People v. Slack

2023 IL App (5th) 220440-U

• Court: Appellate Court of Illinois
• Decided: November 14, 2023
• Docket: 5-22-0440
• Status: Unpublished

Opinion

2023 IL App (5th) 220440-U NOTICE NOTICE Decision filed 11/14/23. The This order was filed under text of this decision may be NO. 5-22-0440 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Peti ion for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 11-CF-541 ) RAY T. SLACK, ) Honorable ) Ronald R. Slemer, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE McHANEY delivered the judgment of the court. Justices Moore and Vaughan concurred in the judgment.

ORDER

¶1 Held: The court did not err in dismissing the defendant’s petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2016)) where it was not timely filed and did not challenge a void judgment and where the petition did not assert a valid claim or defense. Although the State violated Rule 23 when it failed to provide the defendant with a copy of an unpublished decision it cited in support of its motion to dismiss, any error in allowing the State to cite the case was harmless. The court did not abuse its discretion in declining to appoint counsel to represent the defendant on appeal.

¶2 The defendant, Ray T. Slack, was convicted of first degree murder and armed robbery.

Nearly six years after his conviction and nearly four years after this court affirmed his convictions

on appeal, the defendant filed a petition for relief from judgment, asserting that his conviction was

void because one of the investigating officers allegedly testified falsely at a grand jury hearing.

The State filed a motion to dismiss the petition on the grounds that it was not timely filed within

1 two years after the final judgment. See 735 ILCS 5/2-1401(c) (West 2016). The trial court granted

that motion. The defendant filed a notice of appeal in which he also requested that counsel be

appointed to represent him. The trial court denied that request. On appeal, the defendant contends

that (1) the two-year statute of limitations is inapplicable because inaccurate testimony during

grand jury proceedings rendered his conviction void; (2) the court erred in denying his request to

strike the State’s arguments relying on an unpublished decision without having provided a copy

of that decision to the defendant; and (3) the court erred in denying the defendant’s request to

appoint counsel to represent him in this matter on appeal. We affirm.

¶3 I. BACKGROUND

¶4 In 2011, the defendant was charged with first degree murder (720 ILCS 5/9-1(a)(2) (West

2010)) and armed robbery (id. § 18-2(a)(1)) in the death of his 77-year-old neighbor, Bob Garrett.

In 2012, the defendant was convicted on both charges and sentenced to 40 years in prison on the

murder charge and 7 years on the robbery charge, to be served consecutively. In May 2014, this

court affirmed his convictions and sentences on direct appeal. See People v. Slack, 2014 IL App

(5th) 120216.

¶5 On April 14, 2018, the defendant filed a pro se petition for relief from judgment (735 ILCS

5/2-1401 (West 2016)). He alleged that the indictment against him was obtained through fraud

because Detective Marcus Pulido provided “false and misleading testimony” to the grand jury. He

argued that the trial court’s jurisdiction to hear the criminal case against him was thus procured

through fraud. As such, he argued, the two-year statute of limitations found in section 2-1401(c)

does not apply to this case. See id. § 2-1401(c).

¶6 To understand these allegations, it is necessary to discuss the admissions the defendant

made during three video-recorded interviews with police and Detective Pulido’s grand jury

2 testimony concerning those interviews. We will set forth only those details necessary for an

understanding of the arguments before us.

¶7 The defendant was interviewed by detectives three times while he was in custody. Video

recordings of those interviews were admitted into evidence at his eventual trial on the charges.

Initially, the defendant denied that he even knew Garrett. He admitted for the first time that he

knew Garrett halfway through the first interview. He further admitted that he had consumed a lot

of alcohol on the night Garrett was killed and that he recalled very little of the events at issue. Over

the course of the three interviews, the defendant acknowledged that he knew Garrett fairly well

and that he regularly borrowed money from him.

