2023 IL App (1st) 220472-U Nos. 1-22-0472, 1-22-0637 (cons.) Order filed April 26, 2023 Third Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 10 CR 14466 ) TARENZO DILLON, ) Honorable ) Maria Kuriakos-Ciesil, Defendant-Appellant. ) Judge, presiding.
JUSTICE BURKE delivered the judgment of the court. Presiding Justice McBride and Justice Reyes concurred in the judgment.
ORDER
¶1 Held: In case number 1-22-0472, we affirm the trial court’s dismissal of defendant’s section 2-1401 petition for relief from judgment, which challenged defendant’s sentence, because defendant failed to establish that he acted with due diligence in filing that petition. We dismiss case number 1-22-0637 for lack of jurisdiction. Nos. 1-22-0472, 1-22-0637 (cons.)
¶2 Following a jury trial, defendant, Tarenzo Dillon, was found guilty of aggravated battery
with a firearm and was sentenced to 20 years’ imprisonment. 1 On direct appeal, we affirmed his
sentence over his contention that his sentence was excessive. People v. Dillon, 2014 IL App (1st)
123095-U. More than seven years after he was sentenced, defendant filed a pro se petition for
relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-
1401 (West 2020)). Defendant’s petition sought resentencing because the trial court relied on his
prior conviction for aggravated unlawful use of a weapon (AUUW) in a 2005 case as an
aggravating factor, and that conviction was vacated in 2020 pursuant to People v. Aguilar, 2013
IL 112116. The trial court dismissed defendant’s section 2-1401 petition, and he now appeals that
ruling. For the following reasons, we affirm the dismissal of defendant’s section 2-1401 petition
in case number 1-22-0472. We dismiss case number 1-22-0637 for lack of jurisdiction.
¶3 I. BACKGROUND
¶4 A. Trial and Sentencing
¶5 This appeal only concerns defendant’s section 2-1401 petition seeking resentencing, so we
recite only the facts that are necessary to resolve this matter. Defendant proceeded to a jury trial
on one count of attempted murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2010)) and one count of
aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1), 12-4.3(a) (West 2010)). The evidence
established that defendant had an argument with another man at a child’s birthday party on July
18, 2010. Defendant retrieved a firearm from his vehicle and fired it toward the man he had been
arguing with. An 18-month-old girl who was playing nearby suffered gunshot wounds to her jaw,
1 The order resolving defendant’s direct appeal spells his first name as “Torenzo.” Defendant’s pro se section 2-1401 petition in this case appears to spell his first name as “Tarenzo,” so we will use that spelling.
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collarbone, and shoulder blade, causing her severe and permanent injury. Several eyewitnesses
identified defendant as the shooter. The jury found defendant guilty of aggravated battery with a
firearm. Defendant filed a motion for a new trial, which the trial court denied.
¶6 The trial court held a sentencing hearing on September 26, 2012. The court stated that it
had received the Presentence Investigation Report (PSI), which detailed defendant’s criminal
history. The PSI, which is included in the record on appeal, indicates that, in 2010, defendant was
convicted of misdemeanor theft of public money in federal court and was sentenced to probation.
In 2005, he was charged with AUUW and was sentenced to probation, which was terminated
successfully in 2007. In 2002, he was placed on supervision for a misdemeanor retail theft charge;
supervision was discharged that year. Regarding defendant’s AUUW conviction, Chicago police
Officer Garcia testified that he and his partners pulled over a vehicle driven by defendant, whom
he identified in court, on October 28, 2005. Defendant did not produce a driver’s license, so the
officers arrested him and recovered a loaded semiautomatic handgun from underneath the driver’s
seat. After receiving Miranda warnings, defendant stated that he forgot the firearm was in his
vehicle and that he never had a Firearm Owners Identification (FOID) card.
