People v. White

2023 IL App (1st) 210385-U

Opinion

2023 IL App (1st) 210385-U FOURTH DIVISION Order filed May 11, 2023

No. 1-21-0385 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 Cook Plaintiff-Appellee, ) County. ) v. ) No. 98 CR 24383 ) SEDRICK WHITE, ) Honorable ) Patrick Kevin Coughlin, Defendant-Appellant. ) Judge, presiding.

JUSTICE HOFFMAN delivered the judgment of the court. Justices Rochford and Martin concurred in the judgment.

ORDER

¶ 1 Held: We affirmed the denial of 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 2020)) where the circuit court’s failure to recharacterize the petition as a postconviction petition pursuant to the Post-Conviction Hearing Act (725 ILCS 5/121-1 et seq. (West 2020)) is not reviewable and the trial court did not err when it denied the defendant’s petition where his guilty plea waived all constitutional errors. No. 1-21-0385

¶2 The defendant, Sedrick White, appeals from the judgment of the Circuit Court of Cook

County denying his petition for relief from judgment pursuant to section 2-1401 of the Code of Civil

Procedure (735 ILCS 5/2-1401 (West 2020)). On appeal, the defendant contends the circuit court

erred when it failed to recharacterize his petition as a postconviction petition pursuant to the

PostConviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2020)). The defendant also contends

that the circuit court erred when it denied his petition for postjudgment relief because his sentence

violated the proportionate penalties clause (Ill. Const. 1970 art. 1, § 11) as applied to him because

the sentencing court did not adequately consider his rehabilitative potential and any of the attributes

of youth that extend to young adults. The State responds that the defendant waived his constitutional

claim by pleading guilty. For the reasons that follow, we affirm.

¶3 In 1998, the 20-year-old defendant was charged in a four-count indictment with three counts

of first degree murder and one count of home invasion. On February 9, 1999, the circuit court

conducted a Supreme Court Rule 402 (eff. July 1, 2012) conference. The conference was not

transcribed on the record. The defendant elected not to accept an offer made by the State following

the conference and instead told his attorney that he wished to plead guilty and make a statement to

the court.

¶4 On April 8, 1999, the defendant agreed to plead guilty to Count I (knowingly killed the

victim) in exchange for the State dismissing the remaining counts. When asked whether he wanted

to plead guilty, the defendant stated he would like to “[r]edeem myself and try to show you that I

don’t deserve 40 years.” The circuit court admonished the defendant: that he did not have to plead

guilty; that he had a right to a trial and that by pleading guilty he was giving up that right; that the

charge was first degree murder and that the sentencing range was from 20 to 60 years of

incarceration; that the defendant’s prison sentence would be followed by three years of mandatory

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supervised release (MSR); and that he was not eligible for probation. The defendant responded that

he wished to waive trial and plead guilty. The circuit court admonished the defendant a second time

and then asked him if he had signed the jury waiver which had been presented to the court. The

defendant stated that he had and wished to give up his right to a jury trial. The defendant further

indicated that he was giving up his right to confront and cross-examine the witnesses against him

and the right to present evidence on his own behalf. The circuit court asked whether any threats or

promises and been made to the defendant, and when he replied “no” the court asked the State to

present a factual basis for the plea.

¶5 The State offered a factual basis. The State alleged that the evidence would show that the

defendant was working “security” for a drug operation. He left his position, but asked Grant Kelly

to watch for the police while he was away. When the defendant returned, he discovered that Kelly

had also left his position. The defendant found Kelly, they fought briefly, and Kelly ran into an

apartment building, and hid in the victim’s apartment. As Kelly was attempting to escape out a

window, the defendant entered the apartment and confronted the victim. When the victim refused to

tell the defendant where Kelly was located, he shot the victim in the head. Kelly escaped out the

window and the defendant fled the scene.

