                                                                      FILED
                                                                     April 19, 2017

                                  2017 IL App (4th) 150170           Carla Bender

                                                                 4th District Appellate
                                        NO. 4-15-0170                  Court, IL

                                IN THE APPELLATE COURT

                                        OF ILLINOIS

                                     FOURTH DISTRICT


 THE PEOPLE OF THE STATE OF ILLINOIS,                     )      Appeal from

            Plaintiff-Appellee,                           )      Circuit Court of

            v.                                            )      Brown County

 MICHAEL E. CRENSHAW,                                     )      Nos. 09CF5 

            Defendant-Appellant.	                         )
                                                          )      Honorable

                                                          )      Diane M. Lagoski,

                                                          )      Judge Presiding.



              JUSTICE KNECHT delivered the judgment of the court, with opinion. 

              Justices Harris and Steigmann concurred in the judgment and opinion.


                                          OPINION
¶1            This case comes to us on the motion of the office of the State Appellate Defender

(OSAD) to withdraw as counsel on appeal on the ground no meritorious issues can be raised in

this case. For the reasons that follow, we grant OSAD’s motion and affirm the trial court’s

judgment.

¶2                                    I. BACKGROUND

¶3            On October 20, 2009, the trial court found defendant, Michael E. Crenshaw,

guilty of criminal sexual assault (720 ILCS 5/12-13(a)(3) (West 2008)) and sentenced him to

eight years in prison on November 30, 2009. Defendant appealed his conviction, arguing the trial

court erred by (1) denying his motion to suppress his confession, (2) admitting a cellular phone

recording, and (3) imposing an excessive sentence. People v. Crenshaw, 2011 IL App (4th)
090908, ¶ 1, 959 N.E.2d 703. This court affirmed defendant’s conviction and rejected his

arguments. Id.

¶4               While his direct appeal was pending, defendant also filed a pro se postconviction

petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-8 (West 2008)).

Defendant’s appointed counsel amended the petition. The trial court dismissed several claims

alleged in the petition, but it allowed an ineffective-assistance claim to move forward. The claim

alleged defendant’s trial counsel was ineffective for failing to admonish him regarding his

ineligibility for probation. The court ultimately denied defendant’s postconviction petition,

which was affirmed by this court in People v. Crenshaw, 2012 IL App (4th) 110202, ¶ 1, 974

N.E.2d 1002.

¶5               In December 2012, defendant pro se filed (1) a motion for substitution of judge,

(2) a motion for leave to file a successive postconviction petition, and (3) a successive

postconviction petition. The successive postconviction petition alleged initial postconviction

counsel was ineffective for failing to comply with Illinois Supreme Court Rule 651(c) (eff. April

26, 2012) and amend his postconviction petition to allege (1) judicial error, (2) ineffective

assistance of trial counsel, (3) newly discovered evidence, and (4) ineffective assistance of

appellate counsel.

¶6               In January 2013, Judge Robert K. Adrian denied defendant’s motion for a

substitution of judge, finding defendant failed to show Judge Diane M. Lagoski was biased. In

June 2013, the State filed a motion to dismiss the successive postconviction petition for failure to

seek leave to file it. Judge Lagoski granted the State’s motion, and defendant filed a motion to

reconsider and a motion for a hearing. The State then filed a motion to have defendant’s petition

deemed frivolous and to order defendant to pay costs. Defendant filed a second motion for a



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hearing. In September 2013, Judge Lagoski granted the motion to reconsider and set the matter

for a hearing.

¶7               Also in September 2013, defendant filed a second petition for leave to file a

successive postconviction petition and an amended successive postconviction petition. The

amended successive postconviction petition alleged, inter alia, postconviction counsel (1) was

ineffective for failing to comply with Illinois Supreme Court Rule 651(c) (eff. Apr. 26, 2012) by

failing to review the record, (2) failed to amend the initial postconviction petition to include

issues of ineffective assistance of appellate counsel, (3) failed to amend the initial postconviction

petition to include the claim that trial counsel misled defendant on whether there could be a

substitution of judge, (4) failed to amend the initial postconviction petition to include a claim of

ineffective assistance of appellate counsel on the issue of judicial bias or impartiality, and (5)

failed to amend the petition to include a claim that appellate counsel was ineffective for not

raising the issue of the insufficiency of the evidence. In November 2013, the trial court denied

defendant’s request for leave to file the successive postconviction petition, which this court

affirmed in People v. Crenshaw, 2015 IL App (4th) 131035, ¶¶ 21-45, 38 N.E.3d 1256.

¶8               In February 2014, defendant filed a motion for a hearing and a motion for

substitution of judge, seeking a substitution of Judge Lagoski. The motion for substitution of

judge was denied by Judge Adrian in April 2014.

