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                               Appellate Court                          Date: 2017.12.11
                                                                        09:33:09 -06'00'




                   People v. Miles, 2017 IL App (1st) 132719



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



District & No.    First District, Fourth Division
                  Docket No. 1-13-2719



Filed             September 21, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 00-CR-22579; the
Review            Hon. Colleen Ann Hayland, Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier, Patricia Mysza, and Yasaman H. Navai, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

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



Panel             JUSTICE GORDON delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Reyes concurred in the judgment and opinion.
                  Justice Hall specially concurred, with opinion.
                                             OPINION

¶1       Defendant Jacob Miles was convicted after a jury trial of armed robbery and sentenced as a
     habitual criminal to natural life with the Illinois Department of Corrections (IDOC). This court
     affirmed his conviction and sentence on direct appeal. People v. Miles, No. 1-02-2880 (2003)
     (unpublished order under Supreme Court Rule 23).
¶2       Defendant now appeals from the trial court’s dismissal of his pro se petition filed pursuant
     to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)). Defendant
     claims that his armed robbery conviction is void because he was charged with armed robbery
     with a firearm but convicted of armed robbery with a dangerous weapon. Defendant argues
     that he was not charged with armed robbery with a dangerous weapon and that these two types
     of armed robbery are mutually exclusive. For the following reasons, we affirm the trial court’s
     dismissal of his section 2-1401 petition.

¶3                                         BACKGROUND
¶4       Since defendant raises a purely legal question on this appeal, we do not repeat here the
     underlying facts of his conviction and instead incorporate by reference our prior order where
     we already described the facts and the evidence at trial. See Miles, No. 1-02-2880 (unpublished
     order under Supreme Court Rule 23) (finding unpersuasive defendant’s claim that the State
     failed to prove him guilty beyond a reasonable doubt). We describe below the procedural
     history and the facts needed to decide the issues presented on this appeal.
¶5       Defendant was indicted for armed robbery. The charges stemmed from the armed robbery
     of a pizza delivery man on the night of August 16, 2000. Specifically, the indictment charged
     defendant with “knowingly [taking] United States currency from the person or presence of
     James Gilbert by the use of force *** [while] he carried on or about his person or was
     otherwise armed with a firearm, in violation of Chapter 720, Act 5, Section 18-2 of the Illinois
     Complied Statutes 1992, as amended.”
¶6       Effective January 1, 2000, which was before both the offense and indictment at issue, the
     armed robbery statute was amended (1) to create separate subsections for armed robbery “with
     a dangerous weapon other than a firearm” and armed robbery “with a firearm” and (2) to add a
     15-year sentencing enhancement for being “armed with a firearm.” Pub. Act 91-404 (eff. Jan.
     1, 2000) (amending 720 ILCS 5/18-2); People v. Walden, 199 Ill. 2d 392, 396 n.1 (2002)
     (noting the effective date of the amendment). The amended statute provided, in relevant part,
     that:
                 “(a) A person commits armed robbery when he or she [commits robbery]; and
                     (1) he or she carries on or about his or her person or is otherwise armed with a
                 dangerous weapon other than a firearm; or
                     (2) he or she carries on or about his or her person or is otherwise armed with a
                 firearm[.]” 720 ILCS 5/18-2(a) (West 2002).
     The amended statute also provided for the following sentencing enhancement:
                 “Armed robbery in violation of subsection (a)(1) is a Class X felony. A violation of
             subsection (a)(2) is a Class X felony for which 15 years shall be added to the term of
             imprisonment imposed by the court.” 720 ILCS 5/18-2(b) (West 2002).