¶6 The circuit court found that there was a factual basis for the plea, and that the defendant

understood the nature of the charge and possible penalties. The court concluded that the defendant

was entering his plea knowingly and voluntarily and accepted his plea of guilty to Count I of the

indictment.

¶7 The parties agreed to adopt a pre-trial investigation as the presentence investigation and the

circuit court conducted a sentencing hearing. The parties stipulated to the admissibility of a statement

made by the defendant while in custody and a report from the medical examiner, and the State

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published those documents. The statement and medical examiner’s report were consistent with the

factual basis presented earlier. The defendant presented the testimony of his grandmother, Eva White,

in mitigation. Eva testified that she raised the defendant and he had never been involved with gangs

or drugs. She testified that he was a sensitive boy who obeyed the rules of her house.

¶8 The parties presented arguments and the circuit court asked the defendant if he wished to

speak before sentencing. The defendant apologized to the victim’s family and asked the court to

impose a sentence that would allow him to “go back out and raise his son.”

¶9 The circuit court imposed a sentence of forty years’ incarceration. The circuit court

admonished the defendant regarding his appeal rights. Approximately 10 days later, the circuit court,

on its own motion, re-admonished the defendant as follows:

“THE COURT: I asked that the case be brought into court and the defendant be brought into

court because I believe since this was a blind plea that I -- he was improperly given the wrong

admonitions with respect to after the plea.

So [what] I am going to do is admonish him, which I believe to have been a proper

admonishments. I gave the admonishments which are basically given after trial, this was a

blind plea.

I am going to give the appropriate admonishments at this time so there is no confusion as to

what the admonishments are.

You have 30 days in which to file a petition to withdraw the previous guilty plea and appeal it. In order to go forward with that right you must file within 30 days of today's date

a written motion asking for the judgment and the plea to be vacated. And that motion must

be in writing. And it must set forth the grounds or basis for the motion.

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If you are challenging the sentence you must move to withdraw the plea of guilty,

also or [sic] you must file a motion for reconsideration of that sentence within 30 days of

today.

Do you understand that?

THE DEFENDANT: Yes.

THE COURT: If that is not done you will also [lose] your right to appeal the finding and the

sentence in this case. Do you understand that?

THE COURT: If you want me to reconsider the sentence you have to file a motion within 30

days of today's date, I am going to give you from today's date. Do you understand that?

THE COURT: And also if you want to move to withdraw your plea of guilty you have 30

days in which to file a petition and withdraw your plea of guilty because it was a blind plea

of guilty, do you understand that?

THE COURT: Your motion must be in writing setting forth the grounds for your motion. You

will be given a copy of the transcript of the proceedings without cost. And an attorney would

be appointed to represent you in this matter.

THE COURT: Do you understand you have to file those within 30 days of today's date, is

that clear?

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THE DEFENDANT: Yes.”

The defendant moved to reconsider the sentence and the circuit court denied the motion. The

defendant did not appeal.

¶ 10 In 2019, the defendant filed, pro se, a petition entitled “Petition for Post-Judgment Relief.”

The first line of the petition indicated that it was brought pursuant to “735 ILCS 5/2-1401 (f).” The

defendant cited section 2-1401 several more times in the two-page petition. The petition does not

refer to or cite the Post-Conviction Hearing Act.

¶ 11 Filed the same day was a document entitled “Memorandum of Law in Support of the Petition

for Relief from Judgment Pursuant to 735 ILCS 5/2-1401.” The memorandum contained six

“arguments.” Relevant here is argument six in which the defendant contended that his sentence

constituted a de facto life sentence and violated the eighth amendment of the United States

Constitution (U.S. Const. amend. VIII) and the proportionate penalties clause of the Illinois

Constitution (Ill. Const. 1970 art. 1, § 11). The defendant argued that the circuit court should vacate

his sentence and that “leave of the court should be granted if a petitioner demonstrates cause for his

failure to bring his claim in a prior proceeding, and he was prejudiced by the claimed error.” The

defendant cited People v. Pitsonbarger, 205 Ill. 2d 444 (2002), a case concerning a petition for

postconviction relief, but did not cite or otherwise reference the Post-Conviction Hearing Act. The

defendant argued that his 40-year sentence violated the proportionate penalties clause because it

failed to take into account his youth and was not guided by recent research in brain development and

case law recognizing that young adults lack the ability to foresee the consequences of their action

and have a greater potential for redemption.

