____________________________________________________________________________ 

____________________________________________________________________________ 

____________________________________________________________________________ 

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). 

2022 IL App (3d) 190658-U 

Order 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. 

ORDER 

¶ 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 imprisonment. 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: 

“The 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. 

Investigators 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 order). 

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 (2006) (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. Defendant’s initial postconviction petition included 

an allegation that trial counsel was ineffective for not tendering an involuntary manslaughter 

2 
 

 

 

 

 

 

 

instruction. 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 defendant 

appealed. Id. This 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 asserted 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 Constitution. 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 criminal 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 aunt 

3 
 

 

 

 

and 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 applicable 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 dismissing his section 2-1401 petition. We review the 

circuit court’s decision to dismiss a section 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 Here, the State failed to raise the issue of timeliness below, and therefore it waived this 

argument. 

¶ 14 B. Sua Sponte Dismissal 

¶ 15 Defendant 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 notice 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 likewise 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 justiciable 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 the 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 unconstitutional, 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 developing, 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. Despite 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 

issues, 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 now 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, the supreme 

court concluded that a reviewing court could not determine that a defendant’s sentence violated 

the proportionate penalties clause as applied to him without 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 

the 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 necessary in this 

7 
 

 

 

 

 

 

 

 

case. 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 pleadings 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 allegations1 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 innocence 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 

matter (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 shoot 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 

8 
 

 

 

 

 

 

 

officer as to shock the moral sense 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 culpability 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 doctrine 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 Pinkonsly, 207 Ill. 2d at 567 (“We have long held that section 2-

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). 

9 
 

1401 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 

raised 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. 

10