THIRD DI VISI ON February 13, 2008

No. 1-06-1930

THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from

) the Circuit Court Plaintiff-Appellee, ) of Cook County. ) v. ) No. 92 CR 6652(01) ) STEVE HARVEY, ) Honorab le ) Evelyn B. Clay

, Defend ant-App ellant. ) Judge Presi ding.

JUSTICE THEI S deliver

ed the opi nion of the

court: Defendant Steve Harvey

appeals from an order of the circuit cour t granting the State’s motion to dismiss his petition for relief from judgment filed pursuant to section 2- 1401 of the Code of Civil Procedure (735 IL CS 5/2-1401 (West 2004)). In it, defendant asserted that the dismissal of his postconviction petition filed in 1996 under the Postconviction Hearing Act (the Act) (725 I LCS 5/122-1 et seq . (West 199 4)) was a void judgment because the court did not properly dispose of his contemporaneous motion for substitution of judge, in contravention of section 114-5(d) of the Code of Criminal Procedure of 1963 (the Code) (725 I LCS 5/114-5(d) (West 1994)). On appea l, defen dant cont ends that the circ uit court e

rred in d ismissing his section 2-1401 petition because the judgment complained of is void as a re sult of the trial1-06-1930

2

judge’s failure to properly dispose of a pending motion for substitution of judge. Speci fical ly, he con tends that t he circ uit co urt er roneo usly conc luded that t he tri al jud ge implicitly denied the substitution motion in its denial of the postconviction petition. For the follow

ing rea sons, we a

ffirm. A jury convicted de fendant of armed robbery and two counts of aggrava ted battery with a f

irearm on the theory

of accountability f

or supplying g

uns to three men with the knowledge that the guns would be used in an a rmed robbery

that resulted in the shooting of two poli ce offi cers an d for ar rangin g for their esc ape. The

facts le ading to defenda nt’s conv ictions we

re deta iled in our

previous order in which we

affirme d those convictions on direct appeal. People v. Harvey , No. 1-93-1582 (1995) (unpublished order under Supreme Court Rule 23). The instant appeal arises out of an event that occurr ed during the sentencing hearing before Judge John Morrissey, who also presided over the trial. During the allocution, defendant presented the court with the sworn statement of Lawrence

Johnson, the cell mate of codefendant Rupert Pottinger. Johnson averre d that Pottinger admitted that he was the person who supplied the guns to the three men to use in the a rmed robbery. N either Pottinger nor Johnson was interviewed or called to testify at trial. Defense counsel stated that he had never seen the statement before. However, the prosecutor responded that the statement, signed by two assistant State’s Attorneys, had been produced during discovery

. Judge Morrissey re

viewed the statement, entered as court’s exhibit number one for sentencing, and concluded that it was not inconsistent with the evidenc e presented at1-06-1930

1 After reviewing the rec ord, it appears that the substitution motion was never before Judge Morrissey . Although the substitution motion and the postconviction petition both were file stamped by the circuit court clerk, the handwritten docket shee t and the clerk’s “Certified Statement of Conviction / Disposition” indicate that only the postconviction petition was entered on the docket. Moreover, in the hea ring on the postconviction petition, Judge Morrissey makes no mention of the substitution motion or 3 trial. The court proceeded to sentence de fendant to three 30-y ear sentences, to run concurrently . On direct appeal, defendant arg ued that the trial court erred in deny ing the motion to suppress his statement to police, but the convictions were affirmed. People v. Harvey , No. 1-93-1582 (1995) (unpublished order under Supreme Court Rule 23). Defendant then filed a pro se postconviction petition and supporting memorandum of law in which he argued that his trial counse l was ineffective for failing to adequa tely review d iscover y r ecords, specific ally

Johnson’s st

atement, and that h

is appellate counsel was ineffective for failing to raise the issue of ineffective a ssistance of trial cou nsel on ap

peal. He also file d a motion f

or substitu

tion of jud

ge pur suant to section 122-8 of the Act (725 IL CS 5/122-8 (West 1994)), claiming that Judge Morrissey was “pr edispose d to deny

my Po stconviction, bec ause he p reviousl y r uled on the

main issue in my Postconviction Petition, that’s Ine ffective Assistance of Counsel.” Judge Morrissey he ard the postconviction petition within 90 days of filing , as required by

the Act, and dismissed it as frivolous and without merit. However, he did not address or otherwise rule on the substitution motion. 1 Defendant’s appeal from the order1-06-1930

any other pe

nding matters, nor did the administrative judge who transfe rred the postconviction petition to Judge Morrissey.