¶ 12 The State did not file a response to the section 2-1401 petition.

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¶ 13 On February 26, 2021, the circuit court, in a written order, denied the defendant’s section

21401 petition, concluding, in relevant part, that the eighth amendment did not prohibit the

defendant’s sentence because he was over the age of 18 at the time of the offense and that the

defendant’s sentence was not a de facto life sentence because it was not in excess of 40 years. The

defendant filed a timely notice of appeal.

¶ 14 On May 17, 2021, the defendant filed a motion for extension of time to file a motion to

reconsider the denial of his petition instanter. The motion for reconsideration requested that the

circuit court reconsider its decision and consider the petition in accordance with the Post-Conviction

Hearing Act. The circuit court denied the motion as untimely, and this appeal follows.

¶ 15 This appeal presents three issues: (1) whether the circuit court erred when it failed to

recharacterize the defendant’s petition; (2) whether the section 2-1401 petition was timely filed; and

(3) whether the defendant presented a meritorious claim or defense when he argued that his sentence

was unconstitutional under the proportionate penalties clause.

¶ 16 First we address the defendant’s contention that the circuit court erred when it failed to

recharacterize his section 2-1401 petition as a petition under the Post-Conviction Hearing Act. The

State responds that, because a court is under no obligation to recharacterize a pleading as a

postconviction petition, it cannot be error to fail to do so. We agree with the State.

¶ 17 The Post-Conviction Hearing Act provides a method for reviewing constitutional errors

alleged to have occurred during the proceedings leading to an incarcerated person’s conviction and

sentencing. See People v. Johnson, 2021 IL 125738, ¶ 22. Section 122-1(d) of the Act provides that:

“A person seeking relief by filing a petition under this Section must specify in the petition

or its heading that it is filed under this Section. A trial court that has received a petition

complaining of a conviction or sentence that fails to specify in the petition or its heading that

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it is filed under this Section need not evaluate the petition to determine whether it could

otherwise have stated some grounds for relief under this Article.” 725 ILCS 5/1221(d) (West

2020).

¶ 18 In People v. Shellstrom, 216 Ill. 2d 45, 53 n.1 (2005), the supreme court observed: “We note

that, while a trial court may treat a pro se pleading as a postconviction petition, there is no

requirement that the court do so.” (Emphasis in original.) Subsequently the court held that “[i]t

cannot be error for a trial court to fail to do something it is not required to do.” People v. Stoffel, 239

Ill. 2d 314, 324 (2010). The supreme court concluded that, in light of section 122-1(d), a circuit

court’s decision not to recharacterize a defendant’s pro se pleading as a postconviction petition may

not be reviewed for error. Id.

¶ 19 The defendant acknowledges the holding in Stoffel but argues that where a pleading makes

explicit reference to the Act, a circuit court is obligated to consider a pleading under the Act. The

defendant relies on People v. McDonald¸ 373 Ill. App. 3d 876 (2007), and People v. Weber, 2021 IL

App (2d) 190841, for support. We find these cases distinguishable from the case at bar.

¶ 20 In McDonald, the defendant appealed after the circuit court dismissed his postconviction

petition for failing to cite the Act. McDonald, 373 Ill. App. 3d at 878. The pro se petition had the

words “Ill. Post-Conviction Petition” at the top of the first three pages and the words

“PostConviction Petition” at the top of the remaining pages. The circuit court, however, dismissed

the petition for failing to comply with the requirements of section 122-1(d). The appellate court

reversed, holding that “[a] pro se defendant's notation in the heading that a petition is an Illinois

post-conviction petition adequately informs the circuit court that the petition is being filed pursuant

to section 122-1 of the Act.” Id. at 880.

