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                                  Appellate Court                            Date: 2016.10.06
                                                                             09:08:18 -05'00'




                      People v. McDaniel, 2016 IL App (2d) 141061



Appellate Court       THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption               EUGENE McDANIEL, JR., Defendant-Appellant.


District & No.        Second District
                      Docket No. 2-14-1061


Rule 23 order filed   July 30, 2015
Rule 23 order
withdrawn             March 10, 2016
Opinion filed         March 10, 2016



Decision Under        Appeal from the Circuit Court of Du Page County, No. 90-CF-1196;
Review                the Hon. George J. Bakalis, Judge, presiding.



Judgment              Affirmed in part and vacated in part.



Counsel on            Eugene McDaniel, Jr., of Dixon, appellant pro se.
Appeal
                      Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman
                      and Kristin M. Schwind, Assistant State’s Attorneys, of counsel), for
                      the People.



Panel                 JUSTICE HUTCHINSON delivered the judgment of the court, with
                      opinion.
                      Presiding Justice Schostok and Justice Spence concurred in the
                      judgment and opinion.
                                               OPINION

¶1        We originally issued a Rule 23 order in this case (which we have included as an appendix
     to this opinion for the reader’s convenience). Afterward, defendant filed a petition for
     rehearing, which we deny; however, we withdraw our prior order and enter the following
     opinion in its stead.
¶2        In 1991, defendant, Eugene McDaniel, Jr., was convicted of first-degree murder in the
     shooting death of his wife. The trial court sentenced him to the maximum available sentence,
     60 years in prison (Ill. Rev. Stat. 1989, ch. 38, ¶¶ 9-1(a), 1005-8-1(a)(1)), and also imposed
     certain fines and fees. People v. McDaniel, 249 Ill. App. 3d 621 (1993), aff’d, 164 Ill. 2d 173
     (1995). In 2014, McDaniel filed a petition for relief from a “void” judgment under section
     2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2014)). In the
     petition, McDaniel alleged that because the county clerk rather than the trial court added a
     mandatory $25 fine to his original sentence (the money goes to a fund for victims of violent
     crimes (see Ill. Rev. Stat. 1989, ch. 70, ¶ 510)), his entire sentence was void and a new
     sentencing hearing was in order. The trial court considered defendant’s petition, granted it in
     part, and denied it in part. The court imposed the $25 fine, in essence the “relief” McDaniel had
     sought (see People v. Marshall, 242 Ill. 2d 285, 302 (2011) (a void fine or fee, like a void term
     of imprisonment, may be corrected at any time (citing People v. Arna, 168 Ill. 2d 107, 113
     (1995)))), but it did not conduct a new sentencing hearing and made no change to McDaniel’s
     term of imprisonment.
¶3        McDaniel appealed and claimed that the trial court should have conducted an entirely new
     sentencing hearing. We issued a Rule 23 order rejecting his argument as meritless in which we
     cited People v. Donelson, 2013 IL 113603, People v. Brown, 225 Ill. 2d 188 (2007), and
     People v. Garcia, 179 Ill. 2d 55 (1997)–decisions based on the void-sentence rule articulated in
     Arna. With those decisions in mind, our order explained that under the void-sentence rule
     McDaniel’s prison sentence was valid despite the fact that $25 of the fines-and-fees portion of
     his sentence was void. McDaniel then filed a petition for rehearing and asked us to reconsider.
     (He also filed a motion to publish our original Rule 23 order, which we deny.)
¶4        While McDaniel’s rehearing petition was pending, our supreme court issued its decision in
     People v. Castleberry, 2015 IL 116916, which overturned Arna and abolished the
     void-sentence rule. The result under current law then is that there is no true voidness as alleged
     in McDaniel’s section 2-1401 petition. Rather, there is only a voidable $25 fine, which
     post-Castleberry is no longer subject to collateral attack by way of a section 2-1401 petition.
     Id. ¶¶ 11-19; see also People v. Thompson, 2015 IL 118151, ¶¶ 29-30.
¶5        The flipside of Castleberry is that without the void-sentence rule the trial court lacked the
     authority–i.e., the jurisdiction–to modify McDaniel’s sentence and correct the improper
     assessment of the $25 victims’ fine. See, e.g., Spears v. Spears, 52 Ill. App. 3d 695, 698 (1977)
     (after 30 days has passed, the trial court may not amend the judgment to “supply omitted
     judicial action” or “to correct [a] judicial error” under the guise of granting relief from
     judgment or as a nunc pro tunc correction). Because we intended to deny rehearing but modify
     our disposition with respect to the $25 fine (Ill. S. Ct. R. 367(d) (eff. Jan. 1, 2015)), we ordered
