1 

2021 IL App (5th) 180010-U 

NO. 5-18-0010

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

 ) Circuit Court of

Plaintiff-Appellee, ) Marion County.

 ) 

v. ) No. 16-DT-7 

 ) 

GREGORY C. MCCRAY, ) Honorable

 ) Mark W. Stedelin, 

Defendant-Appellant. ) Judge, presiding.

________________________________________________________________________

PRESIDING JUSTICE BOIE delivered the judgment of the court.

Justices Moore and Wharton concurred in the judgment.

 

 ORDER

¶ 1 Held: We affirm the order of the trial court where defendant’s claim that his defense

counsel rendered ineffective assistance of counsel by failing to inform 

defendant of the collateral consequences of his guilty plea to driving under 

the influence is not cognizable in a section 2-1401 petition. 

 

¶ 2 On January 4, 2017, defendant Gregory C. McCray pled guilty to driving under 

the influence (DUI) in violation of section 11-501(a) of the Illinois Vehicle Code (Code) 

(625 ILCS 5/11-501(a) (West 2016)), a Class A misdemeanor, pursuant to a negotiated 

plea agreement.

1 The trial court entered a conviction the same day and assessed costs only, 

1

Defendant’s negotiated plea agreement involved the matter before this court and cases 16-CF-320, 

16-CF-169, 16-TR-134, and 16-TR-135, which were also pending against defendant in the circuit court of 

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).

NOTICE

Decision filed 01/19/21. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.
2 

which were declared uncollectible. On June 26, 2017, defendant filed a pro se

postconviction petition pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 

(West 2016)). Defendant alleged in his postconviction petition, inter alia, that his defense

counsel was ineffective for failing to inform him that his driver’s license would be revoked

for 10 years due to his guilty plea and subsequent DUI conviction. The trial court struck

defendant’s postconviction petition for lack of jurisdiction. Defendant then filed a pro se

petition pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 

(West 2016)). The State filed a response on November 22, 2017, and on November 27, 

2017, defendant filed an amended petition.

2 Defendant’s section 2-1401 petition raised the 

same issue as his postconviction petition in that defendant alleged that his defense counsel 

was ineffective for failing to inform him that his driver’s license would be revoked for 10

years due to his guilty plea and subsequent DUI conviction. On December 13, 2017, the 

trial court dismissed defendant’s section 2-1401 petition. 

¶ 3 Defendant now appeals the judgment of the trial court dismissing his section 2-1401 

petition, arguing that his defense counsel was ineffective for failing to ensure that 

Marion County. The additional cases will not be addressed within this decision unless relevant to the 

analysis. 

2

Defendant’s amended petition was titled “Adjusted Petition for Relief Pursuant to 735 ILCS 5/2-

1401.” The same issue was raised in both the petition and the amended petition. The parties’ briefs indicate 

“defendant’s petitions” and at other times refer to “defendant’s petition,” but both parties acknowledge the 

adjusted petition as an amended petition. “Where an amendment is complete in itself and does not refer to 

or adopt the prior pleading, the earlier pleading ceases to be a part of the record for most purposes, being 

in effect abandoned and withdrawn.” Bowman v. County of Lake, 29 Ill. 2d 268, 272 (1963). In this case, 

the amended petition was complete in itself and contained the same attachments as the initial petition. As 

such, this court will refer to defendant’s amended petition as “section 2-1401 petition.”
3 

defendant understood that his guilty plea and subsequent DUI conviction would result in 

the revocation of this driver’s license for 10 years. For the following reasons, we affirm 

the judgment of the trial court.

¶ 4 BACKGROUND

¶ 5 On December 31, 2015, defendant was involved in an automobile accident in 

Marion County, Illinois. Defendant’s vehicle had failed to stop at a stop sign and struck 

another vehicle. Defendant was injured and transported to a local hospital. At the hospital, 

defendant was interviewed by law enforcement Officer Justin Enriquez of the Centralia 

Police Department.

¶ 6 Officer Enriquez noticed that defendant had bloodshot eyes and that he was 

speaking in a low tone, almost inaudible. Based on his observations, Officer Enriquez read 

a warning to motorist and requested that defendant provide a urine and blood sample. The 

warning to motorist advised defendant of the relevant provisions of the Code (625 ILCS 

5/11-500 et seq. (West 2014)), including the potential consequences of refusing to provide 

the samples and the potential consequences if the samples indicated a blood ethanol level 

of .08 or greater, or the consumption of cannabis. After being so advised, defendant agreed

to provide blood and urine samples. 