¶8 During the second and third interviews, the defendant admitted that on the night of the

murder, he went to Garrett’s house and asked to borrow five dollars. He acknowledged that he

became angry when Garrett refused. The defendant told detectives that he threw a full can of beer

through Garrett’s window in anger, breaking the window. He stated that Garrett responded by

running down the steps toward him. The defendant stated that he saw Garrett reach behind his back

several times during the encounter. He admitted that he punched Garrett, struck him with the

pedestal of a birdbath, and pressed a string to Garrett’s throat, nearly choking him. He told police

that he believed Garrett was holding a gun behind his back. According to the defendant, Garrett

had shot at him in a previous incident. The defendant admitted that he threw the pedestal over the

fence.

¶9 Finally, the defendant admitted taking cash from Garrett’s wallet. He insisted, however,

that he had not gone to Garrett’s house with the intention of robbing him. Instead, the defendant

told police he took the money when he saw Garrett’s wallet on the ground after the incident.

3 ¶ 10 In his testimony before the grand jury, Detective Pulido described the defendant’s

admissions in his statements. His testimony was largely consistent with the recordings; however,

there was one minor difference and there were a few details he did not include. After Detective

Pulido testified that the defendant admitted throwing a beer can through Garrett’s window, he

testified as follows: “At that point, Mr. Garrett eventually became upset, began walking down the

stairs yelling at Mr. Slack for what he had just done.” As discussed earlier, the defendant described

Garrett’s reaction as running down the stairs, rather than walking. In addition, Detective Pulido

did not testify that the defendant told police Garrett reached behind his back multiple times or that

he told them about a previous incident in which Garrett allegedly shot at him.

¶ 11 After a series of delays not pertinent to this appeal, the State filed a motion to dismiss the

section 2-1401 petition on June 1, 2021. The State argued that (1) the petition was not timely filed

within two years of entry of the judgment challenged (see 735 ILCS 5/2-1401(c) (West 2016));

and (2) the defendant did not support his petition with affidavits attesting to matters outside the

record (see id. § 2-1401(b)).

¶ 12 The matter came before the court for a hearing on May 5, 2022. At the outset, the trial

judge noted that although the defendant was representing himself in this case, an assistant public

defender was present to observe the proceedings because she represented the defendant in “other

postconviction matters, but not concerning this 1401 petition.”

¶ 13 The defendant argued that the court should grant his 2-1401 petition on the grounds that

the video recordings of his police interviews, which were admitted into evidence at his trial,

contradicted “anything that the State’s Attorney and the Alton Police testified to the grand jury.”

He asserted that had the video been played for the grand jury, he would not have been indicted

because the video “would have told the truth.” In addressing the State’s motion to dismiss, the

4 defendant argued that the two-year time limit in section 2-1401(c) does not apply because he

alleged “fraud and false and inaccurate testimony, [and] that [he was] coming in under the F section

to void judgment.” See id. § 2-1401(f). He argued that the State had forfeited any argument that

the judgment was voidable rather than void because it had not specifically raised that argument in

its motion to dismiss or in any amended motion to dismiss. However, he did not attempt to argue

that the judgment was void rather than voidable.

¶ 14 The State argued that the court should dismiss the petition for three reasons: (1) the petition

was not timely filed, (2) it was not supported by affidavits, and (3) the defendant has no

meritorious defense to the underlying criminal proceedings. The prosecutor acknowledged that the

two-year limitations period in section 2-1401 does not apply to judgments that are void. However,

she argued that alleged “fraudulent procurement of grand jury testimony does not make a judgment

or conviction void.” She noted that the First District had decided that question in the case of People

v. McCoy, 2021 IL App (1st) 170299-U. She asked the judge if he wanted her to provide either a

copy of the case or a citation to it. He responded by stating that she could provide him with a copy

of the case after the hearing. The State further argued that the defendant failed to support his claim

that the grand jury testimony was false and that he failed to provide any evidence or argument that

would have negated the grand jury’s finding of probable cause.

