People v. Ayoubi

2021 IL App (2d) 210010-U

Opinion

2021 IL App (2d) 210010-U No. 2-21-0010 Order filed November 18, 2021

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 OF ) Appeal from the Circuit Court ILLINOIS, ) of Kendall County. ) Petitioner-Appellee, ) ) v. ) No. 05-CF-306 ) FIRAS M. AYOUBI, ) Honorable ) John F. McAdams, Respondent-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court. Justices Zenoff and Hudson concurred in the judgment.

ORDER

¶1 Held: Trial court properly denied petition for relief from judgment because it was untimely and none of the potential exceptions from the limitations period applied.

¶2 In 2007, the defendant, Firas M. Ayoubi, pled guilty to the offense of indecent solicitation

of a child. In December 2007 he was sentenced to four years’ imprisonment. In 2020, Ayoubi

filed a petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West

2018)), alleging that he had recently discovered that the Illinois Department of Corrections

(Department) was reporting that the offense of which he was convicted in 2007 was “INDECENT

SOL/PREDITORY [sic]/AGG SEX,” which was different than the offense he had pled guilty to. 2021 IL App (2d) 210010-U

He argued that he had been misled regarding the offense of conviction, and thus his guilty plea

was invalid and should be vacated. The trial court denied the petition, and Ayoubi appeals. We

affirm.

¶3 I. BACKGROUND

¶4 In September 2005, Ayoubi was charged by information with the class 1 felony of indecent

solicitation over the internet of a 12-year-old child (720 ILCS 5/11-6(a) (West 2004)).

Specifically, the information alleged that Ayoubi, “a person of 17 year [sic] of age and upwards,

with the intent that the offense of predatory criminal sexual assault be committed, knowingly

solicited R.S., a child under the age of 17 years to perform an act of sexual penetration in violation

of 5/11-6(a).” Ayoubi admitted that he knew the child was under 18 years old but asserted that he

did not know that she was younger than 13.

¶5 The State later added a charge of another class 1 felony, attempted predatory criminal

sexual assault (720 ILCS 5/8-4(a) (West 2006)). On March 7, 2007, Ayoubi waived his right to a

jury trial and pled guilty to indecent solicitation. The State nol-prossed the charge of attempted

predatory criminal sexual assault.

¶6 All of the documents filed on March 7, 2007, including the guilty plea form, the judgment,

and the sex offender registration act notification form, stated that Ayoubi pled guilty to and was

convicted of “indecent solicitation of a child” in violation of section 11-6 of the Criminal Code of

1963 (Code) (720 ILCS 5/11-6 (West 2004)). None of the documents explicitly indicated that the

offense was “predatory” or “aggravated” in nature. However, the judgment noted that the offense

was a class 1 felony. Under the statute, an offense was a class 1 felony only “when the act, if done,

would be predatory criminal sexual assault of a child or aggravated criminal sexual assault.”

Id. § 11-6(c)(1).

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¶7 Although Ayoubi was initially sentenced to three years of probation, the State successfully

petitioned to revoke his probation only a few months later on the grounds that he had again

solicited a minor. On December 10, 2007, Ayoubi was resentenced to four years’ imprisonment,

followed by two years of mandatory supervised release. That judgment and sentence form also

stated that Ayoubi’s offense of conviction was the class 1 felony of “indecent solicitation of a

child” in violation of section 11-6 of the Code.

¶8 In 2012, Ayoubi was taken into custody on a new offense. He was convicted of aggravated

criminal sexual assault and sentenced to 28 years in prison, where he remains today.

¶9 Recently, Ayoubi received a “verification of incarceration” printout from the Department

that listed his 2007 offense of conviction as “INDECENT SOL/PREDITORY [sic]/AGG SEX.”

That printout was the basis for his section 2-1401 petition, in which he argued that the offense

reported on the printout was different than the “basic” offense to which he pled guilty (which he

asserts did not include “predatory” or “aggravated” elements), thereby casting doubt on the validity

of his plea.

¶ 10 The trial court denied the petition, finding that it was filed beyond the two-year limitations

period and that Ayoubi’s conviction was not void, as the trial court that accepted his plea and

entered the judgment of conviction had jurisdiction to do so. The trial court further found that,

even if the petition had been timely, it lacked merit because the Department’s printout did not and

could not change the offense to which Ayoubi pled guilty. Rather, the Department’s printout

simply noted the fact that the offense of conviction was a class 1 felony, which was defined in the

statute as conduct that, “if done, would be predatory criminal sexual assault of a child or aggravated

criminal sexual assault.” 720 ILCS 5/6-11(c)(1) (West 2004). Ayoubi then filed this appeal.

¶ 11 II. ANALYSIS

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¶ 12 Although Ayoubi raises several arguments in this appeal, we do not consider most of them

because we agree with the trial court’s determination that his petition was untimely, having been

filed 13 years after his conviction and resentencing.