4 dismissing the postconviction petition ( People v. Harvey , No. 1-96-1960 (1996)) was disposed of by dispositional order. In 2006, defendant filed the se ction 2-1401 petition for relief from judgment that is the subje ct of this a

ppeal. D efenda

nt alleg ed that Judg e Morriss ey had no au

thority to enter judgment on the postconviction petition because he had not first disposed of the substitution motion; therefore, the order dismissing his postconviction petition was void. The State filed a motion to dismiss the section 2-1401 petition for improperly r aising issues of law for the first time in that petition and for being untimely . The court granted the S tate’ s mot ion an d foun d that if the re was a subs titu tion moti on pen ding b efore J udge Morrissey, it was disposed of a long with the postconviction petition. Defendant then filed this timely appeal. We must first address the State’s arguments that the section 2-1401 petition was improper and untimely. I n general, criminal defendants may utilize section 2-1401 of the Code of Civil Procedure to address factual errors that oc curred during prosecution but were unknown at the time of judgment. People v. Pinkonsly , 207 Ill. 2d 555, 566, 802 N.E.2d 23 6, 243 (20 03). How ever, a criminal defenda nt also may

challen ge a vo id judgment by mea

ns of a section 2-1401 petition. People v. Thompson , 209 Ill. 2d 19, 29, 805 N. E.2d 1 200, 1 206 (2 004), citi ng People v. Harvey , 196 Ill. 2d 444, 447, 753 N.E.2d1-06-1930

5

293, 295 (2001). Additionally, althoug h a section 2-1401 petition must ordinarily be brough t within two

ye ars of e

ntry of the jud

gment be ing cha

llenge d, that limi

tation will not bar relief where defenda nt is challenging a void judgment. Harvey , 196 Ill. 2d at 447, 753 N.E.2d at 295. In this case, althoug h defendant sought relief from a void judg ment entered 10 years earlier, his section 2-1401 petition was properly before the court. We review the circuit court’s dismissal of a section 2-1401 petition de novo

. People v. Vincent , 226 Ill. 2d 1, 18, 871 N.E.2d 17, 18 (2007). We may affirm the trial court’s judgment on any

basis supported by the re cord, regardless of the ac tual reasoning or grounds relied upon by the circuit court. Dalan/Jupiter, Inc. v. Draper & Kramer, Inc. , 372 Ill. App. 3d 362, 366, 865 N.E.2d 442, 447 (2007). Defendant argues on appe al that Judge Morrissey’ s failure to rule on the substitution motion wa s a violati on of section 114-5 (d) of the Code. That statute provides that after a party files a substitution motion for cause with the trial court, a differe nt judge must deter

mine whet

her to g rant the request ed substitu

tion. 725 I

LCS 5/114-5(d) (West 2004). The judge sought to be repla ced then loses all power and authority to enter fur

ther orders in the case while the substitution motion is pending. People v. Bell , 276 Ill . App. 3d 939 , 947, 658 N. E.2d 1 372, 1 378 (1 995). Alth ough section 114-5(d) does not specifically divest the judge of authority to act, the language of sections 114-5(a) and (c), stating that “the court shall proceed no further” until the substitution motion is ruled on, applies to subsection (d) as well. 725 IL CS 5/114-5(a), (c) (West 2004); Bell , 276 I ll. App. 3d at 946, 65 8 N.E.2d a

