                                         2019 IL App (3d) 160516

                                 Opinion filed July 30, 2019
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                    2019

     THE PEOPLE OF THE STATE OF                       )       Appeal from the Circuit Court
     ILLINOIS,                                        )       of the 12th Judicial Circuit,
                                                      )       Will County, Illinois,
            Plaintiff-Appellee,                       )
                                                      )       Appeal No. 3-16-0516
            v.                                        )       Circuit No. 11-CF-2287
                                                      )
     MICHAEL C. BAREFIELD,                            )       Honorable
                                                      )       Sarah-Marie F. Jones,
            Defendant-Appellant.                      )       Judge, Presiding.
     _____________________________________________________________________________

            JUSTICE McDADE delivered the judgment of the court, with opinion.
            Justice Wright concurred in the judgment and opinion.
            Justice Holdridge concurred in part and dissented in part, with opinion.


                                                 OPINION

¶1          Defendant, Michael C. Barefield, appeals the dismissal of his petition for relief from

     judgment filed under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401

     (West 2016)). Defendant argues that his conviction for armed habitual criminal should be

     vacated because his prior conviction for aggravated unlawful use of a weapon (AUUW) was void

     ab initio and could not serve as a predicate offense. Defendant also argues that his two

     convictions for AUUW under different case numbers should be vacated because they are void
     ab initio. We reverse the dismissal of defendant’s section 2-1401 petition and remand the matter

     with directions.

¶2                                              I. BACKGROUND

¶3           Defendant was charged with the offense of armed habitual criminal (720 ILCS 5/24-

     1.7(a)(1), (a)(2) (West 2010)). The indictment alleged:

                     “[D]efendant possessed a firearm, to wit: a Hi-Point .45 caliber handgun, after

                     having been twice convicted of the combination of offenses of [AUUW] in Will

                     County under docket number 2006 CF 661 in violation of Section 21-2 of Act 5

                     of Chapter 720 of the Illinois Compiled Statutes,[1] and Aggravated Robbery, a

                     forcible felony, in Will County under docket number 2006 CF 1945 in violation

                     of 18-5 of Act 5 of Chapter 720 of the Illinois Compile[d] Statutes.”

     Defendant was also charged with unlawful use of a weapon by a felon (id. § 24-1.1(a)) in that he

     possessed a handgun having been previously convicted of AUUW in Will County case No. 06-

     CF-661.

¶4           Defendant entered a fully negotiated plea agreement in which he pled guilty to armed

     habitual criminal in exchange for a sentence of eight years and six months’ imprisonment and the

     dismissal of the charge of unlawful use of a weapon by a felon.

¶5           Defendant filed a pro se petition for relief from judgment under section 2-1401 of the

     Code. In his petition, defendant stated that his conviction for armed habitual criminal was

             1
              The indictment erroneously cites to the statute proscribing criminal trespass to vehicles (720
     ILCS 5/21-2 (West 2006)) rather than the AUUW statute (id. § 24-1.6). Defendant has attached a single-
     page copy of the indictment in Will County case No. 06-CF-661 to his brief, which shows that defendant
     was charged with AUUW under section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code of 1961 (id. § 24-
     1.6(a)(1), (a)(3)(A)). Defendant requests that we take judicial notice of the copy of the indictment, which
     we do. See Metropolitan Life Insurance Co. v. American National Bank & Trust Co., 288 Ill. App. 3d
     760, 764 (1997) (“[The appellate] court may take judicial notice of public documents that are included in
     the records of other courts.”).
                                                        -2-
     predicated on his convictions in Will County case Nos. 09-CF-2316, 06-CF-1945, and 06-CF-

     661. Defendant stated that two of the predicate offenses were convictions for AUUW and the

     AUUW statute had been held to be facially unconstitutional.2 Defendant requested that the court

     vacate his conviction for armed habitual criminal because it was predicated on offenses that were

     void ab initio.