¶ 13 Ayoubi’s petition for relief from judgment was filed under section 2-1401 of the Code of

Civil Procedure (735 ILCS 5/2-1401 (West 2018)). Except for specific types of judgments not

relevant here, such petitions “must be filed not later than 2 years after the entry of the order or

judgment” from which the petitioner seeks relief. Id. § 2-1401(c). However, any time when “the

ground for relief is fraudulently concealed” is excluded from the two-year period. Id. Ayoubi

argues that fraudulent-concealment tolling applies here, because both the trial court and his own

counsel failed to tell him that he had pled guilty to “a particular aggrevated [sic] subsection of the

statute” on indecent solicitation, and he did not learn otherwise until he “recently” received the

Department printout.

¶ 14 We begin by noting that Ayoubi did not include in the record on appeal any transcripts of

his arraignment, plea proceedings, or sentencing. As the appellant, it was Ayoubi’s responsibility

to supply a complete record sufficient to allow us to review the issues he wished to raise on appeal.

People v. Carter, 2015 IL 117709, ¶ 19. If the record is not complete or sufficient, we must

presume that the order entered by the trial court was legally correct and had a sufficient factual

basis. Koppel v. Michael, 374 Ill. App. 3d 998, 1008 (2007) (citing Foutch v. O’Bryant, 99 Ill. 2d

389, 391-92 (1984)). Any doubts that arise from the incompleteness of the record must be resolved

against the appellant. Carter, 2015 IL 117709, ¶ 19.

¶ 15 Here, the burden is on Ayoubi to show that the nature of the charge he pled guilty to was

fraudulently concealed from him, but he has not supported his argument with any evidence, such

as transcripts, that the charge was incorrectly described to him or that the trial court’s inquiry into

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his understanding of that charge and the effects of his guilty plea was flawed in any way. Thus,

we must presume that the trial court correctly performed its duty to ensure that these requirements

were met. Id.; see also Ill. S. Ct. R. 402 (eff. July 1, 2012) (before accepting guilty plea, trial court

must ensure that the accused understands the nature of the charges against him and determine

whether there is a factual basis for the plea in that the elements of the offense could be proved).

¶ 16 Further, although Ayoubi supplied us with some of the record from the trial court, that

record affirmatively contradicts his argument that he did not know that he was pleading guilty to

an offense involving “predatory” or “aggravated” conduct. The charging instrument stated that

Ayoubi’s offense involved an intent to commit predatory criminal sexual assault, and the judgment

identified his offense of conviction as a class 1 felony, which requires the intent to commit

predatory or aggravated criminal sexual abuse. Ayoubi could have discovered the predatory or

aggravated nature of the solicitation charge against him at any time before or after he pled guilty.

There is no basis in the record for his argument that the nature of the charged offense was

fraudulently concealed from him until recently.

¶ 17 Ayoubi also argues that his section 2-1401 petition was timely because his conviction is

void. We must reject this argument as well.

¶ 18 The two-year limitation in section 2-1401 does not apply to void judgments, which may be

challenged at any time. People v. Castleberry, 2015 IL 116916, ¶ 15. Because the breadth of this

principle threatens the finality of judgments, “only the most fundamental defects, i.e., a lack of

personal jurisdiction or lack of subject matter jurisdiction *** warrant declaring a judgment

void.’ ” Id. “Personal jurisdiction refers to the court’s power ‘to bring a person into its

adjudicative process.’ ” In re M.W., 232 Ill. 2d 408, 415 (2009) (quoting Black's Law Dictionary

870 (8th ed. 2004)). “Subject matter jurisdiction refers to the court’s power ‘to hear and determine

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cases of the general class to which the proceeding in question belongs.’ ” Id. (quoting Belleville

Toyota, Inc. v. Toyota Motor Sales U.S.A., Inc., 199 Ill. 2d 325, 334 (2002)).

¶ 19 Ayoubi does not argue that the trial court lacked either personal jurisdiction over him or

the power to hear and determine criminal cases such as his. Rather, he argues that he

misunderstood the nature of the offense to which he pled guilty, invalidating his plea. This

argument is refuted by the record, which shows that Ayoubi was informed of the nature of the

class 1 felony charge against him before he pled guilty, including the charged element that he

knowingly solicited a child “with the intent that the offense of predatory criminal sexual assault

be committed.” That is the charge to which he pled guilty, and the Department’s printout cannot

and does not show that he pled guilty to anything else.

¶ 20 Even if Ayoubi’s plea had been based on a misunderstanding of the charge and thus the

trial court erred in accepting it, however, that still would not make his conviction void. “Error or

irregularity in the proceeding, while it may require reversal of the court’s judgment on appeal,

does not oust subject matter jurisdiction once it is acquired.” Id. at 423 (citing People v. Davis,

156 Ill. 2d 149, 157 (1993) (a court does not lose jurisdiction because it makes a mistake of law or

fact or both)). As the trial court had personal and subject matter jurisdiction when it entered

Ayoubi’s conviction, that conviction is not void. Thus, Ayoubi was required to file his petition

within two years after that conviction was entered. As he did not, the petition was properly denied

as untimely.

¶ 21 III. CONCLUSION

¶ 22 For the reasons stated, the judgment of the circuit court of Kendall County is affirmed.

¶ 23 Affirmed.

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