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¶ 21 More recently, in Weber¸ the appellate court discussed McDonald and held that a pro se

pleading which was entitled “Petition for Relief From Judgment Pursuant to 735 ILCS 5/2-1401(f),”

but which included two footnotes requesting that the document be treated as filed under the

PostConviction Hearing Act if the defendant was found ineligible for relief under section 2-1401,

should be treated as a postconviction petition under the Act. See Weber, 2021 IL App (2d) 190841,

¶ 23.

¶ 22 In the case before us, the caption clearly indicated that the document was filed pursuant to

section 2-1401. Nowhere in the text of the document, neither in the heading, body, nor even a

footnote, does the defendant use the words “Post-Conviction Hearing Act” or include a citation to

725 ILCS 5/122-1 or any other section of the Act. Instead, the defendant would like us to conclude

that because he briefly referenced the “cause and prejudice” test that he intended the pleading to be

treated as a postconviction petition under the Act. Requiring circuit courts to scour pro se pleading

for references to legal theories appropriate for a postconviction petition in an effort to recharacterize

what is clearly labeled as a pleading under a different theory would run counter to the purposes of

section 122-1(d). See Stoffel, 329 Ill. 2d at 326 (“ ‘[I]f a petitioner files a section 2-1401 petition, it

is neither the concern nor the duty of the trial court to search through it (typically, like the present

case, consisting of multiple pages of legalistic rumblings) to determine whether the petitioner could

possibly have stated a basis for proceeding under the Act.’ ” (Emphasis in original.) (quoting People

v. Sturgeon, 272 Ill. App. 3d 48, 55 (1995) (J. Steigmann, specially concurring)). Accordingly, we

reject the defendant’s contention and conclude that the circuit court’s decision not to recharacterize

the pleading is beyond review.

¶ 23 Having concluded that the defendant’s petition did not need to be reconsidered under the

Post-Conviction Hearing Act, we now consider the merits of the petition under section 2-1401 of the

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Code of Civil Procedure. Section 2-1401 establishes a comprehensive statutory procedure for the

vacatur of a judgment older than 30 days. People v. Vincent, 226 Ill. 2d 1, 7 (2007). Section 21401

is a civil remedy but is applicable to both civil and criminal cases. Id. at 8. In criminal cases, a section

2-1401 petition for relief from judgment is the forum for correcting all errors of fact occurring in the

prosecution of a cause, unknown to the defendant and the court at the time judgment was entered,

which, if then known, would have prevented its rendition. People v. Haynes, 192 Ill. 2d 437, 461

(2000). A petitioner is entitled to relief from final judgment if he can set forth specific factual

allegations supporting three elements: (1) the existence of a meritorious defense; (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. Warren County Soil and Water Conservation District v.

Walters, 2015 IL 117783, ¶ 37. Generally, when the circuit court rules on the merits of a section 2-

1401 petition, we review the circuit court’s ruling for an abuse of discretion. Id. However, where the

circuit court either enters judgment on the pleadings or dismisses a complaint sua sponte, the

question is a matter of law which we review de novo. Id. ¶ 47.

¶ 24 The State argues that the defendant’s petition was untimely. The defendant responds that the

State has waived its timeliness argument. Generally, section 2-1401 petitions are subject to a two

year statute of limitations. 735 ILCS 5/2-1401(c) (West 2020). However, timeliness is an affirmative

defense that can be waived or forfeited. People v. Cathey, 2019 IL App (1st) 153118, ¶ 16.

Application of the limitations period requires a court to make factual determinations because

exceptions are allowed for delays attributable to disability, duress, or fraudulent concealment. Id. At

¶ 18. When the State forfeits the timeliness defense by not answering the petition, it deprives the

defendant of an opportunity to amend the petition to properly allege facts demonstrating timeliness.

