People v. Taylor

2023 IL App (5th) 230240-U

Opinion

2023 IL App (5th) 230240-U NOTICE NOTICE Decision filed 12/15/23. The This order was filed under text of this decision may be NO. 5-23-0240 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Champaign County. ) v. ) No. 12-CF-98 ) EDWARD L. TAYLOR, ) Honorable ) Randall B. Rosenbaum, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court. Presiding Justice Vaughan and Justice McHaney concurred in the judgment.

ORDER

¶1 Held: Where the circuit court did not err in dismissing the defendant’s petition for relief from judgment, or in denying his petition for mandamus relief, and where no argument to the contrary would have merit, the defendant’s appointed appellate attorney is granted leave to withdraw, and the judgment of the circuit court is affirmed.

¶2 The defendant, Edward L. Taylor, appeals from the circuit court’s orders dismissing his

section 2-1401 petition for relief from judgment (735 ILCS 5/2-1401 (West 2022)) and denying

his petition for mandamus relief (735 ILCS 5/14-101 (West 2022)). His appointed attorney on

appeal, the Office of the State Appellate Defender (OSAD), has concluded that this appeal does

not present any issue of arguable merit, and on that basis, it has filed in this court a motion to

withdraw as counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987)), accompanied by a

memorandum of law in support thereof. OSAD gave proper notice to the defendant. This court

1 gave him an opportunity to file a pro se brief, memorandum, or other document explaining why

OSAD should not be allowed to withdraw as counsel, or why this appeal has merit, but the

defendant has not availed himself of that opportunity. This court has examined OSAD’s Finley

motion and the accompanying memorandum of law, as well as the entire record on appeal, and has

concluded that this appeal does indeed lack merit. Accordingly, OSAD is granted leave to

withdraw as counsel, and the judgment of the circuit court is affirmed.

¶3 BACKGROUND

¶4 Trial, Sentencing, and the Direct Appeal

¶5 In 2012, the defendant was charged with armed robbery. He was accused of robbing a

Meijer gas station in Champaign, Illinois, while armed with a firearm. See 720 ILCS 5/18-2(a)(2)

(West 2012). The offense was a Class X felony that carried a mandatory 15-year firearm

enhancement. Id. § 18-2(b). The defendant hired an attorney to represent him. At a preliminary

hearing, the court admonished the defendant about his rights and about the possibility of trial and

sentencing in absentia.

¶6 In August 2012, the cause was called for trial by jury. The defendant failed to appear, and

the cause proceeded to trial in absentia.

¶7 The State’s evidence included the defendant’s unrecorded statements to police, in which

he admitted to robbing the gas station but denied displaying a gun. The salesclerk at the Meijer

gas station testified that the robber was a black man whose face was covered up to his eyes; he

wore a black coat and carried a backpack. The robber never explicitly threatened her, the salesclerk

testified, and she never saw a gun. According to the salesclerk, she obeyed the robber’s order to

open the cash register, which held between $400 and $500 cash, and she complied with another

order by placing six cartons of Newport cigarettes in the robber’s backpack. Police officers

2 testified that they had stopped the defendant in the vicinity of the Meijer gas station, shortly after

the robbery, after he had run from them. The defendant had $411 in his pants pocket, and he

possessed a backpack that contained an unloaded Colt .45 pistol and six cartons of Newport

cigarettes. At a police show-up, the salesclerk identified the defendant as the robber, although she

admitted that his face was largely covered at the time of the robbery and that her identification was

based on the defendant’s clothing and backpack. In addition, the store’s surveillance video showed

the robber brandishing a handgun. The jury, after less than an hour of deliberation, found the

defendant guilty as charged.

¶8 In September 2012, the defendant was sentenced, also in absentia, to imprisonment for 30

years, plus 3 years of mandatory supervised release. A warrant was issued for his arrest. The clerk

of the circuit court, at the request of defense counsel, filed a notice of appeal on behalf of the

defendant, perfecting an appeal from the judgment of conviction (case No. 4-12-0900).

¶9 In June 2013, months after his trial and sentencing in absentia, the defendant was arrested

in Indiana. He subsequently appeared in the circuit court and was remanded to prison to begin

serving his 30-year sentence. He filed a motion for a new trial, wherein he claimed that his absence

was not willful, but the circuit court denied the motion. The defendant appealed (case No. 4-13-

0813).

