                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Gray, 2013 IL App (1st) 112572




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    MARCOS GRAY, Defendant-Appellant.



District & No.             First District, Fourth Division
                           Docket No. 1-11-2572


Filed                      April 11, 2013


Held                       Defendant’s petition under section 2-1401 of the Code of Civil Procedure
(Note: This syllabus       alleging that his mandatory life sentence for first degree murder was void
constitutes no part of     on the ground that it violated the prohibition against cruel and unusual
the opinion of the court   punishment pursuant to Miller because defendant was 16 at the time of
but has been prepared      his offense was properly dismissed, since his sentence was merely
by the Reporter of         voidable, not void, and he did not file his petition within the two-year
Decisions for the          statutory limitation, but defendant may raise the issue before a
convenience of the         postconviction court.
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 93-CR-20392-02; the
Review                     Hon. Colleen Ann Hyland, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and Rachel Moran, all of State
Appeal                      Appellate Defender’s Office, of Chicago, for appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                            Assistant State’s Attorney, of counsel), for the People.


Panel                       PRESIDING JUSTICE LAVIN delivered the judgment of the court, with
                            opinion.
                            Justices Epstein and Pucinski concurred in the judgment and opinion.



                                              OPINION

¶1           Defendant Marcos Gray appeals from the dismissal of his petition filed under section 2-
        1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)). Following a jury
        trial, defendant was convicted via accountability theory of the 1993 first degree murder and
        attempted armed robbery of Sheila Doyle committed when defendant was age 16. Having
        previously been convicted of first degree murder, defendant was sentenced to a mandatory
        term of life imprisonment on his murder conviction and 15 years’ imprisonment on his
        attempted armed robbery conviction. Relying on Miller v. Alabama, 567 U.S. ___, 132 S. Ct.
        2455 (2012), defendant now contends his mandatory life sentence is void because it violates
        the federal constitution’s prohibition against cruel and unusual punishment. The State
        responds that Miller does not render defendant’s sentence void and, regardless, Miller
        constitutes a new rule of law that cannot be applied retroactively on collateral review. We
        affirm, while noting that defendant may raise this issue before the postconviction court.

¶2                                          BACKGROUND
¶3          Via various procedural peregrinations, defendant’s case has resolutely moved through
        the interstices of the justice system. Following defendant’s first jury trial, this court reversed
        and remanded the cause for a new trial after concluding the trial court had erred in denying
        defendant’s motion to suppress. See People v. Gray, No. 1-96-0278 (1998) (unpublished
        order under Supreme Court Rule 23). Evidence at retrial showed that defendant and two
        friends followed the victim, Doyle, in their car until she parked in her garage on the south
        side of Chicago. Defendant and codefendant Antwon Tyler entered the garage, a gunshot
        issued, and when they reemerged, Tyler informed the third cohort that he had shot Doyle,
        whose body was later discovered in the trunk of her car. Fingerprints and palm prints from
        codefendant and defendant were also found on the trunk lid. As stated, the jury found
        defendant guilty via accountability of first degree murder and attempted armed robbery.
        Because defendant already had been convicted of first degree murder, which he committed
        as a principal mere months before Doyle’s murder, the trial court sentenced defendant in