     the parties to submit supplemental briefs addressing Castleberry.
¶6        In its brief, the State argues that the abolition of the void-sentence rule renders a portion of
     McDaniel’s sentence voidable not void, which is undoubtedly true. The consequence however,
     at least according to the State, which relies on People v. Harvey, 196 Ill. 2d 444 (2001), is that
     McDaniel’s section 2-1401 petition, filed some 23 years after he was sentenced, was untimely
     under the section 2-1401 two-year limitations period (735 ILCS 5/2-1401(e) (West 2014)). On
     that point the State is incorrect.
¶7        The State’s argument conflates the grounds alleged in McDaniel’s section 2-1401 petition
     with the merits of his claim. Doubtless, McDaniel’s claim concerning his sentence is meritless,
     particularly after Castleberry. But that does not mean that his section 2-1401 petition, brought
     on the grounds that his underlying sentencing judgment was “void,” is now subject to the
     section 2-1401 two-year limitations period. The State’s reliance on Harvey in this regard is
     misplaced. When one considers all of the separate opinions in Harvey, it is clear that the five
     justices who participated in concurrences, despite disagreeing about other aspects of section
     2-1401, all agreed that the two-year limitation period does not apply to a petition that
     challenges a judgment on voidness grounds. Harvey, 196 Ill. 2d at 452 (McMorrow, J.,
     specially concurring, joined by Freeman, J.) (“a post-judgment motion seeking relief on the
     basis that the judgment is void is not bound by the two-year limitation”); id. at 457 (Fitzgerald,
     J., specially concurring, joined by Thomas and Garman, JJ.) (“because defendant challenges
     his extended-term sentence on the basis that the judgment is void, his challenge is proper and
     not restricted by the two-year limitation period in section 2-1401”). One year after Harvey, in
     Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95 (2002), the court further clarified that
     section 2-1401 “[p]etitions brought on voidness grounds need not be brought within the
     two-year time limitation” because “the allegation that the judgment or order is void substitutes
     for and negates the need” to plead around the statute of limitations. Id. at 104. There are many
     sound reasons for such a rule, not the least of which is that it protects the integrity of the
     judicial system by enabling courts to purge void orders–that is, truly void orders–and their
     potentially deleterious effects. See, e.g., In re Dar. C., 2011 IL 111083, ¶ 64 (reversing
     termination of father’s parental rights where father was never notified of proceedings and so
     the circuit court lacked personal jurisdiction over him). Accordingly, so long as a section
     2-1401 petition challenges a judgment on voidness grounds, and McDaniel’s petition did, the
     petition, regardless of its substantive merit, is not subject to the section 2-1401 two-year
     limitation period. See Thompson, 2015 IL 118151, ¶¶ 29-30; Castleberry, 2015 IL 116916,
     ¶ 15 (quoting LVNV Funding, LLC v. Trice, 2015 IL 116129, ¶ 38, citing Sarkissian, 201 Ill. 2d
     at 104).
¶8        Accordingly, we vacate the trial court’s order to the extent that it imposed the $25 fine and
     affirm the remainder of the order dismissing McDaniel’s section 2-1401 petition. As part of
     our judgment, we grant the State’s request for State’s Attorney fees and hereby assess
     McDaniel $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2014).

¶9      Affirmed in part and vacated in part.
      APPENDIX
(Rule 23 Order from July 30, 2015)
                                  2015 IL App (2d) 141061-U
                                        No. 2-14-1061
                                   Order filed July 30, 2015

      NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
      precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Du Page County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 90-CF-1196
                                       )
EUGENE McDANIEL, JR.,                  ) Honorable
                                       ) George J. Bakalis,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE HUTCHINSON delivered the judgment of the court.
       Presiding Justice Schostok and Justice Spence concurred in the judgment.

                                            ORDER

¶1     Held: (1) Although the trial court omitted a mandatory fine, defendant’s sentence was not
       otherwise void; thus, the imposition of the fine, per defendant’s section 2-1401 petition,
       did not produce a new sentence that defendant could move anew to reconsider; (2)
       assuming that the trial court erred in failing, given defendant’s absence, to admonish
       defendant under Rule 605(a) upon imposing the fine, defendant was not entitled to a
       remand for such admonishments, as he did move to reconsider and timely appealed and
       thus suffered no prejudice or denial of justice from the lack of admonitions.