¶6          The State filed a combined motion to dismiss under sections 2-615 and 2-619 of the Code

     (735 ILCS 5/2-615, 2-619 (West 2016)). The motion to dismiss argued that defendant’s section

     2-1401 petition failed to state a cause of action because it could be rejected based on the Illinois

     Supreme Court’s decision in People v. McFadden, 2016 IL 117424. The State also argued that

     defendant’s section 2-1401 petition was untimely.

¶7          Defendant filed a motion for leave to amend his section 2-1401 petition. In his proposed

     amended petition, defendant argued that his convictions for AUUW in Will County case Nos.

     09-CF-2316 and 06-CF-661 should be vacated in addition to his conviction for armed habitual

     criminal in the instant case. Defendant argued that his AUUW convictions were void ab initio

     and his armed habitual criminal conviction was also void.

¶8          A hearing was held on the State’s motion to dismiss and defendant’s motion to amend his

     section 2-1401 petition. The State argued that if defendant sought to vacate his AUUW

     convictions, he needed to do so by filing pleadings in those cases. The State also argued that

     pursuant to the holding in McFadden, defendant’s armed habitual criminal conviction was not




            2
              The indictment in this case shows that defendant’s armed habitual criminal conviction was
     predicated on one prior conviction for AUUW in Will County case No. 06-CF-661 and one prior
     conviction for aggravated robbery in Will County case No. 06-CF-1945. Defendant’s armed habitual
     criminal conviction was not predicated on a second conviction for AUUW entered in Will County case
     No. 09-CF-2316, as defendant claimed.
                                                     -3-
       void even if the predicate offense was void. The court granted the State’s motion to dismiss and

       denied defendant’s motion for leave to amend his petition.

¶9                                                 II. ANALYSIS

¶ 10                           A. Vacatur of the Armed Habitual Criminal Conviction

¶ 11              Defendant argues that his conviction for armed habitual criminal should be vacated

       because his prior conviction for AUUW in Will County case No. 06-CF-661 was void ab initio

       and could not serve as a predicate offense. Pursuant to the holding in In re N.G., 2018 IL

       121939, we find that defendant’s conviction for armed habitual criminal must be vacated if the

       predicate AUUW conviction was entered under an unconstitutional section of the AUUW

       statute.

¶ 12              Section 24-1.7(a) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/24-1.7(a)

       (West 2010)) provides that “[a] person commits the offense of being an armed habitual criminal

       if he or she receives, sells, possesses, or transfers any firearm after having been convicted a total

       of 2 or more times” of certain enumerated offenses. A defendant’s qualifying prior convictions

       are an element of the offense of being an armed habitual criminal. People v. Davis, 405 Ill. App.

       3d 585, 591 (2010). In the instant case, defendant was charged with being an armed habitual

       criminal based on his prior convictions for AUUW in Will County case No. 06-CF-661 and

       aggravated robbery in Will County case No. 06-CF-1945.

¶ 13              Our supreme court has held that AUUW as charged under section 24-1.6(a)(1), (a)(3)(A)

       of the Criminal Code (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)) is facially

       unconstitutional because it violates the right to keep and bear arms under the second amendment

       to the United States Constitution. People v. Burns, 2015 IL 117387, ¶ 32; People v. Aguilar,

       2013 IL 112116, ¶ 22. Our supreme court has also held that AUUW as charged under section 24-


                                                        -4-
       1.6(a)(2), (a)(3)(A) of the Criminal Code of 2012 (720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West

       2012)) is unconstitutional. People v. Mosley, 2015 IL 115872, ¶ 25. The court has held that some

       of the other sections of the AUUW statute are not facially unconstitutional and are severable

       from the unconstitutional sections. Id. ¶ 31.

¶ 14           In McFadden, 2016 IL 117424, ¶¶ 27-31, our supreme court held that the defendant’s

       conviction for unlawful use of a weapon by a felon, which was predicated on a prior conviction

       for AUUW, was not void where the AUUW conviction had not been vacated at the time the

       defendant committed the offense of unlawful use of a weapon by a felon.

