                                  Illinois Official Reports

                                          Appellate Court




                               People v. Rios, 2013 IL App (1st) 121072




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      DON JUAN RIOS, Defendant-Appellant.


District & No.               First District, Second Division
                             Docket No. 1-12-1072


Filed                        November 26, 2013



Held                         The trial court lacked jurisdiction to grant defendant habeas corpus
(Note: This syllabus         relief, notwithstanding the fact that the judge who presided over
constitutes no part of the   defendant’s trial used deception to get elected to his judicial office and
opinion of the court but     violated the residency requirements of the Election Code, since the
has been prepared by the     de facto doctrine provides that the judge was an officer de facto, his
Reporter of Decisions        acts were valid so far as the public or third parties were concerned, and
for the convenience of       defendant was precluded from making a collateral attack on the
the reader.)                 judge’s authority in a habeas corpus proceeding.



Decision Under               Appeal from the Circuit Court of Cook County, No. 99-CR-12385; the
Review                       Hon. Thomas M. Tucker, Judge, presiding.




Judgment                     Affirmed.
     Counsel on                Abishi C. Cunningham, Jr., Public Defender, of Chicago (Ingrid Gill,
     Appeal                    Assistant Public Defender, of counsel), for appellant.

                               Anita M. Alvarez, State=s Attorney, of Chicago (Alan J. Spellberg and
                               Yvette Loizon, Assistant State=s Attorneys, of counsel), for the
                               People.


     Panel                     JUSTICE PIERCE delivered the judgment of the court, with opinion.
                               Justices Harris and Simon concurred in the judgment and opinion.




                                                OPINION

¶1         Defendant Don Juan Rios appeals from the denial of his petition for habeas corpus relief.
       Defendant argues that the circuit court erred in finding that it lacked jurisdiction to grant relief
       under the Habeas Corpus Act (Act) (735 ILCS 5/10-124 (West 2012)), where defendant
       asserted that his judgment of conviction was void because the judge who presided over his
       bench trial lacked the constitutionally mandated qualifications to be a judge. For the following
       reasons, we affirm the judgment of the circuit court.

¶2                                         BACKGROUND
¶3          Defendant was charged with two counts of first degree murder, three counts of attempted
       first degree murder, and two counts of aggravated discharge of a firearm after he shot into a
       vehicle containing four passengers, killing one of them. On April 29, 2002, following a bench
       trial before then Judge Golniewicz, defendant was convicted of first degree murder and two
       counts of aggravated discharge arising out of events that occurred in May 1999. Shortly
       thereafter, the Judicial Inquiry Board (JIB) filed a complaint against the trial judge, who was
       then placed on administrative leave. Defendant was later sentenced by Judge Daniel Kelly to
       45 years’ imprisonment for first degree murder and two concurrent 10-year terms of
       imprisonment for aggravated discharge. People v. Rios, No. 1-04-0058 (Jan. 31, 2006)
       (unpublished order under Supreme Court Rule 23). By order entered November 15, 2004, the
       JIB found, inter alia, that Golniewicz violated certain rules of judicial conduct in that he used
       deception to get elected to his judicial office and thereafter continued to violate residency
       requirements for sitting judges as set forth in relevant sections of the Election Code, which
       warranted his removal from office. In re Golniewicz, Ill. Ct. Comm’n, No. 02 CC 1 (Nov. 15,
       2004).
¶4          Among the issues defendant raised on direct appeal, defendant alleged that his jury waiver
       was involuntary because Golniewicz failed to disclose that he was the subject of a JIB

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       investigation at the time of defendant’s trial. We rejected defendant’s arguments and affirmed
       his conviction. Rios, slip op. at 30-33.
¶5         Thereafter, defendant filed a postconviction petition alleging that Golniewicz may have
       been biased because he was the subject of a JIB investigation and that the trial court erred in
       prohibiting him from conducting a posttrial investigation to uncover the potential bias.
       Defendant’s petition was summarily dismissed by the trial court and this court affirmed.
       People v. Rios, No. 1-07-1668 (Dec. 22, 2008) (unpublished order under Supreme Court Rule
       23).
¶6         Defendant’s successive postconviction petition was also summarily dismissed by the trial
       court. On appeal, defendant’s counsel and the State filed an agreed motion for summary
       disposition asking this court to award defendant an additional 11 days of presentence credit.
       We granted the motion.
¶7         On December 21, 2011, defendant filed a pro se petition for habeas corpus relief that is the
       subject of the instant appeal. In the petition, defendant argued that his conviction and sentence
       are void because Golniewicz falsified his judicial application and fraudulently obtained his
       judgeship. Therefore, defendant argued, Golniewicz lacked the judicial authority to preside
       over his trial. Defendants attached an order issued by the Illinois Courts Commission removing
       Golniewicz from judicial office. In re Golniewicz, Ill. Ct. Comm’n, No. 02 CC 1 (Nov. 15,
       2004). After an extensive discussion of the evidence and testimony presented, the Commission
       concluded that Golniewicz
               “consistently engaged in a pattern of behavior that violated the judicial canons,
               demeaned the integrity of the judiciary, and brought the judicial office into disrepute.
               Respondentused deception to get elected. He was living in Riverside, but used his
               parents’ addressto run for election because he had a much greater chance of winning an
               election usingthat address. Respondent actively concealed his true permanent abode.
               *** Once elected, respondent continued to violate state residency law by residing
               outside of the subcircuit from which he was elected.” Id. at 31.
       The trial court denied defendant’s petition for habeas corpus relief finding that it lacked the
       necessary jurisdiction. It is from this order that defendant now appeals.