¶7 The mother of the girl that defendant shot submitted a victim impact statement in which
she described the graphic injuries and permanent scarring to her daughter’s head and upper body,
the fear that she and her daughter experienced after this incident, and the financial strain of caring
for her daughter’s injuries.
¶8 In mitigation, defendant submitted letters from his family, friends, and coworkers attesting
to his good character. Defendant’s cousin, Chantae Connolly, testified that defendant helped take
care of her child in addition to raising and financially supporting his own children. She described
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defendant as nonviolent, religious, reliable, and helpful. Connolly acknowledged that defendant
collected unemployment benefits despite being employed and that “in 2005 he was arrested with
a loaded gun in the car that he was driving.” Defendant’s stepfather, Darryl Ross, also described
defendant as helpful and reliable, and acknowledged defendant’s cases involving theft of
government funds and AUUW. In allocution, defendant expressed his hope that the victim would
recover and that the court would give him the opportunity to “guide [his] children and [his] family
in the right direction.”
¶9 The State argued that defendant caused severe physical and mental harm to the child he
shot. In addition, the State highlighted that “[i]n in 2005 the defendant pled guilty to a felony
conviction of [AUUW]. A weapon that he was driving around with on the streets of Chicago, a
weapon that was loaded, and not just loaded in the magazine, there was a bullet in the chamber.”
The State argued that defendant’s criminal history undermined his mitigation evidence and
requested a 30-year sentence. In response, defendant acknowledged that he “did have a prior
[A]UUW, [and] that is a problem,” but argued that, viewed as a “whole person,” he should receive
a sentence of 6 to 8 years.
¶ 10 The trial court sentenced defendant to 20 years’ imprisonment. The court focused on the
physical and mental trauma that defendant caused to the young victim and her mother. The court
largely discredited defendant’s mitigating evidence, explaining that his behavior did not support
his family’s claims that he was a nonviolent, upstanding, and religious man. The court mentioned
that defendant “had a previous gun conviction *** on the streets of Chicago” and that he “was
given the opportunity to change his life after crime number one possessing a gun in the streets of
Chicago.” Defendant made a motion to reconsider his sentence, which the trial court denied.
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¶ 11 B. Direct Appeal and Postconviction Proceedings
¶ 12 On direct appeal, defendant contended that his sentence was excessive because the trial
court failed to consider mitigating evidence that he (1) had a limited criminal history, (2) had a
consistent work history and financially supported his children and their mother, (3) planned to
return to school and start a career as an auto mechanic, and (4) expressed remorse and had engaged
in community service. Dillon, 2014 IL App (1st) 123095-U, ¶ 14. Defendant also argued that the
trial court discredited his evidence in mitigation even though the State offered nothing to indicate
that the mitigating evidence was untrue. Id. This court reviewed defendant’s sentence for an abuse
of discretion because it was within the sentencing range of 6 to 30 years. Id. ¶ 15. In affirming
defendant’s sentence, this court explained that the record established that the trial court carefully
considered defendant’s mitigating evidence and was free to give that evidence less weight than the
seriousness of the offense. Id. ¶¶ 16-20. While defendant’s direct appeal was pending, our supreme
court decided Aguilar. Aguilar held that the Class 4 version of the AUUW statute in effect at the
time (725 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2010)), which categorically prohibited the
possession and use of an operable firearm outside the home, was unconstitutional. Aguilar, 2013
IL 112116, ¶ 22.
¶ 13 On December 17, 2014, defendant filed a petition for relief under the Post-Conviction
Hearing Act (725 ILCS 5/122-1 et seq. (West 2014)). Defendant alleged that (1) the trial court
should have declared a mistrial due to a witness discussing her testimony with two other witnesses
who had not yet testified, (2) the State failed to move for a mistrial and file charges for witness
tampering based on the same incident, (3) the State violated Brady v. Maryland, 373 U.S. 83 (1963)
by failing to disclose a police report, (4) a detective witness committed perjury during trial, (5)
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trial counsel rendered ineffective assistance, (6) appellate counsel rendered ineffective assistance,
and (7) he was entitled to discovery to identify the “true offender.” None of defendant’s
postconviction claims addressed his sentence or the impact of his prior AUUW conviction on it.