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Id.. Accordingly, in the absence of an objection or response by the State raising the timeliness issue,

it is improper to dismiss a section 2-1401 petition for untimeliness. Id. ¶ 19.

¶ 25 The State acknowledges that it did not file a response to the defendant’s petition disputing

its timeliness. The State also acknowledges that cases like Cathey have held that the failure to do so

forfeits the challenge. Nevertheless, the State argues that waiver and forfeiture are limitations on the

parties, not the jurisdiction of the reviewing court. See People v. Medina, 221 Ill. 2d at 394, 402

(2006). We conclude that just as it would be inappropriate for the circuit court to sua sponte dismiss

a petition as untimely, it would be inappropriate for this court to allow the State to raise the argument

for the first time on appeal. See Cathey, 2019 IL App (1st) 153118, ¶ 19. In neither situation would

the defendant have an opportunity to amend his pleadings to address the timeliness issue.

Accordingly, we will honor the State’s forfeiture and will not consider the timeliness of the

defendant’s section 2-1401 petition.

¶ 26 Moving to the substance of the defendant’s petition, the defendant argues that he has a

meritorious claim because his 40-year sentence violates the proportionate penalties clause. The State

argues that we need not reach this constitutional issue because the defendant’s guilty plea waived

any challenge, including constitutional challenges, to his conviction and sentence. We believe two

recent cases, People v. Jones, 2021 IL 126432, and People v. Aceituno, 2022 IL App (1st) 172116,

are key to our resolution of this issue. However, before reaching those cases, some background is

necessary.

¶ 27 The sentencing of juvenile and youthful defenders has been evolving in this country. See

Aceituno¸ 2012 IL App (1st) 172116 ¶ 17. The United States Supreme Court has, over the last several

years, restricted the sentences constitutionally available for youthful offenders accused of murder

and other serious offenses. Id. In 2005, the Court began by holding that the death penalty cannot be

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imposed upon juvenile offenders. Roper v. Simmons, 543 U.S. 551, 575 (2005). The Court reasoned

that juveniles (1) lack maturity and a sense of responsibility, (2) are more susceptible to negative

influence, and (3) do not have fully formed character. Id. at 569. In Graham v. Florida, 560 U.S. 48

(2009), the Court applied Roper’s reasoning to bar the imposition of natural life sentences on

nonhomicide juvenile offenders. See id. at 75 (“A State is not required to guarantee eventual freedom

to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give

defendants like Graham some meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.”). The Court subsequently applied the reasoning of Roper and Graham

to juvenile homicide defendants, holding that the eighth amendment forbids a sentencing scheme

that mandates life in prison without possibility of parole for juvenile offenders. Miller v. Alabama,

567 U.S. 460 479-80 (2012) (“Although we do not foreclose a sentencer's ability to make that

judgment in homicide cases, we require it to take into account how children are different, and how

those differences counsel against irrevocably sentencing them to a lifetime in prison.”). In

Montgomery v. Louisiana, 577 U.S. 190, 212 (2016), the Court gave Miller retroactive effect.

¶ 28 In light of the Roper-to-Montgomery line of cases the Illinois Supreme Court has developed

its own evolving jurisprudence regarding lengthy sentences for juvenile defendants. See Aceituno, ¶

18 (collecting cases following the development of Miller-related sentencing claims). In People v.

Reyes, 2016 IL 119271, ¶¶ 9–10, the court held that a sentence that is the functional equivalent of

life without parole is a de facto life sentence violates Miller. In People v. Buffer, 2019 IL 122327, ¶

40, our supreme court determined that a sentence greater than 40 years constitutes a de facto life

sentence for the purpose of a Miller challenge.

¶ 29 Like juveniles, young adult defendants have also sought protection from lengthy sentences.

