## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

People v . Hubbard , 2012 IL App (2d) 101158

Appellate Court Caption THE PEOPLE OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. ROY E. HUB BA RD, Defe ndant-Appe llant.

District & N o. Second District Docke t No. 2-10-1158

Rule 23 Order

filed Rule 23 Order withdrawn Opinion filed Aug ust 10, 2011

J anuar y 9, 2012
J anuar y 9, 2012

Held ( Note : Thi s syl l abus

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the R e

por te r 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

. ) Where defe ndant enter ed a blind gu i l t y plea to a char g e of predatory criminal sexual a ssault of a child in 1997 and then filed a petition unde r section 2-1401 of t h e C ode of Civil Procedur e in 2010 alleg ing that his conviction was void beca use the trial court misad vised him of the
sentenc ing rang e and his plea was rende red involuntary
, the trial court proper ly dismiss ed the petition as untimely on the g round that it was filed bey ond the two-y ear limit applicable to a section 2-1401 petition and the appellate court reje ct ed d efendant’s contention that a petition alleg ing that a judgme nt is void cannot be dismiss ed as untimely
, since the I llinois voidness doctrine only applies if a judgme nt is enter ed by a court lacking jurisdiction, an invol untary g uiltyplea c annot render a conviction voi d, and in def endant’ s case , there was no indication of a lack of persona l or subject matter juri sdiction and mistakes in explaining sentenc ing or d ec i ding the voluntariness of a plea do not cause a court t o l o s e jurisdiction.Dec ision Under

Review Appea l from the Circuit Court of Carroll County
, No. 97-CF- 17; the Hon. J ohn F. Joy ce, Judge , presiding

.

J udg ment Affirmed.

Counsel on Appea l Roy E. Hubbar d, of Pontiac, appe llant pro se

.

Scott L

. Br

inkmeier, State’s Attorney
, of Mt. Carroll (L awr ence M. Bauer, Gre g ory L

. Slovacek, and Scott J acobson, all of State’s Attorney s Appellate Prose cutor’s O ffice , of counse l), for the People.

Panel J USTI CE BI RKETT deliver ed the judg ment of the c ourt, with opinion. Presiding J ustice J org ensen and J ustice Bur ke concur red in the judgme nt and opinion.

OP INION

¶ 1 Def

endant, Roy E. Hubbar d, appeals from the dismiss al of his petition under section 2- 1401 of the Code of

Civil Procedur e (Code) (735 IL CS 5/ 2-1401 (West 2010)). H e asse rts that his 1998 conviction of predatory criminal sexual assault of a ch i l d (720 I L CS 5/12- 14.1(1)( a) (West 1996)) was void as a violation of his due proce ss rig hts, the voidness of the conviction exempting his claim from the two-y ear limit ations period of section 2-1401(c ) of the Code (735 I L CS 5/2-1401(c) (West 2010)). He further arg ues that the trial court err ed when it failed to rec og nize that the conviction was void and conseque ntly dismiss ed his petition. We conclude that, notwithstanding a broade r voidness standard in fede ral law and

an obiter dictum in People v. W illiams
, 188 I ll. 2d 365 (1999), under I llinois law a judgme nt is void solelywhen the court entering the j udg ment lacke d jurisdiction. We there fore hold that the conviction was not void, meaning that defe ndant cannot esca pe the eff ect of the twoy ear limit ations period. The court did not err in dismiss ing the petition; we aff irm the dismiss al.