                                                -2-
¶7         Before trial, defendant’s counsel moved to dismiss the indictment pursuant to the Illinois
       Supreme Court case of Walden, 199 Ill. 2d 392,1 which was decided after defendant was
       indicted. In Walden, the supreme court held: “The 15-year enhancement for armed robbery
       while in possession of a firearm *** violates the proportionate penalties clause of the Illinois
       Constitution and is unenforceable.” Walden, 199 Ill. 2d at 397.
¶8         Defense counsel argued that the indictment charged defendant under the armed robbery
       statute “as amended” and therefore defendant had been charged under an unconstitutional
       subsection. While the indictment did not cite a specific subsection, it did charge defendant with
       committing the offense while “armed with a firearm.” Defense counsel argued that Walden
       rendered the armed-robbery-while-armed-with-a-firearm provision unenforceable.
¶9         The trial court held that, since the Walden court had declared the amendment
       unconstitutional, the preexisting statute now applied and the earlier statute did not differentiate
       between dangerous weapons and firearms. The earlier statute provided in full:
               “(a) A person commits armed robbery when he or she [commits robbery] while he or
               she carries on or about his or her person, or is otherwise armed with a dangerous
               weapon.
                   (b) Sentence. Armed robbery is a Class X felony.” 720 ILCS 5/18-2 (West 1998).
¶ 10       The trial court found that, since the earlier statute now applied, the indictment did not need
       to be amended.
¶ 11       Later, the defense objected to the jury being instructed on armed robbery with a dangerous
       weapon, arguing that, under the amended armed robbery statute, a firearm is not a dangerous
       weapon. The trial court overruled the objection. Thus, the jury was instructed over the
       defense’s objection that it could find defendant guilty if it found, beyond a reasonable doubt,
       that defendant was armed with a dangerous weapon. After the jury returned a verdict finding
       defendant guilty of armed robbery, defense counsel filed a motion to arrest judgment and a
       posttrial motion for a new trial, arguing that the trial court erred in denying his pretrial motion
       to dismiss the indictment. The trial court denied both motions.
¶ 12       On July 31, 2002, after considering factors in aggravation and mitigation, the trial court
       found defendant to be a habitual criminal and sentenced him to life in prison. On direct appeal,
       defendant argued that the State failed to prove him guilty beyond a reasonable doubt. On
       October 22, 2003, this court affirmed his conviction and sentence. Miles, No. 1-02-2880
       (unpublished order under Supreme Court Rule 23).
¶ 13       On January 30, 2013, defendant filed a pro se section 2-1401 petition in which he claimed,
       among other things, that the trial court deprived him of his due process right to a fair trial when
       it denied his pretrial motion to dismiss his indictment. In a supplemental petition, also filed on
       January 30, 2013, defendant added a claim that, although he was charged with armed robbery
       with a firearm, he was found guilty of armed robbery with a dangerous weapon. On February
       28, 2013, the State moved to dismiss.
¶ 14       On July 26, 2013, the trial court issued a written order dismissing defendant’s section
       2-1401 petition. The written order provided in relevant part:

           1
            Walden was later expressly overruled by our supreme court in People v. Sharpe, 216 Ill. 2d 481,
       510-11, 519 (2005) (the court stated that it expressly “overruled” Walden and cases like it that had used
       a cross-comparison analysis to find that certain statutes violated the proportionate penalties clause).

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                 “The Court *** finds, that defendant’s argument that his judgment is void is
             without merit. As set forth in the trial record, count one of the indictment properly
             charged the offense of armed robbery. Subsequent to a guilty verdict, defendant was
             properly sentenced as a habitual criminal.”
       Defendant filed a timely notice of appeal, and this appeal followed.

¶ 15                                             ANALYSIS
¶ 16        On appeal, defendant raises only one claim, which is that the trial court erred in dismissing
       his section 2-1401 petition because his conviction was void. Defendant argues that, where he
       was charged with the offense of armed robbery with a firearm, the jury lacked the inherent
       authority to find him guilty of the mutually exclusive and uncharged offense of armed robbery
       with a dangerous weapon, thereby rendering his armed robbery conviction, as well as his
       natural-life sentence, void.
¶ 17        For the following reasons, we do not find defendant’s arguments persuasive and affirm the
       trial court’s dismissal of his section 2-1401 petition.

