challenge to a final judgment if certain procedural and statutory requirements
       are satisfied. See Warren County, 2015 IL 117783, ¶¶ 37-51 (discussing and comparing
       standards between factual and legal challenges in section 2-1401 proceedings). Of course, we



                                                  -8-
       express no opinion on the merits of any future claim raised by defendant in a new
       proceeding.




¶ 45                                      CONCLUSION
¶ 46      For these reasons, we affirm the appellate court’s judgment and the circuit court’s
       judgment dismissing defendant’s section 2-1401 petition.

¶ 47      Appellate court judgment affirmed.
¶ 48      Circuit court judgment affirmed.




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