t 1378; People v. Antoine , 335 I ll. App. 3d

562, 572, 7 81 N.E.2d

444, 452 (2002). Th

us, any orders e ntered w hile1-06-1930

6

the motion is pending are void. Bell , 276 Ill. App. 3d at 947, 658 N.E.2d at 1378, quot ing People v. Brim , 241 Ill. App. 3d 245, 249, 608 N.E.2d 958, 961 (1993). Defendant’s reliance on this statute is misplaced for two re asons. First, defendant filed his s ubstitution

motion pursuant to se ction 122- 8 of the A ct, which states tha t a postconviction petition must be heard by a judg e other than the one who presided over the trial. 725 IL CS 5/122-8 (West 2004). However, that statute was ruled unconstitutional a full ten years be fore defendant filed his motion. People v. Joseph , 113 Ill. 2d 36, 48, 495 N.E.2d 501, 507 (1986). Thus, there wa s no valid basis for defendant’s motion, as an unconstitutional statute is void ab initio and conf ers no ri ghts or privileges. People v. Zeisler , 125 Ill. 2d 42, 46, 531 N.E.2d 24, 26 (1988). Second, even if the substitution motion was filed under section 114-5(d), defendant failed to recognize that the statute doe s not apply in postconviction proceedings. People v. Thompkins , 181 Ill. 2d 1, 22, 690 N.E.2d 984, 994 (1998) ; Gibson v. Pe ople , No. 2-06-0821, slip op. at 2 (December 21, 2007). There fore, defendant has no absolute right to a substitution of judge in a postconviction proce eding. People v. Reyes , 369 Ill . App. 3d 1, 2 5, 860 N.E.2 d 488, 510 (2 006). In fact, t he jud ge who pres ided over

the crimi nal trial should hea

r the post convicti on petition

unless it is shown that the judge is substantially pre judiced. Reyes , 369 Ill. App. 3d at 25, 860 N.E.2 d at 51 0, cit ing People v. Vance , 76 Ill. 2d 171, 181, 380 N.E.2d 867, 871-72 (1979). In certain limited circumstance s where there may be an appearance of pre

judice, a judge must recuse himself from postconviction proceeding s. Thompkins , 181 Ill. 2d at1-06-1930

7

22, 69 0 N.E. 2d at 9 94, ci ting People v. Wilson , 37 Ill. 2d 617, 621, 230 N.E.2d 194, 197 (1967) (where judge has knowledge outside the record concerning the truth or falsity of allegations made and where judg e may be c alled as a material witness), and People v. Del Vecchi o , 129 I ll. 2d 265, 2 74, 544 N. E.2d 312, 3 16 (1989)(where judge has a dire ct, personal, and substantial pecuniary interest in a criminal case). The Code of Judicial Conduct a

lso requi res judg es to rec

use if the ir impart

iality might be reasona bly questioned. People v. Kliner , 185 Ill. 2d 81, 169, 705 N.E.2d 850, 894 (1998); 188 Ill. 2d R. 63(C)(1)(a) (where judge exhibits personal bias or prejudice toward a party or a party’s lawy

er). However, defendant has made no such allegations in this case and we do not find that those circumstances are present here

. When the circumstances do not call for mandatory recusal or independent judicial evaluation of claims of prejudice as required by section 114-5(d), trial judges are in the best position to determine whether they can be impartial. Kliner , 185 Ill. 2d at 169, 705 N.E.2d a t 894. I t is presumed that ju

dges wi ll be impar

tial, but they

must ultimat

ely determine whether they

can “hold the balance nice, clea r and true between the State and the accused.” People v. Jackson , 205 I ll. 2d 247, 2 77, 793 N. E.2d 1, 19 (2001); Del Vecchi o , 129 Ill. 2d at 275, 544 N.E.2d at 317. Disqualifying a

judge for cause is not a judgment to be lig htly made. People v. Patterson , 192 Ill. 2d 93, 134, 735 N.E.2d 616, 640 (2000). The defe ndant must show something more than simply that the judg e presided over the criminal trial. Reyes , 369 Ill. A pp. 3d at 2 5, 860 N.E .2d at 510 . In f act, the United Sta

tes Supre me Court ha s held that a judge’s prior rulings in the case r arely, if e ver, can form the basis of a recusa l1-06-1930