¶ 2 I . BA CKGROUND ¶ 3 Def

endant was charged wi t h one count of predatory criminal sex ual assault of a child. On S eptember

15, 1997, he ente red a

blind plea of g uiltyto that char g e. The court advised

-2-him that the sentenc ing rang e for his offe nse, a Class X felony
, was 6 to 60 y ear s. The State

prese nted the fac tual basis for the plea. I t said that, o n Ap ri l 5
, 1 997, defe ndant, who was older than 17, and a 12-y ear -old g irl had twice had vag inal sexual intercour se in the baseme nt of defe ndant’s home. The g irl had acte d in a way that, but for her ag e, would have indicated consent. The case was c ontinued for se ntencing and def endant r emained on bond. ¶ 4 Be fore the court sentenc ed him, defe ndant moved for leave t o wi thdraw the plea. The basis on which he soug ht this l eave is unclear from the r ecor d, which is incomplete. ¶ 5 After defe ndant moved to withdraw his plea, the State char g ed d ef en d an t wi t h t he burg lary of a vehicle on October 24, 1 997. The State and defe ndant then neg otiated an ag ree ment that cover ed both char g es. Def endant ag ree d to withdraw his motion to withdraw the plea. The State ag ree d that defe ndant should rec eive the minimum sentenc e of six y ear s’ imprisonment for the predatory crimi n al s ex u al assault of a child and a consec utive five
y ear s’ imprisonment for the burg lary

. At a Fe bruary 3, 1998, hearing, the court acc epted the
ag ree ment. I t a dvised defe ndant of the sentenc ing rang e for the bur g lary char g e but not the char g e of pr edatory

criminal sexual assault of a c hild. ¶ 6 On J uly 1, 2010, defe ndant filed his section 2-1401 petition; h e as s er t ed t h at h i s predatory criminal sexual a ssault of a child conviction was void be cause the trial court had initiallymisadvised him of the sentenc ing r ang e, re ndering his guilty plea involuntary

. ¶ 7 The State moved to dismiss the petition. I t asserted that the petition was untim el y and further arg ued that a judgme nt is void only if it wa s enter ed by a court lacking jurisdiction. I t did not challeng e def

endant’ s claim that the admonitions were improper. ¶ 8 Def

endant responde d, conce ding that his petition wa s fi l ed b ey o n d t h e t wo y ear s permissible for a standard secti o n 2 -1 4 0 1 petition, but arg uing, among other thi ng s, that a section 2-1401 petition alleg ing the voidness of a judgme nt cannot proper ly be dismiss ed for untimeliness. ¶ 9 The court g rante d the State’s motion, ruling that the conviction was not void and that the two-y ear limit ations period ther efor e bar red a ny relief. Def

endant timely

appea led.

¶ 10 I I . ANAL YSI S ¶ 11 On appea l, defe ndant asserts that the incorre ct admonishment about the sentenc ing rang e for his offe nse rendere d his g uilty plea invo l u ntary , void, and subj ect to attack at any time (wit h o u t re gar d to the two-y ear limit ations period of section 2-1401(c )). I n support of his claim that an involuntary

plea pr oduces a

void conviction, he cites W illiams : “A defe ndant who pleads g uilty waives sever al constitutional rig ht s , i n cl u ding the privileg e against compulsory self-inc rimination, the ri gh t t o trial by jury
, and the rig ht
to confr ont one’s acc users. Due proce ss of law require s that this waiver be voluntary and knowing

. I f a defe ndant’s g uilty plea is not voluntary and knowing
, it has been obtained in violation of due process and, therefore, is void .” (Emphasis added.) W illiams
, 188 I ll. 2 d at 370 (citing Boyk in v. Alabama
, 395 U.S. 238, 243 n.5 (1969) (“if a defe ndan t ’s g uilty plea is not equally voluntary and knowing
, it has been obtained in violation of due
proce ss and is theref

ore void” )).

-3-Def endant further cites fede ral case s that hold that an involuntary g uilty plea is void; he thus implies that the feder al standar d is binding on this court. ¶ 12 Under I llinois ’s voi dness doctrine, a ju d gm ent i s void only if it was entered by a court lacking jurisdiction. I n other words, defe ndant’s relianc e on W i lliams and fede ral case s is misplaced. Voluntariness or involuntariness of a g uilty plea has no bearing on jurisdiction,

so that an involuntary plea cannot rende r a conviction void. Be cause defe ndant’s conviction

was n o t v o i d
, t he trial court did not need to further consider his claim. As defe ndant

conce ded, but for the claim of voidness, his petition was subject to dismissal as untimely