¶9               In August 2014, defendant filed a “motion to vacate, void judgment” under

section 2-1401(f) of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-1401(f) (West

2014)), arguing the judgment against him was void because (1) the trial court committed a

miscarriage of justice and plain error by dismissing the rape kit and “negative findings” by the

Illinois State Police; (2) trial counsel was ineffective for failing to preserve the rape kit and



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failing to call a medical expert to testify; (3) Judge Lagoski was biased, thereby violating due

process; (4) the trial court did not find defendant guilty beyond a reasonable doubt; (5) defendant

never confessed to the crime, and if there was a confession, it was coerced; and (6) defendant

was prejudiced by the trial court playing a cellular phone recording multiple times prior to a trial

hearing. Defendant also supplemented a renewed motion for substitution of judge as a matter of

right under section 2-1001(a)(2)(ii) of the Civil Code (735 ILCS 5/2-1001(a)(2)(ii) (West 2014)),

which named Judge Lagoski and Judge Adrian and was originally filed in December 2014. Judge

Lagoski denied defendant’s motion for substitution of judge in January 2015. Judge Lagoski held

a hearing on defendant’s section 2-1401 petition in February 2015, and she denied defendant’s

petition, finding the court had jurisdiction over the case and the remaining arguments were not

properly raised in a section 2-1401 petition.

¶ 10             Defendant timely filed a notice of appeal, listing “motion for substitution of

judge, motion of void judgment” as the order appealed. Defendant listed OSAD as his attorney

on appeal.

¶ 11             OSAD filed a motion for leave to withdraw as defendant’s counsel on appeal,

citing Pennsylvania v. Finley, 481 U.S. 551 (1987), and asserted it had thoroughly reviewed the

record and concluded any request for review would be without merit. OSAD argues defendant’s

claims relating to a “miscarriage of justice,” plain error, and ineffective assistance of counsel

cannot be brought in a section 2-1401 petition and are meritless. OSAD further argues

defendant’s claim relating to the substitution of Judge Lagoski and Judge Adrian is likewise

meritless, despite the fact the motion for substitution of judge was ruled upon by a judge named

in the motion.




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¶ 12           On its own motion, this court granted defendant leave to file additional points and

authorities by October 31, 2016, but defendant filed none. We grant OSAD’s motion and affirm

the trial court’s order denying defendant’s section 2-1401 petition.

¶ 13                                      II. ANALYSIS

¶ 14           In Finley, the Supreme Court held prisoners do not have a constitutional right to

counsel when collaterally attacking their convictions; however, the Court noted, if a state

chooses to offer appointed counsel for this type of relief, it has “substantial discretion to develop

and implement programs to aid prisoners seeking to secure postconviction review.” Finley, 481

U.S. at 559. The Illinois Supreme Court held, when a defendant is appointed postconviction

counsel who seeks to withdraw citing Finley, appointed counsel must provide an explanation

why the defendant’s claim is without merit. People v. Kuehner, 2015 IL 117695, ¶ 21, 32 N.E.3d

655.

¶ 15                          A. Defendant’s Section 2-1401 Petition

¶ 16           Defendant filed a petition for relief from judgment under section 2-1401(f) of the

Civil Code, alleging the judgment against him was void because (1) the trial court committed a

miscarriage of justice and plain error by dismissing the rape kit and “negative findings” by the

Illinois State Police; (2) trial counsel was ineffective for failing to preserve the rape kit and

failing to call a medical expert to testify; (3) Judge Lagoski was biased, thereby violating due

process; (4) the trial court did not find defendant guilty beyond a reasonable doubt; (5) defendant

never confessed to the crime, and if there was a confession, it was coerced; and (6) defendant

was prejudiced by the trial court playing a cellular phone recording multiple times prior to a trial

hearing. OSAD argues the judgment was not void because defendant does not argue the court

lacked jurisdiction over the underlying criminal proceeding.



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¶ 17          We review de novo the denial of a petition for relief from judgment under section

2-1401 of the Civil Code. People v. Vincent, 226 Ill. 2d 1, 14, 871 N.E.2d 17, 26 (2007). Section

2-1401 provides a procedure through which final orders, judgments, and decrees may be

challenged more than 30 days, but not more than 2 years, after their entry. People v. Coleman,

358 Ill. App. 3d 1063, 1066, 835 N.E.2d 387, 390 (2005). Our supreme court has instructed:

              “Under Illinois law, a party may challenge a judgment as being

              void at any time, either directly or collaterally, and the challenge is

              not subject to forfeiture or other procedural restraints. [Citation.]

              Void judgments thus occupy a unique place in our legal system: to

              say that a judgment is void or, in other words, that it was entered

              without jurisdiction, is to say that the judgment may be challenged

              in perpetuity. For this reason, as Belleville Toyota observed,

              ‘[l]abeling the requirements contained in statutory causes of action

              “jurisdictional” would permit an unwarranted and dangerous

              expansion of the situations where a final judgment may be set

              aside on a collateral attack.’ [Citation.] Accordingly, only the most

              fundamental defects, i.e., a lack of personal jurisdiction or lack of

              subject matter jurisdiction as defined in Belleville Toyota warrant

              declaring a judgment void. [Citation.]” LVNV Funding, LLC v.

