2024 IL App (1st) 221474
No. 1-22-1474 FIRST DISTRICT SECOND DIVISION September 17, 2024
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 10 CR 4033 ) KORTNEY ADAMS, ) Honorable ) Steven Jay Rosenblum, Defendant-Appellant. ) Judge Presiding.
JUSTICE HOWSE delivered the judgment of the court, with opinion. Justices McBride and Ellis concurred in the judgment and opinion.
OPINION
¶1 The circuit court of Cook County, pursuant to a negotiated guilty plea, convicted
defendant, Kortney Adams, of one count of armed habitual criminal (AHC) (720 ILCS 5/24-1.7
(West 2010)) and nol-prossed five remaining counts in the information. A defendant commits
AHC when they are in possession of a firearm, after being convicted of two or more qualifying
offenses. Id. At the time of defendant’s plea, one of his qualifying offenses was aggravated
unlawful use of a weapon (AUUW) (id. § 24-1.6). AUUW was declared unconstitutional and
void ab initio. Defendant filed a petition for relief from the judgment of conviction for AHC,
pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West
2022)). The trial court initially denied the petition but, upon rehearing, granted the petition in
part. The petition sought complete vacatur of the conviction, but the trial court vacated the
conviction for AHC and entered a conviction for the lesser-included offense of unlawful use of a
weapon by a felon (UUWF) (720 ILCS 5/24-1.1 (West 2010)). The court resentenced defendant
to a term of imprisonment with credit for time already served sufficient to satisfy the new
sentence. 1-22-1474
¶2 Defendant appealed on the primary grounds that (1) the declaration that AUUW is void
ab initio voided the conviction for AHC such that no further proceedings on the AHC conviction
were permitted, including reduction of the offense to a lesser-included offense, and (2) because
the statute of limitations had expired, the trial court could not grant leave to amend the count in
the information charging AHC to charge UUWF.
¶3 For the following reasons, we affirm.
¶4 I. BACKGROUND
¶5 On March 4, 2010, following defendant’s arrest after a routine traffic stop (tinted
windows), the State charged defendant by information with AHC (count I), four counts of
AUUW (counts II-V), and unlawful use of a weapon by a felon (UUWF) (count VI). Count I
alleged that defendant committed AHC in that he knowingly or intentionally possessed a firearm
after having been convicted of aggravated vehicular hijacking under case No. 06CR18353 and
AUUW. Count VI alleged defendant knowingly possessed on or about his person any firearm
after having been previously convicted of aggravated vehicular hijacking under case No.
06CR18353.
¶6 On July 16, 2010, pursuant to a negotiated guilty plea, the trial court entered a judgment
of conviction on count I for armed habitual criminal and sentenced defendant to six years’
imprisonment. At the plea hearing, the trial court explained that count I alleged that defendant
possessed a firearm after previous convictions for aggravated vehicular hijacking and AUUW.
The court admonished defendant as to the ramifications of his plea and defendant’s rights. At the
conclusion of the court’s admonishments, the court found that defendant knew and understood
his rights, that he was entering the plea knowingly and voluntarily, and that
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“based upon the factual matters that were presented to me in the course of the 402
conference as to what the State’s evidence at trial would be as well as my review of the
arrest report and the transcript, there would be a sufficient factual basis for me to accept
the plea of guilty [to AHC].”
The court accepted the plea and entered judgment on the finding.
¶7 On May 11, 2017, defendant filed a pro se petition for relief from judgment pursuant to
section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2016)), seeking an order “vacating the
judgment conviction entered against defendant in February 2010 for the offense of armed
habitual.” The petition alleged the statute under which defendant was convicted was found
facially unconstitutional in People v. Aguilar, 2013 IL 112116, and People v. Burns, 2015 IL
117387, “rendering the judgment and conviction against me invalid” and void. Defendant’s
pro se petition asked for his conviction and sentence for AHC to be vacated “and held as
naught.”
¶8 On July 21, 2017, the trial court denied defendant’s petition. The trial court’s written
order states “non-meritorious PC [(2-1401)] claim—denied.”