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     2000 to a mandatory life term, as well as 15 years for attempted armed robbery to run
     concurrently. See 730 ILCS 5/5-8-1(a)(1)(c)(i) (West 1992); People v. Gray, No. 1-95-2932
     (1998) (unpublished order under Supreme Court Rule 23). This court affirmed defendant’s
     convictions on direct appeal. See People v. Gray, No. 1-00-4122 (2002) (unpublished order
     under Illinois Supreme Court Rule 23).
¶4        In December 2001, defendant filed a pro se petition under the Post-Conviction Hearing
     Act (725 ILCS 5/122-1 et seq. (West 2010)) alleging that his appellate counsel was
     ineffective for failing to raise certain issues on appeal and trial counsel was ineffective for
     failing to file pretrial motions. The petition reached second-stage proceedings and lingered
     in the system for some eight years before the circuit court dismissed the petition in April
     2010. Defendant appealed from that dismissal arguing that the circuit court violated his right
     to represent himself pro se in postconviction proceedings when it denied his requests to
     proceed pro se and struck his pro se amendments to his petition. This court very recently
     agreed, concluding the circuit court abused its discretion by failing to properly consider
     defendant’s request to proceed pro se. People v. Gray, 2013 IL App (1st ) 101064, ¶ 27. We
     remanded the case for further consideration consistent with our opinion. Id.
¶5        Meanwhile, in the midst of his postconviction appeal, in December 2010, defendant,
     acting pro se, filed this section 2-1401 petition in which he asserted his conviction and
     sentence were void. Defendant argued the trial court lacked subject matter jurisdiction over
     his case because the indictment cited the Illinois Revised Statutes rather than the Illinois
     Compiled Statutes in reference to the murder charge. The State filed a motion to dismiss,
     arguing defendant’s conviction and sentence were not void and the petition was not
     otherwise filed in a timely manner, thus effecting waiver and barring any relief. The circuit
     court granted the State’s motion, and this appeal followed.

¶6                                           ANALYSIS
¶7        Section 2-1401 establishes a comprehensive statutory procedure allowing for vacatur of
     a final judgment older than 30 days. 735 ILCS 5/2-1401 (West 2010); People v. Vincent, 226
     Ill. 2d 1, 7 (2007). To obtain relief, the defendant must show proof of a defense or claim that
     would have precluded entry of the judgment in the original action and diligence in
     discovering that defense or claim and presenting the petition. Id. at 7-8. The statute ordinarily
     is used to correct errors of fact (People v. Lawton, 212 Ill. 2d 285, 297 (2004)), and with
     certain exceptions not applicable here, the statute provides that petitions must be filed not
     later than two years after entry of the order or judgment. Id. The two-year limitation,
     however, does not apply to petitions brought on voidness grounds. People v. Moran, 2012
     IL App (1st) 111165, ¶ 13. Our review of the dismissal in this case is de novo. See Vincent,
     226 Ill. 2d at 18.
¶8        Here, for the purposes of analyzing defendant’s claim under section 2-1401, defendant’s
     conviction became final in 2000, when he was sentenced pursuant to section 5-8-1(a)(1)(c)(i)
     of the Unified Code of Corrections (730 ILCS 5/5-8-1(a)(1)(c)(i) (West 1992)), which
     provides that if a defendant is facing his second murder conviction, “the court shall sentence
     the defendant to a term of natural life imprisonment.” Ten years later, in 2010, defendant


