People v. Barefield

2019 IL App (3d) 160516

• Court: Appellate Court of Illinois
• Decided: July 30, 2019
• Docket: 3-16-0516
• Status: Unpublished

Opinion

2019 IL App (3d) 160516

Opinion filed July 30, 2019 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-16-0516 v. ) Circuit No. 11-CF-2287 ) MICHAEL C. BAREFIELD, ) Honorable ) Sarah-Marie F. Jones, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE McDADE delivered the judgment of the court, with opinion. Justice Wright concurred in the judgment and opinion. Justice Holdridge concurred in part and dissented in part, with opinion.

OPINION

¶1 Defendant, Michael C. Barefield, appeals the dismissal of his petition for relief from

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

(West 2016)). Defendant argues that his conviction for armed habitual criminal should be

vacated because his prior conviction for aggravated unlawful use of a weapon (AUUW) was void

ab initio and could not serve as a predicate offense. Defendant also argues that his two

convictions for AUUW under different case numbers should be vacated because they are void ab initio. We reverse the dismissal of defendant’s section 2-1401 petition and remand the matter

with directions.

¶2 I. BACKGROUND

¶3 Defendant was charged with the offense of armed habitual criminal (720 ILCS 5/24-

1.7(a)(1), (a)(2) (West 2010)). The indictment alleged:

“[D]efendant possessed a firearm, to wit: a Hi-Point .45 caliber handgun, after

having been twice convicted of the combination of offenses of [AUUW] in Will

County under docket number 2006 CF 661 in violation of Section 21-2 of Act 5

of Chapter 720 of the Illinois Compiled Statutes,[1] and Aggravated Robbery, a

forcible felony, in Will County under docket number 2006 CF 1945 in violation

of 18-5 of Act 5 of Chapter 720 of the Illinois Compile[d] Statutes.”

Defendant was also charged with unlawful use of a weapon by a felon (id. § 24-1.1(a)) in that he

possessed a handgun having been previously convicted of AUUW in Will County case No. 06-

CF-661.

¶4 Defendant entered a fully negotiated plea agreement in which he pled guilty to armed

habitual criminal in exchange for a sentence of eight years and six months’ imprisonment and the

dismissal of the charge of unlawful use of a weapon by a felon.

¶5 Defendant filed a pro se petition for relief from judgment under section 2-1401 of the

Code. In his petition, defendant stated that his conviction for armed habitual criminal was

1 The indictment erroneously cites to the statute proscribing criminal trespass to vehicles (720 ILCS 5/21-2 (West 2006)) rather than the AUUW statute (id. § 24-1.6). Defendant has attached a single- page copy of the indictment in Will County case No. 06-CF-661 to his brief, which shows that defendant was charged with AUUW under section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code of 1961 (id. § 24- 1.6(a)(1), (a)(3)(A)). Defendant requests that we take judicial notice of the copy of the indictment, which we do. See Metropolitan Life Insurance Co. v. American National Bank & Trust Co., 288 Ill. App. 3d 760, 764 (1997) (“[The appellate] court may take judicial notice of public documents that are included in the records of other courts.”). -2- predicated on his convictions in Will County case Nos. 09-CF-2316, 06-CF-1945, and 06-CF-

661. Defendant stated that two of the predicate offenses were convictions for AUUW and the

AUUW statute had been held to be facially unconstitutional.2 Defendant requested that the court

vacate his conviction for armed habitual criminal because it was predicated on offenses that were

void ab initio.

¶6 The State filed a combined motion to dismiss under sections 2-615 and 2-619 of the Code

(735 ILCS 5/2-615, 2-619 (West 2016)). The motion to dismiss argued that defendant’s section

2-1401 petition failed to state a cause of action because it could be rejected based on the Illinois

Supreme Court’s decision in People v. McFadden, 2016 IL 117424. The State also argued that

defendant’s section 2-1401 petition was untimely.

¶7 Defendant filed a motion for leave to amend his section 2-1401 petition. In his proposed

amended petition, defendant argued that his convictions for AUUW in Will County case Nos.

09-CF-2316 and 06-CF-661 should be vacated in addition to his conviction for armed habitual

criminal in the instant case. Defendant argued that his AUUW convictions were void ab initio

and his armed habitual criminal conviction was also void.

¶8 A hearing was held on the State’s motion to dismiss and defendant’s motion to amend his

section 2-1401 petition. The State argued that if defendant sought to vacate his AUUW

convictions, he needed to do so by filing pleadings in those cases. The State also argued that

pursuant to the holding in McFadden, defendant’s armed habitual criminal conviction was not

2 The indictment in this case shows that defendant’s armed habitual criminal conviction was predicated on one prior conviction for AUUW in Will County case No. 06-CF-661 and one prior conviction for aggravated robbery in Will County case No. 06-CF-1945. Defendant’s armed habitual criminal conviction was not predicated on a second conviction for AUUW entered in Will County case No. 09-CF-2316, as defendant claimed. -3- void even if the predicate offense was void. The court granted the State’s motion to dismiss and

denied defendant’s motion for leave to amend his petition.