¶9 On April 23, 2018, in an unrelated proceeding, the trial court entered on order vacating
defendant’s prior conviction for AUUW. Defendant’s 2-1401 petition in this case was placed
back on the court’s call. On May 20, 2022, the trial court heard arguments on defendant’s 2-1401
petition. At the time of the hearing, defendant was imprisoned on a violation of parole from an
unrelated gun charge and had another unrelated gun charge pending. The court noted the parties’
respective positions. The State agreed that defendant’s conviction for AHC should be vacated but
argued that defendant should be resentenced “on the lesser-included offense.” Defendant’s
position was that “he should just be discharged on this case.” Defendant, represented by counsel,
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argued that the AHC conviction could not stand because defendant’s void AUUW conviction
cannot serve as a qualifying felony. Defendant argued the former AUUW conviction could give
“no rise to any criminal statute or create any legal impediment and no authority [sic].” Therefore,
defendant argued, “there is no lesser included.” Defendant relied on the Fourth District order in
People v. Shoulder, 2021 IL App (4th) 200286-U, in support of his argument, and acknowledged
that the order was not precedent but could be “advisory” to the court.
¶ 10 The State argued the fact that one of the qualifying offenses for defendant’s AHC
conviction was declared void “does not mean that this entire case goes away.” The State argued
that “by operation of law” defendant would still be subject to the lesser-included offense of
UUWF “because the aggravated vehicular hijacking conviction is still good.” The State asked
that defendant be resentenced to UUWF. The trial court concluded that the AHC conviction
should be vacated but “that does not erase the entire conviction in this case. It merely adjusts the
conviction to the lesser-included offense of unlawful use of a weapon by a felon.” The court
vacated the AHC conviction and ordered “the lesser-included UUW by felon *** that conviction
is to stand.” The court informed the parties that because they could not reach an agreement on
sentencing, the matter had to be continued for a presentencing investigation (PSI) and a
sentencing hearing.
¶ 11 On September 9, 2022, the trial court held a sentencing hearing on defendant’s conviction
for UUWF. As it pertains to this appeal, at the sentencing hearing, the trial court asked whether
count I of the information was amended or if the matter proceeded on a different count. The State
informed the court that count VI of the information charged UUWF and stated that “it might be
just easier to amend count 1.” The court responded:
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“I don’t know that it’s necessary to amend it. That ruling was the lesser included was
included. But if both parties wish to do it by purposes of amendment so that it’s clear to
the Illinois Department of Corrections [(IDOC)] so that they don’t get it wrong, I don’t
have a problem with that doing that amendment on the record.”
¶ 12 Defendant’s attorney did not object to amending count I. The trial court stated the
amendment was made so that IDOC did not make a wrong decision by believing defendant’s
conviction was on a higher class crime that would interfere with his rights. The court granted
leave to amend count I to UUWF without objection.
¶ 13 The trial court stated it would not consider anything in defendant’s background that did
not occur prior to this case in sentencing defendant. The court sentenced defendant to five years’
imprisonment and waived mandatory supervised release “because he’s already served out that
entire sentence.” The court stated, without a request from either party, “this order is
nunc pro tunc to the date of the original plea.”
¶ 14 On September 9, 2022, the trial court entered a judgment of conviction and sentence
convicting defendant of UUWF and sentencing him to five years’ imprisonment with credit for
five years of time served. The written order also states as follows: “CT. 1-DEFENDANT
RESENTENCED TO 5 YEARS IDOC-5 YEARS TS-NUNC PRO TUNC 7/16/10.”
¶ 15 This appeal followed.
¶ 16 II. ANALYSIS
¶ 17 This is an appeal from a judgment granting in part and denying in part a petition pursuant
to section 2-1401 of the Code. “[S]ection 2-1401 of the Code represents a comprehensive
statutory procedure authorizing a trial court to vacate or modify a final order or judgment in civil
and criminal proceedings.” (Internal quotation marks omitted.) People v. Daniels, 2017 IL App
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(1st) 142130-B, ¶ 10. A petition for relief from judgment must be filed more than 30 days after
the judgment but within two years of the judgment attacked. 735 ILCS 5/2-1401(a), (c) (West
2016). In this case, defendant filed his petition more than two years after the trial court entered
the judgment of conviction. Nonetheless, an exception exists when the petition alleges that the
underlying judgment is void. People v. Calvillo, 2022 IL App (1st) 200886, ¶ 15 (citing
Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104 (2002)).
