People v. Amaya

2025 IL App (2d) 240362-U

• Court: Appellate Court of Illinois
• Decided: June 4, 2025
• Docket: 2-24-0362
• Status: Unpublished

Opinion

2025 IL App (2d) 240362-U No. 2-24-0362 Order filed June 4, 2025

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 12-CF-1319 ) DANIEL AMAYA, ) Honorable ) George D. Strickland, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUTCHINSON delivered the judgment of the court. Presiding Justice Kennedy and Justice Mullen concurred in the judgment.

ORDER

¶1 Held: We reject defendant’s various points in support of his claim that the child pornography statute in effect when he was sentenced was facially unconstitutional where it specified multiple ways in which child pornography could be committed but classified certain of those offenses as Class X felonies.

¶2 Defendant, Daniel Amaya, appeals from an order granting the State’s motion to dismiss

his petition under section 2-1401 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-1401

(West 2022)) for relief from his conviction of child pornography (720 ILCS 5/11-20.1(a)(1) (West

2012)). Defendant argues that the sentencing provision for that offense, which deemed it a Class 2025 IL App (2d) 240362-U

X felony if the pornographic material involved a moving image, was facially unconstitutional and

void. We affirm.

¶3 I. BACKGROUND

¶4 Defendant was indicted on one count of predatory criminal sexual assault of a child (720

ILCS 5/11-1.40(a)(1) (West 2010)) (count I), three counts of criminal sexual assault (720 ILCS

5/11-1.20(a)(3) (West 2012)) (counts II, III, and IV), and two counts of child pornography (counts

V and VI). Count V alleged that on or about May 8, 2012, defendant used a cell phone to video

record C.L. (whom defendant knew to be at least 13 years of age, but under 18 years of age)

engaged in an actual or simulated act of penetration with defendant, who placed his penis in C.L.’s

mouth. The allegations of count VI were essentially identical to those of count V, except that the

alleged act of penetration was defendant’s placement of his penis in C.L.’s sex organ. Following

a jury trial, defendant was found guilty of all six counts, but the trial court granted defendant’s

motion for judgment notwithstanding the verdict on counts I and II. The court also concluded that

count VI merged into count V. On September 12, 2013, the court sentenced defendant to 11-year

prison terms on counts III and IV. The court sentenced defendant to an 18-year prison term on

count V and ordered all three sentences to be served consecutively.

¶5 Defendant appealed. We corrected an apparent clerical error in the sentencing order but

otherwise affirmed defendant’s conviction and sentence. People v. Amaya, 2015 IL (2d) 131077-

U, ¶ 15. In July 2016, defendant filed a petition for relief under the Post-Conviction Hearing Act

(725 ILCS 5/122-1 et seq. (West 2016)), and the trial court appointed counsel to represent

defendant. The State successfully moved to dismiss the petition, and defendant appealed. The trial

court appointed the Office of the State Appellate Defender to represent defendant. Appellate

counsel moved to withdraw per Pennsylvania v. Finley, 481 U.S. 551 (1987), and People v. Lee,

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251 Ill. App. 3d 63 (1993). We granted the motion and affirmed the dismissal of defendant’s

postconviction petition. People v. Amaya, No. 2-22-0022 (2022) (unpublished summary order

under Illinois Supreme Court Rule 23(c)).

¶6 On February 14, 2024, defendant filed his section 2-1401 petition. As noted, he claimed

that the sentencing provision for child pornography was facially unconstitutional. The State moved

to dismiss the petition. The trial court rejected defendant’s constitutional challenge and dismissed

the petition. This appeal followed.

