People v. Weis

2023 IL App (5th) 230153-U

Opinion

2023 IL App (5th) 230153-U NOTICE NOTICE Decision filed 12/15/23. The This order was filed under text of this decision may be NO. 5-23-0153 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition 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. 17-CF-825 ) MICHAEL WEIS, ) Honorable ) Kyle A. Napp, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE BARBERIS delivered the judgment of the court. Justices Moore and McHaney concurred in the judgment.

ORDER

¶1 Held: Where defendant’s section 2-1401 petitions raised purely legal claims inappropriate for relief under that provision and lacked merit in any event, the circuit court properly dismissed them. As any argument to the contrary would lack merit, we grant defendant’s appointed counsel on appeal leave to withdraw and affirm the circuit court’s judgment.

¶2 Defendant, Michael Weis, appeals the circuit court’s order dismissing three petitions

pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West

2020)). His appointed appellate counsel, the Office of the State Appellate Defender (OSAD), has

concluded that there is no reasonably meritorious argument that the circuit court erred.

Accordingly, it has filed a motion to withdraw as counsel along with a supporting

memorandum. See Pennsylvania v. Finley, 481 U.S. 551 (1987). OSAD has notified defendant

of its motion and this court has provided him an opportunity to file a response, which he has done. 1 However, after considering the record on appeal, OSAD’s memorandum and supporting brief, and

defendant’s response, we agree that this appeal presents no reasonably meritorious issues. Thus,

we grant OSAD leave to withdraw and affirm the circuit court’s judgment.

¶3 BACKGROUND

¶4 Following a jury trial, defendant was found guilty of eight offenses involving K.S.: two

counts of aggravated criminal sexual abuse, three counts of criminal sexual assault, and three

counts of child pornography for three separate images. The indictment alleged that all of the

offenses occurred between January 1, 2017, and March 20, 2017, when K.S. was 13 years old.

¶5 At trial, K.S. testified that defendant, while in his basement, touched her vagina under her

underwear and her breasts over her clothes. Defendant put his penis in her vagina “a few times”

during separate visits to a place known as “The Game Room.” At defendant’s request, she sent

him nude or partially nude pictures of herself over an extended period. A large number of text

messages between defendant and K.S., spanning the entire period from January through March

2017, were also admitted into evidence.

¶6 The court sentenced defendant to four years’ imprisonment for each conviction of

aggravated criminal sexual abuse, six years for each conviction of sexual assault, and five years

for each child-pornography conviction. The court ordered the sentences for sexual abuse to run

concurrently with each other. The sentences for the remaining convictions were to run

consecutively with each other and with the sexual-abuse sentences, for an aggregate of 37 years.

¶7 On direct appeal, defendant alleged numerous errors, including that the court erred in

denying a pretrial motion to dismiss on speedy-trial grounds. We affirmed the convictions and

sentences. People v. Weis, 2022 IL App (5th) 210076-U.

2 ¶8 On June 6, 2022, defendant filed a motion for reduction of sentence. The circuit court

dismissed it as untimely and we affirmed. People v. Weis, 2023 IL App (5th) 220466-U.

¶9 In August 2022, defendant filed three separate section 2-1401 petitions. In the first, he

contended that his sentence was void because the court did not comply with section 5-8-4(f)(2) of

the Unified Code of Corrections (730 ILCS 5/5-8-4(f)(2) (West 2020)), which provides that the

aggregate consecutive sentence for multiple convictions “not exceed the sum of the maximum

terms authorized *** for the 2 most serious felonies involved,” which in this case would have been

30 years. Defendant further argued that “the court should have combined Counts 1-5 and Counts

6-8 into single sentences as the offenses were ‘committed as part of a single course of conduct’

during which there was no substantial change in the nature of the criminal objective.”