¶ 18 The petition in this case raised a purely legal question. The question the petition raised is
whether a conviction for an offense that requires at least two qualifying offenses as an element of
the offense, that is vacated because one of the two qualifying offenses is declared void ab initio,
can be reduced to a lesser-included offense. When we review a judgment on a section 2-1401
petition that raises a purely legal challenge to a judgment we apply de novo review. Daniels,
2017 IL App (1st) 142130-B, ¶ 10 (“Where a section 2-1401 petition raises a purely legal
challenge to a judgment, the standard of review is de novo.” (citing Warren County Soil & Water
Conservation District v. Walters, 2015 IL 117783, ¶ 47)).
¶ 19 Initially, we note there is no dispute that the trial court had jurisdiction in this case or that
this court has jurisdiction over this appeal. Defendant’s 2-1401 petition was dismissed in 2017.
Defendant did not file any posttrial motions or an appeal. However, in 2022, the trial court
revisited the 2-1401 petition after one of defendant’s qualifying convictions required for his
AHC conviction was declared void ab initio. Defendant filed this appeal after his petition was
partially denied by the trial court. “Generally, the circuit court loses jurisdiction 30 days
following the entry of a final judgment if no postjudgment motions are filed.” People v. Lake,
2020 IL App (1st) 170309, ¶ 14. However, “under limited circumstances, the circuit court may
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be revested with jurisdiction after a judgment becomes final.” Id. ¶ 17 (citing People v. Bailey,
2014 IL 115459, ¶ 25).
“[F]or the revestment doctrine to apply, both parties must: (1) actively participate
in the proceedings; (2) fail to object to the untimeliness of the late filing; and
(3) assert positions that make the proceedings inconsistent with the merits of the
prior judgment and support the setting aside of at least part of that judgment. If
any one of those requirements remains unmet, the doctrine does not revest the
court with jurisdiction.” (Emphases in original.) Bailey, 2014 IL 115459, ¶ 25.
¶ 20 In this case, the parties do not dispute that they both actively participated, did not object,
and asserted positions inconsistent with the merits of the prior judgment and which support the
setting aside of at least part of that judgment. The prior judgment convicted defendant of AHC,
and the parties agreed that conviction should be vacated. Defendant filed a timely notice of
appeal from the trial court’s subsequent judgment of conviction of UUWF. “[I]f a trial court is
revested with jurisdiction, then a notice of appeal filed within 30 days after a ruling on the
untimely postjudgment motion vests the appellate court with jurisdiction.” (Internal quotation
marks omitted.) People v. Blalock, 2012 IL App (4th) 110041, ¶ 12. Therefore, this court has
jurisdiction of the appeal.
¶ 21 We also note at the outset that it is now well established, and there is no dispute between
the parties, that the AUUW statute under which defendant was convicted, and which served as
one of the qualifying offenses for his conviction for AHC, is unconstitutional and void ab initio.
See Calvillo, 2022 IL App (1st) 200886, ¶ 5 (Burns clarified Aguilar and held that the AUUW
statute is facially unconstitutional, without limitation (citing Burns, 2015 IL 117387)).
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¶ 22 On appeal, defendant argues for the first time that the trial court was not authorized to
grant leave to amend count I of the information to the lesser included charge of UUWF because
his conviction for AHC is void, and, therefore, no further proceedings could be had on his
conviction, including convicting and sentencing defendant to a lesser-included offense.
Additionally, defendant argues that because the AHC conviction is void, further proceedings on
that conviction now, when his 2-1401 petition was filed more than three years after the initial
conviction, are barred by the statute of limitations.
¶ 23 First, UUWF is a lesser-included offense of the AHC. The State charged defendant with
AHC in count I and UUWF in count VI. The State voluntarily dismissed the separate charge for
UUWF as part of defendant’s negotiated guilty plea. Under the abstract elements approach it
must be impossible to commit the greater offense without necessarily committing the lesser
offense. People v. Miller, 238 Ill. 2d 161, 166 (2010). The elements of AHC are (1) possession
of a firearm and (2) at least two prior convictions for a forcible felony or a specifically
enumerated qualifying offense, including aggravated vehicular hijacking. 720 ILCS 5/24-1.7
(West 2010). The elements of UUWF are (1) possession of a firearm and (2) one prior conviction
for a felony. Id. § 24-1.1(a). All of the elements of UUWF are included in the charge of AHC.
