                                                                         THIRD DIVISION
                                                                          February 13, 2008




No. 1-06-1930



THE PEOPLE OF THE STATE OF ILLINOIS,                          )         Appeal from
                                                              )       the Circuit Court
                Plaintiff-Appellee,                           )       of Cook County.
                                                              )
       v.                                                     )       No. 92 CR 6652(01)
                                                              )
STEVE HARVEY,                                                 )          Honorable
                                                              )        Evelyn B. Clay,
                Defendant-Appellant.                          )        Judge Presiding.




       JUSTICE THEIS delivered the opinion of the court:

       Defendant Steve Harvey appeals from an order of the circuit court granting the

State’s motion to dismiss his petition for relief from judgment filed pursuant to section 2-

1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2004)). In it, defendant

asserted that the dismissal of his postconviction petition filed in 1996 under the

Postconviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 1994)) was a void

judgment because the court did not properly dispose of his contemporaneous motion for

substitution of judge, in contravention of section 114-5(d) of the Code of Criminal

Procedure of 1963 (the Code) (725 ILCS 5/114-5(d) (West 1994)).

       On appeal, defendant contends that the circuit court erred in dismissing his

section 2-1401 petition because the judgment complained of is void as a result of the trial
1-06-1930

judge’s failure to properly dispose of a pending motion for substitution of judge.

Specifically, he contends that the circuit court erroneously concluded that the trial judge

implicitly denied the substitution motion in its denial of the postconviction petition. For

the following reasons, we affirm.

       A jury convicted defendant of armed robbery and two counts of aggravated

battery with a firearm on the theory of accountability for supplying guns to three men

with the knowledge that the guns would be used in an armed robbery that resulted in the

shooting of two police officers and for arranging for their escape. The facts leading to

defendant’s convictions were detailed in our previous order in which we affirmed those

convictions on direct appeal. People v. Harvey, No. 1-93-1582 (1995) (unpublished

order under Supreme Court Rule 23).

       The instant appeal arises out of an event that occurred during the sentencing

hearing before Judge John Morrissey, who also presided over the trial. During the

allocution, defendant presented the court with the sworn statement of Lawrence Johnson,

the cell mate of codefendant Rupert Pottinger. Johnson averred that Pottinger admitted

that he was the person who supplied the guns to the three men to use in the armed

robbery. Neither Pottinger nor Johnson was interviewed or called to testify at trial.

Defense counsel stated that he had never seen the statement before. However, the

prosecutor responded that the statement, signed by two assistant State’s Attorneys, had

been produced during discovery.

       Judge Morrissey reviewed the statement, entered as court’s exhibit number one

for sentencing, and concluded that it was not inconsistent with the evidence presented at

                                             2
1-06-1930

trial. The court proceeded to sentence defendant to three 30-year sentences, to run

concurrently. On direct appeal, defendant argued that the trial court erred in denying the

motion to suppress his statement to police, but the convictions were affirmed. People v.

Harvey, No. 1-93-1582 (1995) (unpublished order under Supreme Court Rule 23).

       Defendant then filed a pro se postconviction petition and supporting

memorandum of law in which he argued that his trial counsel was ineffective for failing

to adequately review discovery records, specifically Johnson’s statement, and that his

appellate counsel was ineffective for failing to raise the issue of ineffective assistance of

trial counsel on appeal. He also filed a motion for substitution of judge pursuant to

section 122-8 of the Act (725 ILCS 5/122-8 (West 1994)), claiming that Judge Morrissey

was “predisposed to deny my Postconviction, because he previously ruled on the main

issue in my Postconviction Petition, that’s Ineffective Assistance of Counsel.”

