                                  Illinois Official Reports

                                          Appellate Court



                              People v. Kliner, 2015 IL App (1st) 122285



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



District & No.               First District, Fourth Division
                             Docket No. 1-12-2285



Rule 23 Order filed          November 26, 2014
Motion to publish
allowed &
rehearing denied             January 5, 2015
Opinion filed                January 6, 2015


Held                         The appellate court affirmed the dismissal of defendant’s petition filed
(Note: This syllabus         under section 2-1401 of the Code of Civil Procedure alleging that his
constitutes no part of the   convictions for first degree murder and conspiracy to commit murder
opinion of the court but     were void because the record did not show that the grand jury that
has been prepared by the     entered his indictments was lawfully impaneled, since the record
Reporter of Decisions        showed compliance with section 112-2 of the Code of Criminal
for the convenience of
                             Procedure by stating that the panel of grand jurors was filled, a
the reader.)
                             foreman was appointed, the jurors were sworn, and they were charged
                             by the court.



Decision Under               Appeal from the Circuit Court of Cook County, No. 93-CR-15476; the
Review                       Hon. Kay M. Hanlon, Judge, presiding.




Judgment                     Affirmed.
     Counsel on               Michael J. Pelletier, Alan D. Goldberg, and Sean Collins-Stapleton,
     Appeal                   all of State Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                              Michele Grimaldi Stein, Assistant State’s Attorneys, of counsel), for
                              the People.



     Panel                    PRESIDING JUSTICE KITZGERALD SMITH delivered the
                              judgment of the court, with opinion.
                              Justices Howse and Epstein concurred in the judgment and opinion.




                                               OPINION

¶1          Defendant Ronald Kliner appeals the circuit court’s dismissal of his 2011 petition for
       relief from judgment filed pursuant to section 2-1401(f) of the Code of Civil Procedure (735
       ILCS 5/2-1401(f) (West 2010)). On appeal, defendant asserts, as he did in the petition, that
       his 1996 convictions for first degree murder and conspiracy to commit murder are void
       because the trial record does not affirmatively show the grand jury that entered his
       indictments was lawfully impaneled. We affirm.
¶2          Following a jury trial, defendant was convicted of the 1988 murder of Dana Rinaldi and
       for conspiring to commit that crime. Defendant was found eligible for the death penalty
       because he committed the murder pursuant to a contract or agreement by which he was to
       receive money or valuables in exchange for committing that crime. See Ill. Rev. Stat. 1987,
       ch. 38, ¶ 9-1(b)(5). The trial court found no mitigating factors sufficient to preclude the
       imposition of the death penalty, and defendant was sentenced to death. On direct appeal to
       the Illinois Supreme Court, defendant’s conviction and sentence were affirmed. People v.
       Kliner, 185 Ill. 2d 81, 178 (1998). Defendant filed a petition for writ of certiorari before the
       United States Supreme Court, which was denied. Kliner v. Illinois, 528 U.S. 831 (1999). In
       2003, defendant’s death sentence was commuted to a term of natural life imprisonment.
¶3          After his direct appeal, defendant initiated several collateral proceedings. Defendant’s
       first petition for postconviction relief, filed in 2001, was dismissed after an evidentiary
       hearing. On appeal, this court affirmed. People v. Kliner, No. 1-04-0050 (2006) (unpublished
       order under Supreme Court Rule 23). Defendant also filed motions requesting
       deoxyribonucleic acid (DNA) testing, which the circuit court denied. On appeal, this court
       affirmed. People v. Kliner, Nos. 1-05-3150, 1-07-0374 cons. (2008) (unpublished order
       under Supreme Court Rule 23); People v. Kliner, 2013 IL App (1st) 110785-U.
¶4          On October 3, 2011, defendant filed a pro se petition for relief from judgment under
       section 2-1401(f) (735 ILCS 5/2-1401(f) (West 2010)), alleging his convictions are void
       because the grand jury that indicted him in 1993 lacked jurisdiction to act. He asserted the
       record of his trial proceedings did not establish that the grand jury was sworn pursuant to
       section 112-2(b) of the Code of Criminal Procedure of 1963 (725 ILCS 5/112-2(b) (West