The UUWF contains no element not included in AHC. It would be impossible to commit AHC in
this case (i.e., possessing a firearm after previously being convicted of felony aggravated
vehicular hijacking and AUUW) without necessarily committing UUWF in this case (i.e.,
possessing a firearm after previously being convicted of a felony). In addition, the State charged
aggravated vehicular hijacking as the predicate offense for UUWF in count VI, and the State
charged aggravated vehicular hijacking as one of defendant’s qualifying offenses for AHC in
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count I. Therefore, UUWF is a lesser-included offense of the AHC. See Miller, 238 Ill. 2d at
166.
¶ 24 Nonetheless, defendant argues that because one of the qualifying offenses for AHC is
void ab initio, the AHC conviction is also “void” and “a nullity with no legal effect,” which
could not be “reduced” to the lesser-included offense of UUWF, because “there was no
conviction to reduce.” Defendant argues that this fact distinguishes this case from those in which
the evidence is found insufficient to prove the greater offense. Here, defendant argues, “the
conviction of AHC has been rendered to have no legal effect such that there is no greater
offense; as such, there can be no lesser-included offense.”
¶ 25 The State responds that the void ab initio doctrine did not preclude entering a conviction
on the lesser-included offense of UUWF because (1) defendant’s plea established his guilt of
UUWF and (2) convicting defendant of UUWF does not “use[ ]” his void AUUW conviction for
“any purpose,” particularly not to “support guilt or enhance punishment for [UUWF].” (Internal
quotation marks omitted.) In re N.G., 2018 IL 121939, ¶¶ 36, 38. The State concedes that
defendant’s conviction for AHC was properly vacated but the State asserts that the conviction for
UUWF “does not violate the tenets of the void ab initio doctrine.” Finally, the State argues that
defendant’s authorities fail to establish that reducing a vacated conviction for AHC to UUWF is
prohibited.
¶ 26 Defendant replies that the State confuses circumstances in which AHC is insufficiently
proven, and therefore reducible to a lesser-included offense, from circumstances in which the
AHC conviction is void, leaving nothing from which to reduce the conviction to a lesser-
included offense. Defendant reiterates his argument that because the qualifying offense is void
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ab initio, the AHC conviction is also void and “of no legal effect,” such that there is no greater
offense to reduce to a lesser offense.
¶ 27 The trial was authorized to convict defendant for the lesser-included offense of UUWF.
Furthermore, defendant forfeited any objection to granting leave to amend, based on the statute
of limitations, by not objecting and in fact acquiescing to the amendment.
¶ 28 In support of his argument that no further proceedings could be held after the AHC
conviction was vacated, defendant relied particularly on People v. Matthews, 2022 IL App (4th)
210752, and, as in the trial court, Shoulder, 2021 IL App (4th) 200286-U. Defendant argues that
Matthews stands for the proposition that, under those circumstances, an AHC conviction is itself
void and not merely reversible for insufficiency of the evidence and for that reason cannot be
“reduced” to a lesser-included offense.
¶ 29 In Matthews, the defendant argued, in part, that his conviction for AHC should be
vacated because it was predicated on a void UUWF conviction—the UUWF conviction being
void because it was predicated on a void unlawful use of weapons (UUW) (Ill. Rev. Stat. 1989,
ch. 38, ¶ 24-1(a)(4)) conviction. Matthews, 2022 IL App (4th) 210752, ¶¶ 2, 30. The Matthews
court found the defendant’s two UUW convictions void ab initio. Id. ¶¶ 32, 37. Next, the court
found that the defendant’s convictions for UUWF were “void and must be vacated” (id. ¶ 43)
because they were predicated on one of the defendant’s void UUW convictions (id. ¶ 39).
Turning to the AHC conviction, the defendant in Matthews argued that the conviction was void
and should be vacated because it was “premised on one of his void convictions for UUWF.” Id.
¶ 45. The Matthews court found that the defendant’s “AHC conviction [was] void because it
derived from his void conviction for UUWF.” Id. ¶ 49. The Matthews court found that the
defendant’s claim “concerning his AHC conviction is not a challenge to the sufficiency of the
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evidence but rather a claim that his AHC conviction is void because it derived from a void
conviction for UUWF.” Matthews, 2022 IL App (4th) 210752, ¶ 51.