¶7 II. ANALYSIS

¶8 At the outset, we consider the State’s argument that we should deem forfeited defendant’s

constitutional challenge to the child pornography statute because he did not serve the attorney

general with notice of his challenge. Illinois Supreme Court Rule 19(a) (eff. Sept. 1, 2006)

provides:

“In any cause or proceeding in which the constitutionality or preemption by federal law of

a statute, ordinance, administrative regulation, or other law affecting the public interest is

raised, and to which action or proceeding the State or the political subdivision, agency, or

officer affected is not already a party, the litigant raising the constitutional or preemption

issue shall serve an appropriate notice thereof on the Attorney General, State’s Attorney,

municipal counsel or agency attorney, as the case may be.”

Defendant claims that no notice to the attorney general was necessary, because the state’s attorney

is a party to this proceeding. However, “Rule 19 *** has generally been understood to require

notice to the [a]ttorney [g]eneral whenever the constitutionality of a state statute is challenged.”

Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 117 (2004). Defendant does not dispute that he

never notified the attorney general, and indeed, no such notice appears in the record. However,

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compliance with Rule 19 is not a jurisdictional prerequisite. Id. at 118-19. Failure to comply results

at most in forfeiture, but courts may excuse noncompliance. Id. at 119. We chose to overlook the

lack of notice and address the merits of defendant’s constitutional argument.

¶9 Section 2-1401(a) of the Civil Code provides:

“Relief from final orders and judgments, after 30 days from the entry thereof, may be had

upon petition as provided in this Section. Writs of error coram nobis and coram vobis, bills

of review, and bills in the nature of bills of review are abolished. All relief heretofore

obtainable and the grounds for such relief heretofore available, whether by any of the

foregoing remedies or otherwise, shall be available in every case, by proceedings

hereunder, regardless of the nature of the order or judgment from which relief is sought or

of the proceedings in which it was entered. Except as provided in the Illinois Parentage Act

of 2015, there shall be no distinction between actions and other proceedings, statutory or

otherwise, as to availability of relief, grounds for relief, or the relief obtainable.” 735 ILCS

5/2-1401(a) (West 2022).

¶ 10 “[S]ection 2-1401 of the [Civil] Code represents a comprehensive statutory procedure

authorizing a trial court to vacate or modify a final order or judgment in civil and criminal

proceedings.” Warren County Soil & Water Conservation District v. Walters, 2015 IL 117783,

¶ 31. Section 2-1401 has its roots in the common law writ of coram nobis, which “was intended to

bring to the court’s attention factual matters that, if known to the court before entry of judgment,

would have precluded entry of that judgment.” Id. ¶ 32. However, a section 2-1401 petition “may

also raise a legal challenge to a final judgment or order.” Id. ¶ 41. For instance, a section 2-1401

petition may challenge a judgment as void. See People ex rel. Alvarez v. $59,914 United States

Currency, 2022 IL 126927, ¶ 16. The two-year limitations period for section 2-1401 petitions (see

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735 ILCS 5/2-1401(c) (West 2022)) does not apply to voidness challenges (Alvarez, 2022 IL

126927, ¶ 16) because, “[u]nder Illinois law, a party may challenge a judgment as being void at

any time, either directly or collaterally, and the challenge is not subject to forfeiture or other

procedural restraints” (LVNV Funding, LLC v. Trice, 2015 IL 116129, ¶ 38).

¶ 11 A judgment is void “(1) when it is entered by a court that lacked personal or subject-matter

jurisdiction or (2) when it is based on a statute that is facially unconstitutional and void ab initio.”

People v. Smollett, 2024 IL 130431, ¶ 65. Defendant does not dispute that the trial court had both

personal and subject-matter jurisdiction. Rather, he argues that the statutory provision under which

he was sentenced—section 11-20.1(c) of the Criminal Code of 1961 (Criminal Code) (720 ILCS

5/11-20.1(c) (West 2012))—was facially unconstitutional. “[A] facial challenge requires a

showing that the statute is unconstitutional under any set of facts, i.e., the specific facts related to

the challenging party are irrelevant.” People v. Thompson, 2015 IL 118151, ¶ 36.

