                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Hubbard, 2012 IL App (2d) 101158




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    ROY E. HUBBARD, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-10-1158



Rule 23 Order filed        August 10, 2011
Rule 23 Order
withdrawn                  January 9, 2012
Opinion filed              January 9, 2012


Held                       Where defendant entered a blind guilty plea to a charge of predatory
(Note: This syllabus       criminal sexual assault of a child in 1997 and then filed a petition under
constitutes no part of     section 2-1401 of the Code of Civil Procedure in 2010 alleging that his
the opinion of the court   conviction was void because the trial court misadvised him of the
but has been prepared      sentencing range and his plea was rendered involuntary, the trial court
by the Reporter of         properly dismissed the petition as untimely on the ground that it was filed
Decisions for the          beyond the two-year limit applicable to a section 2-1401 petition and the
convenience of the         appellate court rejected defendant’s contention that a petition alleging
reader.)
                           that a judgment is void cannot be dismissed as untimely, since the Illinois
                           voidness doctrine only applies if a judgment is entered by a court lacking
                           jurisdiction, an involuntary guilty plea cannot render a conviction void,
                           and in defendant’s case, there was no indication of a lack of personal or
                           subject matter jurisdiction and mistakes in explaining sentencing or
                           deciding the voluntariness of a plea do not cause a court to lose
                           jurisdiction.
Decision Under             Appeal from the Circuit Court of Carroll County, No. 97-CF-17; the Hon.
Review                     John F. Joyce, Judge, presiding.



Judgment                   Affirmed.


Counsel on                 Roy E. Hubbard, of Pontiac, appellant pro se.
Appeal
                           Scott L. Brinkmeier, State’s Attorney, of Mt. Carroll (Lawrence M.
                           Bauer, Gregory L. Slovacek, and Scott Jacobson, all of State’s Attorneys
                           Appellate Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE BIRKETT delivered the judgment of the court, with opinion.
                           Presiding Justice Jorgensen and Justice Burke concurred in the judgment
                           and opinion.




                                             OPINION

¶1          Defendant, Roy E. Hubbard, appeals from the dismissal of his petition under section 2-
        1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)). He asserts
        that his 1998 conviction of predatory criminal sexual assault of a child (720 ILCS 5/12-
        14.1(1)(a) (West 1996)) was void as a violation of his due process rights, the voidness of the
        conviction exempting his claim from the two-year limitations period of section 2-1401(c) of
        the Code (735 ILCS 5/2-1401(c) (West 2010)). He further argues that the trial court erred
        when it failed to recognize that the conviction was void and consequently dismissed his
        petition. We conclude that, notwithstanding a broader voidness standard in federal law and
        an obiter dictum in People v. Williams, 188 Ill. 2d 365 (1999), under Illinois law a judgment
        is void solely when the court entering the judgment lacked jurisdiction. We therefore hold
        that the conviction was not void, meaning that defendant cannot escape the effect of the two-
        year limitations period. The court did not err in dismissing the petition; we affirm the
        dismissal.

¶2                                   I. BACKGROUND
¶3         Defendant was charged with one count of predatory criminal sexual assault of a child.
        On September 15, 1997, he entered a blind plea of guilty to that charge. The court advised