¶ 7 The laboratory results from the samples indicated that defendant’s blood ethanol 

level was .064 and that THC3 was detected in his urine. On January 8, 2016, defendant was 

charged with misdemeanor DUI in violation of section 11-501(a) of the Code (id. § 11-

3 Tetrahydrocannabinol, commonly referred to as THC, is the principal psychoactive constituent 

of cannabis.
4 

501(a)). Defendant had two prior convictions for DUI in 1999 and 2000. Based upon those 

convictions, defendant was charged by information in matter 16-CF-169 of aggravated 

driving under the combined influence of alcohol and drugs in violation of section 11-

501(a)(5) of the Code (id. § 11-501(a)(5)). The information further alleged that defendant 

had committed the offense for the third time in violation of section 11-501(d)(2)(B) of the 

Code, a Class 2 felony (id. § 11-501(d)(2)(B)). Defendant was not placed into custody 

regarding either DUI charge; however, defendant was placed into custody regarding an 

unrelated case.

4

¶ 8 On January 4, 2017, defendant pled guilty to DUI in violation of section 11-501(a) 

of the Code, a Class A misdemeanor (id. § 11-501(a)). The trial court entered a conviction 

the same day and assessed costs only, which were declared uncollectible. The State then 

dismissed the felony charge of aggravated driving under the combined influence of alcohol 

and drugs in violation of section 11-501(a)(5) of the Code in matter 16-CF-169. Defendant 

did not appeal his DUI conviction or sentence. 

¶ 9 On June 26, 2017, defendant filed a postconviction petition pursuant to section 122-

1 of the Post-Conviction Hearing Act (725 ILCS 5/122-1 (West 2016)). Defendant argued 

in his postconviction petition, inter alia, that his conviction should be vacated because his 

driving privileges had been revoked for 10 years when he “never went to court about 

causing a wreck 4th District report to Secretary of State” and that his case was “completely 

neglected” by his defense counsel. The trial court issued a written order on July 12, 2017, 

4

Case number 16-CF-320, circuit court, Marion County, Illinois. The exact date that defendant 

was placed into custody is unclear from the record.
5 

striking defendant’s postconviction petition for lack of jurisdiction. The trial court correctly 

noted that the relief provided by the Post-Conviction Hearing Act was restricted to 

individuals imprisoned in a penitentiary and that defendant was not incarcerated as result 

of his DUI conviction. See id. § 122-1(a).

¶ 10 Defendant then filed a petition for relief from judgment pursuant to section 2-1401 

of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2016)) on September 15, 2017. 

In his petition for relief from judgment, defendant argued, inter alia, that his conviction 

should be vacated since his defense counsel was ineffective and defendant never went to 

court for a causing a wreck. Defendant filed an amended section 2-1401 petition on 

November 27, 2017. In his amended section 2-1401 petition, defendant alleged “ineffective 

counsel” because “defendant was unaware that his [driving] privilege would be revoke[d] 

for 10 years.” 

¶ 11 The State filed a motion to dismiss defendant’s petition for relief from judgment or, 

in the alternative, recharacterize the petition as a postconviction petition pursuant to the 

Post-Conviction Hearing Act (725 ILCS 5/122-1(a) (West 2016)). In its response, the State 

noted that defendant failed to affirmatively set forth a meritorious defense under section 2-

1401 of the Code of Civil Procedure because defendant had not alleged any new facts that 

were unknown to the court at the time of trial that would have prevented entry of the 

judgment. According to the State, defendant instead recited his version of the case history 

and raised constitutional issues which appeared to attack the competency of his defense

counsel. 
6 

¶ 12 On December 13, 2017, the court conducted a hearing on defendant’s section 2-

1401 petition. At the hearing, the following interchange occurred:

 “THE COURT: Sir, what relief are you seeking in these post-conviction 

petitions, these 1401 petitions?

 THE DEFENDANT: The privilege to drive.

 THE COURT: Excuse me?

 THE DEFENDANT: The privilege to drive. I received a ten-year 

revoke after I made this plea. And I had a six-month suspension that July. 

And upon my plea that suspension was a week before ending. In which, the 

Secretary of State give me a ten-year revoke on the 19th of January, and the 

plea was on the 4th of January.

 THE COURT: And so what are you asking?

 THE DEFENDANT: I’m—whatever needs to be done in a legal 

situation, 16-DT-7, with the Secretary of State is double jeopardy, and I’m 

asking simply— 

 THE COURT: In 16-DT-7— 

 THE DEFENDANT: —for my privilege to drive.” 