The trial court summarily dismissed defendant’s petition. We affirmed and granted appointed
appellate counsel’s motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987).
People v. Dillon, No. 1-15-1132 (2017) (unpublished summary order under Supreme Court Rule
23(c)).
¶ 14 C. Section 2-1401 Proceedings
¶ 15 On February 7, 2020, defendant filed a pro se section 2-1401 petition in this case. He
argued that, during the sentencing hearing, the trial court heard evidence in aggravation regarding
his prior AUUW conviction, which had become void pursuant to Aguilar. Defendant highlighted
that the State called Officer Garcia to testify about defendant’s arrest for AUUW, asked Connolly
and Ross about that case, and directed the court’s attention to the AUUW conviction during
argument. He also quoted the trial court’s mention of his conviction for “possessing a gun in the
streets of Chicago” as a reference to the AUUW conviction. Defendant asked the trial court to (1)
vacate his conviction for AUUW, (2) determine how much weight the sentencing court gave to
that conviction, (3) determine whether the State properly submitted that conviction in aggravation,
and (4) determine whether Officer Garcia’s testimony was prejudicial to defendant at sentencing.
Defendant attached to his section 2-1401 petition his own affidavit, which attested that his petition
was “filed in good faith.”
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¶ 16 On September 23, 2020, defendant moved, separately from his pending section 2-1401
petition, to vacate his AUUW conviction as unconstitutional pursuant to Aguilar. 2 That conviction
was vacated on October 1, 2020, and defendant obtained a certificate of innocence on December
10, 2020.
¶ 17 On December 7, 2021, the trial court received a letter from defendant complaining about
his counsel’s representation. Defendant attached a second version of his pro se section 2-1401
petition, which made essentially the same arguments as his February 7, 2020, petition. This version
of defendant’s petition acknowledged that “defense counsel could not have known at the date of
the defendant’s sentencing hearing on 9-26-12 that aggravated unlawful use of a weapon statute
violated the United States Constitution as that was not found to be the case until the Aguilar
decision in 2013.” He argued that “we now know that the reference to the facially unconstitutional
[AUUW] statute in any legal proceeding civil or criminal does indeed violate the defendant’s
constitutional rights.” The State did not file a response to either version of defendant’s petition.
¶ 18 On March 4, 2022, the trial court dismissed defendant’s section 2-1401 petition. 3 The trial
court concluded that defendant failed to “put forth a cognizable claim that would entitle him to a
2 We take the facts regarding the vacatur of defendant’s AUUW conviction primarily from the trial court’s memorandum order resolving his section 2-1401 petition. The appendix to appellant’s brief contains a December 10, 2020, order in case number 05 CR 26282, which grants defendant a certificate of innocence and orders expungement of his arrest records in that case. However, a party may not supplement the record by including evidence in an appendix to his brief. People v. Williams, 2012 IL App (1st) 100126, ¶ 27. That said, the reports of proceedings in the record on appeal do include a representation by defendant’s counsel confirming that his AUUW conviction was vacated pursuant to Aguilar on October 1, 2020. 3 We note two issues in the trial court’s memorandum order to avoid confusion in this case. First, the trial court stated that defendant filed his section 2-1401 petition on December 7, 2021. Defendant initially filed his pro se section 2-1401 petition on February 7, 2020, and filed a second, but essentially identical, version of that petition with his letter to the court of December 7, 2021. Second, the trial court states that defendant “claim[ed] that his sentence was void.” That is incorrect. Defendant claimed that his AUUW conviction in the 2005 case was void under Aguilar, not that his sentence in this case is void.