                                                 -2-
       him that the sentencing range for his offense, a Class X felony, was 6 to 60 years. The State
       presented the factual basis for the plea. It said that, on April 5, 1997, defendant, who was
       older than 17, and a 12-year-old girl had twice had vaginal sexual intercourse in the basement
       of defendant’s home. The girl had acted in a way that, but for her age, would have indicated
       consent. The case was continued for sentencing and defendant remained on bond.
¶4          Before the court sentenced him, defendant moved for leave to withdraw the plea. The
       basis on which he sought this leave is unclear from the record, which is incomplete.
¶5          After defendant moved to withdraw his plea, the State charged defendant with the
       burglary of a vehicle on October 24, 1997. The State and defendant then negotiated an
       agreement that covered both charges. Defendant agreed to withdraw his motion to withdraw
       the plea. The State agreed that defendant should receive the minimum sentence of six years’
       imprisonment for the predatory criminal sexual assault of a child and a consecutive five
       years’ imprisonment for the burglary. At a February 3, 1998, hearing, the court accepted the
       agreement. It advised defendant of the sentencing range for the burglary charge but not the
       charge of predatory criminal sexual assault of a child.
¶6          On July 1, 2010, defendant filed his section 2-1401 petition; he asserted that his
       predatory criminal sexual assault of a child conviction was void because the trial court had
       initially misadvised him of the sentencing range, rendering his guilty plea involuntary.
¶7          The State moved to dismiss the petition. It asserted that the petition was untimely and
       further argued that a judgment is void only if it was entered by a court lacking jurisdiction.
       It did not challenge defendant’s claim that the admonitions were improper.
¶8          Defendant responded, conceding that his petition was filed beyond the two years
       permissible for a standard section 2-1401 petition, but arguing, among other things, that a
       section 2-1401 petition alleging the voidness of a judgment cannot properly be dismissed for
       untimeliness.
¶9          The court granted the State’s motion, ruling that the conviction was not void and that the
       two-year limitations period therefore barred any relief. Defendant timely appealed.

¶ 10                                       II. ANALYSIS
¶ 11       On appeal, defendant asserts that the incorrect admonishment about the sentencing range
       for his offense rendered his guilty plea involuntary, void, and subject to attack at any time
       (without regard to the two-year limitations period of section 2-1401(c)). In support of his
       claim that an involuntary plea produces a void conviction, he cites Williams:
           “A defendant who pleads guilty waives several constitutional rights, including the
           privilege against compulsory self-incrimination, the right to trial by jury, and the right
           to confront one’s accusers. Due process of law requires that this waiver be voluntary and
           knowing. If a defendant’s guilty plea is not voluntary and knowing, it has been obtained
           in violation of due process and, therefore, is void.” (Emphasis added.) Williams, 188 Ill.
           2d at 370 (citing Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969) (“if a defendant’s
           guilty plea is not equally voluntary and knowing, it has been obtained in violation of due
           process and is therefore void”)).


                                                -3-
       Defendant further cites federal cases that hold that an involuntary guilty plea is void; he thus
       implies that the federal standard is binding on this court.
¶ 12       Under Illinois’s voidness doctrine, a judgment is void only if it was entered by a court
       lacking jurisdiction. In other words, defendant’s reliance on Williams and federal cases is
       misplaced. Voluntariness or involuntariness of a guilty plea has no bearing on jurisdiction,
       so that an involuntary plea cannot render a conviction void. Because defendant’s conviction
       was not void, the trial court did not need to further consider his claim. As defendant
       conceded, but for the claim of voidness, his petition was subject to dismissal as untimely.
¶ 13       Our supreme court, in Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104
       (2002), held that petitions under section 2-1401(f) of the Code (735 ILCS 5/2-1401(f) (West
       2010)) are proper vehicles for attacking judgments as void and that such petitions are not
       subject to the general requirements for section 2-1401 petitions. In particular, such petitions
       are not subject to the two-year limitations period of section 2-1401(c). Sarkissian, 201 Ill.
       2d at 104. However, once a court has properly ruled that a voidness claim is meritless,
       nothing in Sarkissian (or its progeny) prevents a court from applying the limitations period
       of section 2-1401(c) to dispose of any remaining matters raised by the petition. Therefore,
       once the trial court here had concluded that defendant’s conviction could not be void
       regardless of the merits of his argument that his plea was involuntary, it needed to proceed
       no further. Similarly, we need address only defendant’s voidness claim; we need not examine
       the voluntariness of his guilty plea.
¶ 14       The parties here disagree about the appropriate standard of review. Defendant quite
       properly cites People v. Vincent, 226 Ill. 2d 1, 14 (2007), for the proposition that “[w]hether
       a trial court [has] correctly *** dismisse[d] a complaint is subject to the *** de novo
       standard of review on appeal.”1 The State cites Rockford Financial Systems, Inc. v. Borgetti,
       403 Ill. App. 3d 321, 327-28 (2010), for the proposition that, in the State’s words, “the more
       deferential abuse-of-discretion standard of review would continue to be applied” despite the
       holding of Vincent. The State acknowledges that, in Borgetti, we specifically commended
       Vincent’s holding that a dismissal based on a ruling that subject matter jurisdiction existed
       should be reviewed de novo. See Borgetti, 403 Ill. App. 3d at 328. However, the State fails
       to consider our more general comment in Borgetti that “[t]he Vincent court was correct to
       relate that, when a section 2-1401 petition requests relief based upon a void judgment,
       equitable principles are not involved,” so that de novo review, as specified by Vincent, is
       logical in such cases. Borgetti, 403 Ill. App. 3d at 327. Here, the court dismissed defendant’s
       petition on the grounds that the judgment was not void and that the petition was otherwise
       untimely. We see nothing in that ruling implicating the court’s discretion and see no sound
       way that we could review what was, in essence, a ruling on pure matters of law for an abuse
       of discretion.
¶ 15       Turning to the merits of defendant’s voidness claim, we start by explaining Illinois’s
       voidness doctrine as it is set out in People v. Davis, 156 Ill. 2d 149 (1993), but add to that