¶ 13 Upon completion of the hearing, the trial court stated:

 “THE COURT: I’m going to show the State’s motion to dismiss granted. 

I’ll show the 1401 petition dismissed.
7 

 Sir, this is a misdemeanor matter. You voluntarily entered into the plea. 

You had counsel at the time. You’re [sic] complaint also seems to be with 

the Secretary of the State and not with the—not with what happened here.”

¶ 14 Defendant appeals the dismissal of his section 2-1401 petition, arguing that his 

defense counsel was constitutionally ineffective for failing to inform defendant that his 

guilty plea and subsequent conviction to DUI would result in the revocation of his driver’s 

license for a period of 10 years. Defendant further argues that his ineffective assistance of 

counsel claim was cognizable in a section 2-1401 petition because defendant was 

statutorily unable to file a postconviction petition. We disagree.

¶ 15 ANALYSIS

¶ 16 We would first note that defendant did not plead guilty at an initial stage of the 

criminal process, and therefore, admonishments pursuant to section 113-4(c) of the Code 

of Criminal Procedure of 1963 (725 ILCS 5/113-4(c) (West 2016)) were not required to be 

given by the trial court. See People v. Burge, 2019 IL App (4th) 170399, ¶ 27. Those 

admonishments would have advised defendant that because of his guilty plea, his right to 

retain or obtain a driver’s license might be negatively impacted. 725 ILCS 5/113-4(c) 

(West 2016). We also note that pursuant to defendant’s plea agreement, he was not 

incarcerated for his DUI conviction and, therefore, defendant could not file a 

postconviction petition. See People v. Lawton, 212 Ill. 2d 285, 297 (2004). As such, 

defendant had no other procedural means to attack his conviction other than the use of a 

petition pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 

(West 2016)).
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¶ 17 Section 2-1401 of the Code of Civil Procedure provides a statutory procedure by 

which a final judgment or order may be challenged more than 30 days after the entry of the 

judgment or order which, although a civil remedy, is applicable to both civil and criminal 

cases. People v. Pinkonsly, 207 Ill. 2d 555, 562 (2003). “To obtain relief under section 2-

1401, the defendant ‘must affirmatively set forth specific factual allegations supporting 

each of the following elements: (1) the existence of a meritorious defense or claim; (2) due 

diligence in presenting this defense or claim to the circuit court in the original action; and 

(3) due diligence in filing the section 2-1401 petition for relief.’ [Citations.]” Id. at 565.

Unlike a postconviction petition, which is reviewed to determine the existence of alleged 

deprivations of constitutional rights, a section 2-1401 petition is reviewed to determine the 

existence of facts unknown to the trial court which would have prevented the rendition of 

the judgment. People v. Hayden, 288 Ill. App. 3d 1076 (1997).

¶ 18 When a trial court enters a dismissal in a section 2-1401 proceeding, we review that 

order de novo on appeal. People v. Vincent, 226 Ill. 2d 1, 18 (2007). Applying this standard 

of review to the matter before us, the trial court correctly denied defendant’s section 2-

1401 petition as a matter of law.

¶ 19 The Illinois Supreme Court has held that ineffective assistance of counsel claims 

cannot be raised in a section 2-1401 petition. Pinkonsly, 207 Ill. 2d at 567 (“We have long 

held that section 2-1401 proceedings are not an appropriate forum for ineffective-assistance 

claims because such claims do not challenge the factual basis for the judgment.”). 

Defendant argues, however, that the supreme court in Pinkonsly did not create an absolute 

bar to presenting an ineffective assistance of counsel claim in a section 2-1401 petition. 
9 

¶ 20 Defendant cites to People v. Lawton, 212 Ill. 2d 285 (2004), in which the supreme 

court clarified that section 2-1401 should be liberally construed and relief should be granted 

when necessary to achieve justice. Id. at 298. The Lawton court specifically recognized the 

propriety of allowing defendants subject to the Sexually Dangerous Persons Act (725 ILCS 

205/0.01 et seq. (West 2002)) to utilize section 2-1401 to assert claims of ineffective 

assistance of counsel. Lawton, 212 Ill. 2d at 299. The Lawton court noted that although 

proceedings under the Sexually Dangerous Persons Act were civil in nature, they could 

result in deprivation of liberty and incarceration. Further, the supreme court noted that

defendants subject to the Sexually Dangerous Persons Act could not invoke the PostConviction Hearing Act since the Post-Conviction Act applies only to persons imprisoned 

pursuant to a criminal conviction. Id. at 295-97. 