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new sentencing hearing” because the sentencing hearing transcript indicated that the sentencing
court “regarded [defendant’s AUUW] conviction with little weight whereas it regarded other
factors, such [as defendant’s] prior theft offense, the depravity of his crime, and the youth and
overall suffering of the victim, with much more weight.” The court also noted that defendant’s 20-
year sentence fell in the middle of the range for a Class X offense, which is 6 to 30 years. The
court concluded that defendant failed to show cause for relief under section 2-1401 and dismissed
his petition.
¶ 19 Defendant filed two pro se notices of appeal. The first, filed on March 24, 2022, appealed
from the dismissal of his section 2-1401 petition, and initiated case number 1-22-0472. Defendant
also filed a pro se motion to reconsider the dismissal of his section 2-1401 petition in the trial
court, alleging that the court held an improper ex parte meeting with the State on the date that the
court dismissed his petition. The motion to reconsider is file-stamped April 8, 2022. On April 22,
2022, the trial court denied that such a meeting occurred and denied defendant’s motion to
reconsider. On May 3, 2022, defendant filed a pro se notice of appeal from the denial of his motion
to reconsider, which initiated case number 1-22-0637. We granted defendant’s motion to
consolidate the two appeals.
¶ 20 Defendant timely appealed.
¶ 21 II. ANALYSIS
Defendant’s reply brief confirms that he “never argued that his sentencing hearing was void. Rather he clearly argued in his opening brief that the use of the void AUUW conviction at his sentencing hearing requires a new sentencing hearing.” (Emphasis in original.). This distinction will be relevant to our analysis of defendant’s due diligence in filing his section 2-1401 petition.
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¶ 22 On appeal, defendant argues that his section 2-1401 petition should have been granted and
that he should be resentenced because the trial court relied on his now-vacated conviction for
AUUW as an aggravating factor during his sentencing hearing.
¶ 23 A. Jurisdiction
¶ 24 As an initial matter, the State contends that we lack jurisdiction over case number 1-22-
0637 “because [defendant] had already filed his notice of appeal in 1-22-0472 prior to filing the
motion to reconsider that is the subject of 1-22-0637.” Generally, the filing of a notice of appeal
divests the trial court of jurisdiction, and the appellate court’s jurisdiction attaches immediately.
General Motors Corp. v. Pappas, 242 Ill. 2d 163, 173 (2011). However, under Supreme Court
Rule 303, when a party files a timely postjudgment motion, that delays the effectiveness of any
pending notice of appeal until the trial court resolves the postjudgment motion. Ill. S. Ct. R.
303(a)(2) (eff. July 1, 2017); see also Chand v. Schlimme, 138 Ill. 2d 469, 474-77 (1990) (where
the appellant simultaneously filed a timely postjudgment motion and a notice of appeal, the trial
court retained jurisdiction until it disposed of the posttrial motion). A postjudgment motion must
be filed within 30 days of a final judgment. 735 ILCS 5/2-1203(a) (West 2022). So, if defendant’s
motion to reconsider was timely, then it delayed the effectiveness of his first notice of appeal, and
we have jurisdiction over both appeals.
¶ 25 The trial court dismissed defendant’s section 2-1401 petition on March 4, 2022. A
certificate of service in the record, which is hand-dated March 16, 2022, indicates that a “motion
for reconsideration” and a notice of appeal were mailed to the clerk of the circuit court. The clerk
filed-stamped defendant’s notice of appeal on March 24, 2022, initiating case number 1-22-0472.
However, the clerk did not file-stamp defendant’s motion to reconsider until April 8, 2022. So, it
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appears that defendant’s motion to reconsider was untimely because it was filed more than 30 days
after the dismissal of his section 2-1401 petition. However, defendant may be able to rely on the
date of mailing – apparently March 16, 2022 – as the filing date. “To rely on the date of mailing
as the filing date,” an incarcerated defendant must “provide proof of mailing by filing a proof of
service” that complies with Supreme Court Rule 12(b)(6) (eff. July 1, 2017). People v. Shines,
2015 IL App (1st) 121070, ¶ 33. Rule 12(b)(6) requires a “self-represented litigant residing in a
correctional facility” to certify under section 1-109 of the Code of Civil Procedure (735 ILCS 5/1-
109 (West 2022)) “the person who deposited the document in the institutional mail, stating the
time and place of deposit and the complete address to which the document was to be delivered.”