               1
               Defendant should note that material is bracketed to show words or letters inserted into the
       quoted material by us, and not, as in his idiosyncratic style, to show emphasis.

                                                  -4-
       discussion a clarification of the meaning of the phrase “collateral attack.” Next, we explain
       why, under the proper voidness principles, defendant’s conviction was not void. Finally, we
       explain why neither Williams nor federal law mandates modification of the principles of
       Davis.
¶ 16        When the voidness of a judgment has been specifically at issue, the Illinois Supreme
       Court has consistently held that a judgment is void if and only if the court that entered it
       lacked jurisdiction. The classic statement of that doctrine occurs in Davis. Notably for our
       purposes, the Davis court started its discussion of voidness by noting a persistent
       carelessness in courts’ usage of “void”: “[t]he term ‘void’ is so frequently employed
       interchangeably with the term ‘voidable’ as to have lost its primary significance.” Davis, 156
       Ill. 2d at 155. It therefore warned that, “when the term ‘void’ is used in a judicial opinion it
       is necessary to resort to the context in which the term is used to determine precisely the
       term’s meaning.” Davis, 156 Ill. 2d at 155. After disparaging such sloppy usage, it made
       clear that the term “void” should be reserved for judgments rendered by courts that lacked
       jurisdiction:
            “Whether a judgment is void or voidable presents a question of jurisdiction. [Citation.]
            Jurisdiction is a fundamental prerequisite to a valid prosecution and conviction. Where
            jurisdiction is lacking, any resulting judgment rendered is void and may be attacked
            either directly or indirectly at any time. [Citation.] By contrast, a voidable judgment is
            one entered erroneously by a court having jurisdiction and is not subject to collateral
            attack.” Davis, 156 Ill. 2d at 155-56.
       The supreme court continues to adhere to this formulation of the voidness doctrine. See In
       re M.W., 232 Ill. 2d 408, 414 (2009) (stating when a judgment is void in the same terms as
       Davis).
¶ 17        A brief discussion of the meaning of “collateral attack” is necessary to avoid later
       confusion. When we address defendant’s suggestion that federal cases that hold that
       involuntary guilty pleas are void are binding on Illinois courts, we will take into account that
       Illinois law provides, through the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et
       seq. (West 2010)), for a defendant to collaterally attack a guilty plea as involuntary. How can
       that be if an involuntary plea does not result in a void conviction and if, as Davis states,
       judgments that are merely voidable are not subject to collateral attack? The apparent
       contradiction arises as a result of the existence of two formulations of the definition of the
       phrase “collateral attack.”
¶ 18        In Buford v. Chief, Park District Police, 18 Ill. 2d 265, 271 (1960), the supreme court
       defined “collateral attack” so as to limit the phrase’s application to wholly independent cases:
                “A collateral attack on a judgment is an attempt to impeach that judgment in an
            action other than that in which it was rendered. Although the overturning of the judgment
            or decree may be important, or even necessary, to the success of the action or proceeding,
            an attack on a judgment or decree is collateral where that action or proceeding has an
            independent purpose and contemplates some other relief or result.” (Emphasis added.)
       Because the sole purpose of petitions under the Act and section 2-1401 is the overturning of
       an existing judgment, they are not collateral attacks by this definition.

