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                               Appellate Court                           Date: 2018.06.12
                                                                         11:45:15 -05'00'




                   People v. Abdullah, 2018 IL App (2d) 150840



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            MUHAMMAD S. ABDULLAH, Defendant-Appellant.



District & No.     Second District
                   Docket No. 2-15-0840



Filed              February 27, 2018
Rehearing denied   March 21, 2018



Decision Under     Appeal from the Circuit Court of Lake County, No. 04-CF-1069; the
Review             Hon. George Bridges, Judge, presiding.



Judgment           Affirmed.


Counsel on         Michael J. Pelletier, Patricia Mysza, and David T. Harris, of State
Appeal             Appellate Defender’s Office, of Chicago, for appellant.

                   Michael G Nerheim, State’s Attorney, of Waukegan (Patrick Delfino,
                   Lawrence M. Bauer, and Barry W. Jacobs, of State’s Attorneys
                   Appellate Prosecutor’s Office, of counsel), for the People.



Panel              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.
¶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 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)).

         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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¶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 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).
¶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


                                                  -3-
       therefore reject the State’s arguments2 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 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.
       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

           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).

                                                       -4-
       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 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 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.

                                                     -5-
¶ 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 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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