¶ 18                                       I. Standard of Review
¶ 19        We review the dismissal of a section 2-1401 petition de novo. People v. Carter, 2015 IL
       117709, ¶ 13; People v. Laugharn, 233 Ill. 2d 318, 322 (2009) (citing People v. Vincent, 226
       Ill. 2d 1, 18 (2007)). De novo consideration means that we perform the same analysis that a
       trial judge would perform. Arient v. Shaik, 2015 IL App (1st) 133969, ¶ 18.
¶ 20        Section 2-1401 authorizes “a trial court to vacate or modify a final order or judgment in
       civil and criminal proceedings.” People v. Thompson, 2015 IL 118151, ¶ 28. “Ordinarily, a
       petition seeking relief under section 2-1401 must be filed more than 30 days from entry of the
       final order but not more than 2 years after that entry.” Thompson, 2015 IL 118151, ¶ 28 (citing
       735 ILCS 5/2-1401(a), (c) (West 2010)); Laugharn, 233 Ill. 2d at 322. However, our supreme
       court has recognized “an exception to the ordinary two-year deadline when the petition
       challenges a void judgment” (Thompson, 2015 IL 118151, ¶ 29), as defendant claims in the
       case at bar.
¶ 21        “To obtain relief under section 2-1401, the defendant ‘must affirmatively set forth specific
       factual allegations supporting each of the following elements: (1) the existence of a
       meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit
       court in the original action; and (3) due diligence in filing the section 2-1401 petition for
       relief.’ ” People v. Pinkonsly, 207 Ill. 2d 555, 565 (2003) (quoting Smith v. Airoom, Inc., 114
       Ill. 2d 209, 220-21 (1986)). “[A]n action brought under section 2-1401 is a civil proceeding
       and, according to this court’s long-standing precedent, is subject to the usual rules of civil
       practice, even when it is used to challenge a criminal conviction or sentence.” Vincent, 226 Ill.
       2d at 6.
¶ 22        When reviewing a trial court’s dismissal of a section 2-1401 petition, this court may affirm
       “on any basis we find in the record.” People v. Nitz, 2012 IL App (2d) 091165, ¶ 13.




                                                   -4-
¶ 23                                      II. Statutory Interpretation
¶ 24       Defendant’s claim requires us to interpret the armed robbery statute.
¶ 25       With statutory construction, our primary goal is to ascertain the legislature’s intent, and the
       best indication of their intent is the plain and ordinary meaning of the words they chose to use.
       People v. Chatman, 2016 IL App (1st) 152395, ¶ 30 (citing MD Electrical Contractors, Inc. v.
       Abrams, 228 Ill. 2d 281, 287 (2008)). When interpreting a statute, we do not read a portion of it
       in isolation; instead, we read it in its entirety, keeping in mind the subject it addresses and the
       drafters’ apparent objective in enacting it. Chatman, 2016 IL App (1st) 152395, ¶ 30 (citing
       MD Electrical Contractors, 228 Ill. 2d at 287).
¶ 26       The interpretation of a statute is a question of law that we also review de novo. Maschek v.
       City of Chicago, 2015 IL App (1st) 150520, ¶ 42. We already defined de novo review above.

¶ 27                                     III. No Meritorious Claim
¶ 28        As noted above, the first requirement for a section 2-1401 petition is that it must set forth
       allegations which support a meritorious claim for relief. Pinkonsly, 207 Ill. 2d at 565. For the
       following reasons, we do not find defendant’s claim to be meritorious.
¶ 29        The first problem with defendant’s argument is that the supreme court in Walden did not
       find unconstitutional the subsection that makes armed robbery with a firearm an offense;
       rather, the court found unconstitutional the 15-year sentencing enhancement for it. In Walden,
       the supreme court discussed the proportionate penalties clause and then specifically held: “The
       15-year enhancement for armed robbery while in possession of a firearm therefore violates the
       proportionate penalties clause of the Illinois Constitution and is unenforceable.” Walden, 199
       Ill. 2d at 397. Defendant was not sentenced pursuant to the 15-year sentencing enhancement
       and thus has no claim under Walden.
¶ 30        Second, defendant argues that the jury lacked the inherent authority to find him guilty of
       armed robbery with a dangerous weapon. However, the trial court applied the preamended
       statute, and our supreme court has indicated that this was the proper procedure. People v.
       Washington, 2012 IL 107993, ¶¶ 7, 40-42. In Washington, our supreme court discussed the
       problems created by its decision in Walden and then cited People v. Gersch, 135 Ill. 2d 384,
       390 (1990), for the proposition that “the effect of enacting an unconstitutional amendment to a
       statute is to leave the law in force as it was before the adoption of the amendment.” 2
       Washington, 2012 IL 107993, ¶ 7 (citing Gersch, 135 Ill. 2d at 390).
¶ 31        Third, defendant cites in support People v. Clark, 2014 IL App (1st) 123494, People v.
       Spencer, 2014 IL App (1st) 130020, and People v. Barnett, 2011 IL App (3d) 090721.
       However, all those cases are readily distinguishable.
¶ 32        For example, in Clark, the defendant was charged with armed robbery while armed with a
       firearm. Clark, 2014 IL App (1st) 123494, ¶ 1. After a bench trial, the trial court specifically
       found that the defendant did not use a firearm and, thus, acquitted him of the charged offense.
       Clark, 2014 IL App (1st) 123494, ¶ 21. The trial court then proceeded to find the defendant
       guilty instead of armed robbery with a dangerous weapon other than a firearm. Clark, 2014 IL
       App (1st) 123494, ¶¶ 1, 21. This court found that the trial court erred and reduced defendant’s
       conviction to the lesser included offense of robbery. Clark, 2014 IL App (1st) 123494, ¶ 45.