       Judge Morrissey heard the postconviction petition within 90 days of filing, as

required by the Act, and dismissed it as frivolous and without merit. However, he did not

address or otherwise rule on the substitution motion.1 Defendant’s appeal from the order



       1
           After reviewing the record, it appears that the substitution motion was never

before Judge Morrissey. Although the substitution motion and the postconviction

petition both were file stamped by the circuit court clerk, the handwritten docket sheet

and the clerk’s “Certified Statement of Conviction / Disposition” indicate that only the

postconviction petition was entered on the docket. Moreover, in the hearing on the

postconviction petition, Judge Morrissey makes no mention of the substitution motion or

                                              3
1-06-1930

dismissing the postconviction petition (People v. Harvey, No. 1-96-1960 (1996)) was

disposed of by dispositional order.

       In 2006, defendant filed the section 2-1401 petition for relief from judgment that

is the subject of this appeal. Defendant alleged that Judge Morrissey had no authority to

enter judgment on the postconviction petition because he had not first disposed of the

substitution motion; therefore, the order dismissing his postconviction petition was void.

The State filed a motion to dismiss the section 2-1401 petition for improperly raising

issues of law for the first time in that petition and for being untimely. The court granted

the State’s motion and found that if there was a substitution motion pending before Judge

Morrissey, it was disposed of along with the postconviction petition. Defendant then

filed this timely appeal.

       We must first address the State’s arguments that the section 2-1401 petition was

improper and untimely. In general, criminal defendants may utilize section 2-1401 of the

Code of Civil Procedure to address factual errors that occurred during prosecution but

were unknown at the time of judgment. People v. Pinkonsly, 207 Ill. 2d 555, 566, 802

N.E.2d 236, 243 (2003). However, a criminal defendant also may challenge a void

judgment by means of a section 2-1401 petition. People v. Thompson, 209 Ill. 2d 19, 29,

805 N.E.2d 1200, 1206 (2004), citing People v. Harvey, 196 Ill. 2d 444, 447, 753 N.E.2d



any other pending matters, nor did the administrative judge who transferred the

postconviction petition to Judge Morrissey.



                                              4
1-06-1930

293, 295 (2001). Additionally, although a section 2-1401 petition must ordinarily be

brought within two years of entry of the judgment being challenged, that limitation will

not bar relief where defendant is challenging a void judgment. Harvey, 196 Ill. 2d at 447,

753 N.E.2d at 295. In this case, although defendant sought relief from a void judgment

entered 10 years earlier, his section 2-1401 petition was properly before the court.

       We review the circuit court’s dismissal of a section 2-1401 petition de novo.

People v. Vincent, 226 Ill. 2d 1, 18, 871 N.E.2d 17, 18 (2007). We may affirm the trial

court’s judgment on any basis supported by the record, regardless of the actual reasoning

or grounds relied upon by the circuit court. Dalan/Jupiter, Inc. v. Draper & Kramer, Inc.,

372 Ill. App. 3d 362, 366, 865 N.E.2d 442, 447 (2007).

       Defendant argues on appeal that Judge Morrissey’s failure to rule on the

substitution motion was a violation of section 114-5(d) of the Code. That statute

provides that after a party files a substitution motion for cause with the trial court, a

different judge must determine whether to grant the requested substitution. 725 ILCS

5/114-5(d) (West 2004). The judge sought to be replaced then loses all power and

authority to enter further orders in the case while the substitution motion is pending.

People v. Bell, 276 Ill. App. 3d 939, 947, 658 N.E.2d 1372, 1378 (1995). Although

section 114-5(d) does not specifically divest the judge of authority to act, the language of

sections 114-5(a) and (c), stating that “the court shall proceed no further” until the

substitution motion is ruled on, applies to subsection (d) as well. 725 ILCS 5/114-5(a),

(c) (West 2004); Bell, 276 Ill. App. 3d at 946, 658 N.E.2d at 1378; People v. Antoine,

335 Ill. App. 3d 562, 572, 781 N.E.2d 444, 452 (2002). Thus, any orders entered while

                                               5
1-06-1930

the motion is pending are void. Bell, 276 Ill. App. 3d at 947, 658 N.E.2d at 1378,

quoting People v. Brim, 241 Ill. App. 3d 245, 249, 608 N.E.2d 958, 961 (1993).