¶ 15 Before taking the matter under advisement, the court addressed the defendant, stating,

“Well, Mr. Slack, let me tell you how I feel about those time limitations.” The court went on to

explain as follows: “I think it’s more important to get to the issues as opposed to those limitations.

I’m not very much on strict statute of limitations. They’ve raised that point, but I don’t consider

that very important.” We note that the status of McCoy as an unpublished decision was not brought

up at the hearing.

5 ¶ 16 On May 19, 2022, before the court issued its decision, the defendant filed a motion to strike

the State’s argument relying on the unpublished case of People v. McCoy. He argued that the

State’s use of the case was improper because (1) the State did not file any amended pleading “to

add this case as a defense against defendant[’]s petition” and (2) citation to an unpublished

decision was improper for purposes other than to support contentions regarding double jeopardy

or the law of the case. We note that, as the defendant acknowledges on appeal, unpublished

decisions issued after January 1, 2021, as McCoy was, may now be cited as persuasive but

nonbinding authority. However, Illinois Supreme Court Rule 23 requires that a party citing an

unpublished decision furnish a copy of that decision to the court and to opposing parties, which

did not occur in this case. See Ill. S. Ct. R. 23(e)(1) (eff. Jan. 1, 2021).

¶ 17 On June 10, 2022, the court entered a written order granting the State’s motion to dismiss.

The court explained that a section 2-1401 petition is a civil remedy that is available in criminal

cases, but it is available only if the defendant can show that he had a claim or defense that would

have precluded conviction. The court noted that section 2-1401 does not provide for “a general

review or substitute for direct appeal.” The court further noted that its order did not dispose of the

defendant’s postconviction petition, which remained pending. The court did not address the

defendant’s motion to strike the State’s argument citing McCoy.

¶ 18 The defendant filed a timely notice of appeal on July 5, 2022. In it, he noted that he was

indigent and that he wanted an attorney appointed to represent him on appeal. On July 8, 2022, the

court entered an order denying the defendant’s request for counsel, explaining that he is not entitled

to the appointment of counsel in proceedings on a section 2-1401 petition. This court subsequently

denied a similar request.

6 ¶ 19 II. ANALYSIS

¶ 20 On appeal, the defendant argues that (1) the court erred in dismissing his petition because

inaccurate testimony during grand jury proceedings rendered his conviction void, not merely

voidable, and the two-year statute of limitations in section 2-1401 is therefore inapplicable; (2) the

court erred in denying the defendant’s request to strike the State’s arguments relying on the

unpublished case of People v. McCoy because the State violated Illinois Supreme Court Rule

23(e)(1) by failing to first provide a copy of that decision to the defendant; and (3) the court erred

in denying the defendant’s request to appoint counsel to represent him on appeal in this matter.

We reject each of these contentions.

¶ 21 A. Motion to Dismiss

¶ 22 The defendant argues that the court erred in granting the State’s motion to dismiss. We

review de novo the trial court’s dismissal of a section 2-1401 petition. People v. Vincent, 226 Ill.

2d 1, 18 (2007). Applying this standard of review, we reject the defendant’s contentions.

¶ 23 Although the court’s stated basis for granting the motion to dismiss was the defendant’s

failure to establish that he had a meritorious claim or defense, the bulk of the defendant’s argument

centers on the applicability of the two-year statute of limitations found in section 2-1401(c). See

735 ILCS 5/2-1401(c) (West 2016). We note that either untimeliness or a failure to assert or

establish a meritorious claim or defense may serve as a proper basis for dismissal. In addition, we

may affirm the trial court’s ruling on any basis appearing in the record, whether it was relied upon

by the trial court or not. See People v. Aljohani, 2021 IL App (1st) 190692, ¶ 38. We will thus

address both issues.