Ill. S. Ct. R. 12(b)(6) (eff. July 1, 2017). In the absence of such a certificate of service, “the date
the circuit clerk’s office file-stamped the motion controls.” People v. Blalock, 2012 IL App (4th)
110041, ¶ 7.
¶ 26 The certificate of service associated with defendant’s motion to reconsider does not
indicate the date or time at which defendant placed the motion in the institutional mail, or at what
institution he did so. Although the section 1-109 certification is dated March 16, 2022, the spaces
intended for such information on the preprinted Rule 12(b)(6) certificate of service are blank:
“PLEASE TAKE NOTICE that at: ______ AM/PM _________, 2022, I placed the documents
listed below in the institutional mail at ____________________ Correctional Center.” We cannot
say that such a certificate complies with Rule 12(b)(6). Therefore, the clerk’s April 8, 2022, file-
stamp on the motion to reconsider controls. Defendant’s motion to reconsider was untimely
because it was filed more than 30 days after the dismissal of his section 2-1401 petition, and the
trial court did not have jurisdiction to consider that motion. See Keener v. City of Herrin, 235 Ill.
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2d 338, 350 (2009) (a trial court has no jurisdiction to rule upon a motion to reconsider filed more
than 30 days after the original judgment). The trial court’s denial of defendant’s motion to
reconsider is void for lack of jurisdiction, and we lack jurisdiction to hear defendant’s appeal from
the denial of his motion to reconsider. See Lampe v. Pawlarczyk, 314 Ill. App. 3d 455, 475 (2000).
We do not have jurisdiction over case number 1-22-0637 because defendant did not file the notice
of appeal in that case within 30 days of the dismissal of his section 2-1401 petition or within 30
days of an order disposing of a timely postjudgment motion. Goral v. Kulys, 2014 IL App (1st)
133236, ¶ 20 (citing Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 538 (1984)).
Accordingly, we dismiss case number 1-22-0637 for lack of jurisdiction. See Galarza v. Direct
Auto Insurance Company, 2022 IL App (1st) 211595, ¶ 56.
¶ 27 We note that this jurisdictional issue will not impact our resolution of the substance of
defendant’s appeal, which does not concern the trial court’s ruling on his motion to reconsider.
Case number 1-22-0472, which was initiated by a timely notice of appeal filed on March 24, 2022,
addresses the dismissal of defendant’s section 2-1401 petition.
¶ 28 B. Section 2-1401 Petition
¶ 29 Defendant contends that the trial court should have granted his section 2-1401 petition,
which sought resentencing because the trial court considered his now-vacated prior conviction for
AUUW as an aggravating factor during his sentencing hearing. Section 2-1401 provides a
mechanism for vacating a final judgment that is more than 30 days old. People v. Stoecker, 2020
IL 124807, ¶ 18; 735 ILCS 5/2-1401 (West 2020). Although section 2-1401 is a civil remedy, it
applies to criminal cases as well. Stoecker, 2020 IL 124807, ¶ 18. The purpose of section 2-1401
is to present facts outside the record that, if known at the time judgment was entered, would have
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prevented the entry of that judgment. People v. Gamez, 2017 IL App (1st) 151630, ¶ 8. Section 2-
1401 also allows a petitioner to challenge a prior judgment as void. Id. The trial court dismissed
defendant’s section 2-1401 petition without an evidentiary hearing, so our review is de novo (see
id.), meaning that we perform the same analysis as the trial court (see People v. Miles, 2017 IL
App (1st) 132719, ¶ 19).
