                             2016 IL App (2d) 141061
                                  No. 2-14-1061
                           Opinion filed March 10, 2016
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Du Page County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 90-CF-1196
                                       )
EUGENE McDANIEL, JR.,                  ) Honorable
                                       ) George J. Bakalis,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

         JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.
         Presiding Justice Schostok and Justice Spence concurred in the judgment and opinion.

                                           OPINION

¶1       We originally issued a Rule 23 order in this case (which we have included as an appendix

to this opinion for the reader’s convenience). Afterward, defendant filed a petition for rehearing,

which we deny; however, we withdraw our prior order and enter the following opinion in its

stead.

¶2       In 1991, defendant, Eugene McDaniel, Jr., was convicted of first-degree murder in the

shooting death of his wife. The trial court sentenced him to the maximum available sentence, 60

years in prison (Ill. Rev. Stat. 1989, ch. 38, ¶¶ 9-1(a), 1005-8-1(a)(1)), and also imposed certain

fines and fees. People v. McDaniel, 249 Ill. App. 3d 621 (1993), aff’d, 164 Ill. 2d 173 (1995). In

2014, McDaniel filed a petition for relief from a “void” judgment under section 2-1401 of the
2016 IL App (2d) 141061


Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2014)). In the petition, McDaniel

alleged that because the county clerk rather than the trial court added a mandatory $25 fine to his

original sentence (the money goes to a fund for victims of violent crimes (see Ill. Rev. Stat.

1989, ch. 70, ¶ 510), his entire sentence was void and a new sentencing hearing was in order.

The trial court considered defendant’s petition, granted it in part, and denied it in part. The court

imposed the $25 fine, in essence the “relief” McDaniel had sought (see People v. Marshall, 242

Ill. 2d 285, 302 (2011) (citing People v. Arna, 168 Ill. 2d 107, 113 (1995) (a void fine or fee, like

a void term of imprisonment, may be corrected at any time)), but it did not conduct a new

sentencing hearing and made no change to McDaniel’s term of imprisonment.

¶3     McDaniel appealed and claimed that the trial court should have conducted an entirely

new sentencing hearing. We issued a Rule 23 order rejecting his argument as meritless in which

we cited People v. Donelson, 2013 IL 113603, People v. Brown, 225 Ill. 2d 188 (2007), and

People v. Garcia, 179 Ill. 2d 55 (1997)—decisions based on the void-sentence rule articulated in

Arna. With those decisions in mind, our order explained that under the void-sentence rule

McDaniel’s prison sentence was valid despite the fact that $25 of the fines-and-fees portion of

his sentence was void. McDaniel then filed a petition for rehearing and asked us to reconsider.

(He also filed a motion to publish our original Rule 23 order, which we deny.)

¶4     While McDaniel’s rehearing petition was pending, our supreme court issued its decision

in People v. Castleberry, 2015 IL 116916, which overturned Arna and abolished the void-

sentence rule. The result under current law then is that there is no true voidness as alleged in

McDaniel’s section 2-1401 petition. Rather, there is only a voidable $25 fine, which post-

Castleberry is no longer subject to collateral attack by way of a section 2-1401 petition.

Castleberry, 2015 IL 116916, ¶¶ 11-19; see also People v. Thompson, 2015 IL 118151, ¶¶ 29-30.



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2016 IL App (2d) 141061


¶5     The flipside of Castleberry is that without the void-sentence rule the trial court lacked the

authority—i.e., the jurisdiction—to modify McDaniel’s sentence and correct the improper

assessment of the $25 victims’ fine. See, e.g., Spears v. Spears, 52 Ill. App. 3d 695, 698 (1977)

(after 30 days has passed, the trial court may not amend the judgment to “supply omitted judicial

action” or “to correct [a] judicial error” under the guise of granting relief from judgment or as a

nunc pro tunc correction). Because we intended to deny rehearing but modify our disposition

with respect to the $25 fine (Ill. S. Ct. R. 367(d) (eff. Jan. 1, 2015)), we ordered the parties to

submit supplemental briefs addressing Castleberry.

¶6     In its brief, the State argues that the abolition of the void-sentence rule renders a portion

of McDaniel’s sentence voidable not void, which is undoubtedly true. The consequence

however, at least according to the State, which relies on People v. Harvey, 196 Ill. 2d 444

(2001), is that McDaniel’s section 2-1401 petition, filed some 23 years after he was sentenced,

was untimely under section 2-1401’s two-year limitations period (735 ILCS 5/2-1401(e) (West

2014)). On that point the State is incorrect.