                                                 -5-
¶ 19        By contrast, in People v. Partee, 125 Ill. 2d 24, 35-36 (1988), the supreme court used a
       truncated version of the definition in Buford: a “collateral attack upon a judgment is [one
       made in] a case separate and apart from the case in which the judgment has been [rendered],”
       and explicitly included petitions under the Act and section 2-1401 as vehicles for collateral
       attack.
¶ 20        The holding in Davis is consistent with existing practice, which obviously does allow the
       use of petitions under the Act and section 2-1401 to attack voidable judgments, only if one
       assumes that the Davis court was using the extended definition in Buford. In other words, in
       spite of Davis, a voidable judgment may be attacked under the Act or section 2-1401,
       provided that the procedural prerequisites are met. But only a void judgment may be attacked
       in a fully independent proceeding. (As we proceed, we will use the definition of “collateral
       attack” that includes petitions under the Act and section 2-1401.)
¶ 21        Returning to our primary analysis, we now consider the Davis court’s discussion of the
       aspects of jurisdiction. The court recognized three “element[s] of jurisdiction”: (1) personal
       jurisdiction, (2) subject matter jurisdiction, and (3) “the power to render the particular
       judgment or sentence.”2 Davis, 156 Ill. 2d at 156. Of the third element, the court warned 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.” Davis, 156 Ill. 2d at 156. Moreover,
       “once a court has acquired jurisdiction, no subsequent error or irregularity will oust the
       jurisdiction thus acquired”; “[a]ccordingly, a court may not lose jurisdiction because it makes
       a mistake in determining either the facts, the law or both.” Davis, 156 Ill. 2d at 156.
¶ 22        Under these principles, the facts here as represented by defendant do not result in a void
       judgment. Defendant has raised no suggestion of a lack of personal or subject matter
       jurisdiction. Further, the court unquestionably had authority to accept defendant’s guilty plea,
       to enter a judgment of conviction of predatory criminal sexual assault of a child, and to
       sentence defendant to six years’ imprisonment. In defendant’s account, the court made a
       mistake of law in explaining the sentencing range and a mistake of fact in deciding the
       voluntariness of the plea. As Davis tells us, such mistakes do not cause the court to lose
       jurisdiction.
¶ 23        To be sure, defendant’s argument is not that his conviction was void under the Davis
       standard, but rather that the proper voidness standard is broader, encompassing judgments
       entered in violation of due process. He has two lines of support for that proposition: federal
       cases that say that involuntary guilty pleas are violations of due process rights and therefore
       void, and Williams, which, citing the United States Supreme Court, says the same thing. We
       first explain why the federal standard need not be a part of Illinois law. We then explain why


               2
                 The particular issues in this case do not require us to discuss how much of the requirement
       for this third kind of jurisdiction survived following the watershed decisions in People ex rel. Graf
       v. Village of Lake Bluff, 206 Ill. 2d 541, 553 (2003), Belleville Toyota, Inc. v. Toyota Motor Sales,
       U.S.A., Inc., 199 Ill. 2d 325, 335-36 (2002), and Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 529-30
       (2001).