. ¶ 13 Our supreme court, i n S a rkissian v. Chicago Board of Education
, 201 I ll. 2d 95, 104 (2002), held that petitions under section 2-1401(f ) of the Code (735 I L CS 5/2-1401(f) (West 2010)) are proper vehicles for at t ac king judgme nts as void and that such petitions are not subject to the g ener al require ments for section 2-1401 petitions. I n particula r, such petitions

are not subject t o the t wo-y ear limit ations period of section 2-1401(c). Sarkissia n , 2 0 1 I ll. 2d at 104. Howeve r, once a court has proper l y ru l ed that a voidness claim is meritless, nothing in Sarkissian (or its prog eny ) preve nts a court from apply ing the limit ations period of section 2-1401(c ) t o dispose of any rema ining matters raised by the petit ion. There fore
, once the trial court here had conclude d that d ef en d ant’s conviction could not be void
reg ardle ss of the merits of his a rg ument that his ple a was involuntary
, it ne eded to pr ocee d

no further

. Simi larly
, we need addre ss only defe ndant’s voidness claim; we need not examine the voluntariness of his g uiltyplea. ¶ 14 The parties here disag ree abo u t t h e ap p ropriate standard of revie w. Def endant quite
proper ly cites People v. Vincent
, 226 I ll. 2d 1, 14 (2007), for the proposition that “[w]hether

a t ri al court [has] corr ectly *** dismiss e[d] a complaint is subject to the *** de no vo standard of revie w on appeal.” The State cites Rock ford Financial Systems, Inc. v. Borgetti
, 1 403 I ll. App. 3d 321, 327-28 (2010), for the proposition that, in the State’s words, “the more defe rential abuse- of-discr etion standard of revie w would continue to be applied” despite the holding of Vincent

. The S tate acknow l ed ges t hat, i n Borgetti
, we specifica lly commended Vincent ’s holding that a dismiss al based on a ruling that subject matter jurisdiction ex isted should be revie wed de novo

. See Borgetti
, 403 I ll. App. 3d at 328. Howeve r, the State fails
to consider ou r m o re gener al comment in Borgetti that “[t] he Vincent court was corr ect to relate that, when a section 2-1401 petition reque sts relief based upon a v oid judgme nt, equitable principles are not involved,” so th at d e novo revie w, as specifie d by Vincent
, is logic al in such case s. Borgetti
, 403 I ll. App. 3d at 327. Her e, the court dismiss ed defe ndant’s petition on the gr ounds that the judg ment was not voi d and that the pe tition was otherwise untimely

. We se e nothing in that r uling implicating the court’s discretion and see no sound
way that we could revie w what was, in essenc e, a ruling on pure matters of law for an abuse of discre tion. ¶ 15 Turning to t h e m er its of defe ndant’s voidness claim, we start by explaining I llinois ’s voidness doctrine as it is set out in People v. Davis
, 156 I ll. 2d 149 (1993), but add to that

Def end ant sho uld not e tha t m at er ia l is bra ckete d to sho w word s or le tt er s ins er te d int o the 1 quot ed mate ri al by us, a nd n ot, as in hi s i dio syncra ti c s tyle, to sho w emphasi s.

-4-discussion a clarification of the meaning of the phrase “collate ral attack.” Next, we explain

why
, under the proper voidness principles, defe ndant’s conviction was not void. Finally
, we expl ai n wh y n either W

illiams nor fede ral law mandates modification of the principles of Davis

. ¶ 16 When t h e v o i d n es s o f a judgme nt has been specific ally at issue, the I llinois Supreme C o u rt h as co n s i stently held that a judgme nt is void if and only if the court that enter ed it lacke d jurisdiction. The classic statement of that doc trine occ urs in Davis . Notably for our
purposes, the Davis court started its d i s cu s s i on of voidness by noting a persistent

car elessness in courts’ usag e of “void”: “[t] he term ‘void’ is so fre quently employ ed intercha ng eably with the term ‘voidable’ as to have lost its primary signific ance .” Davis
, 156 I ll. 2d at 155. I t there fore warned that, “whe n the term ‘void’ is used in a judicial opinion it is nece ssary to resort to the contex t i n which the term is used to determine prec isely the term’s meaning .” Davis
, 156 I ll. 2d at 155

