ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Chambers, 2013 IL App (1st) 100575

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

SCOTT CHAMBERS, Defendant-Appellant.

 District & No. First District, Second Division

Docket No. 1-10-0575

Filed

Rehearing denied

August 13, 2013

September 11, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The denial of defendant’s successive postconviction petition based on the

finding that the petition was frivolous was affirmed, but the trial court

was directed on remand to vacate the language in its order instructing the

clerk of the circuit court not to accept further filings from defendant until

the sanction imposed on him by the trial court was paid, since the order

conflicted with section 22-105(a) of the Code of Civil Procedure, which

allows a prisoner to file an action if he is unable to pay court costs, and

defendant could file anothersuccessive petition properly challenging his

mandatory life sentence.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 94-CR-4431 (03);

the Hon. Vincent M. Gaughan, Judge, presiding.

Judgment Affirmed and remanded with directions.
Counsel on

Appeal

Michael J. Pelletier, Alan D. Goldberg, and Holly J.K. Schroetlin, all of

State Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Joan

F. Frazier, and Joseph Alexander, Assistant State’s Attorneys, of

counsel), for the People.

Panel PRESIDING JUSTICE HARRIS delivered the judgment of the court,

with opinion.

Justices Quinn and Simon concurred in the judgment and opinion.

OPINION

¶ 1 The circuit court denied defendant, Scott Chambers, leave to file a successive

postconviction petition, defendant’s third, finding the petition was frivolous. Relevant to this

appeal, the circuit court added the following language to its order: “[defendant] is hereby

fined $105.00 and the Clerk of the Circuit Court will be instructed not to accept any further

filings from [defendant] until his sanction has been satisfied in full.” Defendant does not

contest the circuit court’s finding that the petition was frivolous, nor does he contest the

imposition of the $105 “fine”; rather, he asks this court to remand the matter to the circuit

court and order it to strike the portion of the order instructing the clerk of the circuit court

to not accept future filings from him until the fees are paid.

¶ 2 In supplemental briefing before this court, defendant, who was 17 years of age at the time

of the offense, asks this court to review whether his mandatory life sentence without the

possibility of parole should be vacated due to the Supreme Court’s recent decision in Miller

v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012). Defendant asserts that supplemental

briefing before this court is an appropriate way to challenge his sentence arguing that a void

sentence is subject to challenge at any time.

¶ 3 At issue is whetherthe language the circuit court added prohibiting the clerk of the circuit

court from accepting future filings from defendant until his sanction is paid in full should be

vacated on remand and whether supplemental briefing before this court is the appropriate

method for defendant in this case to challenge his sentence based on Miller. We hold that

upon remand, the circuit court must vacate the following language from its order denying

defendant leave to file a successive postconviction petition: “the Clerk of the Circuit Court

will be instructed not to accept any further filings from [defendant] until his sanction has

been satisfied in full.” The portions of the circuit court’s orderfinding defendant’s successive

petition frivolous and assessing $105 in fees against defendant are affirmed as defendant did

not challenge these findings on appeal. We reject defendant’s contention that his sentence

is void and hold the sentencing issue he raised in supplemental briefing before this court is

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waived because defendant did not include it in his successive petition. We note that

defendant is not prohibited from filing a successive petition raising his sentencing issue

based on Miller provided he abides by the requirements of section 122-1(f) of the PostConviction Hearing Act (Act) (725 ILCS 5/122-1(f) (West 2010)).

¶ 4 JURISDICTION

¶ 5 On January 22, 2010, the circuit court denied defendant leave to file a successive

postconviction petition. Defendant timely appealed on February 17, 2010. Accordingly, this

court has jurisdiction pursuant to Illinois Supreme Court Rule 651. Ill. S. Ct. R. 651 (eff.

Feb. 6, 2013).

¶ 6 BACKGROUND

¶ 7 All pertinent factual background information concerning defendant’s trial and initial

appeal is well stated in this court’s 1998 order and does not need to be restated here. People

v. Chambers, No. 1-96-0501 (1998) (unpublished order under Supreme Court Rule 23).

Below, we will discuss relevant facts from defendant’s sentencing hearing and his current

successive postconviction petition.