¶ 15           While the instant case was pending on appeal, our supreme court issued its decision in

       N.G., which overruled the court’s prior decision in McFadden. N.G., 2018 IL 121939, ¶ 84. See

       also People v. Cavette, 2018 IL App (4th) 150910, ¶ 24 (recognizing that McFadden had been

       overruled by N.G.). The N.G. court held that the circuit court erred in terminating the father’s

       parental rights after finding the father depraved based, in part, on the father’s conviction for

       AUUW under the section held unconstitutional in Aguilar. N.G., 2018 IL 121939, ¶ 33. The

       court held that because that section of the AUUW statute was facially unconstitutional, the

       father’s AUUW conviction had to be vacated. Id. The court reasoned: “When 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.

¶ 16           In overruling McFadden, the court in N.G. reasoned that McFadden failed to consider

       “the distinction between a prior conviction resulting from a constitutionally deficient procedure

       and one based on a facially unconstitutional statute.” Id. ¶ 76. The court noted that McFadden

       failed to consider the United States Supreme Court’s decision in Montgomery v. Louisiana, 577

       U.S. ___, 136 S. Ct. 718 (2016), or earlier United States Supreme Court cases holding that


                                                           -5-
       “convictions based on facially unconstitutional statutes are void, can be given no effect, and must

       be treated by the courts as if they do not exist.” N.G., 2018 IL 121939, ¶ 67. The court reasoned:

                      “[A] facially unconstitutional statute and any conviction based on the statute must

                      be treated as if they never existed. Because they are nonexistent, as a matter of

                      federal constitutional law, and must therefore be ignored by the courts, using them

                      against a defendant in any subsequent proceeding, civil or criminal, is not only

                      conceptually impossible (if something has no legal existence how can it be given

                      any legal recognition?) but would subvert the very constitutional protections that

                      resulted in the statute being found facially invalid to begin with and is

                      incompatible with the United States Supreme Court’s command that when, as

                      under Aguilar and here, the conduct penalized by a statute is constitutionally

                      immune from punishment, that determination must be given complete retroactive

                      effect.” (Emphasis in original.) Id. ¶ 74.

       The N.G. court found that case to be distinguishable from McFadden but nevertheless held that

       “to the extent that this result and controlling United States Supreme Court precedent conflict

       with McFadden, McFadden is hereby overruled.” Id. ¶ 84.

¶ 17          In the instant case, we find that if defendant’s conviction for AUUW in Will County case

       No. 06-CF-661 was entered under section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code, then

       defendant’s conviction for armed habitual criminal must be vacated under the rationale in N.G.

       Under the reasoning set forth in N.G., if the AUUW conviction was entered under a facially

       unconstitutional section of the AUUW statute, it is void ab initio. That is, the AUUW conviction

       must be treated as though it never existed and may not be used against defendant in any

       subsequent criminal or civil proceeding. See N.G., 2018 IL 121939, ¶ 74.


                                                       -6-
¶ 18          However, the record in this case is unclear as to whether defendant’s conviction for

       AUUW in Will County case No. 06-CF-661 was entered under the section of the AUUW statute

       held to be unconstitutional in Aguilar. The single-page copy of the indictment defendant attached

       to his brief shows only that defendant was charged under section 24-1.6(a)(1), (a)(3)(A). It does

       not show that he was convicted under that section. Before vacating defendant’s conviction for

       armed habitual criminal, it must be definitively established that the predicate AUUW conviction

       was entered under a section of the AUUW statute that has been held to be unconstitutional.

       Accordingly, we remand the matter to the circuit court for such a determination.

¶ 19          In reaching our holding, we reject the State’s argument that the holding in N.G. is limited

       to parental termination cases. The court in N.G. held that because convictions based on facially

       unconstitutional statutes “are nonexistent, as a matter of federal constitutional law, and must

       therefore be ignored by the courts, using them against a defendant in any subsequent proceeding,

       civil or criminal, *** would subvert the very constitutional protections that resulted in the statute

       being found facially invalid to begin with.” (Emphasis added.) Id. Thus, we interpret the holding

       of N.G. to extend beyond parental termination cases and to apply generally to civil or criminal

       cases where a defendant’s facially unconstitutional prior conviction is used against him or her.