7 ¶ 24 1. Two-Year Statute of Limitations

¶ 25 By its express terms, section 2-1401 provides that petitions must be filed within two years

after entry of the underlying judgment or order. 735 ILCS 5/2-1401(c) (West 2016). There is no

dispute that the defendant did not file his petition within this time limit. Two exceptions to this

time limit are pertinent here. First, the two-year period is tolled during any period in which the

grounds for relief have been fraudulently concealed from the petitioner. Id. Second, the two-year

time limit does not apply if the judgment being challenged is void. Id. § 2-1401(f). The defendant

asserts that both exceptions apply here. We disagree.

¶ 26 We will first consider whether the two-year statute of limitations was tolled due to

fraudulent concealment of the grounds for relief. As we have just mentioned, the two-year time

limit is tolled during periods of time in which the asserted ground for relief is fraudulently

concealed from the petitioner. Id. § 2-1401(c); People v. Thomas, 364 Ill. App. 3d 91, 98 (2006).

In order to fall within this exemption, the petitioner “must allege facts demonstrating that the

opposing party affirmatively attempted to prevent the discovery of the purported grounds for relief

and must offer factual allegations demonstrating good faith and due diligence in attempting to

uncover such matters either before trial or within the limitations period.” Thomas, 364 Ill. App. 3d

at 99. The defendant’s petition in this case contains no such factual allegations.

¶ 27 The only ground for relief asserted in this case is the defendant’s contention that the State

presented “false and misleading” testimony to the grand jury resulting in an indictment that

prosecutors otherwise could not have obtained. The defendant alleged in his petition that

prosecutors acted fraudulently in presenting Detective Pulido’s testimony to the grand jury and in

not presenting the video recordings of his interviews with police. In addition, he alleged that he

was not present at the grand jury hearing and was thus unaware of Detective Pulido’s testimony

8 and unable to respond to it. However, the petition is devoid of any factual allegations concerning

affirmative steps taken by the State to prevent the defendant from learning what testimony was

presented to the grand jury. It is similarly devoid of any factual allegations to establish that the

defendant exercised due diligence in his efforts to discover the testimony either at trial or before

the two-year limitations period expired. Thus, the two-year time limit was not tolled.

¶ 28 We now turn our attention to the issue that is the focus of the defendant’s arguments—

whether the allegations in the petition, if true, would render the judgment of conviction void. As

the defendant correctly argues and the State acknowledges, a section 2-1401 petition challenging

a judgment on the basis that it is void, rather than merely voidable, is not subject to the time limit

set forth in subsection (c) or any of the other “procedural bars” in the statute. People v. Thompson,

2015 IL 118151, ¶ 31. Significantly, however, a judgment is void only under very limited

circumstances. Id. ¶ 32.

¶ 29 First, a judgment or order entered without subject matter jurisdiction or without personal

jurisdiction over the party is void. Id. Second, a judgment is void if it is based upon a statute that

has been held to be unconstitutional on its face and void ab initio. Id. Prior to our supreme court’s

2015 decision in People v. Castleberry, a criminal sentence that did not conform to statute was

also considered to be void. In Castleberry, however, the supreme court abolished the void sentence

rule. Id. ¶ 33 (citing People v. Castleberry, 2015 IL 116916, ¶ 19). Thus, only judgments that are

entered in the absence of jurisdiction or on the basis of a statute that is void ab initio are recognized

as void. Id. ¶ 34.

¶ 30 The defendant does not attempt to argue that his conviction was entered pursuant to an

unconstitutional statute that was held to be void ab initio, and he does not contend that the court

lacked personal jurisdiction over him. He does assert that the court’s jurisdiction was invoked

9 fraudulently through the allegedly inaccurate and misleading testimony of Detective Pulido. This

is so, he contends, because without this testimony, the grand jury would not have indicted him.

We are not persuaded.

¶ 31 We first note that it is inconceivable that a grand jury would have declined to indict the

defendant on the charges had Detective Pulido testified that the defendant told detectives that

Garrett ran down the stairs, that Garrett reached behind his back, or that there had been a prior

incident in which he fired a shot at the defendant. As the State correctly points out, the defendant’s

statements were played for a jury, which rejected his claim of self-defense. Although the defendant

insists that what happened at trial is irrelevant, we emphasize that the standard of proof required

at trial—proof beyond a reasonable doubt—is much higher than the probable cause required for a

grand jury to return an indictment.