¶ 30 We agree that the Matthews court held that the defendant’s conviction for AHC in that
case was “void” because it derived from a void qualifying offense. We also agree that, under the
facts of that case, the AHC conviction was “not merely reversible for insufficiency of the
evidence.” However, the Matthews court did not hold that upon vacatur of the AHC conviction
as void the State could not sentence the defendant for a lesser-included offense.
¶ 31 Defendant argues that Shoulder stands for the proposition that a void conviction for AHC
cannot be reduced to UUWF. In an unpublished order of the Fourth District of this court, the
defendant’s conviction for AHC was vacated because his prior conviction for AUUW that was
used as one of the qualifying offenses for AHC had been rendered void by Aguilar. Shoulder,
2021 IL App (4th) 200286-U, ¶¶ 3-4. The defendant’s conviction for AHC resulted from a fully
negotiated guilty plea. Id. ¶ 6. The factual basis for the plea included two prior convictions for
qualifying offenses for AHC, including AUUW. Id. ¶ 7. The defendant filed a 2-1401 petition for
relief from judgment on the ground his plea was invalid because he received ineffective
assistance of counsel during the plea, where his AUUW conviction was rendered void by
Aguilar. Id. ¶ 9. In that same appeal, the defendant sought vacatur of the qualifying AUUW
conviction as void ab initio. Id. ¶ 4.
¶ 32 The Shoulder court took judicial notice of the defendant’s prior conviction for AUUW
and vacated it as unconstitutional and void ab initio. Id. ¶ 18. The Shoulder court cited
Montgomery v. Louisiana, 577 U.S. 190 (2016), for the proposition that a conviction under an
unconstitutional law is illegal and void. Shoulder, 2021 IL App (4th) 200286-U, ¶ 15 (citing
Montgomery, 577 U.S. at 203). In discussing the void ab initio doctrine, the Shoulder court cited
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N.G. for the proposition that a conviction from a facially unconstitutional statute must be treated
as if it did not exist, and it cannot be used for any purpose under any circumstance. Id. (citing
N.G., 2018 IL 121939, ¶ 36). Turning to the defendant’s conviction for AHC, the court found
that an unconstitutional AUUW conviction may not be used as a qualifying offense for AHC. Id.
¶ 21 (citing People v. Cavette, 2018 IL App (4th) 150910, ¶ 26). In Shoulder, the State argued
that the conviction for AHC should be reduced to the lesser-included offense of UUWF because
it was uncontested that the defendant possessed a gun after having previously been convicted of
a felony, specifically the felony alleged as the second qualifying offense for AHC in that case.
Id. ¶ 22. The defendant countered the State had not charged him with UUWF. Id.
¶ 33 The Shoulder court rejected the State’s argument, pursuant to Illinois Supreme Court
Rule 341(h)(7) (eff. Oct. 1, 2020), finding the State failed to provide adequate support for its
argument. Shoulder, 2021 IL App (4th) 200286-U, ¶ 23. The Shoulder court found that the sole
authority the State cited in support of its argument that the defendant’s conviction should be
reduced to the lesser-included offense of UUWF did not support the State’s argument that
UUWF is a lesser-included offense of AHC. Id. That case, People v. Crosby, 2017 IL App (1st)
121645, had refused to reduce a defendant’s conviction for AHC to UUWF on double jeopardy
grounds. Shoulder, 2021 IL App (4th) 200286-U, ¶ 23 (citing Crosby, 2017 IL App (1st) 121645,
¶¶ 17-18).
¶ 34 The Shoulder court further noted that, in the court’s earlier decision in Cavette, 2018 IL
App (4th) 150910, ¶ 26, the court had, “[a]pplying the rationale of N.G. and the void ab initio
doctrine, found the defendant’s void AUUW conviction could not serve as a predicate offense
for being an armed habitual criminal and, therefore, reversed outright [the] defendant’s
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conviction for armed habitual criminal, without remanding.” (Internal quotation marks omitted.)
Shoulder, 2021 IL App (4th) 200286-U, ¶ 23 (citing Cavette, 2018 IL App (4th) 150910, ¶ 26).