¶ 20          We also reject the State’s argument that the portion of N.G. overruling McFadden is dicta

       that we are not required to follow. The State argues that we should instead apply the holding in

       McFadden to this case. We do not agree with the State’s reading of N.G., and we may not ignore

       our supreme court’s express overruling of McFadden. See Winnebago County Citizens for

       Controlled Growth v. County of Winnebago, 383 Ill. App. 3d 735, 748 (2008) (“[T]he lower

       courts have no power to ignore the holdings of our supreme court’s decisions and to adopt some

       other approach that they may prefer.”).


                                                       -7-
¶ 21                                 B. Vacatur of the AUUW Convictions

¶ 22          Defendant also argues that the circuit court erred in denying his motion for leave to

       amend his section 2-1401 petition. Defendant requests that we reverse the circuit court’s denial

       of the motion and vacate his prior convictions for AUUW in Will County case Nos. 06-CF-661

       and 09-CF-2316. The State concedes that defendant’s prior AUUW convictions are void

       ab initio, but argues that defendant must seek vacatur of his convictions by filing postconviction

       petitions or section 2-1401 petitions in those cases.

¶ 23          In N.G., the court held that filing a postconviction petition or a section 2-1401 petition are

       not the “sole means for collaterally attacking the validity of a conviction premised on a facially

       invalid, and indisputably unenforceable, statute.” N.G., 2018 IL 121939, ¶ 54. The court stated

       that “under Illinois law, there is no fixed procedural mechanism or forum, nor is there any

       temporal limitation governing when a void ab initio challenge may be asserted.” Id. ¶ 57. The

       court noted that “[a] void order may be attacked at any time in any court” and that courts have an

       independent duty to vacate void orders. Id. The N.G. court held that it was permissible for the

       father of the minor to challenge the constitutionality of his AUUW conviction in proceedings to

       terminate parental rights. Id. ¶ 60. The court reasoned:

                      “Establishing that a prior conviction is invalid because it was based on a facially

                      unconstitutional statute requires no elaborate fact-finding or hearing. The

                      statutory basis for the conviction can be readily ascertained by retrieval and

                      review of official court records, of which a subsequent court can take judicial

                      notice [citation], as happened in this case, and the fact that the statute has been

                      found unconstitutional can be confirmed by the case law. As for concerns over the

                      finality of judgments, these are of little consequence as a practical matter because


                                                       -8-
                      penal statutes are rarely found facially invalid and, when they are, defendants

                      have every incentive to raise the defect at the earliest possible, practical moment.”

                      Id. ¶ 58.

¶ 24          In light of the recent decision in N.G., we find that defendant should be permitted to

       amend his section 2-1401 petition to seek vacatur of his AUUW convictions in addition to his

       armed habitual criminal conviction.

¶ 25          However, we reject the State’s concession on appeal that defendant’s prior convictions

       for AUUW in Will County case Nos. 06-CF-661 and 09-CF-2316 were void ab initio. The

       record in this case does not support the State’s concession. We have already found that the copy

       of the indictment from Will County case No. 06-CF-661 attached to defendant’s brief was

       insufficient to establish that defendant was convicted under an unconstitutional section of the

       AUUW statute. There is no information, either in the record or attached to defendant’s brief,

       regarding Will County case No. 09-CF-2316 except for defendant’s pro se allegation that the

       AUUW conviction in that case was void ab initio. Accordingly, we remand the matter to the

       circuit court for a determination as to whether the AUUW convictions in Will County case Nos.

       06-CF-661 and 09-CF-2316 were entered under one of the facially unconstitutional sections of

       the AUUW statute.

