## 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 . Gray , 2013 IL App (1st) 112572

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. MARCOS GRAY, Defe ndant-Appe llant.

District & N o. First District, F ourth Division Docke t No. 1-11-2572

Filed April 11, 2013

Held (Note : Thi s syl lab us
con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo 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

. ) Def endant’ s petition under section 2-1401 of the Code of Civil Procedur e alleg ing that his mandatory life sentenc e for first degree murder was void

on the g round that i t v iolated the prohibition ag ainst crue l and unusual punishment p u rs u an t to Miller beca use defendant was 16 at the ti me of his offe nse was proper ly dismiss ed, since his sentenc e wa s mere ly voidable, n o t v o i d
, and he did not file his petition within the two-year statutory limit ation, but defe ndant may raise the issue b ef o re a postconviction court.

Dec ision Under Review Appea l from the Circuit Court of Cook County , No. 9 3

- CR

- 20392-02; the Hon. Colleen Ann Hy

land, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pell et i er, Alan D. Goldberg
, and Rache l Moran, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s At torney , of Chicag o (Alan J

. Spellberg
, Assistant St ate’ s Attorney , of counse l), for the People.

Panel PRES I DI NG J USTI CE LAVI

N delivere d the judgme nt of the court, with opinion. J ustices Epstein and Pucinski conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Def

endant Marc os Gra

y appea ls from the dismiss al of his petition filed under section 2- 1401 of the Code of Civil Procedur e (7 3 5 I L CS 5/2-1401 (West 2010)). Following a jury trial, defe ndant was convicted via acc ountability theory of the 1993 first degree murder and attempted arme d robber

y o f S heila Doyle committed when defe ndant was ag e 16. Having previously been convicted of first degreemurder, de fenda nt was sentenc ed to a mandatory term of life imprisonment on his murder convict i o n and 15 y ear s’ imprisonment on his attempted arme d robber

y conviction. Relying on Miller v. Alabama
, 567 U.S. ___, 132 S. Ct. 2455 (2012), defe ndant now contends his mandatory life sentenc e is void beca use it violates the fede ral constitution’s prohibition ag ainst cru el and unusual punishment. The State responds that Miller does not rende r defe ndant’s sentenc e void and, reg ardle ss , Mi l l er constitutes a new rule of l aw t hat cannot be applied retroa ctively on collater al review. W e aff irm, while noting that defe ndant may raise this issue bef

ore the postconviction court.

¶ 2 BA CKGROUND ¶ 3 Via various proce dural pere g rinations, defe ndant’s case has resolu t el y m oved through the interstices of the justice sy stem. Following defe ndant’s first jury trial, this court reve rsed and rema nded the cause for a new trial afte r concluding the trial court had err ed in de nying defe ndant’s motion to suppress. See Peopl e v. Gray , No. 1-96-0278 (1998) (unpublished order under Supreme Court Rule 23). Evidence at retria l showed that defe n d an t and two friend s fo llowed t he victim
, Doyle, i n their car unti l she parked in her ga rag e on the s outh side of Chicag o. Def

endant and codef

endant Antwon Tyler en t ered the g ara g e, a gunshot issued, and when they ree merg ed, Tyler informed the t h i rd co hort that he had shot Doyle, whose body

was late r discover ed in the trunk of her car

. Fing erpr ints a nd palm prints f

rom codef endant and defe ndant wer e also found on the trunk lid. As stated
, t h e j u ry found defe ndant guilty via acc ountability of fi rst degree murder and attempted arme d robber y

. Be cause defe ndant alre ady had been convicted of first degree murder, which he committed

as a principal mere months b efor e Doyle’s murder, the trial court sentenc ed defe ndant in

-2-2000 to a mandatory life term, as well as 15 y ear s for attempted ar m ed ro b b ery to run

concur rently

. See 730 I L CS 5/5-8-1(a )(1) (c) (i) (West 1992); People v. Gray , No. 1-95-2932 (1998) (unpublished order under Supreme Court Rule 23). This court aff irmed defe ndant’s convictions on direc t appea l. See People v. Gray , No. 1-00-4122 (2002) (unpublished order under I llinois Supreme Court Rule 23). ¶ 4 In Dec ember 2001, defe ndant filed a pro se petition under the Post-Convi ction Hea ring Act (725 I L CS 5/122-1 et seq. (W es t 2 0 10)) alleg ing that his appellate counsel was ineffe ctive for

failingto raise c erta in issues on appea l and trial counsel was ineffe ctive for failing to file pretria l motions. The petition r eac hed second- stag e proce eding s and linge red in the sy stem for some eight y ear s befor e t h e ci rcuit court dismiss ed the petition in April 2010. Def endant appea led from that dismiss al arguing that the circ uit court violated his rig ht to repr esent h i m s el f p ro se in postconviction proce eding s when it denied his reque sts to proce ed p r o s e an d struck his pro se amendments to his petition. This court very rec ently agre ed, concluding the circ uit court abused its discretion by failing to properly consider defe ndant’s reque st to proce ed pro se