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       filed the instant section 2-1401 petition. In his petition, defendant acknowledged the two-year
       statutory limitation, but essentially maintained it did not apply because he was challenging
       his conviction and sentence as void on the basis of a miscited statute in the indictment. On
       appeal, defendant admittedly has abandoned that specific reasoning, and now argues his
       sentence is void under Miller v. Alabama. Defendant reasons that a sentence which exceeds
       statutory maximums or violates the constitution is void from its inception and may be
       challenged at any time.
¶9          In Miller v. Alabama, the United States Supreme Court recently held that mandatory life
       without parole for those under the age of 18 at the time of their crimes violates the eighth
       amendment’s prohibition against cruel and unusual punishments. Miller, 567 U.S. at ___,
       132 S. Ct. at 2460. In so holding, the court did not foreclose a sentencer’s ability to impose
       life without parole on juvenile offenders, although it expected “this harshest possible penalty
       will be uncommon.” Id. at ___, 132 S. Ct. at 2469. Rather, the court stated a sentencing judge
       must take into account how children are different from adults before imposing a lifetime of
       incarceration. Id. at ___, 132 S.Ct. at 2469. Consistent with Miller v. Alabama, in People v.
       Miller, 202 Ill. 2d 328 (2002), our supreme court had already held that imposing a mandatory
       sentence of life without parole on a juvenile offender convicted of murdering more than one
       victim under a theory of accountability, and without considering the facts of the crime,
       including the defendant’s age, offended the Illinois Constitution’s proportionate penalties
       clause and thus was unconstitutional as applied. As in the federal Miller v. Alabama opinion,
       our court emphasized the decision “does not imply that a sentence of life imprisonment for
       a juvenile offender convicted under a theory of accountability is never appropriate.” Miller,
       202 Ill. 2d at 341.
¶ 10        While the State acknowledges the holding in Miller v. Alabama, the State contends that
       case does not render defendant’s sentence void. Indeed, a judgment is void, as opposed to
       voidable, only if the court that entered it lacked jurisdiction. People v. Mescall, 379 Ill. App.
       3d 670, 673 (2008). Jurisdictional failure can result from a court’s lack of personal or subject
       matter jurisdiction or, relevant to this case, the court’s lack of power to render the particular
       judgment. Id. Jurisdiction or the power to render a particular judgment does not necessarily
       mean that the judgment rendered must be one that should have been rendered; indeed, the
       power to decide carries with it the power to decide wrong, as well as right, and a court will
       not lose jurisdiction merely because it makes a mistake in the law, the facts, or both. Moran,
       2012 IL App (1st) 111165, ¶ 17. The principle follows: that which is unconstitutional is not
       necessarily void. People v. Morfin, 2012 IL App (1st) 103568, ¶ 31. A statute that is
       unconstitutional on its face–that is, where no set of circumstances exists under which it
       would be valid–is void ab initio, while a statute that is merely unconstitutional as applied is
       not. Id.
¶ 11        As this court noted of late, Miller v. Alabama does not affect the validity of the natural
       life imprisonment statute as to nonminor defendants, so that the statute is not
       unconstitutional on its face. See Morfin, 2012 IL App (1st) 103568, ¶ 40; see also People v.
       Williams, 2012 IL App (1st) 111145, ¶ 47 (holding same). Moreover, Miller does not deprive
       or divest any state or court of the authority to sentence a defendant who was a minor at the
       time of his offense, like defendant, to a natural life of imprisonment for committing homicide