. After disparag ing such sloppy usag e, it made clea r that t he term “void” should be reserve d for judg ments rende red by courts that lac ked jurisdiction: “Whether a judgme nt is void or voidable prese nts a question of jurisdiction. [C itation.] J urisdiction is a fundame ntal prer equisite to a valid prosec ution and conviction. Where jurisdiction is lac king, any resulting judgme nt rende red is void and may be attacke d either directly or i ndirec tly at any time. [C i t ation.] By contra st, a voidable judgme nt is

one enter ed err oneously by a cour t h av i n g jurisdiction and is not subject to collater al attack.” Davis , 156 I ll. 2d at 155-56. The supre me court continues to adher e to this formulation of the voidness doctrine . See In

re M.W

. , 232 I ll. 2d 408, 414 (2009) (stating when a judg ment is void in the same terms as Davis ). ¶ 17 A brief discussion of the meaning of “collate ral attack” i s n ec es s ar y t o av o i d later confusion. When we addre ss defe ndant’s sug g estion that fede ral case s that h o l d that involuntary g uilty pleas are void are binding on I llinois courts, we will take into acc ount that I llinois law provides, throug h the Post-Convi ction Hea ring Act (Ac t) (725 I L CS 5/122-1 et seq. (West 2010)), for a defe ndant to collater ally attack a g uilty plea as involuntary

. How can that be if an involuntary plea does not result in a void conviction and if, as Davis states, judgme nts that are mere ly voidable are not s u b j ect to collater al attack? The appar ent contra diction arises a s a re sult of the exis tence of two formulations of the definition of the phrase “collate ral a ttack.” ¶ 18 I n Buford v. Chief, Park Di s trict Police
, 18 I ll. 2d 265, 271 (1960), the supreme c ourt define d “collate ral attack” so as to limit the phrase ’s appl ic a ti o n to wholly independe nt case s: “A collater al attack on a judgme nt is an attempt to impeach that judgm ent in an action other than that in which it was rende red. Although the overturning of the judgme nt

or decr ee may be important, or even nece ssary , to the succe ss of the action or proce eding
, an attack on a judgment or decre e is c ollateral where that action or procee ding has an independe nt purpose and contemplates some other relief or result .” (Emphasis added.)
Be cause the sole purpose of petitions under the Act and section 2-1401 is the overturning of an existi ng judgme nt, they are not collatera l attacks by this definition.

-5-¶ 19 By contra st, in People v. Partee
, 125 I ll. 2d 24, 35-36 (1988), the supreme court used a

trunca ted version of the definition in Buford : a “collate ral attack upon a j udg ment is [one made in] a case separ ate and apart from the case in which the judgme nt has been [rendere d],” and expli citly included petitions under the Act and section 2-1401 as vehicles for collater al attack. ¶ 20 The holding in Davis is consistent with exis ting prac tice, which obviously does allow the

use of petitions under the Act and section 2-1401 to attack voidable judgme nts, only if one

assumes that the Davis court was using the extended definition in Buford

. I n other words, in spite of Davis
, a voidable judgme nt may be at t ac k ed under the Act or section 2-1401, provided that the proce dural prer equisites are met. But only a void judgme nt may be attacke d in a fully independe nt proce eding