¶ 8 Defendant was convicted by a jury of two counts of first degree murder, two counts of

armed robbery, one count of aggravated criminal sexual assault, and one count of aggravated

vehicular hijacking. The conduct on which defendant’s convictions are based occurred on

January 13, 1994, when defendant was 17 years of age. He was sentenced concurrently to

two terms of natural-life imprisonment for murder, three 25-year terms for armed robbery

and aggravated criminal sexual assault, and one 15-year term for his conviction for

aggravated criminal sexual assault. Relevant to this appeal, defendant’s sentence of natural

life imprisonment was pursuant to the mandatorysentencing provisions found in section 5-8-

1(a)(1)(c)(ii),(v) oftheUnified Code of Corrections. 730 ILCS 5/5-8-1(a)(1)(c)(ii), (v) (West

1994).

¶ 9 During the sentencing hearing, the State informed the circuit court of the law regarding

defendant’s sentence, stating:

“He’s 17, Judge, so under the law in Illinois we’re here to sentence him and you’re

bound to follow the law and I know this court will do so. He’s not eligible for the death

penalty nor is he eligible to be sentenced to anything less than natural life imprisonment.

The people who we elect as free, democratic people to serve in the General Assembly

decided many years ago for this type of crime, for this special category of crime

mitigation and aggravation is irrelevant. We have decided as a people that when someone

commits this type of very narrow category of crime that is so horrible we are entitled to

wash our hands of [defendant] and to banish him from our community and to send him

for the rest of his natural life to live in the penitentiary. And thats the sentence we’re

asking you to impose on him, Judge.”

The State added further “[t]his is a fair sentence” and it “is a sentence required under law.”

Defendant’s counsel, during his argument, noted, “I know that the Court cannot do anything

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beyond what the law requires where there is a double homicide.” Before sentencing

defendant to a natural life sentence without parole, the circuit court judge noted, “I don’t take

any pleasure out of sentencing a young man to the sentence of this gravity but it is the law

and I’m bound by the law.”

¶ 10 Defendant appealed his initial conviction and sentence alleging that his conviction for

aggravated criminal sexual assault must be reversed because the State failed to present any

evidence independent of his own statement to establish the corpus delicti of that crime and

that his counsel was ineffective by admitting to his guilt during opening statements. This

court affirmed his conviction and sentence. People v. Chambers, No. 1-96-0501 (1998)

(unpublished order under Supreme Court Rule 23).

¶ 11 In August of 1999, defendant filed a pro se petition for postconviction relief arguing that

his right to a speedy trial was violated and that his counsel was ineffective. The circuit court

summarily dismissed the petition pursuant to section 122-2.1 of the Act (725 ILCS 5/122-2.1

(West 2004)). Defendant did not appeal the dismissal of his postconviction petition.

¶ 12 On August 25, 2000, defendant filed a successive petition, his second petition, alleging

a claim based on Apprendi v. New Jersey, 530 U.S. 466 (2000). The circuit court dismissed

the petition. On appeal, the appellate defender assigned to represent defendant moved to

withdraw from the case on the grounds that the petition had no merit. This court granted the

motion to withdraw and affirmed the decision of the circuit court on July 3, 2003. People v.

Chambers, No. 1-02-3031 (2003) (unpublished order under Supreme Court Rule 23).

¶ 13 On July 21, 2009, defendant filed a petition for relief from judgment pursuant to section

2-1401 of the IllinoisCode of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2008)). The

circuit court, on October 2, 2009, pursuant to People v. Shellstrom, 216 Ill. 2d 45, 57 (2005),

notified defendant it intended to recharacterize the petition as a successive postconviction

petition, defendant’s third.

¶ 14 Defendant elected to amend his petition, filing his third petition on November 13, 2009.

In his third petition, defendant alleged he received ineffective assistance of counsel from his

appellate counsel on direct appeal, and from fellow inmates who drafted his previous two

petitions. According to defendant, both his appellate counsel and his fellow inmates failed

to allege that his trial counsel was ineffective and failed to challenge his sentence where

section 5-8-1(a)(1)(b) of the Unified Code of Corrections had been held unconstitutional.1

According to defendant, this was pertinent because section 5-8-1(a)(1)(c)(ii), which he was

sentenced under, “is subject to and/or completely dependent on, and was in effect at the time

[he] committed the crimes he has been convicted of.” Defendant claimed “extraordinary

circumstances” prevented him from submitting his claims earlier.