          2
           This quote is from a parenthetical.

                                                    -5-
¶ 33        However, the Clark opinion bears little relationship to the case at bar. Our case is
       completely unlike Clark where the Clark defendant was convicted of armed robbery with a
       dangerous weapon other than a firearm. In the case at bar, the indictment stated that defendant
       was armed with a firearm, and he was convicted of using a dangerous weapon. Thus, the
       question in our case is whether a firearm qualifies as a dangerous weapon.
¶ 34        The Spencer case is distinguishable for the same reason. In Spencer, as in Clark, the
       defendant was charged with armed robbery with a firearm (Spencer, 2014 IL App (1st)
       130020, ¶ 43) and was then acquitted during a bench trial of that charge (Spencer, 2014 IL App
       (1st) 130020, ¶ 12 (the trial court granted the defendant’s motion for a directed finding “as it
       relates to the firearm”)). However, in Spencer, as in Clark, the defendant was convicted of
       armed robbery with a dangerous weapon other than a firearm. Spencer, 2014 IL App (1st)
       130020, ¶ 1. Again, this is completely unlike the case at bar, where defendant was convicted of
       armed robbery with a dangerous weapon—period—with no limiting or qualifying clause.
¶ 35        In all three cases cited by defendant, the defendant was acquitted of armed robbery with a
       firearm. See, e.g., People v. Barnett, 2011 IL App (3d) 090721, ¶ 1 (the defendant was charged
       with armed robbery with a firearm, and the jury found him guilty of armed robbery but
       acquitted him of armed robbery with a firearm). By contrast, in the case at bar, defendant was
       not acquitted of anything. For all these reasons, we find that Clark, Spencer, and Barnett have
       little bearing on the case at hand.
¶ 36        Lastly, defendant argues that the statute, under which he was indicted, defined a
       “dangerous weapon” as not including a firearm. That is incorrect. First of all, the argument that
       a firearm is not a dangerous weapon defies logic and common sense. Second, the statutory
       language does not support this argument. The subsection, which defendant analyzes, stated
       that a person can be found guilty of armed robbery if he committed robbery “armed with a
       dangerous weapon other than a firearm.” 720 ILCS 5/18-2(a)(1) (West 2002). The words
       “other than” indicate that a firearm is considered to be a dangerous weapon, as we explain
       below.
¶ 37        “When the statute contains undefined terms, it is entirely appropriate to employ a
       dictionary to ascertain the plain and ordinary meaning of those terms.” People v. Davison, 233
       Ill. 2d 30, 40 (2009). The dictionary defines the phrase “other than” as “in addition to someone
       or something,” and gives the following example in use: “Are you taking any science courses
       other than chemistry?” MacMillian Dictionary, www.macmilliandictionary.com/us
       /dictionary/american/other-than (last visited June 15, 2017). Obviously, chemistry is a science
       course, in the same way that a firearm is a dangerous weapon. The use of the phrase “other
       than” does not make chemistry any less of a science course or a firearm any less of a dangerous
       weapon. Cf. 720 ILCS 5/33A-1 (West 2016) (the armed violence statute defines the phrase
       “dangerous weapon” to include both firearms and other weapons).
¶ 38        Sections (a)(1) and (a)(2), when read together, stated that a person could be found guilty of
       armed robbery if he committed robbery while armed either with a firearm or “other” dangerous
       weapons. 720 ILCS 5/18-2(a)(1), (2) (West 2002); see also Chatman, 2016 IL App (1st)
       152395, ¶ 30 (when interpreting a statute, we do not read a portion of it in isolation; instead, we
       read it in its entirety). Thus, we do not find persuasive defendant’s argument that a firearm is
       not itself a dangerous weapon. Washington, 2012 IL 107993, ¶ 29 (the government’s evidence
       was sufficient for the jury to find “that defendant used a gun as a dangerous weapon during the


