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____________________________________________________________________________ NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

20 2 2 IL App ( 3d ) 190658

- U

O rder filed June 7, 2022

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2022

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County , Illinois , Plaintiff

- Appellee, ) ) Appeal No. 3-19-0658 v. ) Circuit No. 01- CF -901 ) JARVIS NEELY , ) Honorable ) Paul P. Gilfillan , Defendant -Appellant. ) Judge, Presiding.

JUSTICE McDADE delivered the judgment of the court. Presiding Justice O’Brien and Justice Daugherity concurred in the judgment.

O RDER ¶ 1 Held : The court did not err in sua sponte dismissing defendant’s section 2- 1401 petition. ¶ 2 Defendant, Jarvis Neely, appeals the Peoria County circuit court’s sua sponte dismissal of his section 2-1401 petition. Defendant argues that the court improperly dismissed his petition because the court did not give him prior notice and his petition has merit. We affirm. ¶ 3 I. BACKGROUND¶ 4 In 2003, defendant was found guilty of the first degree murder (720 ILCS 5/9 -1 (a)(1), (a)(2) (West 2000)) of Officer Donan Faulkner and sentenced to a mandatory minimum sentence of natural life i mprisonment. Defendant was 18 years old at the time he committed the offense

. Defendant, in a videotaped statement, admitted to shooting Faulkner five times and defense counsel conceded in closing argument that the confession was voluntary. In addition, this court previously summarized the evidence against defendant as follows:

“T he evidence adduced at trial , in relevant part , established that Faulkner was shot and killed around midnight on September 19 or 20, 2001. Defendant’s uncle, Tyrone Neely, testified that when he saw defendant that night, defendant told him he had been in an altercation with a police officer. Defendant handed Tyrone a firearm and asked him to ‘ get rid of it. ’ Tyrone disposed of the firearm, but later that day took investigators to the area in which it was disposed.

Investi gators recovered the firearm. Blood found on the firearm matched Faulkner’s, and the bullets removed from Faulkner’s body matched those from the firearm. A fingerprint from the magazine matched that of defendant.” People v. Neely , No. 3-16-0358 (2018) (unpublished dispositional o rder). Defendant unsuccessfully asserted that he acted in self

- defense at trial. ¶ 5 Defendant filed an unsuccessful direct appeal and various unsuccessful postconviction challenges to his conviction. People v. Neely , No. 3-03-0845 (2 006) ( unpublished order under Illinois Supreme Court Rule 23 ); People v. Neely , No. 3-08-0095 (2009) (unpublished order under Illinois Supreme Court Rule 23 ); People v. Neely , No. 3-14-0210 (2015) (unpublished dispositional order); Neely , No. 3-16-0358. De fendant’s initial postconviction petition included an allegation that trial counsel was ineffective for not tendering an involuntary manslaughter

2instruction. Neely , No. 3-08-0095. Another such challenge, a motion for leave to file a successive postconviction petition, argued that the State withheld certain laboratory reports pertaining to fingerprint evidence. Neely , No. 3-16-0358. The court denied the motion and d efendant appealed. Id. Th is court affirmed and allowed appellate counsel’s motion to withdraw. Id. In affirming, this court addressed defendant’s contentions regarding the allegedly withheld evidence and determined that the evidence against defendant was overwhelming and that the purportedly withheld evidence was not of such a conclusive nature that it would have probably changed the result of trial. Id. ¶ 6 In July 2019, defendant filed a petition for relief from judgment pursuant to section 2

- 1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2018)). He argued that the judgment against him was void. In support of that argument, he assert ed that the grand jury was never properly sworn in and impaneled, and he was not granted a preliminary hearing such that

the court did not have subject matter or personal jurisdiction over him. Defendant further

asserted a Brady v. Maryland , 373 U.S. 83 (1963) violation regarding laboratory records pertaining to fingerprint evidence and argued that the claim was not adjudicated because his appellate counsel withdrew and did not provide reasonable assistance