¶ 15 On January 22, 2010, the circuit court denied defendant leave to file his successive

petition, finding that defendant failed to demonstrate that the rule prohibiting successive

petitions should be relaxed. The circuit court further found that “the factual assertions relied

upon by [defendant] in the instant petition were available to him at the time of his initial

We note that defendant was sentenced under sections 5-8-1(a)(1)(c)(ii) and (v) of the 1

Unified Code of Corrections, not section 5-8-1(a)(1)(b).

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petition was filed” and that defendant “failed to identify any objective factor which impeded

his efforts to raise the claim in the earlier proceedings.” The circuit court found that

defendant failed to show cause by merely arguing that ineffective assistance of counsel

caused him to improperly present his previous petitions. Additionally, the circuit court found

that defendant did not show prejudice because even if he had presented his claim earlier,

there was “scant possibility” that he would have prevailed. The circuit court added that

defendant made “no showing that the absence of the claim now presented so infected the trial

that his resulting conviction or sentence violated due process.”

¶ 16 At the end of its order denying defendant leave to file a successive petition, the circuit

court added the following language: “[defendant] is hereby fined $105.00 and the Clerk of

the Circuit Court will be instructed not to accept any further filings from [defendant] until

his sanction has been satisfied in full.” Defendant timely appealed on February 17, 2010.

¶ 17 On February9, 2012, defendant filed his opening brief before this court, arguing only that

the circuit court exceeded its authority when it barred the clerk of the circuit court from

accepting any future filings until his fine was paid.

¶ 18 On June 25, 2012, the United States Supreme Court issued its decision in Miller v.

Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), which held that mandatory life sentences

without parole for defendants under the age of 18 at the time of their crimes is a cruel and

unusual punishment, and, thus, violates the eighth amendment. Id. at ___, 132 S. Ct. at 2460.

¶ 19 On August 17, 2012, defendant filed his supplemental brief, relying on Miller, to argue

that his life sentence is void, and asked that the matter be remanded to the circuit court for

resentencing.

¶ 20 ANALYSIS

¶ 21 Defendant filed a brief addressing the circuit court’s denial of his successive

postconviction petition in which the circuit court prohibited the clerk of the circuit court from

accepting future filings from defendant until his sanction was satisfied and a supplemental

brief addressing his sentence. We will address both issues in turn below.

¶ 22 Successive Postconviction Petition

¶ 23 Before this court, defendant argues that the portion of the circuit court’s order denying

him leave to file a successive postconviction petition that prohibits him from making future

filings until his sanction is paid off is void. He does not argue that he should not have been

fined nor does he contest that the filing was frivolous. Defendant asserts that the circuit

court’s order prohibiting future filings until his sanction is paid conflicts with section 22-

105(a) of the Code, which states, “[n]othing in this Section prohibits an applicant from filing

an action or proceeding if the applicant is unable to pay the court costs.” 735 ILCS 5/22-

105(a)(West 2010). Defendant maintains that the relevant section of the circuit court’s order

is void and that this court should order the circuit court to strike the offending language and

to issue a corrected order. According to defendant, our review is de novo because it concerns

the statutory authority of the circuit court’s order.

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¶ 24 The State, in response, argues that the circuit court properly exercised its inherent

authority by instructing the clerk of the circuit court to not accept any more filings from

defendant until he paid the imposed court costs. The State further argues that Illinois

Supreme Court Rule 137 (Ill. S. Ct. R. 137 (eff. July 1, 2013)) provides the statutory basis

for the circuit court’s actions. According to the State, we should review defendant’s claim

for an abuse of discretion because it involves the circuit court’s use of its discretion in

sanctioning defendant.

¶ 25 Initially, we agree with defendant regarding the proper standard of review in this case.

Issues raised addressing the circuit court’s statutory authority are subject to de novo review.

People v. Alexander, 369 Ill. App. 3d 955, 957 (2007). Furthermore, de novo review is

appropriate when interpreting a statute. People v. LaPointe, 227 Ill. 2d 39, 43 (2007).

Accordingly, we will review this issue de novo.

¶ 26 Section 22-105 of the Code, titled “Frivolous lawsuits filed by prisoners,” provides, in

relevant part:

“If a prisoner confined in an Illinois Department of Corrections facility files a pleading,

motion, or other filing which purports to be a legal document in a case seeking postconviction relief under Article 22 of the Code of Criminal Procedure of 1963 *** and the

Court makes a specific finding that the pleading, motion, or other filing which purports

to be a legal document filed by the prisoner is frivolous, the prisoner is responsible for

the full payment of filing fees and actual court costs.

