## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . V illafuerte-Medrano , 2012 IL App (2d) 110773

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. MANUEL VI L L AFU ERTE-MEDRANO, a/k/a Osca r Medra no, Def endant- Appellant.

District & N o. Second District Docke t No. 2-11-0773

Filed Dec ember 19, 2012

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The appellate court dismiss ed defe ndant’s appea l in which he contende d that the j udg ment enter ed on the forfeiture of his bond in his DUIcase s

was eq u i v alent to a conviction for ag g rava ted DUI that rende red a subsequent DUI conviction enter ed on his g uilty plea based on the same conduct a violation of the prohibition agai nst double jeopar dy
, since defe ndant failed to comply with Supreme Court Rule 604(d) by filing a motion to rec onsider his sentenc e or withdraw his g uilty plea and vacate the judg ment.

Dec ision Under
Review Appea l from t h e Circuit Court of Boone County
, No. 06-CF- 192; the Hon. J ohn H. Young , J udg e, pre siding.

J udg ment Appea l dismi ssed.Counsel on

Appea l T h omas A. L ilien and Sherry R. Silvern, both of State Appellate Def ender ’s Off

ice, of Elg in, for appe llant.

Michelle J

. Courier, State’s Attorney
, of Be lvidere (L awr ence M. Ba uer and J ay Paul Hoffma

nn both of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for

the People.

Panel J USTI CE HUDSON deliver ed the judg ment of the c ourt, with opinion.
J ustices Z enoff

and B irkett conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Def

endant, Manuel Villafuer t e-Medrano, appea ls his conviction of ag g ravated driving under the influen c e ( a g gr a v a te d D U I ) (625 I L CS 5/11-501(d)( 1)(G) (West 2006)), which was ent ered upon his plea of g uilty

. He argues that his conviction is void pursuant to double jeopar dy principles beca

use judgme nt had alre ady been enter ed upon a bond forf eiture, and the I llinois Vehicle Code (625 I L CS 5/1-100 et seq. (West 2006)) provides that a b ond forf eiture equate s to a conviction of the underly ing offe nse. Howeve r, defe ndant’s failure to comply with I llinois Supreme C o u rt Ru l e 604(d) (eff

. J uly 1, 2006) requires us to dismiss this appeal without rea ching the merits.

¶ 2 I . BA CKGROUND ¶ 3 Def

endant was char g ed by indictment on J une 2, 2006, in case No. 06-CF- 192 with two
counts of ag g ravated DUI (625 I L CS 5/11-501(d)( 1)(G) (West 2006)), in that he drove while under the influence of alcohol without possessing a valid license. The rec ord is missing many order s but contains a court case sear ch that explains the proce dural background throug h case notes enter ed by court officia ls. Acc ording to the case notes, there wer e misdemeanor traff ic citations issued for the same conduct in case Nos. 06-DT- 129 and 06-TR-4060 throug h 06- TR-4062. The notes indicate that on September 13, 2006, defe ndant failed to appea r in court; his attorney , Dennis Steeves, withdrew; t h e court order ed defe ndant’s bond forf eited; an

arr est war

rant was issued; and the court set the matter for hear ing on October 25, 2006. Def endant fai l ed to appea

r on October 25, and the court finalized the bond forf eiture by
enter ing judgme nt in favor of the State, listi ng case Nos. 0 6 -D T -129 and 06-TR-4060 throug h 06-TR-4062. ¶ 4 On J anuar

y 22, 2007, defe ndant was arr est ed p u rs u an t to the arr est war rant issued in September 2006. Ba il was set at $ 1 0
, 0 0 0. On J anuar y 23, defe ndant paid the bail bond

-2-amount. The bail bond lists case Nos. 06-CM-41, 06-CM-42, 06-DT- 14, 06-CF- 192, 06-DT129, and 06-TR-4060 throug h 06-TR-4064. Def endant was o rd er ed to appea r in court on Fe bruar y 14, 2007. After defe ndant failed to appea r, the court order ed that defe ndant’s bond

was forf eited and issued an arr est war rant. J udg ment was enter ed on the bond forf eiture on Marc h 14 for the sa

me ca se numbers. ¶ 5 Def

endant was arr ested ag ain on May 27, 2008, on the war rant issued in Fe bruar

y 2007. On that date, defe ndant paid the bail amount and a court date was set for J une 13. Def endant
appea red o n J u n e 13 without counsel. Def endant informed the court that he was hiring counsel. Three new case s wer e listed as pending ag ainst defe ndant: 07-CM-41 and 07-CM42 (misdemeanor obstruction of justice and delivery of alcohol to a mi n or) and 07-DT- 14 (misdemeanor DUI ). On J uly 23, defe ndant fa iled to a

ppear in c ourt ag ain. On J uly 25, the
court entered an o rder forf eiting defe ndant’s bond and issued an arr est war rant. On September 3, the bond forf eiture w as finalized. ¶ 6 Def

endant was arr est ed o n J an u ar y 3, 2011, pursuant to the arr est war rant issued in September 2008. On Marc h 4, 2011, defe ndant, throug h Assistant P ublic Def ender Carie 1 L