8

motion. Liteky

v. United States , 510 U.S. 5 40, 555, 12 7 L. E d. 2d 474, 4 90, 114 S. Ct. 1147, 1157 (1994). The allegations must demonstrate “animosity, hostility, ill will, or distrust” or “prejudice, predilections or arbitrariness.” Reyes , 369 Ill. App. 3d at 25, 860 N.E.2d at 510. In thi s case, d

efenda nt alleg ed that Judg e Morriss ey was “pr edispose d to deny

my Postconviction because he previously ruled on the main issue in my Postconviction Petition, that’s Ineffective Assistance of Counsel.” That allegation alone does not suggest that Judge Morrissey was unable to hold the balance “nice, clea r and true” between defendant and the State. Jackson , 205 Ill. 2d at 277, 793 N.E.2d at 19. Moreover, defendant’s alleg ation is based on Judge Morrissey ’s prior ruling in the case, which is not a valid basis for a recusal motion. Liteky , 510 U.S. at 555, 127 L. Ed. 2d at 490, 114 S. Ct. at 1157. Defend ant also has not alle ged a b ias that de monstrate s “animos ity, hostility, ill will, or distrust” toward him. Reyes , 369 Ill. App. 3d at 25, 860 N.E.2d at 510. On the contrar y, a t the sente

ncing hearing , Judge Morrissey permitte d defend

ant to mak

e his argument of ineffective assistance of counsel based on the purportedly exculpatory statement of the codefendant and made the stateme nt part of the common law record. Although Judge Morrissey ultimately found that it was consistent with the trial evidence , he did not exhibit prejudice or arbitrariness in his treatment of defendant. We also find nothing in this record to suggest that Judge Morrissey should have recused himself from hearing defendant’s postconviction petition.1-06-1930

9 Ultimately, the fact that Judge Morrissey did not rule on the substitution motion had no effect on his authority to rule on the postconviction petition. Section 114-5(d) and its pr ocedura l require ments did not apply

to the post

convicti on proce edings i

n this

case. Thompkins , 181 I ll. 2d at 22 , 690 N.E. 2d at 994; Gibson , No. 2-06-0821, slip op. at 2. Ju dge Mor risse y was not r equir ed to t ransfe r the s ubst itut ion m otio n to an other judge for evaluation, nor was he divested of his authority in the case in the meantime. See Bell , 276 Ill. App. 3d at 947, 658 N.E.2d at 1378. Additionally, Judge Morrissey wa s not required to recuse himself, nor was there a ny indication that he should have r ecused himself from the postconviction proceedings. See Thompkins , 181 Ill. 2d at 22, 690 N.E.2d a t 994. The

refore , his ruling

on the post

convicti on petition

was made

with full authority. Accordingly , we affirm the circuit court’s order de nying de fendant’s section 2- 1401 petition. Affirmed. QUINN, P.J. and GREI

MAN, J., concur.REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

____________________________________________________________ PEOPLE O F THE STATE OF ILLINOIS, Plaintiff-Appellee,

v. STEVE HARVEY,

Defendant-Appellant.

____________________________________________________________ No. 1-06-1930 Appellate

Court of Ill

inois First District, Third Division Filed: February 13, 2008

____________________________________________________________ JUSTICE THEIS delivered the opinion of the court. Quinn, P.J. and Greiman, J., concur.

_________________________________________________________________

Appeal from the Circuit Court of Cook County Honorable E velyn B. Cla y, Judge P residing

_______________________________________________________________ __ For DEFENDANT- Michael J. Pelletier, State Appellate Defender APPELLANT Robert M . Stephenson, Assistant Sta te Appellate Defender Office of the State Appellate Defender 203 North LaSalle Street, 24th Floor Chicago, IL 60601 For PLAI NTIFF- Richard A. Devine, State’s Attorney APPEL LEE James E. Fitzgerald, Assistant State’s At torney Manny Magence, Assistant State’s Attorney Orion N. Artis, Assistant State’s Attorney 300 Richard J. Daley Center Chicago, IL 60602