                             2015 IL App (2d) 141211
                                  No. 2-14-1211
                          Opinion filed October 21, 2015
______________________________________________________________________________

                                               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. 93-CF-1354
                                       )
LARRY C. HAYES,                        ) Honorable
                                       ) Victoria A. Rossetti,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

          JUSTICE HUDSON delivered the judgment of the court, with opinion.
          Justices McLaren and Zenoff concurred in the judgment and opinion.

                                              OPINION

¶1        Defendant, Larry C. Hayes, appeals after the trial court granted in part and denied in part

the relief he sought in a petition under section 2-1401 of the Code of Civil Procedure (Code)

(735 ILCS 5/2-1401 (West 2014)) and denied his ensuing motion to reconsider.          He asserts that

the court erred in failing to recognize that an error in the sentence—a fine imposed of less than

the amount mandated by section 10 of the Violent Crime Victims Assistance Act (Act) (725

ILCS 240/10 (West 1992))—rendered his entire sentence void.              The State argues that the

sentence was void only to the extent that it failed to comply with the Act; it further asserts that

the Act requires that defendant receive a fine of $130,000.       We agree with the State on both

points.    We thus affirm the court’s ruling and impose a fine of $130,000.
2015 IL App (2d) 141211


¶2                                     I. BACKGROUND

¶3     On July 14, 1993, a grand jury indicted defendant on one count of unlawful possession

with intent to deliver 900 grams or more of a substance containing cocaine (720 ILCS

570/401(a)(2)(D) (West 1992)) and one count of unlawful possession of 900 grams or more of a

substance containing cocaine (720 ILCS 570/402(a)(2)(D) (West 1992)). A jury convicted

defendant on both counts, and the court sentenced him to 55 years’ imprisonment on the

possession-with-intent-to-deliver count. The court further imposed a street-value fine of $1.3

million, the sole fine or fee that it imposed. On March 20, 1995, we affirmed the conviction.

People v. Hayes, No. 2-94-0288 (1995) (unpublished order under Supreme Court Rule 23).

¶4     Defendant then filed a series of petitions collaterally attacking his conviction. He filed the

most recent of these, a petition under section 2-1401 of the Code, on August 15, 2014. In his most

recent filing, defendant asserted that his sentence was void because the court had failed to impose

the fine mandated by section 10 of the Act, which defendant stated should have been $25. He

noted that a fine appeared in the court’s records, having apparently been added by the clerk.

Defendant argued that the clerk lacked power to impose any fine, so that the fine was not actually

part of his sentence. Thus, he argued, because his sentence, viewed properly, lacked a mandatory

portion, it was void.

¶5     On September 25, 2014, the court entered a written ruling that denied defendant all relief

except for vacating the fine imposed by the clerk. The court noted that the record implied that the

clerk had assessed a fine of $20 for “VICTIMS, CRIM ASSIST.” Since the record gave no sign

that the court imposed the fine, the court concluded that the clerk must have added it. Citing

People v. Evangelista, 393 Ill. App. 3d 395, 401 (2009), the court ruled that imposing a fine was

outside the clerk’s authority. Further, the Act required that the fine be $130,000. However, the



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void fine had no effect on the validity or finality of the properly imposed portions of defendant’s

sentence. Because it concluded that the absence of the required fine did not invalidate the other

portions of defendant’s sentence, the court declined to impose the fine.

¶6     On October 22, 2014, defendant filed a “Motion for Reduction of Sentence or in alternative

Motion for Rehearing.” 1 He asserted that, because his sentence lacked the fine mandated by the

Act, it continued to be void, incomplete, and nonfinal. He argued that, given the lack of a final

order, he could properly move for reconsideration of his entire sentence. The court denied the

motion on October 29, 2014. Defendant timely appealed.

¶7                                          II. ANALYSIS

¶8     On appeal, defendant again contends that his sentence is void and that, as a result, no final

judgment exists in his criminal case. He asserts that he is thus entitled to not only the mandated

sentence but also a new sentencing hearing. He concedes that, based on the $1.3 million

street-value fine, the fine under the Act would necessarily be $130,000. The State responds that

the court’s only error was in failing to impose the fine mandated by the Act; it asks us to correct

that omission.

¶9     We hold that defendant’s sentence is void only to the extent that the court failed to impose

the mandatory fine under the Act and that thus no new sentencing hearing is required. The

finality of the other portions of his sentence, specifically including his term of imprisonment, is not

affected by the defect of the missing fine. Additionally, we hold that this court has jurisdiction

and the duty to correct defendant’s sentence by imposing the missing fine.



       1
           For jurisdictional purposes, this motion was effectively a motion to reconsider the partial

denial of the section 2-1401 petition.