¶ 12 Notably, to the extent that defendant’s challenge cannot be construed as a voidness

challenge based on facial unconstitutionality (see infra ¶ 25), his petition would procedurally fail

because he has not attempted to satisfy the diligence elements of a section 2-1401 challenge or

excuse his failure to file his petition within the section’s two-year limitations period. See

Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104 (2002).

¶ 13 We review de novo a dismissal on the merits of a section 2-1401 petition that presented a

legal challenge to the judgment. Walters, 2015 IL 117783, ¶ 47.

¶ 14 During the relevant time frame, section 11-20.1(a) of the Criminal Code (720 ILCS 5/11-

20.1 (West 2012)) provided:

“A person commits child pornography who:

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(1) films, videotapes, photographs, or otherwise depicts or portrays by means of

any similar visual medium or reproduction or depicts by computer any child whom he or

she knows or reasonably should know to be under the age of 18 and at least 13 years of age

or any severely or profoundly intellectually disabled person where such child or severely

or profoundly intellectually disabled person is:

(i) actually or by simulation engaged in any act of sexual penetration or

sexual conduct with any person or animal; or

(ii) actually or by simulation engaged in any act of sexual penetration or

sexual conduct involving the sex organs of the child or severely or profoundly

intellectually disabled person and the mouth, anus, or sex organs of another person

or animal; or which involves the mouth, anus or sex organs of the child or severely

or profoundly intellectually disabled person and the sex organs of another person

or animal; or

(iii) actually or by simulation engaged in any act of masturbation; or

(iv) actually or by simulation portrayed as being the object of, or otherwise

engaged in, any act of lewd fondling, touching, or caressing involving another

person or animal; or

(v) actually or by simulation engaged in any act of excretion or urination

within a sexual context; or

(vi) actually or by simulation portrayed or depicted as bound, fettered, or

subject to sadistic, masochistic, or sadomasochistic abuse in any sexual context; or

(vii) depicted or portrayed in any pose, posture or setting involving a lewd

exhibition of the unclothed or transparently clothed genitals, pubic area, buttocks,

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or, if such person is female, a fully or partially developed breast of the child or other

person.” (Emphasis added.)

¶ 15 The emphasized words (“or depicts by computer”) were added by section 50-5 of “An Act

to Create a Safe Neighborhoods Law” (Safe Neighborhoods Law) (Pub. Act 88-680, § 50-5 (eff.

Jan. 1, 1995)). Thereafter, the Safe Neighborhoods Law was declared unconstitutional because it

violated our state constitution’s single subject clause (Ill. Const. 1970, art. IV, § 8(d)). People v.

Cervantes, 189 Ill. 2d 80, 98 (1999). However, on June 30, 1999, the General Assembly reenacted

section 11-20.1 with the text as it was amended by the Safe Neighborhoods Law. See Pub. Act 91-

54 (eff. June 30, 1999). In the reenacted section 11-20.1, the sentencing provision—subsection

(c)—made any violation of subsection (a)(1) a Class 1 felony with a minimum fine of $2,000 and

a maximum fine of $100,000. 720 ILCS 5/11-20.1(c) (West 2000). Later, subsection (c) was

amended effective January 1, 2012 (see Pub. Act 97-157, § 5 (eff. Jan. 1, 2012) (amending 720

ILCS 5/11-20.1(c)). Under the amended subsection (c), a section 11-20.1(a)(1) violation “[that]

does not involve a film, videotape, or other moving depiction, *** is a Class 1 felony with a

mandatory minimum fine of $2,000 and a maximum fine of $100,000,” but “[i]f the violation

involves a film, videotape, or other moving depiction, [it] is a Class X felony with a mandatory

minimum fine of $2,000 and a maximum fine of $100,000.” 720 ILCS 5/11-20.1(c) (West 2012).