. Poirier, moved to dismiss case Nos. 06-CF- 192, 06-DT- 129, and 06-TR-4060. Acc ording to the motion, the trial cour t ordere d bond forf

eiture f inalization on October 25, 2006, and notified the Secre tary of State of that judgme nt

. Upon rec eipt of that judgme nt, defe ndant
argued, he was “convic ted” in case Nos. 06-DT- 129 and 06-TR-4060. On J une 2, 2006, the State filed a bill of i ndictment in case No. 06-CF- 192, alleg ing the same conduct as i n 06- DT -1 2 9
, en hance d to a Class 4 felony

. Def endant argued that this prosec ution was barr ed pursuant to section 3-4 of the Criminal Code of 1961 (720 I L CS 5/3-4 (West 2010)) and double jeopar dy provisions beca use judgme nt was enter ed on the bond forf eiture on October 25, 2006, for case Nos. 06-DT- 129 and 06-TR-4060 throug h 06-TR-4062. The t ri al court denied the motion. The trial court stated that it did not believe that a bond forf eiture barr ed the continuation of the underlying case

. Thus, it did not believe that the bond forf eiture was a fina l conviction on the pendingcause

. ¶ 7 Def

endant moved to rec onsider this de nial on April 26, 2011, stating that the court ha d denied his motion on Marc h 30 without hear ing arguments. Def endant stated that the court considere d two case s (

People v. Smith
, 345 I ll. App. 3d 179 (2004), and People v. Glowacki
, 404 I ll. App. 3d 169 (2010)) when it deter min ed t h at a bond forf

eiture judgme nt was an “alter native” con v i ction that may be used to enhanc e a char g e to a felony but was not a “fina l” conviction for the purposes of defe ndant’s case

. Def endant argued that the trial court

was incorre ct and that, if the Sta te may rely upon a bond forf eiture to a defe ndant’s detriment, he should be allowed to claim its protec tions. There fore
, he argued, the court err ed in denying his motion to dismi ss. ¶ 8 The trial court denied defe ndant’s motion for rec onsideration on May 18, 2011. On that date, defe ndant pleade d g uilty to count I I of the indictment in case No. 06-CF- 192. Count I of that indictment was dismiss ed as well as the other char g ed offe nses in case Nos. 06-DTAn add it ion al fe lon y DUI was m ent ion ed in the re por ts of pro cee din gs unde r cas e No. 08- 1 CF- 300, but def

end ant had not yet be en a rr ai gned in th at ca se.

-3-129 and 06-TR-4060 throug h 06-TR-4062. On July 11, 2011, defe ndant was sentence d on count I I in case No. 06-CF- 192 (agg ravated DUI ), a Class 4 felony
, to 18 months’ imprisonment. Def

endant, without moving to withdraw his g uilty plea or for rec onsideration of his sentenc e, appea led on the basis that the court’s entry of judgme nt on his plea was void.

¶ 9 I I . ANALYSI S ¶ 10 On appea l, defe ndant argues that the judgme nt on the bond forf eiture enter ed on October 25, 2006, was the equivalent of a conviction of ag g ravated DUI under the Vehicle Code. T h er ef ore, defe ndant argues, the subsequent DUI conviction enter ed upon his g uilty plea violated double jeopar dy protec tion and was thus a void judgme nt. Def endant argues that we should addre ss the merits of his appea l despite his fail u re to move to withdraw his g uilty plea, beca

use his conviction is void for violating double j eopardy protec tion. Def endant
argues t hat a void judgme nt may be attacked at any time. People v. W oolsey
, 278 I ll. App. 3d 708, 709 (1996). The State argues that no appea l ma y be taken from a judgme nt enter ed

on a g uilty plea unless the defe ndant, within 30 day s of the date on which th e s en t en ce is imposed, files a motion to rec onsider the sentenc e or withdraw the g uilty plea pursuant to I llinois Supreme Court Rule 604(d) (ef f. J uly 1, 2006). The State, while agree ing that a void judgme nt ma

y be attac ked at any time, a rgues that defe ndant’s double jeopar dy claim does not involve a void judgme nt, relying on People v