¶ 35 The Shoulder court did not make a substantive ruling that vacating a conviction for AHC
on the grounds one of the qualifying offenses is void ab initio precludes the court from entering a
judgment of conviction on a lesser-included offense because the greater offense “no longer
exists.” Furthermore, we note that in Cavette, the Fourth District did not contend with the
question of whether a void conviction for AHC precludes a conviction for the lesser-included
offense of UUWF. See Cavette, 2018 IL App (4th) 150910, ¶¶ 16-26. The Cavette court found
that the question in that case was simply “whether [the] defendant’s unconstitutional AUUW
conviction may serve as a predicate felony conviction for [AHC].” Id. ¶ 22. The court held it
could not. See id. ¶ 26 (“we find [the] defendant’s void AUUW conviction may not serve as a
predicate felony conviction for armed habitual criminal”); accord People v. Barefield, 2019 IL
App (3d) 160516, ¶ 29 (reversing denial of petition to vacate conviction for AHC, based on
AUUW, and remanding for determination whether convictions for AUUW were under section of
statute found facially unconstitutional, without addressing any lesser-included offenses or
UUWF).
¶ 36 As the appellant, defendant had the burden to affirmatively establish the errors on review.
Mendez v. City of Chicago, 2023 IL App (1st) 211513, ¶ 28. Defendant has failed in his burden
to establish that the void conviction for AHC itself precludes conviction on a lesser-included
offense to that charge. We find that the trial court could convict defendant of the lesser-included
offense of UUWF.
¶ 37 The court has held that “an indictment of an offense also serves as an indictment of all
included offenses even though the latter are not specifically set forth in the indictment.” People
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v. Izquierdo-Flores, 332 Ill. App. 3d 632, 637 (2002) (citing People v. Melmuka, 173 Ill. App. 3d
735, 736 (1988)). “[A] defendant may be convicted of an offense that was not included in the
charging instrument if that offense is a lesser-included offense of the crime actually charged, and
the evidence presented at trial rationally supports that outcome.” People v. Robinson, 232 Ill. 2d
98, 104-05 (2008) (citing People v. Kolton, 219 Ill. 2d 353, 360 (2006)); People v. Kennebrew,
2013 IL 113998, ¶ 27 (“A defendant may *** be convicted of an uncharged offense if it is a
lesser-included offense of a crime expressly charged in the charging instrument [citation], and
the evidence adduced at trial rationally supports a conviction on the lesser-included offense and
an acquittal on the greater offense [citation].” (Internal quotation marks omitted.)). “If, using the
charging instrument approach, it is determined that a particular offense is a lesser-included
offense of a charged crime, the court must then examine the evidence adduced at trial to decide
whether the evidence rationally supports a conviction on the lesser offense.” Kolton, 219 Ill. 2d
at 361.
¶ 38 We have already found that UUWF is a lesser-included offense of the AHC. Therefore,
the charge in count I also served as a charge for UUWF. See Izquierdo-Flores, 332 Ill. App. 3d
at 637. We also find that the evidence adduced in the original proceedings rationally supports a
conviction on the lesser-included offense and an acquittal on the greater offense. See Kennebrew,
2013 IL 113998, ¶ 27. The factual basis for defendant’s guilty plea included his possession of a
firearm, his prior conviction for felony aggravated vehicular hijacking, and his void conviction
for AUUW. The evidence supports a conviction for UUWF (possession of a firearm and a prior
conviction for aggravated vehicular hijacking) and an acquittal of AHC (there being only one
qualifying offense). See id.
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¶ 39 Therefore, we find the court could convict defendant of UUWF as a lesser included
offense to count I of the information. See Robinson, 232 Ill. 2d at 104-05. Count I of the
information did not have to be amended to convict defendant of the lesser-included offense. See
Izquierdo-Flores, 332 Ill. App. 3d at 637. Nonetheless the trial court did grant leave to amend the
charge in count I from AHC to UUWF as requested by both parties. Defendant not only did not
object, he agreed to the amendment. The trial court properly convicted defendant of UUWF. This
holding does not run afoul of N.G. The N.G. court held that:
“a facially unconstitutional statute and any conviction based on the statute must
be treated as if they never existed. Because they are nonexistent, as a matter of
federal constitutional law, [they] must *** be ignored by the courts[;] using them
against a defendant in any subsequent proceeding, civil or criminal, is ***
conceptually impossible ***.” (Emphasis in original.) N.G., 2018 IL 121939,
¶ 74.
¶ 40 No facially unconstitutional statute or any conviction based on a facially unconstitutional
statute is being used against defendant. Defendant’s conviction for UUWF does not depend on or
“use” the void conviction for AUUW (or the conviction for AHC). The conviction for UUWF is
premised on UUWF being a lesser-included offense to the originally charged offense and
defendant’s admission that he possessed a firearm and was previously convicted of felony
aggravated vehicular hijacking.