          Defendant’s reliance on this statute is misplaced for two reasons. First, defendant

filed his substitution motion pursuant to section 122-8 of the Act, which states that a

postconviction petition must be heard by a judge other than the one who presided over

the trial. 725 ILCS 5/122-8 (West 2004). However, that statute was ruled

unconstitutional a full ten years before defendant filed his motion. People v. Joseph, 113

Ill. 2d 36, 48, 495 N.E.2d 501, 507 (1986). Thus, there was no valid basis for

defendant’s motion, as an unconstitutional statute is void ab initio and confers no rights

or privileges. People v. Zeisler, 125 Ill. 2d 42, 46, 531 N.E.2d 24, 26 (1988).

          Second, even if the substitution motion was filed under section 114-5(d),

defendant failed to recognize that the statute does not apply in postconviction

proceedings. People v. Thompkins, 181 Ill. 2d 1, 22, 690 N.E.2d 984, 994 (1998);

Gibson v. People, No. 2-06-0821, slip op. at 2 (December 21, 2007). Therefore,

defendant has no absolute right to a substitution of judge in a postconviction proceeding.

People v. Reyes, 369 Ill. App. 3d 1, 25, 860 N.E.2d 488, 510 (2006). In fact, the judge

who presided over the criminal trial should hear the postconviction petition unless it is

shown that the judge is substantially prejudiced. Reyes, 369 Ill. App. 3d at 25, 860

N.E.2d at 510, citing People v. Vance, 76 Ill. 2d 171, 181, 380 N.E.2d 867, 871-72

(1979).

          In certain limited circumstances where there may be an appearance of prejudice, a

judge must recuse himself from postconviction proceedings. Thompkins, 181 Ill. 2d at


                                               6
1-06-1930

22, 690 N.E.2d at 994, citing People v. Wilson, 37 Ill. 2d 617, 621, 230 N.E.2d 194, 197

(1967) (where judge has knowledge outside the record concerning the truth or falsity of

allegations made and where judge may be called as a material witness), and People v. Del

Vecchio, 129 Ill. 2d 265, 274, 544 N.E.2d 312, 316 (1989) (where judge has a direct,

personal, and substantial pecuniary interest in a criminal case). The Code of Judicial

Conduct also requires judges to recuse if their impartiality might be reasonably

questioned. People v. Kliner, 185 Ill. 2d 81, 169, 705 N.E.2d 850, 894 (1998); 188 Ill. 2d

R. 63(C)(1)(a) (where judge exhibits personal bias or prejudice toward a party or a

party’s lawyer). However, defendant has made no such allegations in this case and we do

not find that those circumstances are present here.

        When the circumstances do not call for mandatory recusal or independent judicial

evaluation of claims of prejudice as required by section 114-5(d), trial judges are in the

best position to determine whether they can be impartial. Kliner, 185 Ill. 2d at 169, 705

N.E.2d at 894. It is presumed that judges will be impartial, but they must ultimately

determine whether they can “hold the balance nice, clear and true between the State and

the accused.” People v. Jackson, 205 Ill. 2d 247, 277, 793 N.E.2d 1, 19 (2001); Del

Vecchio, 129 Ill. 2d at 275, 544 N.E.2d at 317.

        Disqualifying a judge for cause is not a judgment to be lightly made. People v.

Patterson, 192 Ill. 2d 93, 134, 735 N.E.2d 616, 640 (2000). The defendant must show

something more than simply that the judge presided over the criminal trial. Reyes, 369

Ill. App. 3d at 25, 860 N.E.2d at 510. In fact, the United States Supreme Court has held

that a judge’s prior rulings in the case rarely, if ever, can form the basis of a recusal


                                               7
1-06-1930

motion. Liteky v. United States, 510 U.S. 540, 555, 127 L. Ed. 2d 474, 490, 114 S. Ct.