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2015 IL App (2d) 141211


¶ 10   Initially, we note that we have jurisdiction of this appeal under Illinois Supreme Court Rule

304(b)(3) (eff. Feb. 26, 2010):

       “The following judgments and orders are appealable without the finding [of immediate

       appealability] required for appeals under paragraph (a) of this rule:

                                                ***

               (3) A judgment or order granting or denying any of the relief prayed in a petition

       under section 2-1401 of the Code of Civil Procedure.”

The court granted relief, vacating the fine that the clerk had improperly imposed, but denied

defendant the new sentencing hearing he sought.

¶ 11   We further note that defendant’s filing of a section 2-1401 petition vested the trial court

with jurisdiction to modify defendant’s sentence. A party may properly challenge a void order “at

any time or in any court, either directly or collaterally” (People v. Thompson, 209 Ill. 2d 19, 25

(2004)), provided that the matter has been brought before the court in a way that gives it

jurisdiction (People v. Flowers, 208 Ill. 2d 291, 307 (2003)). A section 2-1401 petition, such as

that which defendant filed, is a proper means for challenging an order as void. Sarkissian v.

Chicago Board of Education, 201 Ill. 2d 95, 104 (2002). Thus, defendant’s petition allowed the

court to modify his sentence. Similarly, defendant’s appeal puts his voidness claim properly

before this court.

¶ 12   Defendant’s argument on appeal implies that the trial court, having never imposed a final

judgment, never lost jurisdiction to modify the sentence—that the missing part of defendant’s

sentence leaves all of his sentence open for reconsideration. He suggests that in the absence of a

final sentence the passage of years is not a bar to the timely filing of a postsentencing motion under




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2015 IL App (2d) 141211


section 5-4.5-50(d) of the Unified Code of Corrections            (Code of Corrections) (730 ILCS

5/5-4.5-50(d) (West 2014)).

¶ 13    In support of his argument, defendant looks to decisions such as People v. Garcia, 179 Ill.

2d 55, 73 (1997). In Garcia, the supreme court held that, where the sentence imposed was void

for failure to conform to a statutory requirement, the rule against increasing a sentence on

resentencing was inapplicable because any attempt to apply that rule would be “premised on the

erroneous assumption that there is a valid sentence to increase.” Garcia, 179 Ill. 2d at 73.

Defendant reads Garcia as standing for the proposition that the whole of a sentence is void as long

as some part of the sentence is void. That is not the law, as we now discuss.

¶ 14    A sentence is void to the extent that it fails to comply with the relevant statutory mandates,

but only to that extent. Illinois courts most frequently note this rule as to sentences that exceed a

statutory maximum. For instance, in People v. Brown, 225 Ill. 2d 188, 205 (2007), the supreme

court stated that “while a sentence, or portion thereof, not authorized by statute is void [citation], it

is void only to the extent that it exceeds what the law permits” and that the “legally authorized

portion of the sentence remains valid.” However, our courts recognize the rule as to sentences

that have other defects. In People v. Donelson, 2013 IL 113603, ¶ 15, the supreme court held

that, where a statute required that the defendant’s sentences be served consecutively, the

“sentences [were] void to the extent they were ordered to be served concurrently.” Thus,

defendant’s sentence here was void only to the extent that the fine under the Act was not the

mandated amount and was imposed by the clerk.

¶ 15    The competing proposition, of which defendant is a proponent, is that no part of a sentence

is valid while a mandatory fine is missing. This proposition strains credulity on even slight

consideration. Defendant’s position requires us to believe that he and others like him have spent



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2015 IL App (2d) 141211


years in prison without any enforceable sentencing order. We do not accept that a person is

imprisoned without due authority when, as here, a fine is not validly imposed.

¶ 16   The State asks that we impose the fine of $130,000 mandated by the Act. Defendant

replies that, if we do this, either we concede that his sentence was incomplete and nonfinal or,

alternatively, we increase his sentence as is barred by section 5-4.5-50(d) of the Code of

Corrections (730 ILCS 5/5-4.5-50(d) (West 2014)). We have already concluded that only the

defective portion of the sentence is void. Further, as held in People v. Arna, 168 Ill. 2d 107, 113

(1995), we have the power to correct an unauthorized sentence without remand and without

violating the rule against increasing a sentence on appeal. Moreover, we have the duty to make

that correction. People v. Harper, 345 Ill. App. 3d 276, 284 (2003). We therefore add the fine.

¶ 17                                   III. CONCLUSION

¶ 18   For the reasons stated, we affirm the court’s ruling on defendant’s section 2-1401 petition

except that we modify his sentence to reflect the $130,000 fine mandated by the Act. 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 2014); see also People v. Nicholls, 71 Ill. 2d 166, 179 (1978).

¶ 19   Affirmed as modified.




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