¶9 II. ANALYSIS

¶ 10 A. Vacatur of the Armed Habitual Criminal Conviction

¶ 11 Defendant argues that his conviction for armed habitual criminal should be vacated

because his prior conviction for AUUW in Will County case No. 06-CF-661 was void ab initio

and could not serve as a predicate offense. Pursuant to the holding in In re N.G., 2018 IL

121939, we find that defendant’s conviction for armed habitual criminal must be vacated if the

predicate AUUW conviction was entered under an unconstitutional section of the AUUW

statute.

¶ 12 Section 24-1.7(a) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/24-1.7(a)

(West 2010)) provides that “[a] person commits the offense of being an armed habitual criminal

if he or she receives, sells, possesses, or transfers any firearm after having been convicted a total

of 2 or more times” of certain enumerated offenses. A defendant’s qualifying prior convictions

are an element of the offense of being an armed habitual criminal. People v. Davis, 405 Ill. App.

3d 585, 591 (2010). In the instant case, defendant was charged with being an armed habitual

criminal based on his prior convictions for AUUW in Will County case No. 06-CF-661 and

aggravated robbery in Will County case No. 06-CF-1945.

¶ 13 Our supreme court has held that AUUW as charged under section 24-1.6(a)(1), (a)(3)(A)

of the Criminal Code (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)) is facially

unconstitutional because it violates the right to keep and bear arms under the second amendment

to the United States Constitution. People v. Burns, 2015 IL 117387, ¶ 32; People v. Aguilar,

2013 IL 112116, ¶ 22. Our supreme court has also held that AUUW as charged under section 24-

-4- 1.6(a)(2), (a)(3)(A) of the Criminal Code of 2012 (720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West

2012)) is unconstitutional. People v. Mosley, 2015 IL 115872, ¶ 25. The court has held that some

of the other sections of the AUUW statute are not facially unconstitutional and are severable

from the unconstitutional sections. Id. ¶ 31.

¶ 14 In McFadden, 2016 IL 117424, ¶¶ 27-31, our supreme court held that the defendant’s

conviction for unlawful use of a weapon by a felon, which was predicated on a prior conviction

for AUUW, was not void where the AUUW conviction had not been vacated at the time the

defendant committed the offense of unlawful use of a weapon by a felon.

¶ 15 While the instant case was pending on appeal, our supreme court issued its decision in

N.G., which overruled the court’s prior decision in McFadden. N.G., 2018 IL 121939, ¶ 84. See

also People v. Cavette, 2018 IL App (4th) 150910, ¶ 24 (recognizing that McFadden had been

overruled by N.G.). The N.G. court held that the circuit court erred in terminating the father’s

parental rights after finding the father depraved based, in part, on the father’s conviction for

AUUW under the section held unconstitutional in Aguilar. N.G., 2018 IL 121939, ¶ 33. The

court held that because that section of the AUUW statute was facially unconstitutional, the

father’s AUUW conviction had to be vacated. Id. The court reasoned: “When a statute is found

to be facially unconstitutional in Illinois, it is said to be void ab initio; that is, it is as if the law

had never been passed.” Id. ¶ 50.

¶ 16 In overruling McFadden, the court in N.G. reasoned that McFadden failed to consider

“the distinction between a prior conviction resulting from a constitutionally deficient procedure

and one based on a facially unconstitutional statute.” Id. ¶ 76. The court noted that McFadden

failed to consider the United States Supreme Court’s decision in Montgomery v. Louisiana, 577

U.S. ___, 136 S. Ct. 718 (2016), or earlier United States Supreme Court cases holding that

-5- “convictions based on facially unconstitutional statutes are void, can be given no effect, and must

be treated by the courts as if they do not exist.” N.G., 2018 IL 121939, ¶ 67. The court reasoned:

“[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, and must therefore be ignored by the courts, using them

against a defendant in any subsequent proceeding, civil or criminal, is not only

conceptually impossible (if something has no legal existence how can it be given

any legal recognition?) but would subvert the very constitutional protections that

resulted in the statute being found facially invalid to begin with and is

incompatible with the United States Supreme Court’s command that when, as

under Aguilar and here, the conduct penalized by a statute is constitutionally

immune from punishment, that determination must be given complete retroactive

effect.” (Emphasis in original.) Id. ¶ 74.