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       after already having obtained a murder conviction. See Morfin, 2012 IL App (1st) 103568,
       ¶ 40. Thus, although the mandatory imposition of a life sentence might have violated
       defendant’s constitutional rights, that violation did not divest the trial court of jurisdiction
       over him. See Mescall, 379 Ill. App. 3d at 674; see also People v. Davis, 156 Ill. 2d 149, 157
       (1993) (noting that there are many rights belonging to litigants which a court may not
       properly deny and, yet, if denied, do not oust the court of jurisdiction or render the
       proceedings null and void); cf. People v. Santana, 401 Ill. App. 3d 663, 666 (2010)
       (affirming dismissal of untimely section 2-1401 petition in spite of potential Whitfield
       violation because the “trial court clearly had the power to impose the sentences” and, thus,
       the defendant’s sentence was not void). As such, defendant’s sentence is merely voidable if
       challenged in a timely manner. See Mescall, 379 Ill. App. 3d at 673-74.
¶ 12       Therein lies the procedural rub. Defendant did not challenge his conviction under section
       2-1401 in a timely manner. The State argued this below and, in his petition, defendant
       essentially conceded this point, instead contending the viability of his petition rested on
       defendant’s assertion of voidness. Because we have concluded that defendant’s sentence is
       not void and because defendant did not file his section 2-1401 petition within the two-year
       statutory limitation, we cannot grant defendant the relief he seeks. See People v. Caballero,
       179 Ill. 2d 205, 210-11 (1997) (where a section 2-1401 petition is filed beyond two years
       after the judgment, it cannot be considered absent a clear showing that the exceptions apply).
       We would add that the original claim set forth in defendant’s section 2-1401 petition is
       different from the claim before us on appeal and, had the State argued this issue now, it
       would be another basis for affirming the dismissal of defendant’s section 2-1401 petition.
       See People v. Bramlett, 347 Ill. App. 3d 468, 475 (2004) (finding that the defendant failed
       to raise the issue in his petition, thus forfeiting it for consideration on appeal). In that sense,
       we disagree with the just-issued People v. Luciano, 2013 IL App (2d) 110792, ¶ 48, which
       determined that the defendant relying on Miller v. Alabama had raised “a proper voidness
       challenge to his sentence,” because “a sentence that contravenes the Constitution may be
       challenged at any time.” The court reached this conclusion even though the defendant had
       not raised that argument below or in his postconviction petition. While it might be true that
       generally a constitutional challenge to a criminal statute can be raised for the first time on
       appeal (see In re J.W., 204 Ill. 2d 50, 61 (2003)), our research has not disclosed the
       application of that principle to the situation before us, where the defendant filed an untimely
       section 2-1401 petition, failed to establish an exception to the untimeliness, and also failed
       to establish a claim of voidness. But see People v. Wagener, 196 Ill. 2d 269, 279-80 (2001)
       (as-applied challenge involving Apprendi sentencing statute was not waived on direct review
       because a party may challenge the constitutionality of a statute at any time); cf. In re
       Parentage of John M., 212 Ill. 2d 253, 268 (2004) (concluding a court of review is not
       capable of making an “as applied” determination of unconstitutionality when there has been
       no evidentiary hearing and no findings of fact below, making such a constitutional challenge
       premature); People v. Spencer, 2012 IL App (1st) 102094, ¶ 32 (holding same). As stated,
       logic does not dictate that an as-applied constitutional violation necessarily ousts a court of
       jurisdiction making a defendant’s sentence void. In the specific context of section 2-1401,
       Luciano’s conclusion simply is not viable.


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¶ 13        We emphasize that our disposition does not mean defendant is without recourse, to the
       extent any error might have occurred in this case. Defendant may raise the present sentencing
       issue before the circuit court through the Post-Conviction Hearing Act (see 725 ILCS 5/122-
       1 (West 2010)), which permits a defendant to challenge his conviction based on a deprivation
       of constitutional rights. In fact, defendant already argued in his pro se amendment to his
       initial postconviction petition, an amendment filed in January 2010, that his natural life
       sentence was improper because he did not kill Doyle and was unaware of any plan to rob
       Doyle. See Gray, 2013 IL App (1st) 101064, ¶ 17. As stated, this court remanded that case
       to the circuit court to reconsider defendant’s petition in light of his request to proceed pro
       se. Should defendant argue the impropriety of his sentence in the context of Miller, it would
       behoove the circuit court to consider the precedent surrounding Miller in light of the direct
       appeal record, which demonstrates for all intents and purposes that defendant received a
       sentencing hearing, including argument in mitigation and aggravation, as well as the
       presentation of victim impact statements and defendant’s own elocution. Although the trial
       court declared defendant deserving of a life sentence at the conclusion of the sentencing
       hearing, on denying defendant’s motion to reduce his sentence, the court stated: “I do not
       have any discretion, that with the prior conviction, the murder, and the Defendant, after being
       found guilty by the jury on this case, that is the only sentence I could impose, and that is the
       sentence I did impose.” If defendant raises this issue in postconviction proceedings and if
       that court determines the trial court sentenced defendant solely based on the mandatory
       nature of the statute, we lastly observe that a sentencing hearing in which the trial court
       believes a life sentence is mandatory differs markedly from a sentencing hearing in which
       the court knowingly exercises discretion between imposing natural life and a term of years.

¶ 14                                    CONCLUSION
¶ 15      For the reasons stated, we affirm the dismissal of defendant’s section 2-1401 petition.

¶ 16      Affirmed.




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