¶2     Defendant, Eugene McDaniel, Jr., was convicted of first-degree murder (Ill. Rev. Stat.

1989, ch. 38, ¶ 9-1(a)) and sentenced to 60 years’ imprisonment (Ill. Rev. Stat. 1989, ch. 38,

¶ 1005-8-1(a)(1)) and certain fines and fees. His current appeal comes after the partial grant and
partial denial of his petition under section 2-1401 of the Code of Civil Procedure (the Code) (735

ILCS 5/2-1401 (West 2014)). In his petition, he sought a finding that, because the clerk, rather

than the trial court, added a mandatory fine to his sentence, the whole of his sentence was void.

The trial court reimposed the fine, but made no change to the term of imprisonment. In this

subsequent appeal, defendant argues that the trial court erred when it did not recognize the whole

of his sentence as void. We hold that his sentence had been void only as to the improperly

imposed fine, so that the trial court acted properly. We therefore affirm.

¶3                                     I. BACKGROUND

¶4     A jury convicted defendant of first-degree murder, and the trial court sentenced him to 60

years’ imprisonment. The sentence also included certain fines and fees. However, at least one

of those fines was imposed by the clerk, not the trial court. Defendant filed a direct appeal in

which he challenged primarily the admission of certain inculpatory statements; he did not

challenge any aspect of his sentence. We affirmed (People v. McDaniel, 249 Ill. App. 3d 621

(1993)), as did the supreme court (People v. McDaniel, 164 Ill. 2d 173 (1995)).

¶5     Some 18 years after his sentencing, defendant filed a petition pursuant to section 2-1401 of

the Code, alleging that his sentence was void. The trial court dismissed the petition. Defendant

appealed, contending that the failure of the sentencing order to include a term of mandatory

supervised release (MSR) made the sentence incomplete, that adding a term of MSR would make

the term exceed the statutory maximum, and that the trial court failed to give due weight to

mitigating factors. We affirmed the dismissal, holding that MSR was implicitly included in his

sentence, which was within the statutory range, and that the trial court’s decision on the

discretionary matter of the weight given to mitigating circumstances was not subject to challenge

on voidness grounds. People v. McDaniel, 2013 IL App (2d) 110931-U.


                                               -6-
¶6     On August 25, 2014, defendant filed a second section 2-1401 petition, in which he, as in

the earlier petition, asserted that his sentence was void. In this petition, he argued that, under the

provision of the Violent Crime Victims Assistance Act creating a victims’ assistance fund (Ill.

Rev. Stat. 1989, ch. 70, ¶ 510 (now 725 ILCS 240/10 (West 2014)), a $25 fine was a mandatory

part of his sentence. He noted that the trial court had not itself imposed the $25 fine, but that the

clerk had added it to his sentence nonetheless. He then argued that the clerk lacked the 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. He requested a new

sentencing hearing, or, alternatively, that he be allowed to be present for the fine’s imposition.

¶7     On September 9, 2014, with defendant not present, the trial court ruled that it could address

defendant’s petition by itself reimposing the fine. It proceeded to do so. (We use the term

“reimposing” for convenience and without any implication that the clerk’s attempt to impose the

fine was effectual.)

¶8     On October 2, 2014, defendant filed a motion to reconsider and a motion for reduction of

his sentence.    Defendant based his request for reconsideration solely on the trial court’s

reimposition of the $25 fine when he was not present in court. As to his motion for reduction of

his sentence, defendant argued that the request for reduction was timely because his sentence as a

whole was not “finalized” until the trial court’s reimposition of the fine. On the merits, he argued

that proper consideration of the mitigating factors that the trial court had originally considered and

of his behavior in prison would lead to the conclusion that his sentence should be shorter. The

trial court ruled that the imposition of the fine was a “ministerial act” and that, as a result, the

modified judgment was not a new one. It further ruled that defendant was not entitled to have the




                                                -7-
trial court consider his behavior in the years after his original sentencing. Defendant filed an

appeal within 30 days of the trial court’s ruling on his motions.

¶9                                        II. ANALYSIS

¶ 10   On appeal, defendant contends first that it was error for the trial court to impose the fine

without admonishing him pursuant to Illinois Supreme Court Rule 605(a) (eff. Oct. 1, 2001). He

argues that, even though he did file a timely motion to reconsider, this court should remand the

matter to allow the trial court to reimpose the sentence with proper admonitions.