The N.G. court found that case to be distinguishable from McFadden but nevertheless held that

“to the extent that this result and controlling United States Supreme Court precedent conflict

with McFadden, McFadden is hereby overruled.” Id. ¶ 84.

¶ 17 In the instant case, we find that if defendant’s conviction for AUUW in Will County case

No. 06-CF-661 was entered under section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code, then

defendant’s conviction for armed habitual criminal must be vacated under the rationale in N.G.

Under the reasoning set forth in N.G., if the AUUW conviction was entered under a facially

unconstitutional section of the AUUW statute, it is void ab initio. That is, the AUUW conviction

must be treated as though it never existed and may not be used against defendant in any

subsequent criminal or civil proceeding. See N.G., 2018 IL 121939, ¶ 74.

-6- ¶ 18 However, the record in this case is unclear as to whether defendant’s conviction for

AUUW in Will County case No. 06-CF-661 was entered under the section of the AUUW statute

held to be unconstitutional in Aguilar. The single-page copy of the indictment defendant attached

to his brief shows only that defendant was charged under section 24-1.6(a)(1), (a)(3)(A). It does

not show that he was convicted under that section. Before vacating defendant’s conviction for

armed habitual criminal, it must be definitively established that the predicate AUUW conviction

was entered under a section of the AUUW statute that has been held to be unconstitutional.

Accordingly, we remand the matter to the circuit court for such a determination.

¶ 19 In reaching our holding, we reject the State’s argument that the holding in N.G. is limited

to parental termination cases. The court in N.G. held that because convictions based on facially

unconstitutional statutes “are nonexistent, as a matter of federal constitutional law, and must

therefore be ignored by the courts, using them against a defendant in any subsequent proceeding,

civil or criminal, *** would subvert the very constitutional protections that resulted in the statute

being found facially invalid to begin with.” (Emphasis added.) Id. Thus, we interpret the holding

of N.G. to extend beyond parental termination cases and to apply generally to civil or criminal

cases where a defendant’s facially unconstitutional prior conviction is used against him or her.

¶ 20 We also reject the State’s argument that the portion of N.G. overruling McFadden is dicta

that we are not required to follow. The State argues that we should instead apply the holding in

McFadden to this case. We do not agree with the State’s reading of N.G., and we may not ignore

our supreme court’s express overruling of McFadden. See Winnebago County Citizens for

Controlled Growth v. County of Winnebago, 383 Ill. App. 3d 735, 748 (2008) (“[T]he lower

courts have no power to ignore the holdings of our supreme court’s decisions and to adopt some

other approach that they may prefer.”).

-7- ¶ 21 B. Vacatur of the AUUW Convictions

¶ 22 Defendant also argues that the circuit court erred in denying his motion for leave to

amend his section 2-1401 petition. Defendant requests that we reverse the circuit court’s denial

of the motion and vacate his prior convictions for AUUW in Will County case Nos. 06-CF-661

and 09-CF-2316. The State concedes that defendant’s prior AUUW convictions are void

ab initio, but argues that defendant must seek vacatur of his convictions by filing postconviction

petitions or section 2-1401 petitions in those cases.

¶ 23 In N.G., the court held that filing a postconviction petition or a section 2-1401 petition are

not the “sole means for collaterally attacking the validity of a conviction premised on a facially

invalid, and indisputably unenforceable, statute.” N.G., 2018 IL 121939, ¶ 54. The court stated

that “under Illinois law, there is no fixed procedural mechanism or forum, nor is there any

temporal limitation governing when a void ab initio challenge may be asserted.” Id. ¶ 57. The

court noted that “[a] void order may be attacked at any time in any court” and that courts have an

independent duty to vacate void orders. Id. The N.G. court held that it was permissible for the

father of the minor to challenge the constitutionality of his AUUW conviction in proceedings to

terminate parental rights. Id. ¶ 60. The court reasoned:

“Establishing that a prior conviction is invalid because it was based on a facially

unconstitutional statute requires no elaborate fact-finding or hearing. The

statutory basis for the conviction can be readily ascertained by retrieval and

review of official court records, of which a subsequent court can take judicial

notice [citation], as happened in this case, and the fact that the statute has been

found unconstitutional can be confirmed by the case law. As for concerns over the

finality of judgments, these are of little consequence as a practical matter because

-8- penal statutes are rarely found facially invalid and, when they are, defendants

have every incentive to raise the defect at the earliest possible, practical moment.”

Id. ¶ 58.

¶ 24 In light of the recent decision in N.G., we find that defendant should be permitted to

amend his section 2-1401 petition to seek vacatur of his AUUW convictions in addition to his

armed habitual criminal conviction.