In People v. Harris, 2018 IL 121932, our supreme court considered whether the Miller line of cases

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also applies to young adult defendants. The court concluded that for purposes of the eighth

amendment the age of 18 marks the line between juveniles and adults. Id. ¶ 61. The court did not,

however, completely foreclose an as-applied claim for young adult defendants under the

proportionate penalties clause of the Illinois Constitution, holding instead that, in that case, the

question was fact-specific and better suited to a challenge under the Post-Conviction Hearing Act.

Id. ¶ 48.

¶ 30 Having examined the landscape of challenges to lengthy sentences for juvenile and young

adult offenders, we return to the cases most closely related to the question before us.

¶ 31 In Jones, a 16-year-old defendant was charged with multiple felonies, including the murder

of two individuals. To avoid the mandatory life sentence in effect at that time, the defendant pleaded

guilty to a single count of murder, one count of residential burglary, and two counts of armed robbery.

The defendant agreed to a 50-year term for the murder, with consecutive lesser terms on the other

counts. The defendant did not seek to withdraw his guilty plea or appeal from that judgment. He

later filed a postconviction petition that did not include a claim that his sentence violated the eighth

amendment. That petition was denied after an evidentiary hearing. Ultimately, he filed a pro se

successive postconviction petition arguing that his sentence was unconstitutional under Miller,

Graham, and Roper. The circuit court denied the defendant leave to file his petition and he appealed.

The appellate court affirmed, and the defendant filed a petition for leave to appeal in the supreme

court. The supreme court entered a supervisory order directing the appellate court to vacate its

judgment and reconsider its decision in light of Buffer. The appellate court again affirmed on remand,

reasoning that the defendant’s fully negotiated guilty plea effectively waived an eighth amendment

challenge.

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¶ 32 Relying on two federal court decisions, Brady v. United States, 397 U.S. 742 (1970), and

Dingle v. Stephenson, 840 F.3d 171 (4th Cir. 2016), our supreme court affirmed the appellate court’s

decision on remand. In Brady, the defendant pled guilty to avoid a potential jury trial where the death

sentence was possible. The Supreme Court held that his plea was voluntary and knowing even though

subsequent developments in the law rendered him ineligible for death. Brady, 397 U.S. at 757 (“We

find no requirement in the Constitution that a defendant must be permitted to disown his solemn

admissions in open court that he committed the act with which he is charged simply because it later

develops that the State would have had a weaker case than the defendant had thought or that the

maximum penalty then assumed applicable has been held inapplicable in subsequent judicial

decisions.”). In Dingle, the juvenile defendant pled guilty to avoid a possible death penalty and later

petitioned for habeas corpus relief arguing that his guilty plea was not voluntary because he was

coerced by the potential death sentence, which was later held unconstitutional for juveniles. The

district court dismissed his petition and the circuit court affirmed, holding that:

“Contracts in general are a bet on the future. Plea bargains are no different: a classic guilty

plea permits a defendant to gain a present benefit in return for the risk that he may have to

forego future favorable legal developments. Dingle received that present benefit— avoiding

the death penalty and life without parole—under the law as it existed at the time. Although

Roper, in hindsight, altered the calculus underlying Dingle's decision to accept a plea

agreement, it does not undermine the voluntariness of his plea.” Dingle, 840 F.3d at 175.

Our supreme court examined Brady and Dingle and rejected Jones’ arguments. The supreme court

reasoned:

“Because the principles that were considered and applied in Brady and Dingle operate here

with equal force, we conclude that petitioner's knowing and voluntary guilty plea waived any

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constitutional challenge based on subsequent changes in the applicable law.” Jones, 2021 IL

126432, ¶ 26.

¶ 33 More recently, in Aceituno, this court was called upon to apply Jones to a young adult case.

In that case, the defendant was 18 years old at the time of the offense. Before trial, the trial court

conducted a Rule 402 conference, and the defendant rejected a 45-year offer. The matter proceeded

to trial, but after the State presented two witnesses the defendant changed his plea to guilty.

Following a sentencing hearing, the trial court sentenced the defendant to a term of 48 years’

incarceration. The defendant moved to reconsider his sentence, and the trial court denied the motion.