              Trice, 2015 IL 116129, ¶ 38, 32 N.E.3d 553 (quoting Belleville

              Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325,

              341, 770 N.E.2d 177, 188 (2002)).




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Defendant does not argue the trial court lacked personal jurisdiction or subject matter jurisdiction

in the underlying criminal proceeding. Because defendant does not challenge jurisdiction, we

need not consider whether the judgment is void.

¶ 18             Though defendant’s motion only attacks the judgment as void, we nonetheless

conclude defendant’s arguments do not entitle him to relief under section 2-1401.

                 “A section 2-1401 petition for relief from a final judgment is the

                 forum in a criminal case in which to correct all errors of fact

                 occurring in the prosecution of a cause, unknown to the petitioner

                 and court at the time judgment was entered, which, if then known,

                 would have prevented its rendition. [Citations.] A section 2-1401

                 petition, however, is not designed to provide a general review of

                 all trial errors nor to substitute for direct appeal. [Citation.]”

                 (Internal quotation marks omitted.) People v. Pinkonsly, 207 Ill. 2d

                 555, 566, 802 N.E.2d 236, 243 (2003).

Additionally, “section 2-1401 proceedings are not an appropriate forum for ineffective-assistance

claims because such claims do not challenge the factual basis for the judgment.” Id. at 567, 802

N.E.2d at 244.

¶ 19             Notwithstanding the fact defendant filed his section 2-1401 petition well outside

the two-year limitations period, defendant has not presented any facts unknown to the trial court

at the time of the original judgment. Rather, defendant seeks a general review of his case,

alleging ineffective assistance of trial and appellate counsel, judicial bias, and various

evidentiary issues—all matters that should have been, and some of which were, presented on

direct appeal or in a postconviction petition. Section 2-1401 is not the proper forum for such a



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review. We thus conclude OSAD has provided an adequate explanation why defendant’s section

2-1401 petition is meritless.

¶ 20                     B. Defendant’s Motion for Substitution of Judge

¶ 21           Defendant sought a substitution of judge as a matter of right under section 2­

1001(a)(2)(ii) of the Civil Code. We review a ruling on a motion to substitute judge as a matter

of right de novo. Curtis v. Lofy, 394 Ill. App. 3d 170, 176, 914 N.E.2d 248, 253 (2009). Section

2-1001(a)(2)(ii) allows a substitution of judge as a matter of right, provided the motion is filed

before the judge at issue has ruled on any substantial issue in the case. 735 ILCS 5/2­

1001(a)(2)(ii) (West 2014). In his motion, defendant argues the section 2-1401 proceedings are a

collateral action to his criminal proceedings. Defendant asserts, because the section 2-1401

proceedings are collateral, the filing of the section 2-1401 petition begins a new proceeding,

which would allow him the ability to substitute Judge Lagoski as a matter of right because she

had not yet made a substantive ruling in the section 2-1401 proceeding.

¶ 22           OSAD disagrees, citing Niemerg v. Bonelli, 344 Ill. App. 3d 459, 464-66, 800

N.E.2d 86, 89-91 (2003). In Niemerg, the Fifth District concluded, “[a]lthough a section 2-1401

proceeding may be a ‘new action’ for some purposes, such as pleading sufficiency and service of

process, it is not a new case for purposes of section 2-1001(a)(2).” Id. at 465, 800 N.E.2d at 90.

The appellants in Niemerg made an identical argument to defendant’s. The Fifth District, while

recognizing the logic of the argument, nonetheless concluded:

               “[I]t is clear to us that to allow a substitution of judge in a section

               2-1401 proceeding would defeat the policy behind the rule

               requiring a motion for substitution to be presented before the judge

               has ruled on any substantial issue in the case: to preclude litigants



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               from ‘judge-shopping’ after having formed an opinion that the

               judge may be unfavorably disposed toward the litigant’s cause.”

               Id.

We agree and adopt this holding and conclude defendant was not entitled to substitute Judge

Lagoski as a matter of right under section 2-1001(a)(2)(ii) of the Civil Code. Defendant does not

request or provide justification for a substitution of judge for cause under section 2-1001(a)(3) of

the Civil Code (735 ILCS 5/2-1001(a)(3) (West 2014)), and we therefore decline to consider the

issue and conclude OSAD has provided an adequate explanation why this issue is meritless.

¶ 23                                   III. CONCLUSION

¶ 24           We grant OSAD’s motion for leave to withdraw as counsel and affirm the trial

court’s judgment.

¶ 25           Affirmed.




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