. Dieterman
, 243 I ll. App. 3d 838 ( 1993), for this proposition. W e ag ree with the State. ¶ 11 Void order s are order s enter ed by a court (1) without jurisdiction or (2) that exceede d its jurisdiction by enter ing an order beyond its inhere nt power

. People v. Johnson
, 327 I ll. App. 3d 252, 256 (2002). I n People v. Davis
, 156 I ll. 2d 149, 155 (1993), the defe ndant argued that his double jeopard y cl ai m b ased on convictions of both a g reater and a lesser included offe nse did not depend on the Post-Convi ction Hea ring Act (725 I L CS 5/122-1 et seq. (West 1992)) for its viability
, beca use a conviction that violated double jeopar dy constituted a void judgme nt. Our supreme court reje cted this arg ument, stating that an order is void only when jurisdiction is lacking and that, by contra st, a voidable judgme nt is one enter ed err oneously by a court having jurisdiction. Davis
, 156 I ll. 2d at 155. The court explained that “jurisdiction

or power to rende r a particula r judgme nt does not mean that the judgme nt rende red must be the one that should have been rende red, for the power to decide car ries with it the power to decide wrong as well as to de cide rig ht.” Id. at 156. Once a court has acquir ed jurisdiction,

no su b s equent err or or irregularity will remove the jurisdiction; thus, a court cannot lose jurisdiction be cause it makes a mistake in de termining either the fac ts, the law, or both. Id. A judgm en t is void only wher e a court has exceede d its jurisdiction. Id. Although the defe ndant in Davis
, like defe ndant here
, claimed that, beca use the constitution prohibits multipl e convictions of the same offe nse, and the improper conviction thus exceede d constitutional authority
, our supreme court stated that such a violation does not remove the court’s j u ri s d i ct i o n to rende r the improper judgme nt. Id. at 157. Thus, the court held that, beca use the trial court had proper jurisdiction over the defe ndant and the subject matter, the
court had the authority to enter the conviction and the sentenc e, and even if judgme nt on both

was err or, the order was mere ly voidable, not void. Id. I n this case , the trial court had proper persona l and subject matter jurisdiction to enter the conviction, even if entry of such was

-4-err or. Thus, it is not a void order.

¶ 12 Def

endant in this case relies on Menna v. New Y ork
, 423 U.S. 61, 62 (1975) ( per curiam ), for the proposition that a g uilty plea does not waive a claim that the char g e is one on which the State did not have the authority to hale him into court and there fore was void. Def endant further relies u p on languag e in Dieterman for his argument that the order was void. Dieterman stated, “We cannot, there fore
, revie w defe ndant’s double jeopar dy claim unless

a double jeopar dy violation would rende r void the judgme nt on defe ndant’s g uilty plea to the felony char g e.” Di et er man , 243 I ll. App. 3d at 841. Def endant’ s relianc e on these cases is misplaced. ¶ 13 I n Menna
, the defe ndant wa s co nvicted of ref using to testify befor e a g rand jury and

serve d a 30-day sentenc e; later, he was indicted fo r re fu s ing to answe r questions in

connec tion with the same investigation. Menna
, 423 U.S. at 61. The defe ndant moved to dismiss the s econd indictment under the double j eopar dy clause
, bu t h e was unsucce ssful. Id. at 62. The defe ndant pleade d g uilty
, was s en t en ce d, and appea led, claiming that the double jeopar dy clause divested the state of the authority to hale him into court on a char g e to which he had alre ady pleade d g uilty

. Id. The Supreme Court reve rsed the appellate court’s ruling
, which was based on a case that had previously held that a double jeopar dy claim was waived by virtue of enter ing a g uilty plea. Id. The Supreme Court stated that, wher e the state

was “pre cluded by the United States Constit ution from haling a defe ndan t i nto court on a char g e, fede ral l aw re q u i re s that a conviction on that char g e be set aside even if the convicti o n was enter ed pursuant to a counsele d plea of g uilty .” Id. The Supreme Court explained that it was holding not t hat a plea of guilty would never serve to waive a

double jeopar dy claim, but simply “that a plea of g uilty to a char g e [di d] not wa i v e a claim that–judge d on its fac e–the charg e is o n e which the State may not constitutionally prosec ute.” Id. at 62 n.2. Menna
, there fore
, stands for the proposition that a g uilty plea does not in itself waive a defe ndant’s claim that his double jeopar dy rig hts wer e violated. I t does not conclude that an orde r that violates a de fenda nt’s double jeopar dy