. (As we proce ed, we will use the definition of “collate ral attack” that includes petitions under the A ct and se ction 2-1401.) ¶ 21 Returning to our primary analy sis, we now consider the Davis court’s discussion of the
aspec ts of jurisdiction. The court rec og nized three “ele ment[s] of jurisdiction”: (1) persona l jurisdiction, (2) subject matter jurisdiction, and (3) “t h e power to rende r the particula r judgme nt or sentenc e.” Davis
, 156 I ll. 2d at 156. Of the third element, the court warned that 2 “juri sdiction 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 decide rig ht.” Davis
, 156 I ll. 2d at 156. Moreove r, “once a court h as ac q u i red jurisdiction, no subsequent err or or irreg ularity will oust the jurisdiction thu s a c q u ired”; “[a]ccording ly
, a court may not lose jurisdiction beca use it makes a mistake in dete rmining e ither the fa cts, the law or both.” Davis , 156 I ll. 2d at 156. ¶ 22 Under these principles, the fac ts here as repr esente d by defe ndant do not result in a void judgme nt. De fe n dant has raised no sug g estion of a lack of persona l or subject matter ju ris d iction. Fur

ther, the court unquestionably had authority to acc ept defe ndant ’ s g u il ty p le a , to enter a judgme nt of conviction of predatory criminal sexual assault of a ch i l d, and to sentenc e defe ndant to six y ear s’ im p ri s o n ment. I n defe ndant’s acc ount, the court made a mistake of law in explaining the sentenc ing rang e and a mistake of fa ct i n deciding the voluntariness of th e plea. As Davis tells us, such mistakes do not cause the court to lose jurisdiction. ¶ 23 T o b e s u re , defe ndant’s arg ument is not that his conviction was void under the Davis standard, but rathe r t hat t he proper voidness standa rd is broade r, enc ompassing judg ments enter ed in violation of due proce ss. He has two lines of support for that proposition: fede ral

case s that say that involuntary g uilty pleas are violations of due proce ss rig hts and there fore void, and W

illiams
, which, citing the United States Supreme Court, say s the same thing. We first explain why the fede ral standard need not be a part of I llinois law. We then explain why

T he par ti cul ar is sue s in thi s cas e do not re qui re us to dis cus s how m uch of the re qui re m ent 2 for thi s thi rd kind of j uri sdi ct ion sur viv ed fol lowi ng the wat er she d dec is ion s in Peop le ex rel

. Graf v. Vil lag e of Lake Bluf

f , 206 I ll . 2d 541, 553 (20 03)
, Bel le vi ll e Toyota, Inc. v. Toyot a Mot or Sal es, U.S.A., Inc

. , 199 I ll

. 2d 325, 335-36 (20 02)
, and Ste inb rec her v. Ste inb rec her
, 197 I ll

. 2d 514, 529-30 (20 01)

.
-6-W

illiams did not adopt it as a part of I llinois law. ¶ 24 De fe n dant i s corr ect that fede ral courts fre quently say that involuntary g uilty pleas ar e void beca use they violate due proce ss standards; t h e footnote in Boyk in from which the W illiams court drew the statement on which defe ndant relies is a fair example of fede ral law. Howeve r, nothing in the United States Constit ution require s that I llinois co u rts, in considering I llinois ’s own laws, use the same de finition of “void” as do the fe dera l courts. To state the same point more specific ally
, no rea son exis ts to use a fede ral d ef i n i t i o n o f “void” to decide whether a particula r peti t i o n under section 2-1401 of I llinois ’s Code is subject to a two-y ear

limit ations period. ¶ 25 Of course , I llinois courts are bound by the United States Supreme Court’s decisions on the United States Constit ution’s d u e p ro ce s s clause s. We thus cannot doubt that an involuntary g uilty plea violates due process. However, that conclusion does not imply any particula r proc edureto remedy

that violation. ¶ 26 Any thought that the United States Constit ution mandates the reme dies that I llinois law
g rants when it deems a conviction void is dispelled by comparing I llinois ’s reme dies for void judgme nts with fede ral reme dies for involuntary g uilty pleas. Def endants whose federal
g uilty pleas wer e involuntary do not have a rig ht to anything like what I llinois v o i d ness doctrine would aff

ord t hem. Fe dera l law allows a c laim of an invol untary g uilty plea to be
proce durally defa

ulted if not raised on direc t appea l ( Bousley v. United States
, 523 U.S. 614, 621 (1998)) ; I llinois voidness doctrine will not allow the forf eiture of a voidness claim (see
, e.g. , People v . Arna , 168 I ll. 2d 107, 113 (1995))