¶ 10 The second petition contended that the State failed to indict him within 60 days of his

March 21, 2017, arrest as required by section 109-3.1 of the Code of Criminal Procedure of 1963

(725 ILCS 5/109-3.1 (West 2016)), where he was charged by information on March 23, 2017, but

no indictment was filed until October 25, 2018. The third petition contended that he was deprived

of his right to a speedy trial and that the court’s order denying his motion to dismiss on that ground

contained erroneous findings.

¶ 11 The State moved to dismiss all three petitions arguing that defendant’s claims did not raise

factual issues and were thus inappropriate for section 2-1401 relief. Defendant responded

contending that purely legal issues may be raised in a section 2-1401 petition and that his

convictions were void. The court granted the motion to dismiss, finding that defendant’s claims

were either not appropriate for a section 2-1401 petition, could have been raised on direct appeal

and were thus waived and that his speedy-trial argument was raised on direct appeal and was thus

barred by res judicata. Defendant timely appealed.

3 ¶ 12 ANALYSIS

¶ 13 OSAD identifies three potential issues that it could raise on defendant’s behalf but

concludes that none has even arguable merit. We agree.

¶ 14 OSAD’s first potential issue is whether the circuit court correctly held that defendant’s

issues were not appropriate for section 2-1401 petitions. It concludes, however, that they were not

and there is no meritorious argument to the contrary.

¶ 15 Section 2-1401 of the Code constitutes a comprehensive statutory procedure authorizing a

trial court to vacate or modify a final judgment in a civil or criminal proceeding. People v.

Thompson, 2015 IL 118151, ¶ 28 (citing Warren County Soil & Water Conservation District v.

Walters, 2015 IL 117783, ¶ 31). To obtain relief under section 2-1401, a defendant must

affirmatively set forth specific factual allegations supporting each of three 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 petition. People v.

Pinkonsly, 207 Ill. 2d 555, 565-66 (2003) (citing Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21

(1986)). The petition must be supported by affidavit or other appropriate showing as to matters

not of record. 735 ILCS 5/2-1401(b) (West 2020).

¶ 16 A meritorious defense under section 2-1401 involves errors of fact, not law. Pinkonsly,

207 Ill. 2d at 565 (citing People v. Haynes, 192 Ill. 2d 437, 461 (2000)). This is because the

purpose of such petition is to correct errors of fact that were unknown to the petitioner and the

court when the judgment was entered, but which, if then known, would have prevented its

rendition. Id. A section 2-1401 petition, however, is not designed to provide a general review of

all trial errors nor to substitute for a direct appeal. Id.

4 ¶ 17 Here, each of defendant’s petitions raised purely legal issues. He alleged no new facts that,

if known, would have prevented the judgment. Thus, on this basis alone, the circuit court properly

dismissed the petitions.

¶ 18 In his response, defendant, citing Walters, insists that a section 2-1401 petition may include

purely legal issues. As we explain, this is true, but only in very limited circumstances that do not

apply here.

¶ 19 In Thompson, the court held that a section 2-1401 petition is exempt from the usual

procedural rules governing such proceedings only where it alleges that the judgment is void.

Thompson, 2015 IL 118151, ¶¶ 31-33. The court further held that a voidness challenge is available

only in two situations: where the petition plausibly contends that the trial court lacked personal or

subject-matter jurisdiction (id. ¶ 31) and where the judgment was based on a facially

unconstitutional statute that was void ab initio (id. ¶ 32).

¶ 20 Thompson identified a third situation that had historically been held to render a judgment

void: the so-called “void sentence” rule, by which a sentence outside the statutory limits was held

to be void. Id. ¶ 33. The court noted, however, that People v. Castleberry, 2015 IL 116916, ¶ 19,

had abolished the void-sentence rule and, consequently, “that type of challenge is no longer valid.”

Thompson, 2015 IL 118151, ¶ 33.

¶ 21 Thompson was decided after Walters and cited it with approval. There is thus no basis for

defendant’s premise that Walters marked a break from prior precedent and signaled that any legal

claim may now be raised in a section 2-1401 petition.