. People v. Gray , 2013 I L App (1st ) 101064, ¶ 27. We

rema nded the c ase f

or fur ther c onsideration consistent with our opinion. Id

. ¶ 5 M ea n wh ile, in the midst of his postconviction appea l, in Dec ember 2010, defe n d an t , acting pro se , filed this section 2-1401 petition in which he asser ted his conviction and sentenc e wer e void. Def

endant argued the trial court lacke d subject matter jurisdiction over his case beca

use the i n d i ct m en t cited the I llinois Revised Statutes rathe r than the I llinois Compil ed Statutes in ref

ere nce to the murder charg e. The State filed a motion to dismi s s, arguing defe ndant’s co n v iction and sentenc e wer e not void and the petition was not otherwise filed in a timely manner , thus eff ecting waiver and barr ing any relief

. The circ uit court grante d the State’s motion, and this appea l followed.

¶ 6 ANALYSI S ¶ 7 Section 2-1401 establishes a compre hensive statutory proce dure allowing for vacatur of

a final judgme nt older than 30 day s. 735 I L CS 5/2-1401 (West 2010); People v. Vincent , 226 I ll. 2d 1, 7 (2007). To obtain relief
, the defe ndant must show proof of a defe nse or claim that would have prec luded entry of the judgme nt in the o ri gi n al action and diligenc e in discovering that defe nse or claim and prese nting the petition. Id

. at 7-8. The statute ordinarily i s used to corr ect err ors of fac t ( People v. Lawt on , 212 I ll. 2d 285, 297 (2004))
, and with

ce rt ai n exceptions not applicable here
, the s tatute provides that petitions must be filed not later than two y ear s afte r entry of th e o rd er or judgme nt. Id

. The two-year limit ation, howeve r, does not apply to petitions brought on voidness g rounds. People v . Moran , 2012 I L App (1st) 111165, ¶ 13. Our revie w of the dismiss al in this case is de novo

. See Vincent , 226 I ll. 2d at 18. ¶ 8 Her e, for the purposes of analy zing defe ndant’s claim under section 2-1401, defe ndant’s conviction beca

me final in 2000, when he was sentenc ed p ursuant to section 5-8-1( a)( 1)(c )(i) of the Unified Code of Correc tions (730 I L C S 5/5-8-1(a )(1) (c) (i) (West 1992)), which provides that if a defe ndant is fac ing his second murder conviction, “the court shall sentenc e the d ef en d an t to a term of natura l life imprisonment.” Ten y ear s later, in 2010, defe ndant

-3-f

iled the instant section 2-1401 petition. In his petition, defe ndant ackno w le d g e d th e tw o

- ye a r statutory limit ation, but e ssentially maintained it did not a pply beca use he was challeng ing his c onviction and sentenc e as void on the basis of a miscited statute in the indictment. O n appea l, defe ndant admittedly has abandone d that specific re as oning, and now argues his sentenc e is void under Miller v. Alabama

. Def endant rea sons that a sentenc e which exceeds statutory maxi mums or violates the constitution is void from i t s i n ce p tion and may be challeng ed at a

ny time. ¶ 9 In Miller v. Alabama
, the United States Supreme Court rec ently held that mandatory life without parole for those under the ag e of 18 at the time of their crimes viola t es the eig hth amendment’ s prohibition ag ainst crue l and unusual punishments. Miller
, 5 67 U.S. at ___, 132 S. Ct. at 2460. In so holding, the court did not fore close a sentenc er’ s ability to impose life without parole on juvenile offe nders, althoug h it expected “this harshe st possible penalty will be uncommon.” Id

. at ___, 132 S. Ct. at 2469. Rather, the court stated a sentenc ing judge must take into acc ount how children are differ ent from adults befor e imposing a lifetime of incar cer ation. Id