¶ 30 The State raises three potential procedural bars to defendant’s section 2-1401 petition;
namely, that defendant (1) filed his petition after the two-year limitations period of section 2-
1401(c), (2) forfeited his challenge to his sentence by failing to raise it during postconviction
proceedings, and (3) failed to establish that he acted with due diligence in bringing this claim
before the trial court. We address each potential procedural bar in turn.
¶ 31 1. Timeliness
¶ 32 Both parties acknowledge that defendant filed his petition more than seven years after he
was sentenced. Generally, a section 2-1401 petition must be filed within two years of entry of the
judgment that it attacks. See 735 ILCS 5/2-1401(c) (West 2020); People v. Thompson, 2015 IL
118151, ¶ 28. However, the State did not challenge the timeliness of defendant’s petition in the
trial court, so it has forfeited that issue. See People v. Pinkonsly, 207 Ill. 2d 555, 564 (2003). The
State does not contend otherwise, nor does it argue that we should affirm the dismissal of
defendant’s petition on grounds of untimeliness. Accordingly, we will not decide whether
defendant’s petition was timely within the two-year limitations period of section 2-1401(c).
¶ 33 2. Forfeiture
¶ 34 The State argues that defendant has forfeited this challenge to his sentence because he
could have raised it during postconviction proceedings but did not. It is well-established that issues
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that could have been raised on direct appeal, but were not, are forfeited in section 2-1401
proceedings. People v. Addison, 371 Ill. App. 3d 941, 947 (2007). This court has also stated that a
party cannot use a section 2-1401 petition to relitigate issues that “have previously been or could
have been adjudicated.” (Internal quotation marks omitted.) Stolfo v. KinderCare Learning
Centers, Inc., 2016 IL App (1st) 142396, ¶ 29.
¶ 35 Defendant was sentenced on September 26, 2012, and filed his direct appeal that day. He
filed the opening brief in his direct appeal on July 30, 2013. 4 Our supreme court decided Aguilar
on September 12, 2013. Aguilar, 2013 IL 112116. Defendant filed his reply brief in his direct
appeal on June 10, 2014, and that appeal was decided without oral argument on November 26,
2014. In theory, defendant could have realized that his AUUW conviction had become void under
Aguilar during the briefing of his direct appeal. But, as a practical matter, it would have been
difficult to bring that issue to this court’s attention at the time. Defendant would have been forced
to raise the voidness of his AUUW conviction and its impact on his sentence for the first time in
his reply, which is generally improper. See People v. Taylor, 2019 IL App (1st) 160173, ¶ 41 (“A
claim raised for the first time in a reply brief is forfeited.”). We will not fault defendant for not
raising this issue on direct appeal, particularly because the State acknowledges that he “could not
have raised the issue *** in his first appeal.”
¶ 36 However, there is no question that defendant could have raised this issue in his
postconviction petition. Defendant filed his postconviction petition in December 2014, more than
a year after Aguilar was decided. Defendant’s postconviction petition would have been an
4 We take judicial notice of this court’s docket in defendant’s direct appeal. See People v. Phillips, 219 Ill. App. 3d 877, 878 (1991).
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appropriate place to raise his claim that the sentencing court considered his now-void AUUW
conviction as an aggravating factor. The Post-Conviction Hearing Act allows a defendant to assert
that there was a substantial denial of his federal or state constitutional rights at sentencing. People
v. Dorsey, 2021 IL 123010, ¶ 31. When a court bases its sentence on a prior conviction as an
aggravating factor and that conviction is subsequently vacated, the court has infringed the
defendant’s right to be sentenced based on accurate information about his criminal background.
United States v. Tucker, 404 U.S. 443, 447-49 (1972); see also People v. Reynolds, 116 Ill. App.
3d 328, 330-31 (1983). Yet, defendant’s postconviction petition did not challenge his sentence on
any grounds, including the sentencing court’s consideration of his AUUW conviction that had
become void under Aguilar.