. Moreove r, involuntariness cha lleng es to fede ral convictions are , at least when the defe ndant is a fede ral prisoner, nece ssarily broug ht under title 28, section 2255, of the Un i t ed S t at es Code (28 U.S.C. § 2255 (2006))

. E.g.
, United States v. Ayala
, 894 F. 2 d 4 25, 430 (D.C. Cir. 1990). That section has a one-y ear limit ations period that specifie s three conditions that toll or trig g er the running of the period. 28 U.S.C. § 2255 (2006). The only condition that is even theore tically rele vant in a case such

as this one is the last, that the period runs f rom “the date on which the f acts supporting the claim or claims prese nted could have been discovere d throug h the exercise of due diligenc e.” 28 U.S.C. § 2255(f) (4) (2006). Compare this with the unlimit ed time a party has to seek

vacatur of a void judgme nt in I llinois

. Thus the fede ral provisions g ive a defe ndant claiming

an involuntary g uilty plea essentially the same reme dies that an I llinois defe ndant has under the Act and section 2-1401. I n sum, voidnes s i n fe d eral law is a broad conce pt with wea k
proce dural eff

ects, voidness in I llinois law is a n arrow conce pt with strong proce dural eff ects, and the application of the fede ral standard would not provide that defe ndant have the ability to attack his plea

at any time. ¶ 27 Constit utional mandates aside, in W illiams
, the I llinois Su p r e me Co u r t d id n o t v o lu n ta

rily adopt the fede ral voidness standard. The W illiams court stated, “I f a defe ndant’s g uilty plea is not voluntary and knowing
, it has been obtained in violation of due proce ss and, therefore, is void .” (Emphasis added.) W illiams
, 188 I ll. 2d at 370. As we have shown, that formulation is inconsistent with Davis

. Two things can be said about this inconsistenc y

. First, W illiams is a purest obiter dictum on the issue of voidness and there fore is not binding. I n W illiams
, the question was whether the defe ndant’s g uilty plea to attempted murder was admissible as evidenc e of murder when the State’s theory was that the victim had died as a result of the

-7-orig inal attack. W illiams
, 188 I ll. 2d at 366-67. The W illiams cou rt rec og nized as a wellestablished rule that only a voluntary plea would be admissible ( W illiams
, 188 I ll. 2d at 369- 70) and held that the defe ndant’s plea was voluntary ( W illiams
, 188 I ll. 2d at 373). Whether

or not an involuntary plea would produce a void conviction was n o t re l evant to the evidentiary issue that the court decide d and was not part of the re as o n ed d i s cussi on of t he issue–thus, the statement that the plea was void is an obiter dictum

. To be sure, supreme court obiter dicta can be binding in the absenc e of a contra ry decision of the supreme court. E.g.
, W oodstock Hunt Club v. Hindi , 305 I ll. App. 3d 1074, 1076 (1999). B ut the holdings in Davis and M.W

. both are contra

ry , so they are the binding law. Second, this stray comment in W illiams stands as a g ood example of why the Davis court warned of courts’ tendenc y to be ca rele ss in the use of the term “void.”

¶ 28 I I I . CONCL USI ON ¶ 29 The I llinois voidness doctrine holds that judg ments are void only if they areenter ed by

a court lacking jurisdiction. An involuntary g uilty plea such as that which defe ndant alleg ed is not an err or that could deprive the court of jurisdiction. There fore
, the trial court proper ly ruled that the conviction was not void. Having so ruled, it could and did properly rule that the petition was untimely and dismiss it without examinatio n of the voluntariness of defe ndant’s plea

. ¶ 30 For

the re asons stated, we aff irm the dismissal of defendant’s section 2-1401 pe tition.

¶ 31 Affirmed.

-8-