. at ___, 132 S.Ct

. at 2469. Consist ent with Miller v. Alabama
, in People v. Miller
, 202 I ll. 2d 328 (2002), our supreme court had alre ady held that imposing a mandatory sentenc e of life without parole on a juvenile offe nder convicted of murdering more than one victim under a theory of acc ountability
, and without considering the fac ts of the crime, including t h e defe ndant’s ag e, offe nded the I llinois Constitution’s proportionate penalties clause and thus was unconstitutional as applied. As in the fede ral Miller v. Alabama opinion,

our court emphasized the decision “does not imply that a sentenc e of life imprisonment f or
a juvenile offe nder convicted under a theory of acc ountability is never appropriate.” Miller
, 202 I ll. 2d at 341. ¶ 10 Whil e the State acknow ledg es the holding in Miller v. Alabama
, the State contends that

case does not rende r def

en d an t ’s sentenc e void. Indeed, a j udg ment is void, as opposed to voidable, only if the court that enter ed it lacke d jurisdiction. People v. Mesc all
, 379 I ll. App. 3d 670, 673 (2008). J urisdictional failure can result from a court’s lack of persona l or subject matter jurisdiction or, rele vant to this case , the court’s lack of power to rende r the particula r judgme nt. Id

. J urisdiction or the power to rende r a particula r judgme nt does not nece ssarily mean that the j udgm en t re ndere d must be one that should have been render ed; i ndeed, the power to decide car

ries with it the power to de cide wrong , as well as rig ht, a nd a court will not lose jurisdiction mere ly beca use it makes a mistake in the law, the fac ts, or both. Moran , 2012 I L App (1st) 111165, ¶ 17. The principle follows: that which is unconstitutional is not

nece ssarily v oid. People v. Morfin
, 2012 I L App (1st) 103568, ¶ 31. A statute that is unconstitutional on its fac e–that is, wher e no s et of circ umstances exis ts under which it would be valid–is void ab initio , while a statute that is mere ly unconstitutional as applied is not. Id

. ¶ 11 As this court noted of late, Miller v. Alabama does not a ffe ct the validity of the na tural life imprisonment statute as to nonminor defe ndants, so that the s t at u t e i s not unconstitutional on its fac e. See Morfin
, 2012 I L App (1st) 103568, ¶ 40; see also People v. W illiams
, 2012 I L App (1st) 111145, ¶ 47 (holding same). Moreove r, Miller does not deprive or divest any

state or court of the authority to se ntence a defe ndant who was a minor at the time of his offe nse, like defe ndant, to a natura l life of imprisonment for committing homicide

-4-afte r alre ady having obtained a mur der c onviction. See Morfin
, 2012 I L App (1st) 103568,

¶ 40. Thus, althoug h the mandatory imposit ion of a life sentenc e might have violated defe ndant’s constitutional rig hts, that violation did not divest the t rial court of j urisdiction

over him. See Mesc all
, 379 I ll. App. 3d at 674; see also People v. Davis , 156 I ll. 2d 149, 157 (199 3 ) (n o t i ng that there are many rig hts belong ing to litigants which a court may not proper ly deny and, y et, if denied, d o n o t o u s t t he court of jurisdiction or rende r the proce eding s null and void); cf

. People v. Santana , 401 I ll. App

. 3d 663, 666 (2010) (af firming dismiss al of untimely section 2-140 1 p etition in spite of potential W hitfield violation be cause the “tria l court clea rly had the power to impose the sentenc es” and, thus, the defe ndant’s sentenc e was not void). As such, defe ndant’s sentenc e is mere ly voidable if challeng ed in a timely

manner . See Mesc all , 379 I ll. App. 3d at 673-74. ¶ 12 There in lies the proce dural rub. Def endant did not challeng e his conviction under section 2-1401 in a timely manner