¶ 37 Nevertheless, we will not find forfeiture due to defendant’s failure to raise this claim in
postconviction proceedings. Illinois law is clear that claims that could have been raised on direct
appeal are barred in a section 2-1401 petition. Addison, 371 Ill. App. 3d at 947. It is also clear that
claims that were raised and resolved on direct appeal or in other collateral proceedings are barred
by res judicata and cannot form the basis of a section 2-1401 petition. People v. Cathey, 2019 IL
App (1st) 153118, ¶ 21. However, the law is not clear that the same bars apply to a claim that could
not have been raised on direct appeal, but could have been raised in a postconviction petition, but
was not. The State cites no authority in support of its argument that defendant “forfeited his claim
that the trial court improperly considered his AUUW conviction when he failed to raise it in his
2014 post-conviction petition.” We have found no such authority. Stolfo’s suggestion that section
2-1401 bars all claims that “could have been adjudicated” previously appears, at first blush, to
include more than just claims that could have been raised on direct appeal. (Internal quotations
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omitted.) Stolfo, 2016 IL App (1st) 142396, ¶ 29. However, that language appears in the context
of whether “litigants may use a section 2-1401 petition as a second opportunity to raise arguments
that were, or could have been, made in a direct appeal.” Id. Stolfo, a civil case, does not hold that
a criminal defendant who could not have raised a claim on direct appeal, but could have raised the
claim during postconviction proceedings and did not, forfeits that claim in section 2-1401
proceedings. As best we can determine, no Illinois authority holds as much. Accordingly, we
decline to find forfeiture on that basis.
¶ 38 3. Due Diligence
¶ 39 The State next argues that defendant did not act with due diligence in filing his section 2-
1401 petition. To state a claim for relief under section 2-1401, a petitioner must “ ‘affirmatively
set forth specific factual allegations supporting each of the following elements: (1) the existence
of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit
court in the original action; and (3) due diligence in filing the section 2-1401 petition for relief.’
” 5 People v. Glowacki, 404 Ill. App. 3d 169, 171 (2010) (quoting Smith v. Airoom, Inc., 114 Ill. 2d
209, 220-21 (1986)). With respect to due diligence, first, the petitioner must show that his failure
to discover new facts prior to the entry of judgment was the result of an excusable mistake and not
a product of negligence. G.M. Sign, Inc. v. Schane, 2013 IL App (2d) 120434, ¶ 40. Second, the
petitioner must show that he filed the petition itself in a timely manner, without undue delay after
becoming aware of the factual basis for the petition. Id. The petitioner has the burden to establish,
by a preponderance of the evidence, his due diligence in presenting his claim and filing his section
5 The exception to the due diligence pleading requirement is when the section 2-1401 petition contends that a judgment is void. Sarkissian v. Chicago Bd. of Educ., 201 Ill. 2d 95, 104 (2002). As discussed above, defendant does not argue that his sentence is void, so he must show due diligence in pursuing section 2-1401 relief.
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2-1401 petition. People v. Vincent, 226 Ill. 2d 1, 7-8 (2007). A trial court may dismiss a section 2-
1401 petition if the petitioner fails to demonstrate that he exercised due diligence. People v.
Bramlett, 347 Ill. App. 3d 468, 473 (2004). “The grounds available to a court for dismissing for
lack of due diligence include the mere failure to offer a reasonable excuse for undue delay in filing
the petition.” Id.
¶ 40 Defendant’s section 2-1401 petition does not set forth any factual allegations to establish
his due diligence in filing the petition. Aguilar was decided in 2013. More than seven years later,
in 2020, defendant filed his section 2-1401 petition challenging the sentencing court’s
consideration of his AUUW conviction that had become void under Aguilar. When defendant
initially filed his petition, he had not even obtained vacatur of his AUUW conviction; rather, he
asked the trial court to vacate it in that petition. Defendant’s petition gives no explanation as to
why he waited until 2020 to (1) seek vacatur of a conviction that became void under Aguilar in
2013 and (2) challenge his 2012 sentence based on the use of that void conviction in aggravation.
