                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                    People v. Villafuerte-Medrano, 2012 IL App (2d) 110773




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    MANUEL VILLAFUERTE-MEDRANO, a/k/a Oscar Medrano,
                           Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-11-0773


Filed                      December 19, 2012


Held                       The appellate court dismissed defendant’s appeal in which he contended
(Note: This syllabus       that the judgment entered on the forfeiture of his bond in his DUI cases
constitutes no part of     was equivalent to a conviction for aggravated DUI that rendered a
the opinion of the court   subsequent DUI conviction entered on his guilty plea based on the same
but has been prepared      conduct a violation of the prohibition against double jeopardy, since
by the Reporter of         defendant failed to comply with Supreme Court Rule 604(d) by filing a
Decisions for the          motion to reconsider his sentence or withdraw his guilty plea and vacate
convenience of the         the judgment.
reader.)


Decision Under             Appeal from the Circuit Court of Boone County, No. 06-CF-192; the
Review                     Hon. John H. Young, Judge, presiding.



Judgment                   Appeal dismissed.
Counsel on                 Thomas A. Lilien and Sherry R. Silvern, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.



                           Michelle J. Courier, State’s Attorney, of Belvidere (Lawrence M. Bauer
                           and Jay Paul Hoffmann both of State’s Attorneys Appellate Prosecutor’s
                           Office, of counsel), for the People.


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




                                            OPINION

¶1          Defendant, Manuel Villafuerte-Medrano, appeals his conviction of aggravated driving
        under the influence (aggravated DUI) (625 ILCS 5/11-501(d)(1)(G) (West 2006)), which was
        entered upon his plea of guilty. He argues that his conviction is void pursuant to double
        jeopardy principles because judgment had already been entered upon a bond forfeiture, and
        the Illinois Vehicle Code (625 ILCS 5/1-100 et seq. (West 2006)) provides that a bond
        forfeiture equates to a conviction of the underlying offense. However, defendant’s failure to
        comply with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006) requires us to dismiss
        this appeal without reaching the merits.

¶2                                        I. BACKGROUND
¶3          Defendant was charged by indictment on June 2, 2006, in case No. 06-CF-192 with two
        counts of aggravated DUI (625 ILCS 5/11-501(d)(1)(G) (West 2006)), in that he drove while
        under the influence of alcohol without possessing a valid license. The record is missing many
        orders but contains a court case search that explains the procedural background through case
        notes entered by court officials. According to the case notes, there were misdemeanor traffic
        citations issued for the same conduct in case Nos. 06-DT-129 and 06-TR-4060 through 06-
        TR-4062. The notes indicate that on September 13, 2006, defendant failed to appear in court;
        his attorney, Dennis Steeves, withdrew; the court ordered defendant’s bond forfeited; an
        arrest warrant was issued; and the court set the matter for hearing on October 25, 2006.
        Defendant failed to appear on October 25, and the court finalized the bond forfeiture by
        entering judgment in favor of the State, listing case Nos. 06-DT-129 and 06-TR-4060
        through 06-TR-4062.
¶4          On January 22, 2007, defendant was arrested pursuant to the arrest warrant issued in
        September 2006. Bail was set at $10,000. On January 23, defendant paid the bail bond