¶ 32 More importantly, however, the defendant’s argument overlooks the very nature of

jurisdiction. Illinois trial courts have jurisdiction over all justiciable matters, and that jurisdiction

is conferred by the Illinois Constitution. Castleberry, 2015 IL 116916, ¶ 15. A justiciable matter

is simply a controversy that is definite and concrete rather than a dispute that is moot or

hypothetical. Id. Subject matter jurisdiction is the court’s authority to hear the general class of

cases to which the proceeding at issue belongs. Id. ¶ 12. Criminal prosecutions are undisputedly

among the classes of cases courts have the power to hear. See People v. Hughes, 2012 IL 112817,

¶ 21. Thus, the court had jurisdiction to hear this case.

¶ 33 The defendant cites four cases in support of his contentions to the contrary—People v.

Harvey, 196 Ill. 2d 444 (2001), People v. Shaw, 133 Ill. App. 3d 391 (1985), People v. Mack, 107

Ill. App. 3d 164 (1982), and People v. Rivera, 72 Ill. App. 3d 1027 (1979). None of these cases

support his position.

10 ¶ 34 Harvey was an appeal from a ruling on a section 2-1401 petition that challenged an

extended-term sentence, asserting that it was void. Harvey, 196 Ill. 2d at 447-48 (overruling on

relevant grounds recognized by Thompson, 2015 IL 118151, ¶ 33). Because it did not address the

question before us, we find that Harvey is inapposite.

¶ 35 Although Rivera involved allegations more similar to those involved in the instant case, it

was a direct appeal from a judgment of conviction. The defendant there argued, in relevant part,

that “the trial court erred in assuming it had no authority to dismiss the indictment because of the

allegedly perjured [grand jury] testimony.” Rivera, 72 Ill. App. 3d at 1036. He alleged that two

witnesses testified falsely before the grand jury due to police coercion, and he argued that this

constituted a due process violation. Id. at 1037.

¶ 36 The appellate court agreed with the defendant that a trial court has the inherent authority

to dismiss an indictment on the basis of a due process violation. Id. The court explained, however,

that it is ordinarily improper to challenge an indictment on the basis of inadequate evidence or for

courts to reconsider the evidence before a grand jury. Id. at 1037-38. The court went on to state,

“We do not doubt that a court could properly dismiss an indictment based upon perjured testimony

if the denial of due process was established ‘with certainty.’ ” Id. (quoting People v. Lawson, 67

Ill. 2d 449, 457 (1977)). However, the court concluded that the defendant in that case did not

establish a due process violation with certainty because the police officers involved denied the

allegations that they had coerced the witnesses. Id.

¶ 37 Similarly, in Shaw, another direct appeal, the appellate court noted that trial courts have

the authority to dismiss an indictment based upon perjured testimony before a grand jury, but

emphasized that “a court must proceed with restraint in ascertaining due process violations in

indictment procedures and should dismiss an indictment only when the violation is clear and has

11 been found with certainty.” Shaw, 133 Ill. App. 3d at 398-99. The court found no due process

violation where a witness’s testimony was incorrect, but where there was no evidence that the

witness knew his testimony was inaccurate. Id. at 399.

¶ 38 Both Rivera and Shaw are inapposite because they were both direct appeals from

convictions; they did not involve untimely filed section 2-1401 petitions. Thus, the appellate courts

could consider errors that occurred at trial regardless of whether the judgments appealed were void.

In addition, neither case supports the defendant’s suggestion that, voidness aside, the indictment

against him should have been dismissed. The discrepancy between Detective Pulido’s grand jury

testimony and the defendant’s statements to police during the interviews was insignificant, and

there is no indication that Detective Pulido was even aware of the slight discrepancy when he

testified.