¶7     The State’s argument conflates the grounds alleged in McDaniel’s section 2-1401

petition with the merits of his claim. Doubtless, McDaniel’s claim concerning his sentence is

meritless, particularly after Castleberry. But that does not mean that his section 2-1401 petition,

brought on the grounds that his underlying sentencing judgment was “void,” is now subject to

section 2-1401’s two-year limitations period. The State’s reliance on Harvey in this regard is

misplaced. When one considers all of the separate opinions in Harvey, it is clear that the five

justices who participated in concurrences, despite disagreeing about other aspects of section 2-

1401, all agreed that the two-year limitations period does not apply to a petition that challenges a

judgment on voidness grounds. Harvey, 196 Ill. 2d at 452 (McMorrow, J., specially concurring,



                                                -3-
2016 IL App (2d) 141061


joined by Freeman, J.) (“a post-judgment motion seeking relief on the basis that the judgment is

void is not bound by the two-year limitation”); id. at 457 (Fitzgerald, J., specially concurring,

joined by Thomas and Garman, JJ.) (“because defendant challenges his extended-term sentence

on the basis that the judgment is void, his challenge is proper and not restricted by the two-year

limitation period in section 2-1401”). One year after Harvey, in Sarkissian v. Chicago Board of

Education, 201 Ill. 2d 95 (2002), the court further clarified that section 2-1401 “[p]etitions

brought on voidness grounds need not be brought within the two-year time limitation” because

“the allegation that the judgment or order is void substitutes for and negates the need” to plead

around the statute of limitations. Id. at 104. There are many sound reasons for such a rule, not the

least of which is that it protects the integrity of the judicial system by enabling courts to purge

void orders—that is, truly void orders—and their potentially deleterious effects. See, e.g., In re

Dar. C., 2011 IL 111083, ¶ 64 (reversing termination of father’s parental rights where father was

never notified of proceedings and so the circuit court lacked personal jurisdiction over him).

Accordingly, so long as a section 2-1401 petition challenges a judgment on voidness grounds,

and McDaniel’s petition did, the petition, regardless of its substantive merit, is not subject to

section 2-1401’s two-year limitations period. See Thompson, 2015 IL 118151, ¶¶ 29-30;

Castleberry, 2015 IL 116916, ¶ 15 (quoting LVNV Funding, LLC v. Trice, 2015 IL 116129, ¶ 38,

citing Sarkissian, 201 Ill. 2d at 104)).

¶8      Accordingly, we vacate the trial court’s order to the extent that it imposed the $25 fine

and affirm the remainder of the order dismissing McDaniel’s section 2-1401 petition. As part of

our judgment, we grant the State’s request for State’s Attorneys fees and hereby assess McDaniel

$50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2014).

¶9      Affirmed in part and vacated in part.



                                                -4-
      APPENDIX
(Rule 23 Order from July 30, 2015)
                                  2015 IL App (2d) 141061-U
                                        No. 2-14-1061
                                   Order filed July 30, 2015

      NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
      precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Du Page County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 90-CF-1196
                                       )
EUGENE McDANIEL, JR.,                  ) Honorable
                                       ) George J. Bakalis,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE HUTCHINSON delivered the judgment of the court.
       Presiding Justice Schostok and Justice Spence concurred in the judgment.

                                            ORDER

¶1     Held: (1) Although the trial court omitted a mandatory fine, defendant’s sentence was
       not otherwise void; thus, the imposition of the fine, per defendant’s section 2-1401
       petition, did not produce a new sentence that defendant could move anew to reconsider;
       (2) assuming that the trial court erred in failing, given defendant’s absence, to admonish
       defendant under Rule 605(a) upon imposing the fine, defendant was not entitled to a
       remand for such admonishments, as he did move to reconsider and timely appealed and
       thus suffered no prejudice or denial of justice from the lack of admonitions.

¶2     Defendant, Eugene McDaniel, Jr., was convicted of first-degree murder (Ill. Rev. Stat.

1989, ch. 38, ¶ 9-1(a)) and sentenced to 60 years’ imprisonment (Ill. Rev. Stat. 1989, ch. 38,

¶ 1005-8-1(a)(1)) and certain fines and fees. His current appeal comes after the partial grant and
2015 IL App (2d) 141061-U


partial denial of his petition under section 2-1401 of the Code of Civil Procedure (the Code) (735

ILCS 5/2-1401 (West 2014)). In his petition, he sought a finding that, because the clerk, rather

than the trial court, added a mandatory fine to his sentence, the whole of his sentence was void.

The trial court reimposed the fine, but made no change to the term of imprisonment. In this

subsequent appeal, defendant argues that the trial court erred when it did not recognize the whole

of his sentence as void. We hold that his sentence had been void only as to the improperly

imposed fine, so that the trial court acted properly. We therefore affirm.