1147, 1157 (1994). The allegations must demonstrate “animosity, hostility, ill will, or

distrust” or “prejudice, predilections or arbitrariness.” Reyes, 369 Ill. App. 3d at 25, 860

N.E.2d at 510.

       In this case, defendant alleged that Judge Morrissey was “predisposed to deny my

Postconviction because he previously ruled on the main issue in my Postconviction

Petition, that’s Ineffective Assistance of Counsel.” That allegation alone does not

suggest that Judge Morrissey was unable to hold the balance “nice, clear and true”

between defendant and the State. Jackson, 205 Ill. 2d at 277, 793 N.E.2d at 19.

Moreover, defendant’s allegation is based on Judge Morrissey’s prior ruling in the case,

which is not a valid basis for a recusal motion. Liteky, 510 U.S. at 555, 127 L. Ed. 2d at

490, 114 S. Ct. at 1157.

       Defendant also has not alleged a bias that demonstrates “animosity, hostility, ill

will, or distrust” toward him. Reyes, 369 Ill. App. 3d at 25, 860 N.E.2d at 510. On the

contrary, at the sentencing hearing, Judge Morrissey permitted defendant to make his

argument of ineffective assistance of counsel based on the purportedly exculpatory

statement of the codefendant and made the statement part of the common law record.

Although Judge Morrissey ultimately found that it was consistent with the trial evidence,

he did not exhibit prejudice or arbitrariness in his treatment of defendant. We also find

nothing in this record to suggest that Judge Morrissey should have recused himself from

hearing defendant’s postconviction petition.




                                               8
1-06-1930

       Ultimately, the fact that Judge Morrissey did not rule on the substitution motion

had no effect on his authority to rule on the postconviction petition. Section 114-5(d)

and its procedural requirements did not apply to the postconviction proceedings in this

case. Thompkins, 181 Ill. 2d at 22, 690 N.E.2d at 994; Gibson, No. 2-06-0821, slip op. at

2. Judge Morrissey was not required to transfer the substitution motion to another judge

for evaluation, nor was he divested of his authority in the case in the meantime. See Bell,

276 Ill. App. 3d at 947, 658 N.E.2d at 1378. Additionally, Judge Morrissey was not

required to recuse himself, nor was there any indication that he should have recused

himself from the postconviction proceedings. See Thompkins, 181 Ill. 2d at 22, 690

N.E.2d at 994. Therefore, his ruling on the postconviction petition was made with full

authority.

       Accordingly, we affirm the circuit court’s order denying defendant’s section 2-

1401 petition.

       Affirmed.

       QUINN, P.J. and GREIMAN, J., concur.




                                             9
      REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
      ____________________________________________________________

      PEOPLE OF THE STATE OF ILLINOIS,

                     Plaintiff-Appellee,

            v.

      STEVE HARVEY,

                  Defendant-Appellant.
      ____________________________________________________________

                                    No. 1-06-1930

                             Appellate Court of Illinois
                            First District, Third Division

                         Filed: February 13, 2008
      ____________________________________________________________

                 JUSTICE THEIS delivered the opinion of the court.

                    Quinn, P.J. and Greiman, J., concur.
   _________________________________________________________________

                Appeal from the Circuit Court of Cook County
                 Honorable Evelyn B. Clay, Judge Presiding
_________________________________________________________________

For DEFENDANT-              Michael J. Pelletier, State Appellate Defender
APPELLANT                   Robert M. Stephenson, Assistant State Appellate Defender
                            Office of the State Appellate Defender
                            203 North LaSalle Street, 24th Floor
                            Chicago, IL 60601

For PLAINTIFF-              Richard A. Devine, State’s Attorney
APPELLEE                    James E. Fitzgerald, Assistant State’s Attorney
                            Manny Magence, Assistant State’s Attorney
                            Orion N. Artis, Assistant State’s Attorney
                            300 Richard J. Daley Center
                            Chicago, IL 60602