¶ 39 We likewise find no support for the defendant’s position in Mack, the final case he cited.

Unlike Rivera, Shaw, and this case, Mack did not involve allegedly false or inaccurate grand jury

testimony; indeed, the appellate court noted there was no indication in the record as to what the

grand jury testimony was in that case. Mack, 107 Ill. App. 3d at 171. Rather, the case involved a

ruling on a pretrial motion to quash charges against the defendants based on prosecutorial

misconduct. Id. at 170. Specifically, the defendants alleged that investigators lied to prison inmates

to obtain information from them and generally behaved towards those inmates in a manner

described as “coaxing and coercive.” Id. at 170-71. The inmates eventually testified against the

defendants at their trial. Id. at 168-70.

¶ 40 On appeal from the trial court’s decision to dismiss the defendants’ motion to quash the

charges, the appellate court observed that “[a] trial court has inherent power to dismiss a charge

when due process so requires, but this should rarely be done.” Id. at 171. Ultimately, the court

12 found that the trial court correctly found that there was no prosecutorial misconduct in the

interactions between the State and its witnesses. Id.

¶ 41 We find that Mack fails to support the defendant’s petition for three reasons. First, the court

did not need to address the voidness of a judgment. Second, the court likewise did not consider the

propriety of dismissing a charge based on inaccurate grand jury testimony. Third, like Rivera and

Shaw, the court’s rationale demonstrates that due process requires the dismissal of charges in

extremely rare circumstances.

¶ 42 For all these reasons, we conclude that the judgment of conviction was not void. As such,

the two-year limitations period in section 2-1401 applied. Because the defendant filed his petition

long after this period expired, his petition was properly dismissed.

¶ 43 2. Meritorious Claim or Defense

¶ 44 A petition for relief from judgment pursuant to section 2-1401 is a civil remedy, but it can

be used in both civil and criminal cases. Vincent, 226 Ill. 2d at 8. Its purpose in criminal

proceedings is to correct any errors of fact that were unknown to the petitioner and the court at the

time of trial which would have prevented the entry of the judgment of conviction had the true facts

been known at the time. Thomas, 364 Ill. App. 3d at 98. To be entitled to relief, a petitioner must

establish the existence of a claim or defense that would have precluded entry of the judgment in

the original proceeding. Vincent, 226 Ill. 2d at 7-8. The petitioner must also demonstrate due

diligence in discovering that claim or defense and in bringing the petition. Id. at 8.

¶ 45 Here, the defendant not only could, but did, raise the defense of self-defense at trial. He

does not allege that there was any other defense he could have presented. A section 2-1401 petition

can be dismissed for failure to state a meritorious defense even assuming the truth of all its

13 allegations. Id. We therefore find no error in the trial court’s determination that the defendant’s

petition was subject to dismissal for failure to allege a meritorious defense.

¶ 46 B. Motion to Strike the State’s Argument

¶ 47 The defendant filed a motion to strike the State’s argument, in which it relied upon McCoy,

an unpublished decision of the First District. As mentioned previously, he argued then that the

State’s citation to the case was improper because unpublished cases may only be cited for limited

purposes. Prior to a recent amendment to Rule 23, this argument was correct; unpublished cases

could be cited only to support claims of double jeopardy, res judicata, or collateral estoppel or to

establish the law of the case. See People v. Petty, 311 Ill. App. 3d 301, 303 (2000) (citing Ill. S.

Ct. R. 23(e) (eff. July 1, 1994)). Now, however, unpublished decisions of the Illinois Appellate

Court issued after January 1, 2021, may be cited as persuasive, but nonbinding, authority. Ill. S.

Ct. R. 23(e)(1) (eff. Jan. 1, 2021). The amended version of the rule provides that a party who

wishes to cite an unpublished decision must furnish a copy of the decision to the other parties. Id.