¶3                                     I. BACKGROUND

¶4     A jury convicted defendant of first-degree murder, and the trial court sentenced him to 60

years’ imprisonment. The sentence also included certain fines and fees. However, at least one

of those fines was imposed by the clerk, not the trial court. Defendant filed a direct appeal in

which he challenged primarily the admission of certain inculpatory statements; he did not

challenge any aspect of his sentence. We affirmed (People v. McDaniel, 249 Ill. App. 3d 621

(1993)), as did the supreme court (People v. McDaniel, 164 Ill. 2d 173 (1995)).

¶5     Some 18 years after his sentencing, defendant filed a petition pursuant to section 2-1401

of the Code, alleging that his sentence was void.        The trial court dismissed the petition.

Defendant appealed, contending that the failure of the sentencing order to include a term of

mandatory supervised release (MSR) made the sentence incomplete, that adding a term of MSR

would make the term exceed the statutory maximum, and that the trial court failed to give due

weight to mitigating factors. We affirmed the dismissal, holding that MSR was implicitly

included in his sentence, which was within the statutory range, and that the trial court’s decision

on the discretionary matter of the weight given to mitigating circumstances was not subject to

challenge on voidness grounds. People v. McDaniel, 2013 IL App (2d) 110931-U.



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2015 IL App (2d) 141061-U


¶6     On August 25, 2014, defendant filed a second section 2-1401 petition, in which he, as in

the earlier petition, asserted that his sentence was void. In this petition, he argued that, under the

provision of the Violent Crime Victims Assistance Act creating a victims’ assistance fund (Ill.

Rev. Stat. 1989, ch. 70, ¶ 510 (now 725 ILCS 240/10 (West 2014)), a $25 fine was a mandatory

part of his sentence. He noted that the trial court had not itself imposed the $25 fine, but that the

clerk had added it to his sentence nonetheless. He then argued that the clerk lacked the power to

impose any fine, so that the fine was not actually part of his sentence. Thus, he argued, because

his sentence, viewed properly, lacked a mandatory portion, it was void. He requested a new

sentencing hearing, or, alternatively, that he be allowed to be present for the fine’s imposition.

¶7     On September 9, 2014, with defendant not present, the trial court ruled that it could

address defendant’s petition by itself reimposing the fine. It proceeded to do so. (We use the

term “reimposing” for convenience and without any implication that the clerk’s attempt to

impose the fine was effectual.)

¶8     On October 2, 2014, defendant filed a motion to reconsider and a motion for reduction of

his sentence.    Defendant based his request for reconsideration solely on the trial court’s

reimposition of the $25 fine when he was not present in court. As to his motion for reduction of

his sentence, defendant argued that the request for reduction was timely because his sentence as a

whole was not “finalized” until the trial court’s reimposition of the fine. On the merits, he

argued that proper consideration of the mitigating factors that the trial court had originally

considered and of his behavior in prison would lead to the conclusion that his sentence should be

shorter. The trial court ruled that the imposition of the fine was a “ministerial act” and that, as a

result, the modified judgment was not a new one. It further ruled that defendant was not entitled




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2015 IL App (2d) 141061-U


to have the trial court consider his behavior in the years after his original sentencing. Defendant

filed an appeal within 30 days of the trial court’s ruling on his motions.

¶9                                        II. ANALYSIS

¶ 10   On appeal, defendant contends first that it was error for the trial court to impose the fine

without admonishing him pursuant to Illinois Supreme Court Rule 605(a) (eff. Oct. 1, 2001). He

argues that, even though he did file a timely motion to reconsider, this court should remand the

matter to allow the trial court to reimpose the sentence with proper admonitions.

¶ 11   Defendant further contends that no final judgment existed in his case until the September

9, 2014, fine imposition. He asserts that the consequence of that was that his motion for

reduction was timely as to the entirety of his sentence. On the merits, defendant argues that the

trial court erred in refusing to consider his behavior during his incarceration—in other words, he

argues that the trial court should have granted his motion for reduction of his sentence. He cites

a series of federal cases that he describes as holding that defendants are entitled to consideration

of postsentencing mitigation evidence. Alternatively, defendant argues that the imposition of the

fine was an improper increase in his sentence.

¶ 12   The State has responded. It argues that defendant’s claim that he should have been

present on September 9, 2014, when the trial court imposed the fine was “moot” because

defendant was present to argue his motion for a sentence reduction. It further argues that, in

deciding such a motion, the trial court should consider only whether the sentence was proper

when the trial court imposed it and thus should not consider new matters.

¶ 13   Initially, we note that we have jurisdiction of this appeal under Illinois Supreme Court

Rule 304(b)(3) (eff. Feb. 26, 2010):




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2015 IL App (2d) 141061-U


               “The following judgments and orders are appealable without the finding [of

        immediate appealability] required for appeals under paragraph (a) of this rule:

                                                   ***

               (3) A judgment or order granting or denying any of the relief prayed in a petition

        under section 2-1401 of the Code of Civil Procedure.”