¶ 16 Defendant frames the issue on appeal as “[w]hether this court should review the

constitutionality of [section 11-20.1], as the lower court failed to apply the plain language of the

statute[.]” The argument centers on the classification of a child pornography offense as a Class X

felony if it “involve[s] a film, videotape, or other moving depiction[.]” Id. It is firmly established

that “[t]he cardinal rule in construing a statute is to ascertain and give effect to the legislative

intent.” In re Jarquan B., 2017 IL 121483, ¶ 22. Moreover, “the most reliable indicator of that

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intent is the plain and ordinary meaning of the statutory language itself.” Id. Where statutory

language is clear and unambiguous, courts will give effect to the statute’s plain meaning. People

v. Clark, 2024 IL 127838, ¶ 70. “A statute is deemed ambiguous if it is capable of being understood

by reasonably well-informed persons in two or more different ways.” People v. Stewart, 2022 IL

126116, ¶ 13.

¶ 17 The applicable statutory language here is unambiguous. During the relevant time frame,

section 11-20.1(a)(1) of the Criminal Code provided that a person commits child pornography if

he or she “films, videotapes, [or] photographs *** any child whom he or she knows or reasonably

should know to be under the age of 18 and at least 13 years of age *** where such child *** is[ ]

actually or by simulation engaged in any act of sexual penetration or sexual conduct with any

person.” The meaning of this language is abundantly clear. Equally clear is the applicable language

of subsection (c): “If the violation involves a film, videotape, or other moving depiction, [it] is a

Class X felony with a mandatory minimum fine of $2,000 and a maximum fine of $100,000.” We

fail to see how reasonably well-informed persons could disagree about what this language means.

There is no dispute that defendant committed child pornography; thus, if his violation involved a

“moving depiction” (e.g., a cell phone video), he committed a Class X felony.

¶ 18 Defendant nonetheless asserts that the maxims expressio unius est exclusio alterius and

in pari materia establish that, for purposes of sentencing a defendant found guilty of child

pornography, the General Assembly did not intend to distinguish between still images and moving

images. However, there is no need to resort to those maxims unless a statute is ambiguous. See

People v. Payne, 277 Ill. App. 3d 1000, 1003 (1996) (in pari materia); People v. Dunlap, 110 Ill.

App. 3d 738, 743 (1982) (expressio unius est exclusio alterius). To be sure, conduct is child

pornography under subsection (a)(1) of section 11-20.1 whether it involves still or moving images,

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whereas subsection (c) provides for different offense classifications depending on whether the

child pornography involves still or moving images. That asymmetry, however, does not amount to

ambiguity.

¶ 19 Defendant also argues that, notwithstanding the January 1, 2012, amendment classifying

violations of the child pornography statute based on whether they involve still or moving images,

courts should adhere to the intent of the General Assembly when, years earlier, it reenacted the

statute and drew no such distinction between still and moving images. 1 In support of this argument,

defendant relies on language in Carmichael v. Laborers’ & Retirement Board Employees’ Annuity

& Benefit Fund of Chicago, 2018 IL 122793, ¶ 50.

¶ 20 In Carmichael, the plaintiffs challenged Public Act 97-651 (eff. Jan. 5, 2012), which

amended portions of the Illinois Pension Code. Id. ¶ 1. One new provision concerned the

calculation of the highest average annual salary earned by certain public employees, which was a

factor in determining the employees’ retirement benefits. Id. ¶ 9. The new provision, which

excluded certain salary income that pension fund administrators had long included in the

calculation, stated that it was “ ‘a declaration of existing law and shall not be construed as a new

enactment.’ ” Id. (quoting 40 ILCS 5/11-217(e) (West 2012)). The plaintiffs contended that (1) the

new method of calculating an employee’s highest average annual salary violated article XIII,

section 5, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. XIII, § 5) by impairing the

employee’s pension benefits (Carmichael, 2018 IL 122793, ¶ 13) and (2) the State could not

1 Contrary to defendant’s assertion, the Safe Neighborhoods Law amended the child pornography

statute but did not reenact it. Rather, in 1999, after the Safe Neighborhoods Law was declared

unconstitutional, the General Assembly reenacted the child pornography statute with the text as it was

amended in 1995 by the Safe Neighborhoods Law.