                                                    -6-
       commission” of an armed robbery), ¶ 37 (thus the jury “could have found beyond a reasonable
       doubt that defendant was armed with a dangerous weapon”).
¶ 39       As a result, we find no error where the indictment charged defendant of being armed with a
       firearm and he was convicted of being armed with a dangerous weapon. Defendant makes
       arguments as though he was convicted of being armed with a dangerous weapon other than a
       firearm. However, that is simply not what happened in his case.

¶ 40                                          CONCLUSION
¶ 41       For all the foregoing reasons, we do not find defendant’s claims persuasive and therefore
       affirm the trial court’s dismissal of his section 2-1401 petition.

¶ 42      Affirmed.

¶ 43       JUSTICE HALL, specially concurring:
¶ 44       I agree that the dismissal of the defendant’s section 2-1401 petition should be affirmed. I
       write separately because the issue on appeal and addressed by the parties is whether the
       defendant’s conviction and sentence are void. The majority’s analysis submerges the voidness
       issue into whether the defendant set forth a meritorious defense. I offer the following analysis
       for clarification purposes only.
¶ 45       Where a section 2-1401 petition is filed outside the two-year limitations period and there is
       no basis to excuse the delay, the petition cannot be considered unless the opposing party agrees
       to waive the limitations period. People v. Thompson, 2015 IL 118151, ¶ 29. An exception
       exists where, as here, the defendant alleges his conviction and sentence are void. Thompson,
       2015 IL 118151, ¶ 29; 735 ILCS 5/2-1401(f) (West 2012). A section 2-1401 petition seeking
       to vacate a void judgment, a purely legal issue, does not need to establish a meritorious defense
       or satisfy due diligence. Warren County Soil & Water Conservation District v. Walters, 2015
       IL 117783, ¶ 48 (alleging that the judgment is void substitutes and negates the need to allege a
       meritorious defense and due diligence).
¶ 46       A voidness challenge to a final judgment under section 2-1401 that is exempt from the
       procedural bars in the statute is limited to three specific types of claims: (1) lack of personal or
       subject-matter jurisdiction, (2) the final judgment was based on a facially unconstitutional
       statute that is void ab initio, and (3) a challenge to a sentence that does not conform to the
       applicable sentencing statute. Thompson, 2015 IL 118151, ¶¶ 31-33. Our supreme court’s
       decision in People v. Castleberry, 2015 IL 116916, abolished the void sentence rule, and
       therefore, this type of challenge is no longer valid. Thompson, 2015 IL 118151, ¶ 33;
       Castleberry, 2015 IL 116916, ¶ 19.
¶ 47       The defendant makes no claim that the trial court lacked personal jurisdiction or
       subject-matter jurisdiction. Nor does the defendant allege that the judgment of conviction and
       sentence were based on a facially unconstitutional statute that is void ab initio. The defendant
       alleges that his conviction and sentence are void because the indictment charged him with
       armed robbery with a firearm, but the jury found him guilty of armed robbery with a dangerous
       weapon, an offense with which he had not been charged. Under pre-Castleberry law, the lack
       of jurisdiction included the court’s lack of power to render a particular judgment. People v.
       Davis, 156 Ill. 2d 149, 156 (1993). However, jurisdiction relates to the power of the court not


                                                    -7-
       to the rights, even the fundamental rights, of the parties. Davis, 156 Ill. 2d at 157 (citing 21
       C.J.S. Courts § 9 (1990)). As the court in Davis acknowledged:
               “However, 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.
¶ 48       To the extent that the judgment of conviction and sentence in this case was based on a
       mistake of law, as the defendant argues, the judgment is not void but merely voidable. “[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. Since the judgment challenged by the
       defendant was only voidable, the defendant’s challenge to his conviction and sentence on
       voidness grounds fails. As a result, the defendant’s petition was subject to the procedural
       requirements set forth in section 2-1401. It is undisputed that the petition was filed beyond
       section 2-1401(f)’s two-year limitations period and was subject to dismissal.
¶ 49       Therefore, I concur with the majority’s affirmance of the dismissal of the defendant’s
       section 2-1401 petition.




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