¶ 22 Further, the judgment here was not void. In his response, defendant freely admits he is

alleging neither that the circuit court lacked jurisdiction nor that the judgment was based on a

5 facially unconstitutional statute. He insists, however, that the alleged procedural errors he

identifies divested the court of jurisdiction, rendering the judgment void. This is simply untrue.

¶ 23 In Castleberry, the court observed that circuit courts’ jurisdiction is conferred by the

Illinois Constitution, which provides that those courts have jurisdiction of all “ ‘justiciable

matters.’ ” Castleberry, 2015 IL 116916, ¶ 15 (quoting Ill. Const. 1970, art. VI, § 9). The court

observed that alleging that a judgment is void means that it may be challenged in perpetuity, which

severely impairs the finality of judgments. “Accordingly, only the most fundamental defects, i.e.,

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

judgment void.” (Internal quotation marks omitted.) Id. In other words, a legal mistake cannot

divest the court of its constitutionally conferred jurisdiction, “for the power to decide carries with

it the power to decide wrong as well as to decide right.” People v. Davis, 156 Ill. 2d 149, 156

(1993).

¶ 24 In his first and third petitions, defendant alleged nothing more than that the circuit court

“decided wrong” with regard to application of the consecutive-sentencing statute and the

disposition of his speedy-trial motion. Defendant’s second petition, alleging that the State did not

timely indict him, is another legal argument based on an interpretation of the applicable statute.

¶ 25 OSAD further concludes that defendant’s contentions have no merit in any event. Thus,

even assuming that they could properly be raised in section 2-1401 petitions, the court nevertheless

properly dismissed them. Defendant’s first petition contended that his aggregate 37-year sentence

violated section 5-8-4(f)(2) of the Unified Code of Corrections because the aggregate sentence

exceeded the maximum term for the two most serious felonies of which he was convicted. He

argued that his two most serious convictions were for Class 1 felonies. The maximum term for

such a felony is 15 years for a maximum aggregate term of 30 years.

6 ¶ 26 Section 5-8-4(f)(2) provides in relevant part as follows:

“the aggregate of consecutive sentences for offenses that were committed as part of a single

course of conduct during which there was no substantial change in the nature of the

criminal objective shall not exceed the sum of the maximum terms authorized under Article

4.5 of Chapter V for the 2 most serious felonies involved, but no such limitation shall apply

for offenses that were not committed as part of a single course of conduct during which

there was no substantial change in the nature of the criminal objective.” 730 ILCS 5/5-8-

4(f)(2) (West 2020).

¶ 27 OSAD observes that the limitation in section 5-8-4(f)(2) applies only when offenses were

committed as part of a single course of conduct. However, multiple sexual assaults occurring on

different dates are not considered a single course of conduct. People v. Bole, 155 Ill. 2d 188, 193-

94 (1993).

¶ 28 Here, K.S. testified that defendant committed sexual offenses against her on several

different dates spanning nearly three months. She said that defendant touched her vagina under

her underwear and her breasts over her clothes one time in his basement. She said that defendant

subsequently put his penis in her vagina “a few times” on multiple occasions after taking her to

“The Game Room.” On cross-examination, she clarified that this happened more than once.

Moreover, on another occasion, defendant pushed her mouth onto his penis. She also sent him

pictures at his request of her butt and breasts over an extended period of time, of which she

identified three at trial. Text messages between K.S. and defendant corroborated her testimony

that their sexual relationship lasted for approximately three months. As the offenses were not part

of a single course of conduct, section 5-8-4(f)(2) did not apply.

7 ¶ 29 In response, defendant argues that because K.S. could not remember specific dates on

which offenses occurred, it is possible that the offenses occurred on the same day and thus could

be considered part of a single course of conduct. When filing a section 2-1401 petition, the

defendant had the burden to establish a meritorious defense. Pinkonsly, 207 Ill. 2d at 565-66.

Merely postulating a scenario in which he would have a possible defense does not meet this burden.

