                             2018 IL App (2d) 150840 

                                  No. 2-15-0840

                          Opinion filed February 27, 2018 

______________________________________________________________________________

                                           IN THE


                             APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Lake County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 04-CF-1069
                                       )
MUHAMMAD S. ABDULLAH,                  ) Honorable
                                       ) George Bridges,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE McLAREN delivered the judgment of the court, with opinion.
       Justices Burke and Birkett concurred in the judgment and opinion.

                                          OPINION

¶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 (735 ILCS

5/2-1401 (West 2014)). The petition sought relief regarding defendant’s sentences for first-

degree murder (720 ILCS 5/9-1(a) (West 2004)) and attempted first-degree murder (id. §§ 8­

4(a), 9-1(a)). Defendant argues that orders modifying his original sentences are void because

they were entered while an appeal was pending such that the trial court lacked jurisdiction over

the case. Defendant alternatively argues that the orders are void, in part, because they were

entered pursuant to a sentencing statute that was unconstitutional when the offenses were

committed. We affirm.
2018 IL App (2d) 150840


¶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 (730 ILCS 5/5-8-4(a)(i)

(West 2004)). During the relevant time frame, section 5-8-4(a)(i) required consecutive sentences

if “one of the offenses for which the defendant was convicted was first degree murder or a Class

X or Class 1 felony and the defendant inflicted severe bodily injury.” Id. Furthermore, for first-

degree murder, the State sought to have defendant sentenced to a prison term of at least 45 years,

representing the 20-year minimum prison term for that offense plus an additional 25 years

because, in committing the offense, defendant personally discharged a firearm, causing Wilson’s

death (id. § 5-8-1(a)(1)(d)(iii)). On September 8, 2005, defendant filed a notice of appeal. On

September 13, 2005, the State moved to dismiss the notice of appeal as untimely. The State

argued that the sentences imposed on August 17, 2005, were invalid. According to the State,

defendant could not bring an appeal until valid sentences had been imposed. On October 13,

2005, the trial court struck defendant’s notice of appeal.

¶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



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2018 IL App (2d) 150840


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 (720 ILCS

5/8-4(c)(1)(C) (West 2004)). Defendant appealed, and we affirmed defendant’s convictions and

sentences. People v. Muhammad, No. 2-06-0086 (2008) (unpublished order under Illinois

Supreme Court Rule 23) (Abdullah I). 1 Defendant subsequently filed a petition under the Post-

Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2008)), which the trial court summarily

dismissed (id. § 122-2.1(a)(2)).

¶4     On January 27, 2014, defendant filed a pro se petition under section 2-1401 in which he

claimed that the addition of 25 years to his sentence for first-degree murder and 20 years to his

sentence for attempted first-degree murder violated the constitutional prohibition of ex post facto

laws. Defendant further argued that those additions to his sentences deprived him of due process

because they were based on facts that were not alleged in the charging instrument and were not

submitted to the jury and proved beyond a reasonable doubt. Defendant later filed pro se (1) a

“Supplemental Argument,” contending that the imposition of consecutive sentences likewise

deprived him of due process, and (2) a “Motion for ‘Additional § 2-1401 Relief from Void

Judgment,’ ” contending that a fraudulent instruction had been given to the jury. Through

counsel, defendant subsequently filed an “Amended Motion to Vacate a Portion of Defendant’s

Sentence as Void, Pursuant to 735 ILCS 2-1401; and, for Resentence,” arguing again that the

facts upon which the modifications to his sentences were based were not submitted to the jury

and proved beyond a reasonable doubt. The State moved to dismiss defendant’s petition and the



       1
           We note that, although the record in that case gave defendant’s name as Abdullah
Muhammad, defendant represents himself, according to his own statement of his name on his pro
se petition in this case, as Muhammad Abdullah.


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2018 IL App (2d) 150840


trial court granted the motion. Defendant unsuccessfully moved for reconsideration and this

appeal followed.

¶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. 735 ILCS 5/2-1401(a), (c)

(West 2016). The two-year limitations period does not apply where the petitioner alleges that the

judgment is void. Urban Partnership Bank v. Ragsdale, 2017 IL App (1st) 160773, ¶ 16.

¶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).




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¶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 therefore

reject the State’s arguments 2 and turn our attention to defendant’s contention that his sentences

are void.