                                                    -6-
       Williams did not adopt it as a part of Illinois law.
¶ 24        Defendant is correct that federal courts frequently say that involuntary guilty pleas are
       void because they violate due process standards; the footnote in Boykin from which the
       Williams court drew the statement on which defendant relies is a fair example of federal law.
       However, nothing in the United States Constitution requires that Illinois courts, in
       considering Illinois’s own laws, use the same definition of “void” as do the federal courts.
       To state the same point more specifically, no reason exists to use a federal definition of
       “void” to decide whether a particular petition under section 2-1401 of Illinois’s Code is
       subject to a two-year limitations period.
¶ 25        Of course, Illinois courts are bound by the United States Supreme Court’s decisions on
       the United States Constitution’s due process clauses. We thus cannot doubt that an
       involuntary guilty plea violates due process. However, that conclusion does not imply any
       particular procedure to remedy that violation.
¶ 26        Any thought that the United States Constitution mandates the remedies that Illinois law
       grants when it deems a conviction void is dispelled by comparing Illinois’s remedies for void
       judgments with federal remedies for involuntary guilty pleas. Defendants whose federal
       guilty pleas were involuntary do not have a right to anything like what Illinois voidness
       doctrine would afford them. Federal law allows a claim of an involuntary guilty plea to be
       procedurally defaulted if not raised on direct appeal (Bousley v. United States, 523 U.S. 614,
       621 (1998)); Illinois voidness doctrine will not allow the forfeiture of a voidness claim (see,
       e.g., People v. Arna, 168 Ill. 2d 107, 113 (1995)). Moreover, involuntariness challenges to
       federal convictions are, at least when the defendant is a federal prisoner, necessarily brought
       under title 28, section 2255, of the United States Code (28 U.S.C. § 2255 (2006)). E.g.,
       United States v. Ayala, 894 F.2d 425, 430 (D.C. Cir. 1990). That section has a one-year
       limitations period that specifies three conditions that toll or trigger the running of the period.
       28 U.S.C. § 2255 (2006). The only condition that is even theoretically relevant in a case such
       as this one is the last, that the period runs from “the date on which the facts supporting the
       claim or claims presented could have been discovered through the exercise of due diligence.”
       28 U.S.C. § 2255(f)(4) (2006). Compare this with the unlimited time a party has to seek
       vacatur of a void judgment in Illinois. Thus the federal provisions give a defendant claiming
       an involuntary guilty plea essentially the same remedies that an Illinois defendant has under
       the Act and section 2-1401. In sum, voidness in federal law is a broad concept with weak
       procedural effects, voidness in Illinois law is a narrow concept with strong procedural
       effects, and the application of the federal standard would not provide that defendant have the
       ability to attack his plea at any time.
¶ 27        Constitutional mandates aside, in Williams, the Illinois Supreme Court did not voluntarily
       adopt the federal voidness standard. The Williams court stated, “If a defendant’s guilty plea
       is not voluntary and knowing, it has been obtained in violation of due process and, therefore,
       is void.” (Emphasis added.) Williams, 188 Ill. 2d at 370. As we have shown, that formulation
       is inconsistent with Davis. Two things can be said about this inconsistency. First, Williams
       is a purest obiter dictum on the issue of voidness and therefore is not binding. In Williams,
       the question was whether the defendant’s guilty plea to attempted murder was admissible as
       evidence of murder when the State’s theory was that the victim had died as a result of the

                                                  -7-
       original attack. Williams, 188 Ill. 2d at 366-67. The Williams court recognized as a well-
       established rule that only a voluntary plea would be admissible (Williams, 188 Ill. 2d at 369-
       70) and held that the defendant’s plea was voluntary (Williams, 188 Ill. 2d at 373). Whether
       or not an involuntary plea would produce a void conviction was not relevant to the
       evidentiary issue that the court decided and was not part of the reasoned discussion of the
       issue–thus, the statement that the plea was void is an obiter dictum. To be sure, supreme
       court obiter dicta can be binding in the absence of a contrary decision of the supreme court.
       E.g., Woodstock Hunt Club v. Hindi, 305 Ill. App. 3d 1074, 1076 (1999). But the holdings
       in Davis and M.W. both are contrary, so they are the binding law. Second, this stray comment
       in Williams stands as a good example of why the Davis court warned of courts’ tendency to
       be careless in the use of the term “void.”

¶ 28                                     III. CONCLUSION
¶ 29       The Illinois voidness doctrine holds that judgments are void only if they are entered by
       a court lacking jurisdiction. An involuntary guilty plea such as that which defendant alleged
       is not an error that could deprive the court of jurisdiction. Therefore, the trial court properly
       ruled that the conviction was not void. Having so ruled, it could and did properly rule that
       the petition was untimely and dismiss it without examination of the voluntariness of
       defendant’s plea.
¶ 30       For the reasons stated, we affirm the dismissal of defendant’s section 2-1401 petition.

¶ 31       Affirmed.




                                                 -8-