¶ 10 The two appeals—one from the judgment of conviction, one from the denial of the motion

for new trial—were consolidated. On direct appeal, the defendant argued, inter alia, that the

circuit court had erred in proceeding to trial and sentencing in absentia.

¶ 11 In June 2014, the Appellate Court, Fourth District, entered an unpublished order that

affirmed the circuit court’s judgment. People v. Taylor, 2014 IL App (4th) 120900-U. The Fourth

3 District stated, inter alia, that the circuit court had properly found that the defendant’s absence was

willful, and that trial and sentencing in absentia were therefore appropriate.

¶ 12 The Defendant’s First Section 2-1401 Petition, Dismissals, and Appeals

¶ 13 While the direct appeal was still pending before the Fourth District—and specifically in

March 2014—the defendant filed a pro se petition for relief from judgment, pursuant to section 2-

1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2014)). The defendant

claimed that he was not afforded a timely preliminary hearing, that he was arrested simply because

he was “a black male,” and that no eyewitness identified him as the robber. The State filed a

motion to dismiss that petition. Just three days after the State filed its motion to dismiss, the circuit

court entered an order finding that the motion was “well taken” and dismissing the defendant’s

section 2-1401 petition. The defendant appealed.

¶ 14 On appeal, the State conceded that the circuit court had erred in its handling of the

defendant’s section 2-1401 petition. In April 2016, the Fourth District entered a summary order

that accepted the State’s confession of error and held that the circuit court had deprived the

defendant of due process where it considered the State’s motion to dismiss the section 2-1401

petition without first affording the defendant an opportunity to respond to the State’s motion to

dismiss. The dismissal order was vacated, and the cause was remanded for further proceedings.

People v. Taylor, No. 4-14-0456 (2016) (unpublished summary order under Illinois Supreme Court

Rule 23(c)(2)).

¶ 15 On remand, in July 2016, the defendant filed another section 2-1401 petition for relief from

judgment. This petition purported to respond to the State’s motion to dismiss. It raised new claims,

additional to those raised in the March 2014 petition. The State filed a motion to dismiss, and the

defendant responded to the State’s motion. In October 2016, the circuit court agreed with the State

4 and dismissed the defendant’s section 2-1401 petition. The defendant appealed. OSAD was

appointed to represent him on appeal.

¶ 16 On appeal, OSAD filed with the Fourth District a Finley motion to withdraw as counsel.

The defendant asked the Fourth District to allow OSAD to withdraw and to permit him to proceed

pro se. The defendant also argued that the claims in his section 2-1401 petition had merit. The

State filed with the Fourth District a brief arguing that the defendant’s section 2-1401 petition did

not contain any meritorious issues for review.

¶ 17 In November 2019, the Fourth District entered an order that allowed OSAD to withdraw

as counsel and permitted the defendant to proceed pro se. The Fourth District did not address the

merits of the new claims presented by the defendant in his section 2-1401 petition filed in July

2016 (due to their being put forth outside the two-year statute of limitations applicable to a section

2-1401 petition), but it did address the claims presented in the original section 2-1401 petition filed

in March 2014. The Fourth District, disagreeing with the defendant, found that the defendant’s

preliminary hearing was not untimely. As for the claims that the defendant was arrested solely for

being a “black male” and that no eyewitness had identified him, the Fourth District held that these

allegations were not properly raised in a section 2-1401 petition, but nevertheless the claims lacked

merit. The court granted OSAD’s Finley motion to withdraw and affirmed the circuit court’s

dismissal of the section 2-1401 petition. People v. Taylor, 2019 Il App (4th) 160746-U.

¶ 18 (In addition to the above collateral attacks on the judgment of conviction, the defendant

also filed another section 2-1401 petition and a petition for postconviction relief. The circuit court

dismissed both.)