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     amount. The bail bond lists case Nos. 06-CM-41, 06-CM-42, 06-DT-14, 06-CF-192, 06-DT-
     129, and 06-TR-4060 through 06-TR-4064. Defendant was ordered to appear in court on
     February 14, 2007. After defendant failed to appear, the court ordered that defendant’s bond
     was forfeited and issued an arrest warrant. Judgment was entered on the bond forfeiture on
     March 14 for the same case numbers.
¶5       Defendant was arrested again on May 27, 2008, on the warrant issued in February 2007.
     On that date, defendant paid the bail amount and a court date was set for June 13. Defendant
     appeared on June 13 without counsel. Defendant informed the court that he was hiring
     counsel. Three new cases were listed as pending against defendant: 07-CM-41 and 07-CM-
     42 (misdemeanor obstruction of justice and delivery of alcohol to a minor) and 07-DT-14
     (misdemeanor DUI). On July 23, defendant failed to appear in court again. On July 25, the
     court entered an order forfeiting defendant’s bond and issued an arrest warrant. On
     September 3, the bond forfeiture was finalized.
¶6       Defendant was arrested on January 3, 2011, pursuant to the arrest warrant issued in
     September 2008.1 On March 4, 2011, defendant, through Assistant Public Defender Carie
     L. Poirier, moved to dismiss case Nos. 06-CF-192, 06-DT-129, and 06-TR-4060. According
     to the motion, the trial court ordered bond forfeiture finalization on October 25, 2006, and
     notified the Secretary of State of that judgment. Upon receipt of that judgment, defendant
     argued, he was “convicted” in case Nos. 06-DT-129 and 06-TR-4060. On June 2, 2006, the
     State filed a bill of indictment in case No. 06-CF-192, alleging the same conduct as in 06-
     DT-129, enhanced to a Class 4 felony. Defendant argued that this prosecution was barred
     pursuant to section 3-4 of the Criminal Code of 1961 (720 ILCS 5/3-4 (West 2010)) and
     double jeopardy provisions because judgment was entered on the bond forfeiture on October
     25, 2006, for case Nos. 06-DT-129 and 06-TR-4060 through 06-TR-4062. The trial court
     denied the motion. The trial court stated that it did not believe that a bond forfeiture barred
     the continuation of the underlying case. Thus, it did not believe that the bond forfeiture was
     a final conviction on the pending cause.
¶7       Defendant moved to reconsider this denial on April 26, 2011, stating that the court had
     denied his motion on March 30 without hearing arguments. Defendant stated that the court
     considered two cases (People v. Smith, 345 Ill. App. 3d 179 (2004), and People v. Glowacki,
     404 Ill. App. 3d 169 (2010)) when it determined that a bond forfeiture judgment was an
     “alternative” conviction that may be used to enhance a charge to a felony but was not a
     “final” conviction for the purposes of defendant’s case. Defendant argued that the trial court
     was incorrect and that, if the State may rely upon a bond forfeiture to a defendant’s
     detriment, he should be allowed to claim its protections. Therefore, he argued, the court erred
     in denying his motion to dismiss.
¶8       The trial court denied defendant’s motion for reconsideration on May 18, 2011. On that
     date, defendant pleaded guilty to count II of the indictment in case No. 06-CF-192. Count I
     of that indictment was dismissed as well as the other charged offenses in case Nos. 06-DT-


            1
             An additional felony DUI was mentioned in the reports of proceedings under case No. 08-
     CF-300, but defendant had not yet been arraigned in that case.

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       129 and 06-TR-4060 through 06-TR-4062. On July 11, 2011, defendant was sentenced on
       count II in case No. 06-CF-192 (aggravated DUI), a Class 4 felony, to 18 months’
       imprisonment. Defendant, without moving to withdraw his guilty plea or for reconsideration
       of his sentence, appealed on the basis that the court’s entry of judgment on his plea was void.