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circumvent the constitutional protection of those rights by characterizing the amendment as

declarative of existing law (id. ¶ 40).

¶ 21 The Carmichael court concluded that, before the enactment of Public Act 97-651, the

Illinois Pension Code was ambiguous about what types of salary income were included in the

calculation. Id. ¶ 42. In resolving the ambiguity, the court relied, in part, on the principle that a

pension statute should be liberally construed in favor of the pension plan participants. Id. ¶ 50. The

court rejected the State’s argument that, notwithstanding any ambiguity, by enacting Public Act

97-651, the General Assembly simply clarified what the statute was always intended to mean. Id.

¶ 49. The Carmichael court responded with the language defendant relies on here: “the legislative

intent that controls the construction of a public act is the intent of the legislature that passed that

act, not the intent of the legislature that amends the act many years later.” Id. ¶ 50.

¶ 22 Defendant’s reliance on Carmichael is clearly misplaced. Carmichael merely held that the

General Assembly could not declare the intent behind a previously enacted statute. That is not

what occurred in this case. Here, the General Assembly amended a statute without declaring the

intent underlying the preamended version. Defendant would have us ignore the clear language of

amendments in a misguided attempt to preserve the intent behind the preamended version.

Carmichael does not authorize such action.

¶ 23 Defendant also asserts:

“Since the [l]egislature only meant for there to be one punishment regardless of

how the act was committed, ‘moving’ or ‘non-moving’ and the definitions which govern

the entire statute reinforces [sic] the legislature’s intent, then the sentencing ranges which

were modified by [Public Act 97-157] cannot be enforced without it violating the

proportionate penalty clause of the [Illinois Constitution of 1970 (Ill. Const 1970, art. I,

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§ 11)] and the due process clause of both the U.S. [and Illinois constitutions].” [U.S. Const.,

amend. XIV; Ill. Const. 1970, art. I, § 2].”

In his opening brief, defendant advances no argument supporting his assertion that the current

statute violates either constitutional guarantee. Bare contentions unsupported by a developed

argument are insufficient to merit appellate review. People v. Snow, 2012 IL App (4th) 110415,

¶ 11. Although defendant’s reply brief offers a more developed argument in support of his

proportionate penalties challenge (but not his due process challenge), arguments made for the first

time in a reply brief are forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020).

¶ 24 Forfeiture aside, the proportionate penalties challenge is meritless. As pertinent here, “[a]

statute violates the proportionate penalties clause if *** the penalty is harsher than the penalty for

a different offense containing identical elements.” People v. Hilliard, 2023 IL 128186, ¶ 20. In

this case, there is but a single offense that can be committed in different ways, with penalties

differing based on how the offense is committed.

¶ 25 In his reply brief, defendant also argues for the first time that, based on the trial evidence

and the jury instructions, it is possible that the jury found defendant guilty based on a still

photograph, not a video. Therefore, “[g]iven the actual elements of the crime and the jury

instruction, it was a mistake to give [defendant] a Class X sentence.” Even if this argument were

not forfeited by defendant’s failure to raise it in his opening brief, it has nothing to do with the

facial validity of the child pornography statute. Rather, defendant’s complaint is essentially that

the statute’s Class X sentencing provision (see 720 ILCS 5/11-20.1(a)(1) (West 2012)) was

improperly applied in his case. See Thompson, 2015 IL 118151, ¶ 36 (“An as-applied challenge

requires a showing that the statute violates the constitution as it applies to the facts and

circumstances of the challenging party.”). Defendant does not appear to contend that the statute

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would be constitutionally infirm if applied according to what he believes was the true legislative

intent. A particular court’s misapplication of a statute is not grounds for finding the statute facially

unconstitutional.

¶ 26 III. CONCLUSION

¶ 27 For the reasons stated, we affirm the judgment of the circuit court of Kane County.

¶ 28 Affirmed.

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