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       1992)), which states that the “Grand Jury shall be impaneled, sworn and instructed as to its
       duties by the court.”
¶5         Defendant further alleged the trial record did not include a certificate as to the
       impanelment of the grand jury as required by Illinois Supreme Court Rule 608(a)(2) (eff.
       Aug. 1, 1986). Attached to defendant’s petition was a letter from Best E. Anaele, the acting
       chief deputy clerk of the circuit court of Cook County. The letter to defendant, dated March
       30, 2011, stated it was responding to defendant’s request for information about case number
       93 CR 15476 and “after a careful review of the court record, it does not appear that a
       Certification of Indictment Grand Jury Empanelment regarding the above-mentioned case
       exists.”
¶6         On April 27, 2012, the State filed a motion to dismiss the petition, contending that
       defendant had placed the burden on the State to produce a certificate of grand jury
       impanelment, which it describes as a nonexistent document fabricated by defendant. The
       State further argued that defendant was required to seek relief pursuant to section 2-1401
       within two years of his sentencing and that his petition was therefore untimely. On June 1,
       2012, defendant filed a response citing People v. Gray, 261 Ill. 140, 141 (1913), which held
       that the record of a criminal case must “show that the grand jury was sworn.” Defendant
       argued that Gray establishes the indictment returned by the grand jury in his case was
       without effect. On August 3, 2012, the circuit court granted the State’s motion to dismiss.
       Defendant now appeals.
¶7         A petition for relief from judgment filed pursuant to section 2-1401 must be filed within
       two years after the entry of the judgment being challenged. 735 ILCS 5/2-1401(c) (West
       2010). However, a defendant may seek relief beyond that two-year period where the
       judgment being challenged is void. People v. Gosier, 205 Ill. 2d 198, 207 (2001). The
       standard of review for the dismissal of a section 2-1401 petition for failure to state a claim
       for relief is de novo. People v. McChriston, 2014 IL 115310, ¶ 6.
¶8         On appeal, defendant contends, as he did in his section 2-1401 petition, that his
       convictions are void and should be vacated because the record in this case lacks proof that
       the grand jury was properly impaneled and sworn. Defendant asserts that without such an
       affirmative showing, as represented by a certificate described in Rule 608(a)(2), the grand
       jury lacked the legal right to indict him.
¶9         Defendant maintains that no decision has directly conflicted with Gray’s holding that a
       conviction is void if the appellate record lacks a showing that the grand jury was sworn. Gray
       involved the calling of a grand jury in 1912 to “investigate a charge of burglary and larceny
       against the plaintiff.” Gray, 261 Ill. at 140. The supreme court noted the following facts:
                “The record shows that the sheriff returned into open court the names of sixteen
                persons whom he had summoned according to law and the order of the court, to serve
                as grand jurors. The record does not show that any of the persons summoned
                appeared in court, that a grand jury was empaneled, that a foreman was appointed or
                sworn, or that a grand jury or any grand juror was sworn. The record shows that on
                the first day of the term the grand jury came into open court and returned an
                indictment against the plaintiff ***.” Id. at 140-41.
¶ 10       Reversing the defendant’s convictions, the supreme court held it was “essential to the
       validity of the record of a criminal case that it show that the proceedings were had in a court