. Last, defendant made an

as -applied constitutional challenge to his mandatory life sentence. Specifically, defendant argued his sentence violated the eighth amendment of the United States Constitution and the proportionate penalties clause of the Illinois C onstitution

. Defendant alleged that: (1) he was 18 years old at the time of the crime; (2) “[h]e was youthful and the evidence of coercion to make a confession was present”; (3) his crim inal history consisted of one juvenile drug offense and did not include any violent offenses; (4) his father was absent and spent time in prison; (5) he did not graduate high school but did obtain his general education diploma; (6) he was raised by his aun t

3and uncle; and (7) his mother was 16 years old when he was born. Additionally, defendant noted that he previously stated in a postconviction petition “that he was not the shooter and that he was beaten and coerced to falsely confess.” Defendant also alleged that science supports the propositions that young adult’ s brains are still developing, and young adults are more subject to peer pressure to commit crimes, have a high capacity for reform or rehabilitation, and are more volatile and emotionally charged. ¶ 7 On October 8, 2019, the court dismissed the petition sua sponte

. It noted that there was no proof of service upon the State as required by Supreme Court Rules 105 and 106 , but that it found “constructive service upon the State by courtroom clerk notation that the State’s Attorneys office was served with a copy on July 16, 2019.” The court found that it had proper personal and subject matter jurisdiction. Further, it found that res judicata precluded several of defendant’s claims, the ineffective assistance of counsel claims are not properly brought in a section 2-1401 petition, and that “ [d] efendant was 18 years old at the time of the murder, thus, constitutional

case law a pplicable to life sentences for crimes committed when a juvenile do not strictly apply.” Defendant appeals. ¶ 8 II. ANALYSIS ¶ 9 Defendant argues the court erred in d ismiss ing his section 2-1401 petition. We review the

circuit court’s decision to dismiss a sect ion 2-1401 petition de novo

. People v. Vincent , 226 Ill. 2d 1, 17 (2007). ¶ 10 A. Timeliness of the Section 2-1401 petition ¶ 11 Initially, we note that the State argues that the court’s dismissal was proper because defendant’s petition was untimely as it was filed more than two years after judgment was

entered.

4¶ 12 “A section 2 -1401 petition filed more than two years after the challenged judgment cannot be considered absent a clear showing that the person seeking relief was under a legal disability or duress or the grounds for relief were fraudulently concealed.” People v. Pinkonsly , 207 Ill. 2d 555, 562 (2003); see also 735 ILCS 5/2-1401(c) (West 2018). “If the party opposing

the section 2 -1401 petition does not raise the limitations period as a defense, it may be waived.” Pinkonsly , 207 Ill. 2d at 562

. ¶ 13 H ere, the State failed to raise the issue of timeliness below , and therefore it waived this argument. ¶ 14 B. Sua Sponte Dismissal ¶ 15 Defendan t argues that the court erred by sua sponte dismissing his petition instead of addressing the merits when the State failed to respond and more than 30 days had passed since

the State was served . Further, he argues that the court should have given him notic e and an opportunity to respond prior to the dismissal. This argument necessarily fails because our supreme court has addressed this issue and determined that a court may sua sponte dismiss a

section 2 -1401 petition without providing defendant notice and an opportunity to be heard. See

Vincent , 226 Ill. 2d at 9-14. ¶ 16 C. Jurisdiction and Void Judgment ¶ 17 Defendant argues that the circuit court did not have personal or subject matter jurisdiction because the grand jury was not properly impaneled, and he was not given a preliminary hearing prior to being indicted. Based on these arguments, defendant contends that his conviction is void. He further argues that because his sentence is unconstitutional as applied to him ( infra ¶¶ 18-24), it is likewis e void.