rig hts is necessar ily

void. ¶ 14 The Supreme Court later explained that a voluntary and intelligent g uilty plea made by a def endant, who has been advised by competent c ounsel, may

not be collater ally

attacke d unless one of the exceptions set forth in Menna or in Blackle dge v. Perry
, 417 U.S. 21 (1974), exis ts. United States v. Broce
, 488 U.S. 563, 574 (1989). The Blackle dge exception involves situations wher e prosec utorial vindictiveness aff ects the defe ndant’s rig ht not to be haled into court in violation of his due proce ss rig hts. Id. at 574-75 (attac k on g uilty plea allowed wher e the state filed char g es on a g rea ter offe nse afte r the defe ndant ap p ealed conviction on lesser offe nse, obtained a new trial, and then pleade d g uilty to the state’s new, g reater char g es). The Supreme Court explained that the defe ndant in Menna was allowed to attack his g uilty plea for t he same rea son as i n Blackle dge–that the s tate was prec luded b y the consti tution from haling the defe ndant i nto court on a charg e. Id. at 575. The Supreme Court explained that in “neith er B l ackle dge nor Menna did the defe ndants seek further
proce eding s at which to exp an d t h e rec ord with new evidenc e.” Id. Rather, “the deter mination that th e s ec o n d indictment could not g o forwa rd shoul d have been made by the presiding judge at the time the plea was enter ed on the basis of the exis ting rec ord.” Id. The Supreme Court expl ained:

-5-“B oth Blackle dge and Menna could be (and ultimately wer e) resolved without any need
to venture beyond that rec ord. I n Blackle dge
, the conce ssions implicit in the defe ndant’s
g uilty plea wer e simply irrele vant, beca use the constitutional infirmity in the proce eding s lay in the State’s power to bring any indictment at all. I n Menna
, the indictment was fac ially duplicative of the ear lier offe nse of which the defe ndant had been convicted and
sentenc ed so that the admissions made by Menna’ s g uilty plea could not conce ivably be construed to extend beyond a redunda nt confe ssion to the ear lier offe nse.” Id. at 575-76. ¶ 15 There fore
, the Blackle dge / Menna exception, as the fede ral courts ref er to this, serve s to protec t th o s e d efendants who have otherwise waived cer tain constitutional protec tions by pleadingg uilty

wher e the infirmity

in the proce eding s lay

in the state’s pow er to bringany indictment at al l. The fac ts of Broce did not implicate the Blackle dge / Menna exception, b ec ause the indictments to which the defe ndant pleade d g uilty descr ibed differ ent conspirac ies on their fac es. The defe ndant, there fore
, could not, without looking beyond the indictments, prove his claim that only one conspirac y exis ted and that the entry of judgme nt on both violated his double jeopardy rig hts. Id. at 576. ¶ 16 L ater , in United States v. Bell
, 70 F.3d 495, 496-97 (7th Cir. 1995), the Seventh Circuit summarized that the Blackle dge / Menna exception exis ts if a defe ct is jurisdictional, such as the unconstitutionalit y of a statute. The Seventh Circuit has further held that double jeopar dy rig hts can be forf

eited by failing to prese rve the issue for appea l. Gomez v. Berge
, 434 F.3d 940, 943 (7th Cir. 2006). I mportantly
, Menna did not discuss any issue with the defe ndant’s
p re s er v ation of the issue for appea l; rathe r, the appellate court had declined to rea ch t h e merits of the defe ndant’s double jeopar dy claim, holding that it was waived by virtue of his
g uilty plea. Menna
, 423 U.S. at 62. What we g lean from the fede ral case l aw i s that a defe ndant may appea l his g uilty plea on a double jeopar dy violation, a rig ht otherwise waived by entry of a knowing and voluntary guilty plea, wher e the double jeopar dy violation can be established on the fac e of the indictment. Broce
, 488 U.S. at 575-76. Howeve r, such claims

can be forf

eited if the defe ndant fails to prese rve the issue on appeal

. Gomez
, 434 F.3d at 943. I n neither e vent, thoug h, is the judgme nt void. ¶ 17 Dieterman is consistent with Me n n a an d i t s p ro geny as well as Davis in that the defe ndant’s double jeopar dy claim was not waived by virtue of his g uilty plea, but it was not proper ly prese rved for appea l. I n Dieterman , the def endant plea ded guilty

to misdemeanor d ri ving while his license was revoke d (DWL R), with an assistant State’s Attor n ey (A S A) who was una

war e that anothe r ASA had infor med the defe ndant that he planned to c hang e the char g e to a felony