5 ¶ 19 The Two Petitions That Are the Subject of the Instant Appeal

¶ 20 On January 3, 2022, the defendant filed a pro se petition for relief from judgment pursuant

to section 2-1401 (735 ILCS 5/2-1401 (West 2022)). (It was the fourth petition under section 2-

1401 that the defendant filed in the circuit court.) In that petition, the defendant claimed (1) that

his 30-year sentence was and remained void, where the circuit court, at the time of imposing

sentence, failed to advise the defendant of his appeal rights, in accordance with Illinois Supreme

Court Rule 605(a) (advice to defendant on judgment and sentence after plea of not guilty); (2) that

his 30-year sentence constituted cruel and unusual punishment, in violation of the eighth

amendment to the United States Constitution, and also violated the proportionate-penalties clause

of the Illinois Constitution; (3) that his 30-year sentence “no longer advance[s] the interests of

justice,” and the state’s attorney now may petition for a lesser sentence, and the sentencing court

may grant the State’s motion (see 725 ILCS 5/122-9 (West 2022) (“Motion to resentence by the

People”)); and (4) that he met “the eligibility criteria” for “both earned discretionary release and

[a] parole hearing” due to the time he has spent in prison and his good-behavior credit (see 730

ILCS 5/3-3-3 (West 2022) (“Eligibility for Parole or Release”)).

¶ 21 On September 7, 2022, the State filed a “motion to strike or dismiss” the defendant’s

section 2-1401 petition. First and foremost, the State relied upon the two-year statute-of-

limitations period for a section 2-1401 petition, citing section 2-1401(c) of the Code (735 ILCS

5/2-1401(c) (West 2022)). The State noted that the defendant was sentenced in September 2012,

and that the two-year period therefore had expired in 2014. In regard to the petition’s first issue—

i.e., the defendant’s sentence was void because the circuit court, at the time of imposing sentence,

failed to advise the defendant of his appeal rights—the State countered that where a defendant is

6 willfully absent from his sentencing hearing, he has waived his right to be personally informed of

his appeal rights, citing People v. Woolridge, 292 Ill. App. 3d 788, 792 (1997).

¶ 22 On January 30, 2023, the defendant filed a one-page response to the State’s motion to

dismiss his section 2-1401 petition. Essentially, he repeated that the circuit court, at the time of

sentencing, failed to admonish him of his appeal rights.

¶ 23 On March 2, 2023, the circuit court entered a written order dismissing the defendant’s

section 2-1401 petition. The court found, inter alia, that the petition’s claims were “untimely and

forfeited.”

¶ 24 Approximately three months after the defendant filed his third section 2-1401 petition—

i.e., on March 31, 2022—the defendant filed a pro se petition for mandamus relief. See 735 ILCS

5/14-101 (West 2022). This petition was captioned, “Edward L. Taylor, Plaintiff, vs People of the

State of Illinois, Defendant.” He repeated his grievance that the sentencing judge, at the time of

imposing sentence, failed to admonish him of his appeal rights, as required by Rule 605. He also

stated that he had asked “the defendants” to perform “specific ministerial duties,” but that they had

refused to perform those duties despite his “clear entitlement” to them. The defendant specified

that he had asked for, and had been refused, a resentencing to 15 years in prison and an

admonishment of his appeal rights. As a result, the defendant stated, he would suffer “continued

illegal incarceration on a void sentence.” The defendant prayed for an order of mandamus that

compelled the “Defendant,” i.e., the “People of the State of Illinois,” to resentence him to 15 years

in prison and, after he is resentenced, to admonish him of his appeal rights. The State did not file

any responsive pleading.

¶ 25 On March 2, 2023, the circuit court entered a written order that denied the defendant’s

petition for mandamus relief. The denial came on the same day that the court dismissed the

7 defendant’s section 2-1401 petition; it came approximately 11 months after the mandamus petition

was filed.

¶ 26 The clerk of the circuit court, acting on the request of the defendant, filed a notice of appeal

from both the order dismissing the section 2-1401 petition and the order denying the mandamus

petition. Both matters are before this district of the Appellate Court, now that Champaign County

is within this district’s geographical boundaries.

¶ 27 ANALYSIS

¶ 28 The defendant appeals from the dismissal of his section 2-1401 petition and the denial of

his mandamus petition. As previously noted, OSAD has concluded that this appeal is meritless;

accordingly, it has filed a Finley motion to withdraw. This court first addresses the dismissal of

the section 2-1401 petition.

¶ 29 A section 2-1401 petition brings to the attention of the circuit court facts that would have

precluded entry of a judgment if those facts had been known at the time the judgment was entered.