We do not know why defendant waited more than seven years to raise this issue, and nothing in
the record offers any explanation for his delay. Defendant has not established that he acted with
due diligence in filing his section 2-1401 petition. Accordingly, the trial court properly dismissed
defendant’s section 2-1401 petition. See id. (affirming the dismissal of a section 2-1401 petition
that did not explain a delay in filing of more than two years). We can affirm on this basis even
though the trial court did not dismiss the petition based on a lack of due diligence. See People v.
Harvey, 379 Ill. App. 3d 518, 521 (2008) (noting that an appellate court “may affirm the trial
court’s judgment on any basis supported by the record, regardless of the actual reasoning or
grounds relied upon by the circuit court.”).
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¶ 41 Defendant does not contend that he acted with due diligence in filing his section 2-1401
petition. Rather, he requests that, “[i]f this Court finds that [his] efforts as reflected in the record
are insufficient to show due diligence, it should grant [him] the opportunity to show that he had a
‘reasonable excuse’ for not filing his 2-1401 petition before he did,” citing Cathey. In Cathey, the
defendant was found guilty of attempted first degree murder and aggravated battery with a firearm
and was sentenced to 20 years’ imprisonment. Cathey, 2019 IL App (1st) 153118, ¶ 9. More than
20 years later, he filed a section 2-1401 petition alleging a one-act, one-crime violation at
sentencing. Id. ¶¶ 12, 19. The State did not file a response, and the trial court dismissed the petition
as untimely under section 2-1401(c) and “because aggravated discharge of a firearm and attempt
murder are separate convictions.” Id. ¶ 12. On appeal, this court explained that “timeliness under
section 2-1401 is an affirmative defense that a responding party may waive or forfeit by failing to
raise the issue below,” so the trial court could not dismiss the defendant’s section 2-1401 petition
as untimely when the State never raised the issue of timeliness. Id. ¶¶ 16, 18 (citing Pinkonsly, 207
Ill. 2d at 562-63). In addition, there were factual questions regarding the defendant’s due diligence
because he “alleged in his petition that he was not aware of the one-act, one-crime rule until
September 7, 2013, and that he relied on his attorney to conduct his defense.” Id. ¶ 28. This court
reversed the dismissal of the defendant’s section 2-1401 petition and remanded for an evidentiary
hearing on the issue of due diligence. Id. ¶¶ 28, 52.
¶ 42 There are two key differences between Cathey and this case. First, unlike the trial court in
Cathey, the trial court in this case did not sua sponte dismiss defendant’s section 2-1401 petition
as untimely, so the primary basis for reversal in Cathey does not exist in this case. Second, the
petition in Cathey explained the defendant’s delay in filing; namely, that he learned of the one-act,
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one-crime rule some 20 years after his sentencing. In this case, defendant’s petition offers no such
explanation. Defendant’s section 2-1401 petition acknowledges that his counsel could not have
known of the voidness of his AUUW conviction at the time of sentencing in 2012 because Aguilar
was decided in 2013, but it offers no explanation as to why defendant took no action on that issue
for more than seven years. Defendant’s briefs do not identify any factual issues regarding his due
diligence that require further development in an evidentiary hearing. We see no need to remand
this case for an evidentiary hearing on the issue of due diligence. Accordingly, we affirm the trial
court’s dismissal of defendant’s section 2-1401 petition.
¶ 43 III. CONCLUSION
¶ 44 For the foregoing reasons, we affirm the trial court’s dismissal of defendant’s section 2-
1401 petition in case number 1-22-0472. Case number 1-22-0637 is dismissed for lack of
jurisdiction.
¶ 45 1-22-0472: Affirmed.
¶ 46 1-22-0637: Dismissed.
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