¶9                                          II. ANALYSIS
¶ 10        On appeal, defendant argues that the judgment on the bond forfeiture entered on October
       25, 2006, was the equivalent of a conviction of aggravated DUI under the Vehicle Code.
       Therefore, defendant argues, the subsequent DUI conviction entered upon his guilty plea
       violated double jeopardy protection and was thus a void judgment. Defendant argues that we
       should address the merits of his appeal despite his failure to move to withdraw his guilty
       plea, because his conviction is void for violating double jeopardy protection. Defendant
       argues that a void judgment may be attacked at any time. People v. Woolsey, 278 Ill. App.
       3d 708, 709 (1996). The State argues that no appeal may be taken from a judgment entered
       on a guilty plea unless the defendant, within 30 days of the date on which the sentence is
       imposed, files a motion to reconsider the sentence or withdraw the guilty plea pursuant to
       Illinois Supreme Court Rule 604(d) (eff. July 1, 2006). The State, while agreeing that a void
       judgment may be attacked at any time, argues that defendant’s double jeopardy claim does
       not involve a void judgment, relying on People v. Dieterman, 243 Ill. App. 3d 838 (1993),
       for this proposition. We agree with the State.
¶ 11        Void orders are orders entered by a court (1) without jurisdiction or (2) that exceeded its
       jurisdiction by entering an order beyond its inherent power. People v. Johnson, 327 Ill. App.
       3d 252, 256 (2002). In People v. Davis, 156 Ill. 2d 149, 155 (1993), the defendant argued that
       his double jeopardy claim based on convictions of both a greater and a lesser included
       offense did not depend on the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West
       1992)) for its viability, because a conviction that violated double jeopardy constituted a void
       judgment. Our supreme court rejected this argument, stating that an order is void only when
       jurisdiction is lacking and that, by contrast, a voidable judgment is one entered erroneously
       by a court having jurisdiction. Davis, 156 Ill. 2d at 155. The court explained that “jurisdiction
       or power to render a particular judgment does not mean that the judgment rendered must be
       the one that should have been rendered, for the power to decide carries with it the power to
       decide wrong as well as to decide right.” Id. at 156. Once a court has acquired jurisdiction,
       no subsequent error or irregularity will remove the jurisdiction; thus, a court cannot lose
       jurisdiction because it makes a mistake in determining either the facts, the law, or both. Id.
       A judgment is void only where a court has exceeded its jurisdiction. Id. Although the
       defendant in Davis, like defendant here, claimed that, because the constitution prohibits
       multiple convictions of the same offense, and the improper conviction thus exceeded
       constitutional authority, our supreme court stated that such a violation does not remove the
       court’s jurisdiction to render the improper judgment. Id. at 157. Thus, the court held that,
       because the trial court had proper jurisdiction over the defendant and the subject matter, the
       court had the authority to enter the conviction and the sentence, and even if judgment on both
       was error, the order was merely voidable, not void. Id. In this case, the trial court had proper
       personal and subject matter jurisdiction to enter the conviction, even if entry of such was

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       error. Thus, it is not a void order.
¶ 12       Defendant in this case relies on Menna v. New York, 423 U.S. 61, 62 (1975) (per curiam),
       for the proposition that a guilty plea does not waive a claim that the charge is one on which
       the State did not have the authority to hale him into court and therefore was void. Defendant
       further relies upon language in Dieterman for his argument that the order was void.
       Dieterman stated, “We cannot, therefore, review defendant’s double jeopardy claim unless
       a double jeopardy violation would render void the judgment on defendant’s guilty plea to the
       felony charge.” Dieterman, 243 Ill. App. 3d at 841. Defendant’s reliance on these cases is
       misplaced.
¶ 13       In Menna, the defendant was convicted of refusing to testify before a grand jury and
       served a 30-day sentence; later, he was indicted for refusing to answer questions in
       connection with the same investigation. Menna, 423 U.S. at 61. The defendant moved to
       dismiss the second indictment under the double jeopardy clause, but he was unsuccessful.
       Id. at 62. The defendant pleaded guilty, was sentenced, and appealed, claiming that the
       double jeopardy clause divested the state of the authority to hale him into court on a charge
       to which he had already pleaded guilty. Id. The Supreme Court reversed the appellate court’s
       ruling, which was based on a case that had previously held that a double jeopardy claim was
       waived by virtue of entering a guilty plea. Id. The Supreme Court stated that, where the state
       was “precluded by the United States Constitution from haling a defendant into court on a
       charge, federal law requires that a conviction on that charge be set aside even if the
       conviction was entered pursuant to a counseled plea of guilty.” Id. The Supreme Court
       explained that it was holding not that a plea of guilty would never serve to waive a double
       jeopardy claim, but simply “that a plea of guilty to a charge [did] not waive a claim
       that–judged on its face–the charge is one which the State may not constitutionally prosecute.”
       Id. at 62 n.2. Menna, therefore, stands for the proposition that a guilty plea does not in itself
       waive a defendant’s claim that his double jeopardy rights were violated. It does not conclude
       that an order that violates a defendant’s double jeopardy rights is necessarily void.
¶ 14       The Supreme Court later explained that a voluntary and intelligent guilty plea made by
       a defendant, who has been advised by competent counsel, may not be collaterally attacked
       unless one of the exceptions set forth in Menna or in Blackledge v. Perry, 417 U.S. 21
       (1974), exists. United States v. Broce, 488 U.S. 563, 574 (1989). The Blackledge exception
       involves situations where prosecutorial vindictiveness affects the defendant’s right not to be
       haled into court in violation of his due process rights. Id. at 574-75 (attack on guilty plea
       allowed where the state filed charges on a greater offense after the defendant appealed
       conviction on lesser offense, obtained a new trial, and then pleaded guilty to the state’s new,
       greater charges). The Supreme Court explained that the defendant in Menna was allowed to
       attack his guilty plea for the same reason as in Blackledge–that the state was precluded by
       the constitution from haling the defendant into court on a charge. Id. at 575. The Supreme
       Court explained that in “neither Blackledge nor Menna did the defendants seek further
       proceedings at which to expand the record with new evidence.” Id. Rather, “the
       determination that the second indictment could not go forward should have been made by
       the presiding judge at the time the plea was entered on the basis of the existing record.” Id.
       The Supreme Court explained:

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           “Both Blackledge and Menna could be (and ultimately were) resolved without any need
           to venture beyond that record. In Blackledge, the concessions implicit in the defendant’s
           guilty plea were simply irrelevant, because the constitutional infirmity in the proceedings
           lay in the State’s power to bring any indictment at all. In Menna, the indictment was
           facially duplicative of the earlier offense of which the defendant had been convicted and
           sentenced so that the admissions made by Menna’s guilty plea could not conceivably be
           construed to extend beyond a redundant confession to the earlier offense.” Id. at 575-76.
¶ 15       Therefore, the Blackledge/Menna exception, as the federal courts refer to this, serves to
       protect those defendants who have otherwise waived certain constitutional protections by
       pleading guilty where the infirmity in the proceedings lay in the state’s power to bring any
       indictment at all. The facts of Broce did not implicate the Blackledge/Menna exception,
       because the indictments to which the defendant pleaded guilty described different
       conspiracies on their faces. The defendant, therefore, could not, without looking beyond the
       indictments, prove his claim that only one conspiracy existed and that the entry of judgment
       on both violated his double jeopardy rights. Id. at 576.
¶ 16       Later, in United States v. Bell, 70 F.3d 495, 496-97 (7th Cir. 1995), the Seventh Circuit
       summarized that the Blackledge/Menna exception exists if a defect is jurisdictional, such as
       the unconstitutionality of a statute. The Seventh Circuit has further held that double jeopardy
       rights can be forfeited by failing to preserve the issue for appeal. Gomez v. Berge, 434 F.3d
       940, 943 (7th Cir. 2006). Importantly, Menna did not discuss any issue with the defendant’s
       preservation of the issue for appeal; rather, the appellate court had declined to reach the
       merits of the defendant’s double jeopardy claim, holding that it was waived by virtue of his
       guilty plea. Menna, 423 U.S. at 62. What we glean from the federal case law is that a
       defendant may appeal his guilty plea on a double jeopardy violation, a right otherwise waived
       by entry of a knowing and voluntary guilty plea, where the double jeopardy violation can be
       established on the face of the indictment. Broce, 488 U.S. at 575-76. However, such claims
       can be forfeited if the defendant fails to preserve the issue on appeal. Gomez, 434 F.3d at
       943. In neither event, though, is the judgment void.
¶ 17       Dieterman is consistent with Menna and its progeny as well as Davis in that the
       defendant’s double jeopardy claim was not waived by virtue of his guilty plea, but it was not
       properly preserved for appeal. In Dieterman, the defendant pleaded guilty to misdemeanor
       driving while his license was revoked (DWLR), with an assistant State’s Attorney (ASA)
       who was unaware that another ASA had informed the defendant that he planned to change
       the charge to a felony. Dieterman, 243 Ill. App. 3d at 839-40. The State moved to vacate the
       guilty plea, which the court granted, and the defendant pleaded guilty to the felony DWLR
       and was sentenced to probation. Id. at 840. Later, the State filed a petition to revoke the
       defendant’s probation, charging that he had driven on two dates. Id. The court found that the
       defendant violated his probation and sentenced him to 2½ years’ imprisonment. Id. The
       defendant then appealed the revocation of probation, arguing that the underlying felony
       DWLR conviction was void because it resulted from a prosecution that violated the double
       jeopardy clause. Id. We stated that, in an appeal from an order revoking a defendant’s
       probation, the court cannot consider the correctness of the underlying conviction unless that
       judgment is void. Id. at 841. We went on to conclude that the double jeopardy clause does