¶8                                             ANALYSIS
¶9         Defendant argues that the trial court erred in finding that it lacked jurisdiction under the
       Act, where he asserted that his judgment of conviction was void because the judicial officer
       who presided over his bench trial lacked the constitutionally mandated qualifications to be a
       judge.
¶ 10       Habeas corpus relief is only available on the seven grounds specified by the Code of Civil
       Procedure. See 735 ILCS 5/10-124 (West 2012); Beacham v. Walker, 231 Ill. 2d 51, 58 (2008).
       These seven grounds fall into two general categories: (1) the prisoner was incarcerated by a
       court which lacked personal or subject matter jurisdiction; or (2) some occurrence subsequent
       to the prisoner’s conviction entitled the prisoner to immediate release. Hennings v. Chandler,
       229 Ill. 2d 18, 30 (2008). “A complaint for order of habeas corpus may not be used to review

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       proceedings that do not exhibit one of these defects, even though the alleged error involves a
       denial of constitutional rights.” Beacham, 231 Ill. 2d at 58.
¶ 11        A judgment is void only if the court that entered it lacked jurisdiction. People v. Davis, 156
       Ill. 2d 149, 155-56 (1993). The lack of jurisdiction can result from the lack of personal
       jurisdiction or subject matter jurisdiction, but lack of jurisdiction can also be found where the
       court lacked the power to render the particular judgment or sentence. Davis, 156 Ill. 2d at
       155-56. As defendant claims that his conviction is void because the court lacked the necessary
       jurisdiction, the appropriate review is de novo. In re Luis R., 239 Ill. 2d 295, 299 (2010).
¶ 12        Defendant argues that People v. Kelly, 2012 IL App (1st) 101521, is instructive in this case.
       Although Kelly is interesting, it does not inform our analysis of this appeal. In Kelly, the trial
       judge was also Judge Golniewicz. On appeal from the second-stage dismissal of his
       postconviction petition, defendant advanced three arguments: (1) he was denied his
       constitutional right to counsel of his choice; (2) he made a substantial showing that he was
       deprived of his right to a fair trial where he alleged that Golniewicz was not actually a judge
       under the Illinois Constitution because he falsified his application to be placed on the ballot for
       the tenth judicial subcircuit, claiming to live there when he did not, and violated the Illinois
       Constitution’s residency requirement; and (3) postconviction counsel failed to provide a
       reasonable level of assistance. Id. ¶¶ 23-26.
¶ 13        In Kelly, we dealt with an appeal from the denial of a second-stage postconviction petition
       and the relevant question was whether defendant made a substantial showing of a violation of
       his constitutional rights. We observed that courts should not consider constitutional questions
       if the case can be decided on other grounds and reversed the circuit court’s dismissal of the
       petition and remanded for further proceedings finding the nonconstitutional issue of
       postconviction counsel’s ineffectiveness to be dispositive. Id. ¶ 27. Although we did not reach
       the defendant’s constitutional claims, we did make some observations regarding the relief the
       defendant sought related to his claim about Judge Golniewicz. Id. (Murphy, J., specially
       concurring) (agreeing with the court that the defendant’s constitutional claims need not be
       addressed and therefore choosing not to comment on the relief sought on the defendant’s
       constitutional claim regarding Golniewicz); see also Cates v. Cates, 156 Ill. 2d 76, 80 (1993)
       (Dictum is a remark or expression of opinion that a court uttered as an aside and is generally
       not considered binding authority.). However, the observations made in Kelly are not helpful in
       deciding the instant appeal where we directly consider the denial of a petition for habeas
       corpus relief where the trial court ruled that it lacked jurisdiction.
¶ 14        The procedural postures of Kelly and the case at bar differ significantly. Kelly dealt with an
       appeal from the denial of a second-stage postconviction petition where the relevant question
       was whether defendant made a substantial showing of a violation of his constitutional rights.
       The question we must answer here is whether a collateral attack on the authority of a judicial
       officer raised in a habeas corpus proceeding renders a defendant’s conviction and sentence
       void because the trial judge was removed from office for conduct which demeaned the
       integrity of the judiciary by violating the residency requirements of the Illinois Constitution
       and the Election Code.