The defendant appealed and his sentence was ultimately affirmed on appeal. See People v. Aceituno,

No. 1-01-3872 (2002) (unpublished order under Illinois Supreme Court Rule 23).

¶ 34 The defendant filed a postconviction petition, which was dismissed as frivolous and patently

without merit. The appellate court affirmed the dismissal. The defendant filed a successive

postconviction petition arguing that his 48-year sentence constituted a de facto natural life sentence

in violation of the eighth amendment and the proportionate penalties clause.

¶ 35 This court examined the Miller line of cases and the supreme court’s decision in Jones and

concluded that the defendant’s guilty plea barred his constitutional claims, holding, “since the

supreme court denied postconviction relief to a juvenile defendant, it is clear that the holding would

apply with equal force to defendant here, who was 18 years old at the time of the offense.” Aceituno,

2022 IL App (1st) 172116, ¶ 39. The Aceituno court rejected the defendant’s argument that Jones did

not apply because he had entered a blind plea. Id. ¶ 47. The court observed:

“The issue is not whether defendant's plea required him to first seek to withdraw his guilty

plea before challenging his sentence. But instead, the question raised in Jones is whether the

defendant waived his constitutional claim by entering a plea of guilty.” Id.

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¶ 36 We find Aceituno and Jones controlling. Here, the defendant entered into a voluntary and

knowing guilty plea, and he does not argue that the circuit court erred when it found that his plea

was voluntary and knowing. As a consequence, this plea waived all constitutional errors, including

the possibility of future changes in the law. See Jones, 2021 IL 126432, ¶ 26. Accordingly, the

defendant has waived any potential claim that his sentence violates the proportionate penalties

clause.

¶ 37 This conclusion notwithstanding, the defendant argues that the reasoning in Aceituno is

flawed and contrary to the Illinois Supreme Court's holding in People v. Lumzy, 191 Ill. 2d 182

(2000). We find the defendant’s reliance on Lumzy misplaced. In Lumzy the issue was whether the

defendant was required to move to withdraw his guilty plea before he could appeal his sentence. See

Id. at 184–85. The supreme court held that where the defendant agreed to plead guilty in exchange

for the State dropping other charges but there was no agreement regarding the length of the

defendant’s sentence, the defendant was not obligated to move to withdraw his plea before appealing

the sentence. Id. at 187. Although there is some factual similarity between the pleas entered by the

defendant and the Lumzy defendant, there is no reason for this court to conclude that Aceituno is

inapplicable. Lumzy did not discuss postjudgment proceedings, it was concerned only with the

procedures required to directly appeal the sentence imposed following a guilty plea. Moreover,

Aceituno clearly states the type of plea is irrelevant. See Aceituno, 2022 IL App (1st) 172116, ¶ 47

(“The issue is not whether defendant's plea required him to first seek to withdraw his guilty plea

before challenging his sentence. But instead, the question raised in Jones is whether the defendant

waived his constitutional claim by entering a plea of guilty.”). Therefore, we find no need to discuss

Lumzy further.

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¶ 38 The defendant also contends that he established due diligence because the admonishments

he received were improper. The defendant argues that because the admonishments did not

substantially comply with Illinois Supreme Court Rule 605(b) (eff. Aug. 1, 1992) and were

confusing, he has “reasonable cause” for the purposes of due diligence. We need not address this

argument because we have found that the defendant failed to allege a meritorious claim or defense.

See R&J Constr. Supply Co., Inc. v. Adamusik, 2017 IL App (1st) 160778, ¶ 11 (“If the petitioner

fails to allege the existence of a meritorious defense, the petition is properly denied, and due

diligence need not be addressed.”)

¶ 39 Because the defendant’s knowing and voluntary guilty plea waived all constitutional errors,

he has no meritorious claim or defense. Therefore, the circuit court did not err when it dismissed his

section 2-1401 postjudgment petition.

¶ 40 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 41 Affirmed.

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