. T h e S t at e argued this below and, in his petition, defe ndant essentially conce ded this point, instead contending the vi ab i l i t y o f his petition rested on defe ndant’s asser

tion of voidness. Be cause we have conclude d that defe ndant’s sentenc e is not void and beca

use defe ndant did not file his se ction 2-1401 petition within the two-year statutory limit ation, we cannot g rant defe ndant the relief he seeks. See People v. Caballero
, 179 I ll. 2d 205, 210-11 (1997) (whe re a section 2-1401 petition i s filed beyond two y ear s afte r the judgme nt, it cannot be considere d absent a clea r showing that the exceptions apply ). We would add that the orig inal claim set forth in defe ndant’s section 2-1401 petition is differ ent from the claim befor e us on appea l and, had the Stat e argued this issue now, it would be another basis for aff irming the dismi ssal of defe ndant’s section 2-1401 petition. See People v . Bramlett , 347 I ll. App. 3d 468, 475 (2004) (f inding that the defe ndant failed to raise the issue in his petition, thus forf eiting it for consideration on appea l). In that sense,
we disag ree with the just-issued People v. Luciano , 2013 I L App (2d) 110792, ¶ 48, which d eter mined that the defendant relying on Miller v. Alabama had raised “a proper v o i d n es s challeng e to his senten ce , ” b ec ause “a sentenc e that contravenes the Constitution may be challeng ed at any time.” The court reac hed thi s conclusion even though the defe ndant had not raised that argument below or in his postconviction petition. Whil e it might be true that g ener ally a constitutional challeng e to a criminal statute ca n b e raised for the first time on ap p ea l (s ee In re J.W

. , 204 I ll. 2d 50, 61 (2003))
, our rese arc h has not disclosed t h e application of that principle to the situation befor e us, wher e the defe ndant filed an untimely section 2-1401 petition, failed to establish an exception to the untimeliness, a nd also failed to establish a claim of voidness. But see People v. W agener , 196 I ll. 2d 269, 279-80 (2001) (as- applied challeng e involving Apprendi sentenc ing statute was not waived on direc t revie w beca use a party may challenge the constitutionalit y of a statute at any time); cf

. In re Parentage of John M. , 2 1 2 I ll. 2d 253, 268 (2004) (conc luding a court of revie w is not capa ble of making an “as applied” deter mination of unconstitutionalit y when there has been

no evidentiar

y hearing and no finding s of fac t below, making such a constitutional challeng e premature); People v . Spence r , 2012 I L App (1st) 102094, ¶ 32 (holdingsame). A s stated, logic does not dictate that an as-a pplied constitutional violation nece ssarily ousts a court of jurisdiction making a defenda nt’s sentenc e void. In the spec ific conte x t of section 2-1401, Luciano ’s conc lusion simply is not viable.

-5-¶ 13 We e mphasize tha t our dispositi on does not me an defe ndant is w ithout re course , to the extent any err or might have occur red in this case

. Def

endant may raise the prese nt sentenc ing issue befor e the circ uit court through the Post-Convi ction Hea ring Act (see 725 I L CS 5/122- 1 (West 2010)), which permits a defe ndant to challeng e his conviction based on a deprivation of constitutional rights. In fac t, defe ndant alre ady argued in his pro se amendment to his initial postconviction pet i t i o n , an amendment filed in J anuar y 2010, that his natura l life sentenc e was improper beca use he did not kill Doyle and was unawa re o f any plan to rob Doyle. See Gray , 2013 I L App (1st) 101064, ¶ 17. As stated, this c ourt rema nded that case t o th e circuit court to rec onsider defenda nt’s petition in light of his reque st to proce ed pro
se

. Should defe ndant argue the impropriety of his sentenc e in the context of Miller
, it would behoove the circ uit court to consider the prec edent surrounding Miller in light of the direc t appea l rec ord, which demonstrates for all intents and purposes that defe ndant rec eived a sentenc ing hearing, including argument in mitigation and ag g ravation, as we ll as the prese ntation of victim impact statements and defe ndant’s own elocution. Although the trial court decla

red defe ndant deser

ving of a lif

e sentenc e at the conclusion of the sentenc ing hearing, on denying defe ndant’s mot i o n t o re du ce his sentenc e, the court stated: “I do not have any discretion, that with the prior conviction, the murder, and the Def endant, afte r being found guilty by the jury on this case , that is the only sentenc e I could impose, and that is the sentenc e I did impose.” I f defe ndant raises this issue in postconviction proce ed i n gs and if that court d eter

mines the trial court sentenc ed defe ndant solely based on the mandatory nature of the statute, we lastly observe th at a s en t encing hearing in which the trial court believes a life sentence is mandatory differ s marke dly from a sentenc i n g hearing in which the court knowing ly exercises discretion betwee n imposing natura l life and a term of y ear s.

¶ 14 CONCLUSI ON ¶ 15 For

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

¶ 16 Affir

med.

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