On filing the action or proceeding the court shall assess and, when funds exist, collect

as a partial payment of any court costs required by law a first time payment of 50% of the

average monthly balance of the prisoner’s trust fund account for the past 6 months.

Thereafter 50% of all deposits into the prisoner’s individual account *** administered

by the Illinois Department of Corrections shall be withheld until the actual court costs

are collected in full. The Department of Corrections shall forward any moneys withheld

to the court of jurisdiction. If a prisoner is released before the full costs are collected, the

Department of Corrections shall forward the amount of costs collected through the date

of release. The court of jurisdiction is responsible for sending the Department of

Corrections a copy of the order mandating the amount of court fees to be paid. Nothing

in this Section prohibits an applicant from filing an action or proceeding if the applicant

is unable to pay the court costs.” (Emphasis added.) 735 ILCS 5/22-105 (West 2010).

The purpose of section 22-105 of the Code is “to curb the large number of frivolous

collateral pleadings filed by prisoners which adversely affect the efficient administration of

justice, and to compensate the courts for the time and expense incurred in processing and

disposing of them.” People v. Conick, 232 Ill. 2d 132, 141 (2008).

¶ 27 Our paramount consideration when interpreting a statute is to give effect to the intent of

the legislature. People v. Hari, 218 Ill. 2d 275, 292 (2006). “The best evidence of legislative

intent is the language used in the statute, which must be given its plain and ordinary

meaning.” Id. “ ‘In determining the plain meaning of a statute’s terms, we consider the

statute in its entirety, keeping in mind the subject it addresses, and the apparent intent of the

legislature in enacting the statute.’ ” Conick, 232 Ill. 2d at 138 (quoting Orlak v. Loyola

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University Health System, 228 Ill. 2d 1, 8 (2007)). Furthermore, the statutory language must

be given “the fullest, rather than narrowest, possible meaning to which it is susceptible.” Id.

¶ 28 In this case, we hold that the section of the circuit court’s order stating “the Clerk of the

Circuit Court will be instructed not to accept any further filings from [defendant] until his

sanction has been satisfied in full” conflicts with the plain and ordinary language of section

22-105 of the Code (735 ILCS 5/22-105 (West 2010)), which provides that “[n]othing in this

Section prohibits an applicant from filing an action or proceeding if the applicant is unable

to pay the court costs.” The circuit court in this case effectively prohibited defendant from

making future filings based on court costs assessed, despite the clear language stating

otherwise in section 22-105 of the Code. 735 ILCS 5/22-105 (West 2010). Therefore, the

circuit court erred when it included this language into its order denying defendant leave to

file his successive petition.

¶ 29 We find further support for our holding in our supreme court’s decision in People v.

Alcozer, 241 Ill. 2d 248 (2011). In Alcozer, the defendant challenged the constitutionality of

the imposition of fees pursuant to section 22-105 of the Code. Id. at 259-65 (citing 735 ILCS

5/22-105 (West 2006)). In responding to the defendant’s argument that the fees imposed

violated his due process rights, our supreme court held:

“From a plain reading of section 22-105, we determine that the statute does not

impinge upon a prisoner’s fundamental right to access to the courts because fees are

assessed only after a legal document is found to be frivolous. At most, the statute only

affects a prisoner’s right to file frivolous legal documents without being responsible for

the costs, but does not prohibit prisoners from exercising their right to petition for

postconviction relief.” (Emphasis added.) Id. at 260.

Our holding in this case is consistent with the Alcozer court’s holding that section 22-105

“does not prohibit prisoners from exercising their right to petition for postconviction relief.”

Id.; see also People v. Johnson, 2012 IL App (1st) 111378, ¶ 11 (pointing out that section 22-

105 of the Code “specifically provides that no inmate is prohibited from filing any pleading

based on the inability to pay” (citing 735 ILCS 5/22-105(a) (West 2008)); People v. Gale,

376 Ill. App. 3d 344, 361 (2007). Allowing the circuit court to prohibit defendant’s right to

file postconviction relief would be contrary to the plain language of section 22-105 of the

Code.