¶ 41 Defendant also argues that the amendment and subsequent conviction and resentencing
were barred by the statute of limitations. The statute of limitations is not jurisdictional and its
application is an affirmative defense that can be waived. People v. Wells, 2017 IL App (1st)
152758, ¶ 24. Defendant waived any statute of limitations defenses. Both parties requested and
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agreed to the amendment. The court stated, “But if both parties wish to do it by purposes of
amendment so that it’s clear to the Illinois Department of Corrections [(IDOC)] so that they
don’t get it wrong, I don’t have a problem with that doing that amendment on the record.”
(Emphasis added.) Defendant failed to object at any time on any grounds.
“A defendant’s failure to object at trial *** operates as a waiver of the
right to raise the issue as a ground for reversal on review. ***
*** [H]owever, *** a defendant’s invitation or agreement to the
procedure later challenged on appeal ‘goes beyond mere waiver.’ [Citation.]
Indeed, Illinois courts sometimes refer to the issue as one of estoppel. [Citations.]
That is, ‘[u]nder the doctrine of invited error, an accused may not request to
proceed in one manner and then later contend on appeal that the course of action
was in error.’ [Citation.]” People v. Harvey, 211 Ill. 2d 368, 385 (2004).
¶ 42 The State asserts defendant “expressly agreed to amend count I and proceed to
resentencing on the amended count.” Therefore, the State argues, defendant waived or is
estopped from asserting the statute of limitations as a defense to the amended information. The
State is correct. The State tendered an amended count I to the trial court. The court specifically
asked defendant’s attorney, “Do you have any objection to doing it this way?” Defendant’s
attorney responded, “I do not, your Honor.” The court stated:
“THE COURT: For the record, leave to amend Count 1 without objection.
Waive re-swearing, reexecution?
[Defendant’s attorney]: Yes.
THE COURT: That’s granted. Unlawful use of a weapon by a felon under
720 5/24-1.1(a), Class 2.”
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The court then proceeded with the sentencing hearing.
¶ 43 Despite the obvious affirmative waiver of any defenses to amending the information and
defendant’s agreement to request leave to amend the information, defendant argues he
sufficiently raised the statute of limitations as a defense to the amendment by objecting to any
further proceedings on the conviction and arguing that “all the [trial] court was authorized to do
was vacate outright the AHC conviction.” Defendant also argues that the amendment to count I
“altered the nature of the offense and the elements required to be proven, such that this
constituted an impermissible substantive amendment.”
¶ 44 Defendant waived any objections. The trial court specifically asked defense counsel
whether she had any objection to the amendment, and she replied she did not. As the State notes,
“failure to raise an error to the trial court with sufficient clarity and specificity results in
forfeiture.” People v. Holmes, 2016 IL App (1st) 132357, ¶ 84; see also People v. Hollins, 136
Ill. App. 3d 1, 10 (1985) (declining the defendant’s invitation to infer a specific ground for the
defendant’s alleged “objection,” where the “objection” was simply a referral back to an earlier
explanation for certain actions). Moreover, defendant cannot argue that the trial court proceeded
improperly when defendant invited the trial court to proceed in the manner it did. Givens v. City
of Chicago, 2023 IL 127837, ¶ 77 (“it is fundamental to our adversarial process that a party
forfeits his right to complain of an error where to do so would be inconsistent with the position
taken by that party in an earlier court proceeding” (citing McMath v. Katholi, 191 Ill. 2d 251,
255 (2000) (“A party cannot complain of error which he induced the court to make or to which
he consented.”))). Defendant waived any error in the trial court’s order granting leave to amend
count I of the information.
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¶ 45 Defendant also argues that he did not waive the statute of limitations because it was not
his burden to raise the statute of limitations as a defense. Defendant asserts that “[w]here an
indictment on its face shows that an offense was not committed within the applicable limitation
period, it becomes an element of the State’s case to allege and prove the existence of facts which
invoke an exception to the limitation period.” People v. Morris, 135 Ill. 2d 540, 546 (1990).
Once again, if any error occurred, defendant invited it and cannot complain of it now. Givens,
2023 IL 127837, ¶ 77.
¶ 46 Next, we agree with defendant that the trial court’s use of an order nunc pro tunc was
improper.