¶ 25 However, we reject the State’s concession on appeal that defendant’s prior convictions

for AUUW in Will County case Nos. 06-CF-661 and 09-CF-2316 were void ab initio. The

record in this case does not support the State’s concession. We have already found that the copy

of the indictment from Will County case No. 06-CF-661 attached to defendant’s brief was

insufficient to establish that defendant was convicted under an unconstitutional section of the

AUUW statute. There is no information, either in the record or attached to defendant’s brief,

regarding Will County case No. 09-CF-2316 except for defendant’s pro se allegation that the

AUUW conviction in that case was void ab initio. Accordingly, we remand the matter to the

circuit court for a determination as to whether the AUUW convictions in Will County case Nos.

06-CF-661 and 09-CF-2316 were entered under one of the facially unconstitutional sections of

the AUUW statute.

¶ 26 We acknowledge the argument of the partial dissent that it is the usual requirement of

Illinois reviewing courts that the appellant present a record sufficient to support his claim of

error. In the instant case, defendant is challenging his armed habitual criminal conviction and the

predicate AUUW conviction pursuant to an indictment in Will County case No. 06-CF-661,

attached to his brief, indicating that he was charged under one of the facially unconstitutional

sections of the AUUW statute. The claim was originally asserted pro se in a collateral

-9- proceeding, and it is not an unreasonable assumption that defendant was convicted of the crime

with which he was charged.

¶ 27 More significantly, at the time of briefing in this appeal, the law about vacating these

void convictions was in a state of flux in that McFadden had been decided and N.G. had not. In

N.G., as we have previously pointed out, the supreme court noted that courts have an

independent duty to vacate void orders (N.G., 2018 IL 121939, ¶ 57) and further stated:

“The statutory basis for the conviction can be readily ascertained by retrieval and

review of official court records, of which a subsequent court can take judicial

notice [citation], as happened in this case, and the fact that the statute has been

found unconstitutional can be confirmed by the case law.” (Emphasis added.) Id.

¶ 58.

If courts are authorized to supplement the record on appeal to expeditiously address the

constitutionally void conviction, it surely cannot be improper to find that there is a viable issue

and remand to the circuit court to address it.

¶ 28 III. CONCLUSION

¶ 29 The judgment of the circuit court of Will County dismissing defendant’s section 2-1401

petition and denying defendant leave to amend his section 2-1401 petition is reversed. We

remand the matter to the circuit court with directions to examine the court records in Will County

case Nos. 06-CF-661 and 09-CF-2316 to determine whether the AUUW convictions in those

cases were entered under one of the facially unconstitutional sections of the AUUW statute. If

the AUUW conviction in Will County case No. 06-CF-661 was entered under one of the facially

unconstitutional sections of the AUUW statute, the circuit court is directed to vacate that

conviction and the conviction for armed habitual criminal entered in the instant case. If the

- 10 - AUUW conviction in Will County case No. 09-CF-2316 was entered under one of the facially

unconstitutional sections of the AUUW statute, the circuit court is directed to vacate that

conviction as well.

¶ 30 Reversed and remanded with directions.

¶ 31 JUSTICE HOLDRIDGE, concurring in part and dissenting in part:

¶ 32 I concur with the majority’s decision to reverse the trial court’s denial of the defendant’s

request to amend his section 2-1401 petition. However, I disagree with the majority’s decision to

(1) address the merits of the defendant’s claims as they relate to his AUUW convictions and his

armed habitual criminal conviction and (2) remand to the trial court to determine which sections

of the statute were the bases for the defendant’s convictions.

¶ 33 As our supreme court has explained, the appellant has the burden of presenting a

sufficiently complete record on appeal to support his claim of error, and in the absence of such a

record on appeal, the reviewing court will presume that the order entered by the trial court was in

conformity with the law. Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314, 319 (2003).

Any doubts arising from the incompleteness of the record are resolved against the appellant. Id.

¶ 34 Here, as the majority recognizes, the defendant failed to provide a sufficient record on

appeal to support his claim of error because the record fails to show which statute sections were

the bases for his convictions. Supra ¶¶ 18, 25, 27. Therefore, because the record on appeal is

insufficient, I would not address this issue.

- 11 - No. 3-16-0516

Decision Under Review: Appeal from the Circuit Court of Will County, No. 11-CF-2287; the Hon. Sarah-Marie F. Jones, Judge, presiding.

Attorneys James E. Chadd, Peter A. Carusona, and Jay Wiegman, of State for Appellate Defender’s Office, of Ottawa, for appellant. Appellant:

Attorneys James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino, for David J. Robinson, and Jasmine D. Morton, of State’s Attorneys Appellee: Appellate Prosecutor’s Office, of counsel), for the People.

- 12 -