The trial court granted relief, reimposing the $25 fine, but did not grant the primary relief that

defendant sought, a new sentencing hearing.

¶ 14    The main procedural issue here is at what stage of the proceedings the trial court’s

reimposition of the fine left the matter. Defendant contends that no valid sentence existed until

September 9, 2014—that that was the day on which the trial court finished imposing sentence—

so that, procedurally, he had 30 days thereafter to file a standard postsentencing motion under

section 5-4.5-50(d) of the Unified Code of Corrections (730 ILCS 5/5-4.5-50(d) (West 2014)).

We hold that, although the trial court did impose a new sentence, the only new part was the $25

fine.

¶ 15    Defendant argues that, when a piece is missing from a sentence such that it is void for

failing to comply with a statutory mandate, the reason a court can add the missing piece without

violating rules against increasing a sentence on reconsideration or remand is that a void sentence

is no sentence at all. Consider, for instance, People v. Garcia, 179 Ill. 2d 55, 73 (1997), in which

our supreme court held that, where the sentence imposed was void for failure to conform to a

statutory requirement, the rule against increasing a sentence on resentencing was inapplicable

because any attempt to apply that rule would be “premised on the erroneous assumption that

there is a valid sentence to increase.”




                                               -5-
2015 IL App (2d) 141061-U


¶ 16     The State counters that, because the flaw in defendant’s sentence infected only a part of it

and the necessary correction required no discretion on the trial court’s part, we should treat the

sentence as void only to the extent that the mandatory fine was missing. We agree with the

State.

¶ 17     We conclude that a sentence is void to the extent that it fails to comply with the relevant

statutory mandates, but only to that extent. Illinois courts most frequently note this rule as to

sentences that exceed a statutory maximum. For instance, in People v. Brown, 225 Ill. 2d 188,

205 (2007), our supreme court stated that, “while a sentence, or portion thereof, not authorized

by statute is void [citation] it is void only to the extent that it exceeds what the law permits” and

the “legally authorized portion of the sentence remains valid.” However, our courts recognize

the rule as to sentences that have other defects. In People v. Donelson, 2013 IL 113603, ¶ 15, the

supreme court held that, where a statutory requirement existed that the defendant’s sentences be

served consecutively, the “sentences [were] void to the extent they were ordered to be served

concurrently.” Thus, in the present case, defendant’s sentence was void only to the extent that

the fine had not been imposed properly.

¶ 18     The competing proposition, of which defendant is a proponent, is that no part of a

sentence is valid while a mandatory fine is missing. Defendant’s position would require us to

believe that he and others like him have spent years in prison without any enforceable sentencing

order. This proposition is absurd and untenable. For the reasons we have stated, we conclude

that the trial court validly imposed a sentence of imprisonment on defendant at the original

sentencing, so that defendant’s challenge to the imprisonment portion of his sentence was

untimely.




                                                 -6-
2015 IL App (2d) 141061-U


¶ 19   Turning to defendant’s remaining contention, we do not agree with defendant that his

absence from the hearing at which the trial court reimposed the $25 fine requires us to vacate

that reimposition and remand the matter so that the trial court can reimpose it with defendant

present. Illinois Supreme Court Rule 605(a) (eff. Oct. 1, 2001) provides that, upon imposing or

modifying a sentence, the trial court must advise the defendant that he has the right to appeal but

must preserve any sentencing issues in a motion to reconsider. We assume for the sake of

argument that Rule 605(a) was applicable such that it required the trial court to admonish

defendant. That is only the first step in the inquiry, as the failure to give proper Rule 605(a)

admonitions requires remand “only where there has been prejudice or a denial of real justice as a

result of the inadequate admonishment.” People v. Henderson, 217 Ill. 2d 449, 466 (2005).

Here, defendant suffered no prejudice. As we have suggested, the only part of defendant’s

sentence that the trial court might reconsider was the newly reimposed $25 sentence. But

defendant had already conceded that the fine was mandatory, so no issue existed to be

reconsidered.    Further, defendant did file a motion to reconsider within 30 days of the

judgment’s entry, and he timely appealed the ruling. Defendant suffered neither prejudice nor a

denial of real justice by his absence.

¶ 20                                     III. CONCLUSION

¶ 21   For the reasons stated, we affirm the trial court’s disposition of defendant’s petition under

section 2-1401 of the Code. As part of our judgment, we grant the State’s request that defendant

be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2014); see also People v.

Nicholls, 71 Ill. 2d 166, 179 (1978).

¶ 22   Affirmed.




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