5¶ 18 A judgment is void if it was entered by a court lacking jurisdiction or “was based on a statute that is facially unconstitutional and void ab initio .” People v. Abdullah , 2019 IL 123492, ¶ 13. The court in Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc. , 199 Ill. 2d 325, 334 (2002), defined subject matter jurisdiction as “the power of a court to hear and determine cases of the general class to which the proceeding in question belongs” and determined this jurisdiction extends to all jus ticiable matters. Here, the court had subject matter jurisdiction, as it had the power to hear and determine criminal proceedings. See People v

. Castleberry , 2015 IL 116916, ¶ 18 (court’s subject matter jurisdiction derives from article VI, section 9, of t he Illinois Constitution (Ill. Const. 1970, art. VI, § 9)). Additionally, the court had personal jurisdiction over defendant as he personally appeared before it . See People v. Woodall , 333 Ill. App. 3d 1146, 1156 (2002) (“A criminal defendant confers personal jurisdiction upon the trial court when he appears and joins the issues with a plea.”). Further, although defendant argues his sentence is unconstitutional, he does not make an argument that the statute he was sentenced under was facially unconstitution al, rather he argues it is unconstitutional as applied to him. Based on the foregoing, we conclude that neither defendant’s conviction nor sentence is void. ¶ 19 D. As -applied Constitutional Challenge to Sentence ¶ 20 Defendant argues that his as -applied constitutional challenge to his mandatory life

sentence should not have been dismissed. He argues that he was 18 at the time of the offense and that in light of scientific research showing that emerging adult brains are still de veloping, and his specific background and characteristics at the time of the offense, his mandatory life sentence violates the proportionate penalties clause of the Illinois Constitution and the eighth amendment

of the United States Constitution as applied to him. The State argues that this claim is more appropriately brought in a postconviction petition, and it lacks merit.

6¶ 21 First, while defendant could have brought this as-applied challenge in a postconviction proceedings, he is not precluded from pursuing it in a section 2-1401 petition. D espite language

in Pinkonsly , 207 Ill. 2d at 565-66, generally indicating that a section 2 -1401 petition may not be the proper vehicle to raise a violation of constitutional rights and is intended to address factual

iss ues, our supreme court has since specifically indicated that the type of as-applied

constitutional claim that defendant raises here may be brought in a section 2 -1401 petition. See People v. Thompson , 2015 IL 118151, ¶ 44 ; People v. Harris , 2018 IL 121932, ¶ 48. ¶ 22 We no w turn to whether the claim was otherwise properly dismissed. “Relief under

section 2 -1401 is predicated upon proof, by a preponderance of evidence, of a defense or claim that would have precluded entry of the judgment in the original action and diligence in both discovering the defense or claim and presenting the petition.” Vincent , 226 Ill. 2d at 7-8. “[I]f the respondent does not answer the petition, this constitutes an admission of all well- pleaded facts [citation], and the trial court may decide the case on the pleadings, affidavits, exhibits and supporting material before it, including the record of the prior proceedings.” Id. at 9. If the respondent fails to answer a petition, it renders the petition “ripe for adjudication.” Id. at 10. ¶ 23 At the outset, we note that in People v. House , 2021 IL 125124, ¶¶ 31-32, t he supreme

court concluded that a reviewing court could not determine that a defendant’s sentence violated the proportionate penalties clause as applied to him with out a developed evidentiary record and factual findings and remanded the matter for second

- stage postconviction proceedings so the record could be developed further. However, House involved a postconviction petition whereas

th e instant matter involves a section 2 -1401 petition which are separate methods of collateral

attack on a judgment. Because these two avenues for relief are different and involve different procedures, House does not dictate that a remand for further proceedings is n ecessary in this

7case . To the contrary, further proceedings are not warranted here because it is ripe for adjudication, as the State failed to answer the petition and thus, the well- pleaded facts are accepted as true and the matter may be decided on the pl eadings and the record of the prior proceedings. See Vincent , 226 Ill. 2d at 9-10. ¶ 24 “Statutes are presumed constitutional, and petitioner must overcome that presumption by clearly establishing that the mandatory sentencing statute at issue is invalid when applied to

him.” House , 2021 IL 125124, ¶ 18. The eighth amendment to the United States Constitution prohibits cruel and unusual punishments which include those that are disproportionate to the

offense. People v. McKee , 2017 IL App (3d) 140881, ¶ 25. Under the Illinois Constitution “[a] statute may be deemed unconstitutionally disproportionate if *** the punishment for the offense is cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community.” People v. Miller , 202 Ill. 2d 328, 338 (2002). ¶ 25 Accepting defendant’s well-pled allegations 1 as true , we cannot say that his mandatory life sentence is cruel, degrading or so disproportionate to the first degree murder of a police