Moreover, given K.S.’s testimony that offenses occurred on multiple occasions, there is simply no

evidence to support a conclusion that the offenses all occurred on the same day. Thus, they could

not have been part of a single course of conduct.

¶ 30 The conclusion that defendant’s offenses did not constitute a single course of conduct also

disposes of his contention that consecutive sentences were prohibited. Section 5-8-4(a) of the

Unified Code of Corrections formerly prohibited consecutive sentences for offenses committed in

a single course of conduct. See People v. Sergeant, 326 Ill. App. 3d 974, 985 (2001) (citing 730

ILCS 5/5-8-4(a) (West 1994)). However, where offenses were not committed as part of a single

course of conduct, the court had discretion to impose consecutive sentences where necessary to

protect the public from the defendant’s further criminal conduct. Id. (citing 730 ILCS 5/5-8-4(b)

(West 1994)).

¶ 31 Defendant’s second petition contended that the State did not return an indictment against

him within 60 days of his arrest as required by section 109-3.1 of the Code of Criminal Procedure

of 1963. He pointed out that he was arrested on March 21, 2017, but no indictment was returned

until October 25, 2018.

¶ 32 Initially, defendant misreads the relevant statute. Section 109-3.1 requires that a defendant

who has been released pretrial is entitled to either a preliminary hearing or an indictment within

60 days of his or her arrest. 725 ILCS 5/109-3.1(b) (West 2016). The purpose of this requirement

8 is to ensure that a defendant will not be held in custody or to bail without a prompt showing of

evidence that a crime has been committed. People v. Roby, 200 Ill. App. 3d 1063, 1067 (1990).

A prompt preliminary hearing is sufficient even if the State later brings additional charges. People

v. Redmond, 67 Ill. 2d 242, 248-49 (1977).

¶ 33 Here, defendant was arrested on March 21, 2017. The State filed an information on March

23, 2017, and an amended information on April 6, 2017. On April 6, 2017, the case was called for

a preliminary hearing, which defendant waived. Thus, he was afforded the opportunity for a

preliminary hearing well within the 60-day time limit. Having waived that right, he cannot now

contend that the State failed to provide one.

¶ 34 In any event, a failure to comply with section 109-3.1 would not render defendant’s

conviction void. Indeed, even where a defendant timely raises the issue, the only remedy is the

dismissal of the charging instrument without prejudice. Roby, 200 Ill. App. 3d at 1067. Defendant

cannot plausibly argue that the failure to comply with section 109-3.1 renders his conviction void

where, even had he timely and successfully raised the issue, the State would have been able to

recharge him.

¶ 35 Defendant’s third petition contended that the trial court erred in denying his motion to

dismiss on speedy-trial grounds. He raised this issue on direct appeal and it is thus barred by

res judicata. See People v. Addison, 371 Ill. App. 3d 941, 945 (2007) (res judicata bars a

defendant from using a section 2-1401 petition to obtain relief on points previously raised).

¶ 36 In his response, defendant insists that he did not previously contend that the judgment was

void because the court erroneously denied his speedy-trial motion. However, as explained above,

the denial of a motion, even if erroneous, cannot divest a court of its constitutionally conferred

jurisdiction. Davis, 156 Ill. 2d at 156. Because defendant contended on direct appeal that the court

9 erred in denying his speedy-trial motion, res judicata bars relitigating the issue in a section 2-1401

petition.

¶ 37 Finally, OSAD concludes that there is no good-faith argument that the court committed a

procedural error in dismissing the petitions. In People v. Laugharn, 233 Ill. 2d 318, 323 (2009),

the supreme court held that the sua sponte dismissal of a section 2-1401 petition prior to the “usual

30-day period” for the State to answer was error. Here, however, the State moved to dismiss the

petitions prior to the court’s ruling. Thus, the court complied with Laugharn.

¶ 38 CONCLUSION

¶ 39 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and

affirm the circuit court’s judgment.

¶ 40 Motion granted; judgment affirmed.