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       not concern the authority of the trial court to enter a judgment; thus, it is not a void order and
       the right to be free from double jeopardy is a personal right that can be forfeited. Id. at 843.
¶ 18        As Dieterman explained, the trial court in that case had jurisdiction to enter the
       conviction that the defendant claimed was a violation of double jeopardy. We explicitly
       stated that we could not review the defendant’s double jeopardy claim “unless [the] double
       jeopardy violation would render void the judgment on defendant’s guilty plea to the felony
       charge.” Id. at 841. We stated that, “[f]or example, where defendant is convicted of a crime
       that has no statutory authority, the judgment is void, and defendant can challenge it at any
       time.” Id. Since the order in Dieterman was merely voidable, we concluded that, because the
       defendant failed to preserve the issue for appeal by moving to withdraw his guilty plea under
       Rule 604(d), he could not invoke plain error and his only avenue for relief was the Post-
       Conviction Hearing Act. Id. at 843.
¶ 19        Here, while Menna allows a defendant to raise a double jeopardy claim after entering an
       otherwise valid guilty plea, defendant’s double jeopardy claim was still subject to forfeiture.
       As Dieterman and Davis instruct, a double jeopardy violation does not render an order void.
       The trial court in this case had jurisdiction to enter the order, even if the order implicated
       double jeopardy protection. Like in Dieterman, where the order is not void and the defendant
       fails to comply with Rule 604(d), the court may not review the double jeopardy claim.
       Accordingly, the order that defendant attacks in this case is merely voidable and may not be
       attacked at any time. Defendant was therefore subject to the procedural rules applicable to
       guilty pleas. While it might seem somewhat anomalous to require a defendant to face a
       second trial in violation of his double jeopardy rights, Illinois Supreme Court Rule 604(f)
       allows a defendant to appeal to this court the denial of a motion to dismiss a criminal
       proceeding on grounds of former jeopardy. Ill. S. Ct. R. 604(f) (eff. July 1, 2006); see also
       People v. Gray, 214 Ill. 2d 1 (2005). This rule allows a defendant recourse to pursue his
       double jeopardy claim before facing trial or plea negotiations. Defendant in this case filed
       a motion to dismiss the indictment on grounds of former jeopardy but did not appeal the
       denial of that motion to this court. Instead, defendant proceeded to plead guilty, implicating
       Rule 604(d).
¶ 20        Rule 604(d) provides that no appeal shall be taken unless the defendant, within 30 days
       of the date on which sentence is imposed, files in the trial court a written motion to
       reconsider the sentence or a motion to withdraw the plea of guilty and vacate the judgment.
       Ill. S. Ct. R. 604(d) (eff. July 1, 2006). Defendant did not file a written postplea motion
       within 30 days of the date of sentencing. Accordingly, we are required to dismiss this appeal
       without reaching the merits of defendant’s argument. See People v. Flowers, 208 Ill. 2d 291,
       301 (2003).
¶ 21        For the aforementioned reasons, we dismiss defendant’s appeal.

¶ 22       Appeal dismissed.




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