On appeal, the defendant argues that the State failed to comply with this requirement, thus violating

Rule 23. He further argues that the State’s failure to comply with this requirement prejudiced him

because it prevented him from being able to address the State’s argument.

¶ 48 In response, the State acknowledges that its failure to furnish him with a copy of the

decision constituted a “technical violation” of Rule 23. The State argues, however, that any error

in the court’s decision to allow the State to cite McCoy was harmless. We remind the State that the

Illinois Supreme Court rules are not mere suggestions; they have the force of law and must be

followed. See People v. Glasper, 234 Ill. 2d 173, 189 (2009). It is an understatement to call the

State’s failure to comply a “technical violation.” Nevertheless, we agree that the error was

harmless.

14 ¶ 49 First, for the reasons we have already discussed, we find that the court correctly granted

the State’s motion to dismiss the petition. Nothing the defendant could have argued in response to

the State’s mention of McCoy would have changed the outcome of the case.

¶ 50 Second, as we stated earlier in this decision, the trial court emphasized in its decision that

the defendant failed to establish that he had a valid defense in the underlying action, as required.

See Vincent, 226 Ill. 2d at 7-8. As we have also already discussed, we agree with the court’s

conclusion. Thus, neither the two-year statute of limitations nor the State’s citation to McCoy

appeared to have played any role in the court’s decision. We therefore find that any error in the

court’s apparent decision not to strike the portion of the State’s argument in which it cited McCoy

was harmless.

¶ 51 C. Request for the Appointment of Counsel on Appeal

¶ 52 The defendant’s final contention is that the court erred in refusing to appoint an attorney to

represent him in this appeal. We disagree.

¶ 53 The defendant argues that when a section 2-1401 petition requests relief from judgment in

a criminal case, as the petition filed in this case does, “appellate counsel must be appointed.” In

support of that contention, he cites Schroers v. People, 399 Ill. 428 (1948), a 75-year-old decision

arising under a predecessor statute to section 2-1401. There, the defendant filed a collateral

challenge to a conviction entered on his guilty plea, asserting that he was mentally ill and unable

to understand his plea when he pled guilty and that, had the court known this at the time, it would

not have accepted his plea. Id. at 429. The right to appointed counsel was not at issue in Schroers.

One of the questions before the court was whether the Illinois Supreme Court had jurisdiction over

the direct appeal to it from the trial court. Id. at 433. It was in this context that the supreme court

observed that despite the defendant’s use of civil remedy, his underlying case did not lose its

15 characteristic as a criminal case. Id. at 433-34. The defendant points to this language in asserting

that the appointment of appellate counsel is mandatory. We reject his contention.

¶ 54 Presumably, the defendant is arguing that the constitutional right to counsel that applies at

trial and on direct appeal applies here because the underlying action is a criminal case. However,

it is well settled that there is no right to counsel in section 2-1401 proceedings, even if the

underlying judgment was criminal. People v. Johnson, 2018 IL App (5th) 140486, ¶ 44 (citing

People v. Kane, 2013 IL App (2d) 110594, ¶ 21). Notably, even under the Post-Conviction Hearing

Act, a criminal procedure mechanism for collaterally challenging criminal convictions or

sentences, the right to counsel is wholly statutory, rather than constitutional. Id. ¶ 24. Thus, while

trial courts have the discretion to appoint counsel when a defendant challenges his conviction using

a section 2-1401 petition, they are not obligated to do so. Id. ¶ 44 (citing Kane, 2013 IL App (2d)

110594, ¶ 21).

¶ 55 Although the defendant asserts that pro se petitioners like himself are at a disadvantage in

section 2-1401 proceedings, he does not advance any argument that the court abused its discretion

in refusing to appoint counsel in this specific case. Although he has therefore forfeited any such

argument (see Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020)), we note that we find no abuse of the

court’s discretion.

¶ 56 III. CONCLUSION

¶ 57 For the foregoing reasons, we affirm the court’s judgment.

¶ 58 Affirmed.