People v. Pinkonsly, 207 Ill. 2d 555, 566 (2003). Section 2-1401 authorizes a circuit court “to

vacate or modify a final order or judgment in civil or criminal proceedings.” Warren County Soil

& Water Conservation District v. Walters, 2015 IL 117783, ¶ 31. When the circuit court dismisses

a section 2-1401 petition, this court reviews the matter de novo. People v. Vincent, 226 Ill. 2d 1,

18 (2007).

¶ 30 Section 2-1401 provides that a petition must be filed within two years of the entry of the

underlying judgment or order. 735 ILCS 5/2-1401(c) (West 2022). Without doubt, the defendant

failed to file his petition within this two-year limitations period. After all, the underlying judgment

in the instant case was entered in September 2012, when the defendant was sentenced, and his

section 2-1401 petition was not filed until January 2022, nearly one decade later. Where a section

8 2-1401 petition is filed more than two years after the underlying judgment was entered, it generally

“cannot be considered.” People v. Caballero, 179 Ill. 2d 205, 210 (1997).

¶ 31 Section 2-1401(f) makes clear that the two-year limitations period does not apply if the

judgment being challenged is “void” (735 ILCS 5/2-1401(f) (West 2022)), and in his section 2-

1401 petition, the defendant claimed that his 30-year prison sentence was “void.” The defendant

argued that the sentence was “void” because the circuit court, at the time it imposed the sentence,

failed to advise the defendant of his appeal rights, in accordance with Illinois Supreme Court Rule

605(b).

¶ 32 However, the absence of admonishments after the judgment has been entered does not

render the judgment void. See, e.g., People ex rel. Alvarez v. Skryd, 241 Ill. 2d 34, 42 (2011)

(“While the absence of admonishments is erroneous, the error does not render the judgment of a

circuit court void, so that a defendant can raise the issue at any time.”). In Illinois, a judgment is

void only if the court that entered the judgment lacked personal or subject-matter jurisdiction, or

if the judgment was based on a facially unconstitutional statute that was void ab initio. People v.

Thompson, 2015 IL 118151, ¶¶ 31-32; see also People v. Castleberry, 2015 IL 116916, ¶¶ 11-19.

The underlying judgment here was not void. The defendant did not make any allegations that

could possibly suggest that it was void. Accordingly, the defendant’s section 2-1401 petition

simply could not be considered. The circuit court’s dismissal of the petition was not error.

¶ 33 As for the denial of the defendant’s mandamus petition, here too there is no error.

¶ 34 Mandamus relief is an extraordinary remedy which will not be granted unless the petitioner

establishes he has a clear right to the relief requested, the respondent public officer has a clear duty

to act, and the public officer has clear authority to comply with the order. People ex rel. Birkett v.

Konetski, 233 Ill. 2d 185, 192-93 (2009). If the act in question involves the exercise of an official’s

9 discretion, relief will not be granted. Id. at 193. This court reviews de novo whether the circuit

court correctly entered a judgment on pleadings. Vincent, 226 Ill. 2d at 14.

¶ 35 Here, the defendant is unable to state a claim for mandamus relief. He does not have a

clear right to the relief requested—i.e., resentencing, followed by an admonition on appeal rights

—and neither of the other two requirements has been met. Mandamus cannot be used to review

orders or judgments for error, or to alter a judge’s actions when he had the jurisdiction to act. See

In re Commitment of Phillips, 367 Ill. App. 3d 1036, 1042 (2006). Here, the sentencing judge

certainly had the jurisdiction to act, i.e., to sentence the defendant. Sentencing is a matter of

discretion. See People v. Perruquet, 68 Ill. 2d 149, 153 (1977). Accordingly, mandamus relief

simply could not have been granted here. The circuit court did not err in denying the defendant’s

mandamus petition.

¶ 36 CONCLUSION

¶ 37 For the reasons stated, the circuit court did not err in dismissing the defendant’s section 2-

1401 petition for relief from judgment or in denying his petition for mandamus relief, and no

argument to the contrary would have merit. Therefore, this court grants OSAD’s Finley motion

for leave to withdraw as counsel and affirms the judgment of the circuit court.

¶ 38 Motion granted; judgment affirmed.