. Dieterman
, 243 I ll. App. 3d at 839-40. The State moved to vacate the
g uilty plea, whic h the cour t gr anted, a

nd the defe ndant pleade d g uilty to the felony DWL R and was sentenc ed to probation. Id. at 840. L ater , the State fi l ed a p et i tion to revoke the defe ndant’s probation, char g ing that he had driven on two dates. Id. The court found that the d ef en dant violated his probation and sentenc ed him to 21⁄2 y ear s’ imprisonment. Id. T h e defe ndant then appea led the revoc ation of probation, arguin g t h at the underly ing felony DWL R conviction was void beca use it resulted from a prosec ution that violated the double jeopar dy clause

. Id. We stated that, in an appea l from an order revoking a defe ndant’s probation, the court cannot consider the corr ectne ss of the underly ing conviction unless that judgme nt is void. Id. at 841. We went on to conc lude that the double jeopar dy clause does

-6-not conce rn the authority of the trial court to enter a judgme nt; thus, it is not a void order and

the rig ht to be fre e from double jeopar dy is a persona l rig ht that can be forf eited. Id

. at 843. ¶ 18 As Dieterman explained, the trial court in that case had ju ri s d i ct i o n t o en t er t h e conviction that the defe ndant claimed was a violation of d o u b l e jeopar dy

. We expli citly stated that we could not revie w the defe ndant’s double jeopar dy claim “unless [t he] double jeopar dy violation would rende r void the judgme nt on defe ndant’s g uilty plea to the felony char g e.” Id. at 841. We stated that, “[f]or example, wher e defe ndant is convicted of a crime that has no statutory authority
, the j udg ment is voi d
, and defenda nt can challeng e it at any time.” Id. Since the order in Dieterman was mere ly voidable, we conclude d that, beca use the defe ndant failed to prese rve the issue for appea l by moving to withdraw his guilty plea under Rule 604(d), he could not invoke plain er ror and his only avenue for relief was the PostConviction HearingAct. Id. at 843. ¶ 19 Her e, while Menna allows a defe ndant to raise a double jeopar dy claim afte r enter ing an otherwise valid g uilty plea, defe ndant’s double jeopar dy claim was still subject to forf eiture. As Dieterman and Davis instruct, a double jeopar dy violation does not rende r an order void. The trial court in this case had jurisdiction to enter the order
, even if the order implicated double jeopar dy protec tion. L ike in Dieterman
, wher e the order is not void and the defe ndant fa ils to comply with Rule 604(d), the court may not revie w the double jeopar dy cl ai m

. Acc ording ly
, the order that defe ndant attacks in this case is mere ly voidable and may not be attacke d at any time. Defe ndant was the ref ore subjec t to the proce dural rules applicable to g uilty p l eas. Whil e it might seem somewhat anomalous to require a defe ndant to fac e a second trial in violation o f his double jeopar dy rig hts, I llinois Supreme Court Rule 604(f) allows a defe ndant to appea l to this court the denial of a mot i o n t o d i s miss a criminal
proce eding on g rounds of former jeopa rdy . I ll. S. C t. R. 604(f) (e ff. July 1, 2006); see a lso People v. Gray
, 214 I ll. 2 d 1 (2 0 0 5 ). This rule allows a defe ndant rec ourse to pursue his double j eopar dy claim before facing trial or pl ea neg otiations. Def endant in this cas e fi led

a motion to d i s m i ss the indictment on g rounds of former jeopar dy but did not appea l the denial of that motion to this court. I nstead, defe ndant proce eded to plead g uilty
, implicating Rule 604(d). ¶ 20 Rule 604(d) provides that no appea l shall be taken unless the defe ndant, within 30 day s of the date on which sentenc e is imposed, fil es i n t h e t rial court a written motion to

rec onsider the sentenc e or a motion to withdraw the plea of g uilty and vacate the judgme nt. I ll. S. Ct. R. 604(d) (ef

f. J uly 1, 2006). Def

endant did not file a writ t en postplea motion within 30 day s of the date of sentenc ing. Acc ording ly
, we are require d to dismiss this appea l without rea ching the merits of defe ndant’s argument. See People v. Flowers
, 208 I ll. 2d 291, 301 (2003). ¶ 21 For

the af oreme ntioned rea sons, we dismiss defenda nt’s appea l.

¶ 22 Appea l dismi ssed.

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