¶ 11   Defendant further contends that no final judgment existed in his case until the September 9,

2014, fine imposition. He asserts that the consequence of that was that his motion for reduction

was timely as to the entirety of his sentence. On the merits, defendant argues that the trial court

erred in refusing to consider his behavior during his incarceration—in other words, he argues that

the trial court should have granted his motion for reduction of his sentence. He cites a series of

federal cases that he describes as holding that defendants are entitled to consideration of

postsentencing mitigation evidence. Alternatively, defendant argues that the imposition of the

fine was an improper increase in his sentence.

¶ 12   The State has responded. It argues that defendant’s claim that he should have been

present on September 9, 2014, when the trial court imposed the fine was “moot” because defendant

was present to argue his motion for a sentence reduction. It further argues that, in deciding such a

motion, the trial court should consider only whether the sentence was proper when the trial court

imposed it and thus should not consider new matters.

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

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




                                                 -8-
                   “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 trial court granted relief, reimposing the $25 fine, but did not grant the primary relief that

defendant sought, a new sentencing hearing.

¶ 14   The main procedural issue here is at what stage of the proceedings the trial court’s

reimposition of the fine left the matter. Defendant contends that no valid sentence existed until

September 9, 2014—that that was the day on which the trial court finished imposing sentence—so

that, procedurally, he had 30 days thereafter to file a standard postsentencing motion under section

5-4.5-50(d) of the Unified Code of Corrections (730 ILCS 5/5-4.5-50(d) (West 2014)). We hold

that, although the trial court did impose a new sentence, the only new part was the $25 fine.

¶ 15   Defendant argues that, when a piece is missing from a sentence such that it is void for

failing to comply with a statutory mandate, the reason a court can add the missing piece without

violating rules against increasing a sentence on reconsideration or remand is that a void sentence is

no sentence at all. Consider, for instance, People v. Garcia, 179 Ill. 2d 55, 73 (1997), in which

our 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.”




                                                -9-
¶ 16   The State counters that, because the flaw in defendant’s sentence infected only a part of it

and the necessary correction required no discretion on the trial court’s part, we should treat the

sentence as void only to the extent that the mandatory fine was missing. We agree with the State.

¶ 17   We conclude that 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), our 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 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 statutory requirement existed that the defendant’s sentences be

served consecutively, the “sentences [were] void to the extent they were ordered to be served

concurrently.” Thus, in the present case, defendant’s sentence was void only to the extent that the

fine had not been imposed properly.

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

is valid while a mandatory fine is missing. Defendant’s position would require us to believe that

he and others like him have spent years in prison without any enforceable sentencing order. This

proposition is absurd and untenable. For the reasons we have stated, we conclude that the trial

court validly imposed a sentence of imprisonment on defendant at the original sentencing, so that

defendant’s challenge to the imprisonment portion of his sentence was untimely.

¶ 19   Turning to defendant’s remaining contention, we do not agree with defendant that his

absence from the hearing at which the trial court reimposed the $25 fine requires us to vacate that

reimposition and remand the matter so that the trial court can reimpose it with defendant present.


                                                - 10 -
Illinois Supreme Court Rule 605(a) (eff. Oct. 1, 2001) provides that, upon imposing or modifying

a sentence, the trial court must advise the defendant that he has the right to appeal but must

preserve any sentencing issues in a motion to reconsider. We assume for the sake of argument

that Rule 605(a) was applicable such that it required the trial court to admonish defendant. That is

only the first step in the inquiry, as the failure to give proper Rule 605(a) admonitions requires

remand “only where there has been prejudice or a denial of real justice as a result of the inadequate

admonishment.” People v. Henderson, 217 Ill. 2d 449, 466 (2005). Here, defendant suffered no

prejudice. As we have suggested, the only part of defendant’s sentence that the trial court might

reconsider was the newly reimposed $25 sentence. But defendant had already conceded that the

fine was mandatory, so no issue existed to be reconsidered. Further, defendant did file a motion

to reconsider within 30 days of the judgment’s entry, and he timely appealed the ruling.

Defendant suffered neither prejudice nor a denial of real justice by his absence.

¶ 20                                    III. CONCLUSION

¶ 21   For the reasons stated, we affirm the trial court’s disposition of defendant’s petition under

section 2-1401 of the Code. 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).

¶ 22   Affirmed.




                                               - 11 -