“The use of nunc pro tunc orders is limited to incorporating into the record
something which was actually previously done by the court but inadvertently
omitted by clerical error. [Citation.] In other words, a nunc pro tunc order reflects
the reality of what occurred [citation] so that the record reflects the actual order or
judgment rendered by the court. [Citation.] The correction must be based on a
note, memorandum, or paper remaining in the file or records of the court, rather
than a personal recollection of the trial judge or some other person. [Citation.] ***
[A] nunc pro tunc order may not be used to rule on a matter of substance or to
retroactively correct an alleged error involving the merits of the case.” (Emphasis
in original and internal quotation marks omitted.) Calvillo, 2022 IL App (1st)
200886, ¶ 19.
¶ 47 The trial court’s judgment that it entered nunc pro tunc did not incorporate into the record
something that was actually previously done by the court. See id. Defendant asks this court to
vacate “the nunc pro tunc order allowing the amendment to count I and imposing a sentence ***
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leaving only an outright reversal of the armed habitual criminal conviction.” The State agrees
that the order was improper but argues that defendant forfeited the argument for review, any
error was harmless, or, alternatively, this court should strike the nunc pro tunc language from the
order. We find any error in the trial court’s inclusion of nunc pro tunc language in its judgment
convicting and sentencing defendant is harmless beyond a reasonable doubt; therefore, reversal
is not called for.
¶ 48 A defendant can forfeit a challenge to a nunc pro tunc order, and the order is subject to a
harmless error analysis. See People v. DeLisle, 374 Ill. 437, 439-40 (1940). “The law in Illinois
is that even where the trial judge has committed error, such error will not require reversal unless
the defendant has been prejudiced or the outcome of the trial unduly influenced.” People v.
Castro, 109 Ill. App. 3d 561, 565 (1982). “Where it appears an error did not affect the outcome
of the trial, or where the reviewing court can see from the entire record that the error did not
result in substantial prejudice, the judgment will not be disturbed.” Fellows v. Barajas, 2020 IL
App (3d) 190388, ¶ 16 (error in the admission of evidence).
¶ 49 We find the error in the inclusion of the nunc pro tunc language in the trial court’s
subsequent judgment on the amended charge was harmless beyond a reasonable doubt.
Defendant argues that the use of the nunc pro tunc language was an attempt to circumvent the
statute of limitations. Without deciding that question, we have found that defendant waived the
statute of limitations as a defense; therefore, there was no need to circumvent it. Further, we have
found the trial court properly granted leave to amend the charge and convicted defendant of a
lesser-included offense. The error did not affect the outcome—defendant would have been
convicted, and sentenced, in the same manner, absent any alleged error. See People v. Jackson,
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2020 IL 124112, ¶ 129 (finding harmless error where the trial court’s action would have been the
same absent the error).
¶ 50 Finally, defendant asks that if this court finds the statute of limitations issue is waived
(which we have) that we find that defendant received “unreasonable” assistance of counsel.
“While ‘defendants are required to raise ineffective assistance of counsel claims on direct review
if apparent on the record,’ such claims are ‘better suited to collateral proceedings *** when the
record is incomplete or inadequate for resolving the claim’ on direct appeal.” People v. Woods,
2020 IL App (1st) 162751, ¶ 76 (quoting People v. Veach, 2017 IL 120649, ¶ 46). We find that
to be the case here, where the record is “inadequate for resolving the claim.” Veach, 2017 IL
120649, ¶ 46. 1 However, we note that this defendant has completed his sentence, and
proceedings under the Post-Conviction Hearing Act can only be commenced by persons
“imprisoned in the penitentiary.” 725 ILCS 5/122-1(a) (West 2022).
¶ 51 We affirm the trial court’s judgment convicting and sentencing defendant for UUWF.
¶ 52 III. CONCLUSION
¶ 53 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 54 Affirmed.
1 By way of example only, without making any conclusion or determinations, we know from the record that defendant was communicating with his attorney throughout the proceedings but we do not know the substance of those communications. - 20 - 1-22-1474
People v. Adams, 2024 IL App (1st) 221474
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 10-CR- 4033; the Hon. Steven Jay Rosenblum, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Deepa Punjabi, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Douglas P. Harvath, and Erin K. Slattery, Assistant Appellee: State’s Attorneys, of counsel), for the People.
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