¶ 30 We reject the State’s contention that Illinois Supreme Court Rule 137 (Ill. S. Ct. R. 137

(eff. July 1, 2013)) applies in this case. Illinois Supreme Court Rule 137 provides, in relevant

part:

“The signature of an attorney or party constitutes a certificate by him that he has read the

pleading, motion or other document; that to the best of his knowledge, information, and

belief formed after reasonable inquiry it is well grounded in fact and is warranted by

existing law or a good-faith argument for the extension, modification, or reversal of

existing law, and that it is not interposed for any improper purpose, such as to harass or

to cause unnecessary delay or needless increase in the cost of litigation. *** If a pleading,

motion, or other document is signed in violation of this rule, the court, upon motion or

upon its own initiative, may impose upon the person who signed it, a represented party,

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or both, an appropriate sanction ***.” Ill. S. Ct. R. 137 (eff. July 1, 2013).

We disagree with the State’s contention because a comparison of Illinois Supreme Court

Rule 137 (Ill. S. Ct. R. 137 (eff. July 1, 2013)) with section 22-105 of the Code (735 ILCS

5/22-105 (West 2010)) shows that section 22-105 of the Code is the more specific provision

addressing frivolous filings made by prisoners, which is at issue in this case. It is a

fundamental rule of statutory construction that a specific provision prevails over a general

provision. People v. Latona, 184 Ill. 2d 260, 269-70 (1998); People v. Villarreal, 152 Ill. 2d

368, 379 (1992). Rule 137 is clearly more general in nature, while section 22-105 is titled

“Frivolous lawsuits filed by prisoners,” and states that it applies to prisoners seeking

postconviction relief. 735 ILCS 5/22-105 (West 2010).

¶ 31 Therefore, in this case the circuit court erred by including language in its order

prohibiting defendant fromfiling further pleadings before his sanction was paid in full. When

a court exceeds its statutory authority to act, the resulting order is void. Alexander, 369 Ill.

App. 3d at 958. Accordingly, on remand, we direct the circuit court to vacate the following

language from its order: “the Clerk of the Circuit Court will be instructed not to accept any

further filings from [defendant] until his sanction has been satisfied in full.”

¶ 32 Sentence

¶ 33 In supplemental briefing before this court, defendant, who was a minor at the time of the

offense, asks this court to review whether his mandatory life sentence without the possibility

of parole should be vacated pursuant to the Supreme Court’s recent decision in Miller v.

Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012). Defendant asserts that supplemental briefing

before this court is an appropriate way to challenge his sentence, arguing that a void sentence

is subject to challenge at any time.

¶ 34 In response, the State argues that the statute defendant was sentenced under in this case

cannot be considered void ab initio because it is not unconstitutional in its entirety.

Furthermore, the State contends that Miller cannot be applied retroactively to collateral

proceedings, such as a postconviction petition, because it is a new rule of law.

¶ 35 In Miller, the Supreme Court held that mandatory life sentences without parole for

defendants under the age of 18 at the time of their crimes is a cruel and unusual punishment

and, thus, violates the eighth amendment. Miller, 567 U.S. at ___, 132 S. Ct. at 2460. The

Court did not ban the sentencing of juveniles to life in prison without parole; rather, it held

the mandatory sentencing of juveniles to life without parole violates the eighth amendment

and required sentencing courts “to take into account how children are different, and how

those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at

___, 132 S. Ct. at 2469.

¶ 36 In People v. Williams, the defendant appealed the denial of his successive postconviction

petition in which he asserted that his mandatory life without parole sentence violated the

eighth amendment’s prohibition against cruel and unusual punishment. People v. Williams,

2012 IL App (1st) 111145, ¶ 27. Although the defendant did not cite Miller until

supplemental briefing before this court, he did cite the Supreme Court’s decision in Graham

v. Florida, 560 U.S. 48 (2010), a case the Supreme Court relied upon to make its decision

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in Miller. Williams, 2012 IL App (1st) 111145, ¶ 30. The defendant in Williams and

defendant in this case were both sentenced under the same statutory scheme. Id. ¶ 47 (citing

730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1996)). In Williams, this court rejected the defendant’s

contention that his sentence was void ab initio and thus, can be attacked at any time. Id. This

court reasoned that his sentence was not void ab initio because the statute was not facially

unconstitutional and could be validly applied in other circumstances, namely, to adults. Id.