¶ 26          We acknowledge the argument of the partial dissent that it is the usual requirement of

       Illinois reviewing courts that the appellant present a record sufficient to support his claim of

       error. In the instant case, defendant is challenging his armed habitual criminal conviction and the

       predicate AUUW conviction pursuant to an indictment in Will County case No. 06-CF-661,

       attached to his brief, indicating that he was charged under one of the facially unconstitutional

       sections of the AUUW statute. The claim was originally asserted pro se in a collateral


                                                       -9-
       proceeding, and it is not an unreasonable assumption that defendant was convicted of the crime

       with which he was charged.

¶ 27          More significantly, at the time of briefing in this appeal, the law about vacating these

       void convictions was in a state of flux in that McFadden had been decided and N.G. had not. In

       N.G., as we have previously pointed out, the supreme court noted that courts have an

       independent duty to vacate void orders (N.G., 2018 IL 121939, ¶ 57) and further stated:

                       “The statutory basis for the conviction can be readily ascertained by retrieval and

                      review of official court records, of which a subsequent court can take judicial

                      notice [citation], as happened in this case, and the fact that the statute has been

                      found unconstitutional can be confirmed by the case law.” (Emphasis added.) Id.

                      ¶ 58.

       If courts are authorized to supplement the record on appeal to expeditiously address the

       constitutionally void conviction, it surely cannot be improper to find that there is a viable issue

       and remand to the circuit court to address it.

¶ 28                                           III. CONCLUSION

¶ 29          The judgment of the circuit court of Will County dismissing defendant’s section 2-1401

       petition and denying defendant leave to amend his section 2-1401 petition is reversed. We

       remand the matter to the circuit court with directions to examine the court records in Will County

       case Nos. 06-CF-661 and 09-CF-2316 to determine whether the AUUW convictions in those

       cases were entered under one of the facially unconstitutional sections of the AUUW statute. If

       the AUUW conviction in Will County case No. 06-CF-661 was entered under one of the facially

       unconstitutional sections of the AUUW statute, the circuit court is directed to vacate that

       conviction and the conviction for armed habitual criminal entered in the instant case. If the


                                                        - 10 -
       AUUW conviction in Will County case No. 09-CF-2316 was entered under one of the facially

       unconstitutional sections of the AUUW statute, the circuit court is directed to vacate that

       conviction as well.

¶ 30          Reversed and remanded with directions.

¶ 31          JUSTICE HOLDRIDGE, concurring in part and dissenting in part:

¶ 32          I concur with the majority’s decision to reverse the trial court’s denial of the defendant’s

       request to amend his section 2-1401 petition. However, I disagree with the majority’s decision to

       (1) address the merits of the defendant’s claims as they relate to his AUUW convictions and his

       armed habitual criminal conviction and (2) remand to the trial court to determine which sections

       of the statute were the bases for the defendant’s convictions.

¶ 33          As our supreme court has explained, the appellant has the burden of presenting a

       sufficiently complete record on appeal to support his claim of error, and in the absence of such a

       record on appeal, the reviewing court will presume that the order entered by the trial court was in

       conformity with the law. Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314, 319 (2003).

       Any doubts arising from the incompleteness of the record are resolved against the appellant. Id.

¶ 34          Here, as the majority recognizes, the defendant failed to provide a sufficient record on

       appeal to support his claim of error because the record fails to show which statute sections were

       the bases for his convictions. Supra ¶¶ 18, 25, 27. Therefore, because the record on appeal is

       insufficient, I would not address this issue.




                                                       - 11 -
                                  No. 3-16-0516


Cite as:                 People v. Barefield, 2019 IL App (3d) 160516


Decision Under Review:   Appeal from the Circuit Court of Will County, No. 11-CF-2287;
                         the Hon. Sarah-Marie F. Jones, Judge, presiding.



Attorneys                James E. Chadd, Peter A. Carusona, and Jay Wiegman, of State
for                      Appellate Defender’s Office, of Ottawa, for appellant.
Appellant:


Attorneys                James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino,
for                      David J. Robinson, and Jasmine D. Morton, of State’s Attorneys
Appellee:                Appellate Prosecutor’s Office, of counsel), for the People.




                                      - 12 -