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       regularly organized.” Id. at 141. Among those requirements, the supreme court held the
       record must “show that the grand jury was sworn.” Id.
¶ 11        Defendant acknowledges, however, that since the 101-year-old decision in Gray, the
       Illinois Supreme Court has held that the circuit court’s subject matter jurisdiction over a case
       is derived from the state constitution and is not conferred by information or indictment. See
       People v. Hughes, 2012 IL 112817, ¶ 20 (citing Ill. Const. 1970, art. VI, ¶ 9); People v.
       Benitez, 169 Ill. 2d 245, 256 (1996) (an invalid indictment does not deprive the circuit court
       of jurisdiction). Gray was decided prior to the effective date of our current constitution.
¶ 12        Even if Gray were binding precedent, we note, as the State pointed out to the circuit court
       in opposing defendant’s section 2-1401 petition, that the facts of this case are distinguishable
       because the record in this case demonstrates that the grand jury was sworn. Defendant’s
       indictment returned on June 7, 1993, states, inter alia:
                    “The panel of Grand Jurors being now filled, the Court having now here
                appointed a foreman of said Grand Jury, they were duly sworn and charged by the
                Court, and thereupon retired to consider their presentments.”
¶ 13        Given the presence of that language in the record, we find unavailing defendant’s
       contention that the record does not show compliance with section 112-2 of the Code of
       Criminal Procedure (725 ILCS 5/112-2(b) (West 1992)), which states that the “Grand Jury
       shall be impaneled, sworn and instructed as to its duties by the court.”
¶ 14        Moreover, this court has rejected defendant’s position that section 112-2 requires an
       affirmative showing of compliance. In People v. Bell, 2013 IL App (3d) 120328, ¶ 8, the
       defendant asserted his sentence was void because the record did not establish that the grand
       jury had been impaneled or sworn. The court in Bell affirmed the defendant’s convictions
       because no error appeared on the face of the indictment and the defendant did not provide a
       record of the grand jury proceedings in his case to support his claim on appeal. Bell, 2013 IL
       App (3d) 120328, ¶ 9.
¶ 15        The court in Bell held that the indictment was not required to show compliance with
       section 112-2. Id. ¶ 8 (citing People v. Cleveland, 104 Ill. App. 2d 415 (1969) (face of
       indictment need not recite compliance with sections 112-1 to 112-4)). The court in Bell also
       noted that in 1964, section 111-3 of the Code of Criminal Procedure (725 ILCS 5/111-3
       (West 1994)) was put into effect, stating that the form of a criminal charge is sufficient if it is
       in writing, states the name of the offense and the statutory provision, sets forth the elements
       and nature of the offense, the date and county in which it occurred, and names the accused.
       Bell, 2013 IL App (3d) 120328, ¶ 8. The court noted that section 111-3 did not require that
       the indictment contain any particular language. Id. (citing People v. Smith, 66 Ill. App. 2d
       257 (1966)).
¶ 16        The statutory requirements summarized in Bell all have taken effect since Gray. A review
       of Illinois cases reveals that Gray has not been relied upon in a published decision since
       1961. See People v. Sullivan, 21 Ill. 2d 232, 234 (1961) (citing Gray for the general
       proposition that an objection to the jurisdiction of the grand jury can be raised at any time).
       Additionally, the record in this case establishes the grand jury that entered defendant’s
       indictment was properly sworn.
¶ 17        Defendant nevertheless contends Bell is inapposite because, here, he has presented the
       letter from the representative of the circuit court clerks’ office stating that no certificate is


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       included in the record to establish that the grand jury was impaneled as required by Rule
       608(a)(2). However, Bell does not hold that the absence of such a certificate invalidates the
       defendant’s conviction or convictions.
¶ 18       Defendant further relies on two cases, People v. Munson, 319 Ill. 596 (1925), and People
       v. Dunson, 316 Ill. App. 3d 760 (2000), which have no bearing on his appeal. In those cases,
       the convictions of the defendants were voided because their indictments were secured by
       persons who were unlicensed to practice law. The unusual circumstances of Munson and
       Dunson are not present in the instant case, and we do not accept defendant’s invitation to
       analogize those facts to the case at bar, where a valid indictment was entered by a sworn
       grand jury, as supported by the record.
¶ 19       Accordingly, for all of those reasons, the circuit court’s dismissal of defendant’s section
       2-1401 petition is affirmed.

¶ 20      Affirmed.




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