This court did, however, hold that the defendant inWilliamssatisfied the cause-and-prejudice

test of section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West 2010)) such that the circuit

court erred in denying him leave to file a successive petition. Williams, 2012 IL App (1st)

111145, ¶ 57. Specifically, under the prejudice element of the cause-and-prejudice test, this

court held that Miller can be retroactively applied. Id. ¶ 52.

¶ 37 In this case, unlike in Williams, defendant did not include any argument concerning the

mandatorynature of his life without parole sentence in his successive postconviction petition.

Defendant filed the instant petition in November of 2009. Graham was decided in 2010,

while Miller was decided in 2012, after defendant filed his opening brief before this court.

Consequently, defendant’s challenge to his sentence based on Miller is only found in the

supplemental brief he filed before this court. Unlike in Williams, we cannot say that

defendant satisfied the cause-and-prejudice test found in section 122-1(f) of the Act (725

ILCS 5/122-1(f) (West 2010)) because the argument is not in defendant’s petition. Our

supreme court recently reiterated the basic framework a defendant must follow to file a

successive postconviction petition, stating:

“Consequently, to initiate a successive postconviction proceeding, a defendant must first

obtain leave of court, which is granted only when the defendant ‘demonstrates cause for

his or her failure to bring the claim in his or her initial post-conviction proceedings and

prejudice results from that failure.’ 725 ILCS 5/122-1(f) (West 2008). To show cause,

a defendant must identify ‘an objective factor that impeded his or her ability to raise a

specific claim during his or her initial post-conviction proceedings.’ Id. To show

prejudice, a defendant must demonstrate ‘that the claim not raised during his or her initial

post-conviction proceedings so infected the trial that the resulting conviction or sentence

violated due process.’ Id.” People v. Evans, 2013 IL 113471, ¶ 10.

We note that at no point, either before the circuit court or in supplemental briefing before this

court, has defendant argued that his successive petition satisfied the elements of the causeand-prejudice test found in section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West 2010)).

Accordingly, in order for this court to review his contention that we should remand the

matter for new sentencing, we would have to hold that his sentence was void ab initio. As

stated earlier, this court already held in Williams that the same sentencing scheme was not

void ab initio. Williams, 2012 IL App (1st) 111145, ¶ 47. We see no reason to depart from

that holding here.

¶ 38 The matter at bar is similar to this court’s recent decision in People v. Gray, 2013 IL App

(1st) 112572. The defendant in Gray filed a motion, pursuant to section 2-1401 of the Code

(735 ILCS 5/2-1401 (West 2010)) challenging his sentence as void. Id. ¶ 5. The defendant,

for the first time on appeal, added that his sentence was also void under Miller. Id. ¶ 8. The

Gray court held that the defendant’s sentence was not void and that it could not grant the

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defendant the relief he requested because he filed his section 2-1401 petition outside the twoyear statutory time limitation. Id. ¶ 12. The Gray court offered the following reasoning for

its decision:

“While the State acknowledges the holding in Miller v. Alabama, the State contends

that case does not render defendant’s sentence void. Indeed, a judgment is void, as

opposed to voidable, only if the court that entered it lacked jurisdiction. [Citation.]

Jurisdictional failure can result from a court’s lack of personal or subject matter

jurisdiction or, relevant to this case, the court’s lack of power to render the particular

judgment. [Citation.] Jurisdiction or the power to render a particular judgment does not

necessarilymean that the judgment rendered must be one that should have been rendered;

indeed, the power to decide carries with it the power to decide wrong, as well as right,

and a court will not lose jurisdiction merely because it makes a mistake in the law, the

facts, or both. [Citation.] The principle follows: that which is unconstitutional is not

necessarily void. [Citation.] A statute that is unconstitutional on its face–that is, where

no set of circumstances exists under which it would be valid–is void ab initio, while a

statute that is merely unconstitutional as applied is not. [Citation.]

As this court noted of late, Miller v. Alabama does not affect the validity of the

natural life imprisonment statute as to nonminor defendants, so that statute is not

unconstitutional on its face. [Citations.] Moreover, Miller does not deprive or divest any

state or court of the authority to sentence a defendant who was a minor at the time of his

offense, like defendant, to a natural life of imprisonment for committing homicide after

already having obtained a murder conviction. [Citation.] Thus, although the mandatory

imposition of a life sentence might have violated defendant’s constitutional rights, that

violation did not divest the trial court of jurisdiction over him. [Citations.] As such,

defendant’s sentence is merely voidable if challenged in a timelymanner. [Citation.]” Id.