¶ 21 Defendant argues that, like the defendant in Lawton, he was prohibited from seeking 

relief through a postconviction petition and therefore should be entitled to raise his claim 

of ineffective assistance of counsel in a 2-1401 petition. This matter, however, is 

distinguishable from Lawton. The Lawton court extended the utilization of section 2-1401 

to those defendants who were deprived of liberty and incarcerated as a result of a civil 

proceeding to provide a means of relief equivalent to the Post-Conviction Hearing Act. 

Defendant in this matter was convicted of a misdemeanor offense and was not incarcerated 

or deprived of any liberty.

5

 

5

A driver’s license is a property right and not fundamental in the constitutional sense, and, as 

such, difficulties arising from the loss of a driver’s license do not curtail fundamental rights. People v. 

Lindner, 127 Ill. 2d 174, 179 (1989); People v. Orth, 124 Ill. 2d 326, 335 (1988).
10

¶ 22 Defendant also cites to People v. Mathis, 357 Ill. App. 3d 45 (2005), a case in which 

the appellate court determined that “under the particular circumstances of [that] case the 

defendant was entitled to raise his claim by the only means available, a section 2-1401 

petition.” Id. at 50. In Mathis, as in this case, the defendant was not incarcerated and relief 

under the Post-Conviction Hearing Act (725 ILCS 5/122-1(a) (West 2002)) was 

unavailable. The defendant in Mathis was, however, a juvenile improperly convicted as an 

adult absent a hearing mandated under the Juvenile Court Act of 1987 (705 ILCS 405/5-

130(2)(c)(ii) (West 2002)). Mathis, 357 Ill. App. 3d at 55. Given the particular 

circumstances of that case, we agree that the defendant in Mathis was entitled to raise his 

claims in a section 2-1401 petition as necessary to achieve justice. In this matter, however, 

defendant was not prejudiced by the trial court’s inability to review his section 2-1401 

because his guilty plea was the result of a negotiation with the State to avoid possible 

incarceration.

¶ 23 We do not agree that the circumstances of the judgment appealed requires the same 

conclusion. Defendant in this matter is not claiming that the trial court failed to follow 

mandated procedures for his conviction or that he was deprived of liberty. Instead, 

defendant is asserting an ineffective assistance of counsel claim related to the length of 

time his driving privileges were revoked. 

¶ 24 Illinois law remains that section 2-1401 proceedings are generally not an appropriate 

forum for ineffective assistance of counsel claims because such claims do not challenge 

the factual basis for the judgment. Defendant has not provided any precedent that an 

exception exists to a defendant who was convicted of a misdemeanor offense and was not 
11

incarcerated. There are no allegations that the trial court failed to follow proper procedures, 

that defendant had a meritorious defense that was not presented, or that defendant was 

deprived of liberty because of his conviction. As such, defendant has not presented any 

authority or otherwise established any exception that would allow him to raise his 

ineffective assistance of counsel claim in a section 2-1401 petition. Therefore, based on the 

specific circumstances of this matter, we find that defendant’s ineffective assistance of 

counsel claim remains incognizable in a section 2-1401 petition. 

¶ 25 We would, however, express our concern that defendants do not have a process or 

path for relief and the means to avoid injustice for these types of claims. A defendant’s 

access to justice should not depend upon the procedural form of his or her underlying 

request, and as the supreme court has already instructed us in Lawton, section 2-1401 

petitions should be liberally construed and relief should be granted when necessary to 

achieve justice. Lawton, 212 Ill. 2d at 298. To ensure that the procedural form does not 

control over the factual character of the complaint, we would urge courts to liberally 

construe section 2-1401 petitions in cases involving the collateral consequences of a guilty 

plea to include consideration of ineffective assistance of counsel claims where factually 

appropriate and necessary to ensure justice is not denied.

¶ 26 Because we find that defendant’s claim of ineffective assistance of counsel is not 

cognizable in a section 2-1401 petition, we will not address defendant’s claim within his 

section 2-1401 petition that his defense counsel rendered ineffective assistance of counsel 

for failing to inform defendant of the potential collateral consequences of his guilty plea 

and subsequent conviction to DUI. Based on the above, we find that the trial court properly 
12

dismissed defendant’s section 2-1401 petition.

¶ 27 CONCLUSION

¶ 28 For the foregoing reasons, we affirm the trial court’s order dismissing defendant’s 

section 2-1401 petition.

¶ 29 Affirmed.