¶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



       2
            In addition, the State argues that, in Abdullah I, we noted that defendant conceded that

his sentences were “statutorily correct.” Abdullah I, slip order at 14. In fact, defendant conceded

only that the sentence for attempted murder was statutorily correct. More importantly, even if

res judicata could bar relitigation of the question of voidness, the concession that the modified

sentences were statutorily correct would not preclude defendant from arguing that the modified

sentences are void because the trial court lacked jurisdiction to enter them. See People v.

Castleberry, 2015 IL 116916, ¶ 15 (voidness is a question of jurisdiction, not statutory

compliance).



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2018 IL App (2d) 150840


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 Illinois Supreme


Court Rule 606(b) (eff. Dec. 1, 1999). When defendant filed his notice of appeal, Rule 606(b)


provided, in pertinent part:


          “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 Rule 606(b), only a motion

filed by the defendant renders a notice of appeal ineffective. He also argues that no statute or

Illinois Supreme Court rule authorized the type of motion that the State filed.

¶ 12      Defendant’s argument initially requires us to interpret Rule 606(b). The principles of

statutory construction likewise apply to the interpretation of supreme court rules. People v.



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2018 IL App (2d) 150840


Geiler, 2016 IL 119095, ¶ 17. “In construing a statute or rule, our primary objective is to

ascertain and give effect to the drafters’ intent.” Id. We look to the plain language of a statute or

rule as the best indication of the drafters’ intent. Id.

¶ 13    The first sentence of Rule 606(b) provides, in pertinent part, that “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.” Ill. S. Ct. R. 606(b) (eff. Dec. 1, 1999).

This sentence does not distinguish between motions filed by the defendant and those filed by the

State. Under the plain language of this part of the rule, a notice of appeal filed before the

disposition of a motion filed by either the defendant or the State would be premature and would

not vest jurisdiction in the appellate court. Jurisdiction would thus remain in the trial court until

the disposition of the motion.

¶ 14    Defendant’s argument is founded on the second sentence of Rule 606(b), which provides,

“[w]hen 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.” Id. Defendant interprets “counsel” to mean “defense

counsel,” such that only a pending defense motion renders the notice of appeal ineffective and

requires it to be stricken. It is possible that the rule uses the term “counsel” in this limited sense.

However, the State is also represented by counsel—usually an assistant state’s attorney—in

criminal cases, and the supreme court easily could have stated specifically “defense counsel.”

Accord People v. Dunson, 316 Ill. App. 3d 760 (2000) (where criminal case was prosecuted by

assistant state’s attorney who was not licensed to practice law, conviction was void). Thus, it is



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2018 IL App (2d) 150840


possible to read “counsel” as a reference to counsel for the State as well as to counsel for the

defendant.

¶ 15      In light of the foregoing, we conclude that Rule 606(b) is ambiguous. “A statute is

ambiguous if it is capable of more than one reasonable interpretation.” Nowak v. City of Country

Club Hills, 2011 IL 111838, ¶ 11. When interpreting an ambiguous statute, “[a] court may look

to the nature, purpose and necessity of the statute, any evils the statute was intended to remedy,

and the consequences of each alternative construction.” Cella v. Sanitary District Employees’ &

Trustees’ Annuity & Benefit Fund, 266 Ill. App. 3d 558, 563 (1994).

¶ 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



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2018 IL App (2d) 150840


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.

¶ 18   Defendant next challenges, on constitutional grounds, the enhancement of his sentence

for attempted first-degree murder. Defendant notes that in People v. Morgan, 203 Ill. 2d 470

(2003), the statute providing for such an enhancement was held to violate the proportionate-

penalties clause of our state constitution. The Morgan court applied a cross-comparison analysis.

However, as defendant notes, in People v. Sharpe, 216 Ill. 2d 481 (2005), our supreme court

abandoned the cross-comparison analysis. Defendant admits that, under Sharpe, the applicable

enhancement statute is presently constitutional. Defendant argues, however, that because he

committed attempted murder during the interval between the decisions in Morgan and Sharpe,

Morgan is controlling. According to defendant, during the interval between Morgan and Sharpe,

the statute was unconstitutional on its face and therefore void ab initio. Thus, according to

defendant his sentence is void.

¶ 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



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2018 IL App (2d) 150840


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. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178

(1978).

¶ 22      Affirmed.




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