¶¶ 10-11.

The Gray court emphasized that the defendant was not without recourse, as he could still

raise his sentencing issue based on Miller through a future postconviction petition. Id. ¶ 13.

¶ 39 We find the reasoning employed in Gray to be persuasive in the matter presently before

us. In this case, as in Gray, we cannot grant defendant the recourse he is asking for in his

supplemental brief because his argument is not found in his successive postconviction

petition. See 725 ILCS 5/122-3 (West 2010) (“Any claim of substantial denial of

constitutional rights not raised in the original or an amended petition is waived.”). Defendant

has not, either in his brief before this court or in his successive postconviction petition, made

any claims that he has satisfied the cause-and-prejudice test outlined in section 122-1(f) of

the Act (725 ILCS 5/122-1(f) (West 2010)). Our holding in this case is consistent with this

court’s previous holding in Williams because in both cases we reject the defendants’

contentions that their sentences were void ab initio. Williams, 2012 IL App (1st) 111145,

¶ 47. Unlike the defendant in Williams, however, defendant in the case at bar has not made

any claims to satisfy the cause-and-prejudice test under the Act (725 ILCS 5/122-1(f) (West

2010)).

¶ 40 Although our holding in this case may seem inefficient because defendant will

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presumably file a successive petition, his fourth, properly raising his sentencing issue based

on Miller and addressing the requirements of section 122-1(f) of the Act (725 ILCS 5/122-

1(f) (West 2010)), we stress that we do not have the supervisory authority possessed by our

supreme court to overlook the procedural posture of the matter before us and address

defendant’s sentencing challenge on its merits. See People v. Jones, 213 Ill. 2d 498, 507-08

(2004) (our supreme court stated “our appellate court is not free, as this court is under its

supervisory authority, to excuse, in the context of postconviction proceedings, an appellate

waiver caused by the failure of a defendant to include issues in his or her postconviction

petition”); People v. Pendleton, 223 Ill. 2d 458, 475 (2006).

¶ 41 We further note that recently the Second District of this court, in People v. Luciano, 2013

IL App (2d) 110792, ¶ 46, held that a similarly situated defendant could challenge his

sentence in light of Miller because his sentence was void. To the extent that Luciano

conflicts with our holding in this case, we respectfully decline to follow it. See O’Casek v.

Children’s Home & Aid Society of Illinois, 229 Ill. 2d 421, 440 (2008) (under the doctrine

of stare decisis, “the opinion of one district, division, or panel of the appellate court is not

binding on other districts, divisions, or panels”).2

¶ 42 In conclusion, on remand, we direct the circuit court to vacate the following language

from its order: “the Clerk of the Circuit Court will be instructed not to accept any further

filings from [defendant] until his sanction has been satisfied in full.” We reiterate that

defendant has not challenged the circuit court’s finding that his petition was frivolous or that

the $105 assessed against him was improper. Accordingly, that portion of the circuit court’s

order will be affirmed. Additionally, we reject defendant’s contention that his sentence is

void and we decline to review the sentencing issue he raised in supplemental briefing before

this court. We emphasize that we are not foreclosing defendant’s ability to challenge his

sentence based on Miller, we are merely holding that we cannot review the issue based on

the procedural posture of the case. Defendant, if he chooses, is free to file a successive

petition properly raising his claim according to the parameters of section 122-1(f) of the Act

(725 ILCS 5/122-1(f) (West 2010)). See Jones, 213 Ill. 2d at 508-09 (noting that proper

forum for a claim not in an original or amended postconviction petition is through a

successive petition); Pendleton, 223 Ill. 2d at 475. Presumably, this will be possible now that

we have vacated the conditional language prohibiting defendant from making future filings

until the assessed fee of $105 is paid in full.

¶ 43 CONCLUSION

¶ 44 The judgment of the circuit court is affirmed and remanded with directions.

¶ 45 Affirmed and remanded with directions.

The Gray court also declined to follow Luciano. Gray, 2013 IL App (1st) 112572, ¶ 12. 2

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