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¶ 15        Again, a judgment is void only if the court that entered it lacked jurisdiction. People v.
       Davis, 156 Ill. 2d 149, 155-56 (1993). Jurisdiction lies in the court itself, not in an individual
       judge. People ex rel. Sandbach v. Weber, 403 Ill. 331, 335 (1949); Generes v. Foreman, 277
       Ill. App. 3d 353, 356 (1995). In Illinois, a court’s jurisdiction is conferred by the constitution.
       People v. Gilmore, 63 Ill. 2d 23, 26 (1976). “Pursuant to article VI, section 9, of our
       constitution, the circuit courts have jurisdiction over all justiciable matters (Ill. Const. 1970,
       art. VI, § 9), and a trial court obtains personal jurisdiction over a defendant when he appears
       before it [citation].” People v. Raczkowski, 359 Ill. App. 3d 494, 497 (2005). Our supreme
       court has defined a “justiciable matter” as “a controversy appropriate for review by the court,
       in that it is definite and concrete, as opposed to hypothetical or moot, touching upon the legal
       relations of parties having adverse legal interests.” Belleville Toyota, Inc. v. Toyota Motor
       Sales, U.S.A., Inc., 199 Ill. 2d 325, 334-35 (2002).
¶ 16        In the case at bar, defendant had been charged under the Criminal Code of 1961 with two
       counts of first degree murder (720 ILCS 5/9-1(a)(2) (West 1998)), two counts of attempted
       first degree murder (720 ILCS 5/8-4(a), 9-1 (West 1998)), and two counts of aggravated
       discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 1998)), a controversy appropriate for
       consideration by the trial court. Thus, the trial court had subject matter jurisdiction.
       Furthermore, the trial court acquired personal jurisdiction over defendant when he personally
       appeared before the court. People v. Speed, 318 Ill. App. 3d 910 (2001). The defendant does
       not contend otherwise. Because the circuit court properly had both subject matter jurisdiction
       and personal jurisdiction over defendant’s case, defendant’s conviction and sentence are not
       void for either of these reasons.
¶ 17        The thrust of defendant’s argument is that Golniewicz fraudulently held his judicial
       position and, therefore, the judgment of conviction entered is void. This argument has been
       rejected as a collateral attack on the judicial orders of a de facto officer. United States ex rel.
       Doss v. Lindsley, 148 F.2d 22, 23 (7th Cir. 1945) (habeas corpus petition properly dismissed
       where a person actually performing the duties of an office under color of title is an officer
       de facto and such acts are valid so far as the public or third parties who have an interest in them
       are concerned). In Ex Parte Ward, 173 U.S. 452 (1899), the Supreme Court rejected an attempt
       to vacate a sentence on the grounds that the commission of the trial judge was defective. The
       Court stated that it was well settled that where a court has jurisdiction over the subject matter
       and the person and the proceedings and conviction are otherwise proper, the judge is an officer
       de facto and the validity of the judge’s position or the right to exercise judicial functions is not
       a proper subject of a habeas corpus proceeding. Id. at 455-56. “[T]he title of a person acting
       with color of authority, even if he be not a good officer in point of law, cannot be collaterally
       attacked; and as [the judge] acted, at least, under such color, we cannot enter on any discussion
       of proposition involving his title to the office held.” Id. at 456; see also Habeas Corpus on
       Ground of Defective Title to Office of Judge, Prosecuting Attorney, or Other Officer
       Participating in Petitioner’s Trial or Confinement, 158 A.L.R. 529 (1945).
¶ 18        The well-established de facto doctrine provides that a person performing the duties of an
       office under color of title is an officer de facto and such acts are valid so far as the public or
       third parties who have an interest in them are concerned. People ex rel. Rusch v. Wortman, 334
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       Ill. 298 (1928); Cleary v. Chicago Title & Trust Co., 4 Ill. 2d 57 (1954); People ex rel.
       Chillicothe Township v. Board of Review, 19 Ill. 2d 424 (1960); People v. O’Neill, 33 Ill. 2d
       184 (1965). Defendant argues that because of Golniewicz’s deception and fraud his authority
       as a judge cannot be recognized under the equitable de facto doctrine citing, without
       elaboration, Daniels v. Industrial Comm’n, 201 Ill. 2d 160 (2002). This reliance on Daniels is
       misplaced because Daniels was a direct attack, not a collateral attack, on an officer’s authority
       and a plurality of the court determined a de facto analysis should not apply because the
       administrative agency acted without statutory authority in making the questioned
       appointments and as a result threatened the basic objectives of the relevant legislation. Id. at
       164-67.
¶ 19        In the present case, defendant makes a collateral attack on the trial judge’s authority as a
       de facto officer which, as earlier explained, he cannot do in a habeas corpus proceeding. The
       trial court had subject matter jurisdiction and personal jurisdiction over the defendant;
       therefore, defendant’s conviction and sentence are not void.
¶ 20        Defendant’s original judgment of conviction is not void, his maximum term has not yet
       expired, and nothing has occurred to warrant defendant’s immediate discharge. Therefore, the
       trial court is without jurisdiction to grant habeas corpus relief. Faircloth v. Sternes, 367 Ill.
       App. 3d 123, 125 (2006). We find that the trial court did not err in this case when it determined
       that it did not have jurisdiction to grant habeas corpus relief.

¶ 21                                      CONCLUSION
¶ 22      Based on the foregoing, the judgment of the circuit court is affirmed.

¶ 23      Affirmed.




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