1 We note that defendant alleged that he previously stated in a postconviction petition that he was not the shooter. While we would generally be required to accept this allegation as true , we note that it has no bearing on the determination of his as-applied constitutional challenge, and we need not consider it in our analysis. First, defendant’s allegation that he was not the shooter has no bearing on his challenge to the length of his sentence. If defendant was able to establish his innocence, then no sentence would be appropriate. Defendant has not raised an actual i nnocence claim, and thus, we must view the constitutionality of his sentence in light of his conviction of first degree murder for shooting an officer multiple times. Second, we are allowed to consider the record of the prior proceedings in deciding the ma tter (see Vincent , 226 Ill. 2d at 9) and that allegation is rebutted by the record, as defendant was convicted of first degree murder and the evidence supports that conviction because defendant’s fingerprints were on the magazine from the firearm used to s hoot Faulkner, and defendant’s uncle testified that defendant (1) gave him the firearm used to shoot Faulkner, (2) said he had been in an altercation with a police officer, and (3) told him to dispose of the firearm. Further, defendant’s initial postconviction petition argued that counsel was ineffective for failing to tender an involuntary manslaughter instruction, which would indicate defendant was indeed the shooter. We likewise decline to accept as true defendant’s allegations that he was coerced into a false confession. See , e.g. McClean v. Rockford Country Club , 352 Ill. App. 3d 229, 232 (2004) (noting, in regard to a motion to dismiss wherein the court conducts a similar inquiry regarding the sufficiency of the pleadings in light of 8officer as to shock the moral sens e of the community. See , e.g. , McKee , 2017 IL App (3d) 140881, ¶¶ 22-36. Defendant was legally an adult at the time of the offense. He was not simply an accomplice or complicit in the crime, but instead was the principle —the only shooter. Further, he not only shot Faulkner once, but multiple times. Even accepting defendant’s allegations regarding the science involving the brain development of young adults, he provides no allegations as to how it applied to his circumstances or somehow lessened his culpabili ty in this

crime so as to justify a finding that his life sentence shocks the moral sense of the community. Therefore, the circuit court properly dismissed this claim. ¶ 26 E. Brady Violation ¶ 27 Defendant argues that the State committed a Brady violation by withholding certain laboratory reports regarding fingerprint evidence. However, this claim was previously raised and decided against defendant. Supra ¶ 5. Therefore, it is barred by the doctrin e of res judicata and was properly dismissed. See People v. Blair , 215 Ill. 2d 427, 443 (2005) (providing that “[t]he

doctrine of res judicata bars consideration of issues that were previously raised and decided”) ; see also People v. Haynes , 192 Ill. 2d 437, 461 (2000) (“Points previously raised at trial and other collateral proceedings cannot form the basis of a section 2-1401 petition for relief.”). Therefore, the court properly dismissed this claim. ¶ 28 F. Ineffective/Unreasonable Assistance of Counsel ¶ 29 Defendant argues that appellate counsel was ineffective or provided unreasonable

assistance for not raising his Brady claim. However, such claims are not properly brought in a

section 2 -1401 petition. See Pin konsly , 207 Ill. 2d at 567 (“We have long held that section 2

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accepting well -pled facts, that neither “conclusions of law [n]or factual conclusions that are unsupported by allegations of specific facts” are taken as true). 91401 proceedings are not an appropriate forum for ineffective- assistance claims because such claims do not challenge the factual basis for the judgment.”). To the extent defendant ’s petition

raise d additional ineffective or unreasonable assistance claims, they too cannot be brought in

section 2 -1401 proceeding. Therefore, the court properly dismissed these claims. ¶ 30 III. CONCLUSION ¶ 31 The judgment of the circuit court of Peoria County is affirmed

. ¶ 32 Affirmed

.

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